COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOSTON, MA 02108 617 -292-5500
THE OFFICE OF APPEALS AND DISPUTE RESOLUTION
July 29, 2016
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In the Matter of OADR Docket Nos. 2011-025 & 026 Brockton Power Co., LLC File No. W207973 Brockton, MA ______
RECOMMENDED FINAL DECISION
INTRODUCTION
Environmental Justice is based on the noble principle “that no group of people, because of race, ethnicity, class, gender, or handicap [should] bea[r] 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 resources.”1 In the
Commonwealth, this principle has its foundation in the requirements of Title VI of the Federal
Civil Rights Act of 1964 (“Title VI”) and a 2002 Environmental Justice Policy that the predecessor agency of the Massachusetts Executive Office of Energy and Environmental Affairs
(“EEA”) issued to state agencies under its jurisdiction (“2002 EJ Policy”), including the
1 Environmental Justice Policy of the Massachusetts Executive Office of Environmental Affairs, now Energy and Environmental Affairs, October 9, 2002, at p. 3.
DEP on the World Wide Web: http://www.mass.gov/dep Printed on Recycled Paper
Massachusetts Department of Environmental Protection (“MassDEP” or “the Department”).2
The Department is required to follow the requirements of Title VI and the 2002 EJ Policy in performing its environmental protection duties, including when issuing permits pursuant to the
Department’s Air Pollution Control Regulations at 310 CMR 7.00.
In this case, a group of residents of the City of Brockton and the adjacent Towns of East and West Bridgewater (collectively “the Petitioners”) contend that the Department violated Title
VI and the 2002 EJ Policy in approving the construction and operation in Brockton of a 350- megawatt combined cycle natural gas fired electric generating facility (“the proposed Power
Plant”). Petitioners’ Appeal Notice in OADR Docket No. 2011-026, at pp. 1-9, 16-17. The
Department approved the proposed Power Plant on July 11, 2011 when it issued to the facility’s proponent, Brockton Power Co., LLC (“the Applicant”), a Conditional Approval of the Major
Comprehensive Plan Application (“the CPA”)3 pursuant to the Department’s Air Pollution
Control Regulations at 310 CMR 7.00. Id.4 The proposed Power Plant had been previously
2 See note 1 above, at p. 1. In November 2014, former Massachusetts Governor Deval Patrick issued an Executive Order on Environmental Justice (“Executive Order 552”), which required an update of the 2002 EJ Policy within the next sixty days and the development of a strategy by each Secretariat in the Executive Branch within 180 days thereafter. Ruling on Issue 4: Environmental Justice Claim, June 30, 2015 (“Interlocutory EJ Ruling”), at p.3. EEA drafted an updated EJ Policy for the Commonwealth and submitted the draft for public comment. To date, the updated EJ Policy has not been finalized. See http://www.mass.gov/eea/agencies/massdep/service/justice. Accordingly, the 2002 EJ Policy remains in effect.
3 In September 2015, prior to the commencement of the evidentiary Adjudicatory Hearing in this case, the Department filed a redlined version of the CPA setting forth “revisions to the [CPA] based upon updated information given by the parties in . . . . the pre-filed direct testimony of [their] witnesses [who testified at the Hearing].” Department’s Request to File Draft Revised Permit for Cross Examination Purposes at Hearing, September 24, 2015 (“Department’s Motion to File Revised CPA”), at p. 2. Accordingly, the term “CPA” in this Recommended Final Decision means the original July 2011 CPA, as modified by the Department in September 2015.
4 The Petitioners’ appeal challenging the CPA is OADR Docket No. 2011-026. The City of Brockton initially filed a separate appeal challenging the CPA, See OADR Docket No. 2011-025, which was consolidated with the Petitioners’ appeal of the CPA. The City subsequently reached a Settlement Agreement with the Applicant in February 2015. See below, at pp. 119, 125-126. Neither the Petitioners nor the Department, however, are signatories on the Settlement Agreement. Id. The Department supports the Settlement Agreement, contending that
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approved by the Commonwealth’s Energy Facilities Siting Board (“EFSB”) in 2009, and its decision was affirmed by the Massachusetts Supreme Judicial Court in 2014 in an appeal of the
EFSB’s decision brought by the Petitioners, the City of Brockton, and the Town of West
Bridgewater. City of Brockton v. Energy Facilities Siting Board, 469 Mass. 196 (2014)
(“Brockton I”); and Brockton Power Company, LLC v. Energy Facilities Siting Board, 469
Mass. 215 (2014) (“Brockton II”).5
In addition to the ESFB’s approval of the proposed Power Plant, the Applicant was required to obtain the Department’s approval of the facility through the CPA issued pursuant to the Department’s Air Pollution Control Regulations at 310 CMR 7.00. See below, at pp. 101-
152. Through this appeal, the Petitioners contend that the Department’s CPA approving the proposed Power Plant not only violates federal and state air pollution regulatory requirements,6 but also will have a discriminatory disparate impact on Brockton, and East and West
Bridgewater in violation of Title VI and the 2002 EJ Policy for the following reasons.
First, the Petitioners assert that Brockton “is a densely populated low-income community of color” and “[p]ower plants in Massachusetts are disproportionately located in communities of
the Agreement provides further justification for its issuance of the CPA, but the Petitioners feel otherwise, and, consequently, do not support the Agreement. Id.
5 The proposed Power Plant required the EFSB’s approval under G.L. c. 164, §§ 69G (“Section 69G”) and 69J1/4 (“Section 69J1/4”) because it is a proposed 350 MW electric generating facility. Under G.L. c. 164, §§ 69G (“Section 69G”) and 69J1/4 (“Section 69J1/4”), EFSB approval is required for any energy generating facility “designed for or capable of operating at a gross capacity of 100 megawatts or more, including associated buildings, ancillary structures, transmission and pipeline interconnections that are not otherwise facilities, and fuel storage facilities.” The EFSB’s approval of the proposed Power Plant is discussed further below, at pp. 31-33.
6 These requirements are the federal air quality impact modeling requirements at 40 CFR 51, App. W, § 8.3; Appendix A(8)(b) of the Department’s Air Pollution Control Regulations at 310 CMR 7.00; and the Department’s Noise Pollution Regulations and the Department’s Noise Policy. Petitioners’ Appeal Notice in OADR Docket No. 2011-026, at pp. 1-9, 11-16, 18-23.
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color and lower income communities.” Petitioners’ Appeal Notice in OADR Docket No. 2011-
026, at pp. 6, 7, 9, 11-23. According to the Petitioners:
[C]ommunities of color just comprise 9.4% of all communities in the state, [but] they are home to 29.6% of all active power plants. While low and medium low income communities together comprise 47.9% of all communities in the state, they are home to 66.7% of all power plants. In contrast, high income communities comprise 23.8% of all communities [in the state] but are home to only one power plant.
Id., at pp. 7-8. In support of their position, the Petitioners point to the fact that the proposed
Power Plant will be built “on Oak Hill Way in a small industrial park in southeastern Brockton,” which is bordered “on the west, north, and south [by] residential neighborhoods . . . less than one- quarter mile from the project site[] that EEA has designated as environmental justice neighborhoods” under the 2002 EJ Policy.7 The Petitioners further contend that “[t]he industrial park is bordered on the south by Westbridge Landing, a mobile home community in the Town of
West Bridgewater for persons 55 years of age and older[,] many of [whom] are lower-income retired persons.” Id., at p. 7. In addition, the Petitioners assert that the industrial park is located
“[w]ithin one-half mile of . . . Brockton's Edgar Davis Elementary School, which has a statistically significantly higher prevalence of asthma among its students as compared to the overall state prevalence.” Id. Lastly, the Petitioners contend that due to their health or age
7 The Commonwealth’s 2002 EJ Policy at p. 3 defines an “[e]nvironmental [j]ustice [p]opulation” 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.
The Policy defines : “Minority” as nonwhite or Hispanic, as self-identified on federal census forms; “Foreign born” as someone who is not a U.S. citizen at birth; and “Lacking English language proficiency” as a household without an adult proficient in English. Commonwealth’s 2002 EJ Policy, at p. 3.
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“[s]ome [of the Petitioners] and members of their families are particularly susceptible to the air pollution [that] the [proposed Power Plant will purportedly] spew into the air . . . .” Id., at p. 3.
The Applicant and the Department reject the Petitioners’ claim that the CPA is invalid.
They contend that the CPA comports with federal and state air pollution requirements and with both Title VI and the 2002 EJ Policy, and therefore, the CPA should be affirmed.
In September 2015, I conducted a three day evidentiary Adjudicatory Hearing
(“Hearing”) to resolve the Petitioners’ appeal of the CPA. The specific issues for resolution at the Hearing were the following:
(1) Whether the CPA complies with the requirements of Title VI?
(2) Whether the CPA complies with the requirements of the 2002 EJ Policy?
(3) Whether the Applicant’s use of Taunton National Weather Service Meteorological Data in its air quality impact modeling complies with the requirements of 40 CFR 51, App. W, § 8.3?
(4) Whether the Department properly acted in accordance with 310 CMR 7.00, Appendix A(8)(b), when it concurred with the Applicant that the benefits of the proposed Power Plant would outweigh its environmental and social costs?
(5) Whether the provisions in the CPA for sound or noise are consistent with the Department’s Noise Pollution Regulations at 310 CMR 7.108 and the Department’s Noise Policy, or is additional noise mitigation and monitoring required?
At the Hearing, the parties were represented by legal counsel and presented witnesses and documentary evidence in support of their respective positions in the case. A total of 15 witnesses testified and each witness was cross-examined under oath on the sworn Pre-filed
Testimony (“PFT”) that the witness had filed prior to the Hearing in support of the parties’
8 The Department’s Noise Pollution Regulations at 310 CMR 7.10 are part of the Department’s Air Pollution Control Regulations at 310 CMR 7.00 because noise pollution is a form of air pollution. See below, at pp. 132-141.
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respective positions in the case. The Hearing was stenographically recorded by a certified Court reporter retained by the Applicant at its expense, and the subsequent Hearing Transcript was made available to the parties following the Hearing, which assisted them in preparing their respective Closing Briefs in the case.
None of the Petitioners testified at the Hearing. Their witnesses were five experts in various fields:
(1) Dr. Kevin Curry, Professor of Biological Sciences at Bridgewater State University in Bridgewater, Massachusetts (“Dr. Curry”);
(2) Dr. Daniel Faber, Professor of Sociology and Public Policy and Urban Affairs at Northeastern University in Boston, Massachusetts (“Dr. Faber”);
(3) Dr. Jonathan Levy, Professor and Associate Chair, Department of Environmental Health at Boston University in Boston, Massachusetts (“Dr. Levy”);
(4) Dr. Noelle Selin, Associate Professor in the Institute for Data, Systems, and Society, and Department of Earth, Atmospheric and Planetary Sciences at the Massachusetts Institute of Technology (“MIT”) in Cambridge, Massachusetts (“Dr. Selin”); and
(5) Dr. Elizabeth A. Stanton, a Principal Economist at Synapse Energy Economics, Inc. in Cambridge, Massachusetts (“Dr. Stanton”).
The Applicant also called five expert witnesses at the Hearing:
(1) Theodore A. Barten, P.E. (“Mr. Barten”), a Massachusetts Professional Engineer9and a Managing Principal of Epsilon Associates, Inc. in Maynard, Massachusetts, an engineering and environmental consulting firm;
9 Professional Engineers are licensed by the Commonwealth’s Board of Registration of Professional Engineers and Professional Land Surveyors (“the Board”) and subject to vigorous licensing requirements by the Board. http://www.mass.gov/ocabr/licensee/dpl-boards/en/about-the-board.html. “Board members are members of the National Council of Examiners for Engineering and Surveying, which prepares national examinations for the regulated professions, develops uniform standards for comity registration among the states, and acts as a clearinghouse for the law enforcement activities of its member boards.” Id. The Board “establishes, monitors and enforces qualifying standards for the engineering and land surveying professions . . . to [e]nsure that persons practicing in these professions are competent to practice and are not endangering the life, health, safety and welfare of the public.” Id. According to the Board, it “applie[s] strict standards of education and experience for its licensees,
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(2) Elizabeth M. Hendrick, C.C.M. (“Ms. Hendrick”), an American Meteorological Society Certified Consulting Meteorologist and senior consultant at TetraTech in Westford, Massachusetts;
(3) Lisa Petraglia (“Ms. Petraglia”), Vice President of Economic Development Research Group in Boston, Massachusetts, a consulting firm that performs economic impact assessments in the energy and environmental fields;
(4) Dr. Peter A. Valberg (“Dr. Valberg”), the Principal of Gradient, an environmental consulting firm in Cambridge, Massachusetts; and
(5) Jonathan M. Winslow (“Mr. Winslow”), Vice President of Development for Advanced Power Services (NA), Inc. and the Applicant’s Project Manager.
The Department also called five expert witnesses at the Hearing. Its witnesses were
Department staff members who work principally in the Department’s main office in Boston or its
Southeast Regional Office in Lakeville, Massachusetts (“Lakeville”), which has geographic and regulatory jurisdiction over a number of municipalities in southeastern Massachusetts, including
Brockton, and East and West Bridgewater. The Department’s witnesses were:
(1) Thomas A. Cushing (“Mr. Cushing”), the Section Chief of the Air Quality Program in the Department’s Southeast Regional Office in Lakeville;
(2) Richard Friend (“Mr. Friend”), an Environmental Analyst IV in the Department’s Bureau of Water Resources (“BWR”) based in Boston;
(3) Jonathan E. Hobill (“Mr. Hobill), an Environmental Analyst VI in the Department’s BWR based in the Department’s Southeast Regional Office in Lakeville;
(4) Daniel M. Kamieniecki (“Mr. Kamieniecki”), an Environmental Engineer as well as in administering examinations in Fundamental Knowledge and Principles and Practice to determine a candidate’s competence to practice engineering and land surveying.” Id. The Board licenses Professional Engineers and land surveyors by conducting interviews, and oral and written examinations of license applicants to verify their qualifications. Id. The Board also takes disciplinary action against licensees for engineering or land surveyor practices that do not comport with established engineering or surveying standards. Id.
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in the Department’s Bureau of Air and Waste (“BAW”) based in the Department’s Southeast Regional Office in Lakeville; and
(5) Glenn M. Pacheco (“Mr. Pacheco”), an Environmental Analyst V in the Department’s BAW based in Boston, where he is responsible for reviewing and making recommendations on air quality impact assessments and dispersion modeling.
As discussed below, based on the voluminous testimonial and documentary evidence of the parties’ respective expert witnesses at the Hearing, I find that the Department properly issued the CPA. The CPA comports with the requirements of Title VI; the 2002 EJ Policy; the federal air quality impact modeling requirements at 40 CFR 51, App. W, § 8.3; Appendix A(8)(b) of the
Department’s Air Pollution Control Regulations at 310 CMR 7.00; and the Department’s Noise
Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy. See below, at pp. 11-152. Accordingly, I recommend that the Department’s Commissioner issue a Final
Decision affirming the CPA, as modified by the Department in September 2015.10
BACKGROUND
The proposed Power Plant is a 350-megawatt (“MW”) electric generating facility that will be powered by natural gas and located on a 13.2 acre parcel of land in the Oak Hill
Industrial Park in southeastern Brockton. CPA, at p. 8.11 The Oak Hill Industrial Park is an area of 70 acres specifically set aside for industrial facilities. Id. Under Brockton’s zoning ordinance, an electric generating facility is a permitted land use in this area. Id.
The site of the proposed Power Plant is surrounded: (1) on the north and east by warehouse space and industrial uses; (2) on the east by the Salisbury Plain River; (3) on the west
10 See note 3, at p. 2 above.
11 All page references to the CPA in this Recommended Final Decision are to the CPA as modified by the Department in September 2015.
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by a wooded buffer that separates the site from a heavily developed commercial area along
Route 28; and (4) on the south by Brockton’s wastewater treatment plant known as the
Advanced Water Reclamation Facility (“AWRF”), which discharges into the Salisbury Plain
River. CPA, at p. 8. Environmental Justice communities with low-income and/or minority populations are located: (1) 1,000 feet or .2 miles to the west of the proposed Power Plant; (2)
1,700 feet or .32 miles to the north; and (3) 2,100 feet or .4 miles to the east. Id. A senior/public housing complex is located 3,000 feet or .57 miles to the north of the site, and
Brockton’s Edgar Davis Elementary School is located 2,800 feet or .53 miles to the northeast.
Id.
The proposed Power Plant would generate electricity by means of a combustion turbine generator, a Heat Recovery Steam Generator, and a steam turbine generator. CPA, at p. 8. All hot exhaust gases from the combustion turbine generator would pass through the Heat Recovery
Steam Generator, which would use the heat from these gases to produce steam. Id. The steam would be fed to the steam turbine generator. Id.
Any waste heat generated by the steam turbine generator would be dissipated through a seven cell wet mechanical draft cooling tower at the facility. Id., at pp. 9-10. The cooling tower would use treated wastewater from Brockton’s AWRF as cooling water. Id. The proposed
Power Plant would use an annual average of 1.9 million gallons per day of treated wastewater from Brockton’s AWRF for cooling purposes. Id., at p. 48. “The cooling tower would be equipped with a midst/drift eliminator to minimize water drift losses and the associated particulate matter.” Mr. Cushing’s PFDT,12 at p. 3.
12 “PFDT” means Pre-filed Direct Testimony.
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FINDINGS
I. THE PETITIONERS’ BURDEN OF PROOF
At the Hearing, the Petitioners, as the parties challenging the Department’s issuance of the CPA, had the burden of proof on all issues for resolution in the appeal. In the Matter of
Pioneer Valley Energy Center LLC, Docket No. 2011-002, Recommended Final Decision (July
6, 2011), adopted by Final Decision (July 11, 2011), citing, In the Matter of Town of Freetown,
Docket No. 1991-103, Recommended Final Decision (February 14, 2001), adopted as Final
Decision (February 26, 2001). Specifically, the Petitioners had the burden of producing credible evidence at the Hearing in support of their position on each issue. Id. The resolution of each issue rested upon the preponderance of all the evidence presented at the Hearing. Id. It is well settled that:
[a] party in a civil case having the burden of proving a particular fact [by a preponderance of the evidence] does not have to establish the existence of that fact as an absolute certainty. . . . [I]t is sufficient if the party having the burden of proving a particular fact establishes the existence of that fact as the greater likelihood, the greater probability.
In the Matter of Palmer Renewable Energy, LLC, Docket No. 2011-021 and 022,
Recommended Final Decision After Remand, July 8, 2012 p. 10, citing, Massachusetts Jury
Instructions, Civil, 1, 14(d).
The relevancy, admissibility, and weight of evidence that all parties sought to introduce at the Hearing was governed by G.L. c. 30A, § 11(2) and 310 CMR 1.01(13)(h). Under G.L. c. 30A, § 11(2):
[u]nless otherwise provided by any law, agencies need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of
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serious affairs. Agencies may exclude unduly repetitious evidence, whether offered on direct examination or cross-examination of witnesses.
Under 310 CMR 1.01(13)(h), “[t]he weight to be attached to any evidence . . . rest[ed] within the discretion of the Presiding Officer. . . .” Speculative evidence was accorded no weight given its lack of probative value in resolving the issues in the case. In the Matter of Sawmill
Development Corporation, OADR Docket No. 2014-016, Recommended Final Decision (June
26, 2015), 2015 MA ENV LEXIS 63, at 84, adopted as Final Decision (July 7, 2015), 2015 MA
ENV LEXIS 62 (petitioners’ expert testimony “that pharmaceuticals, toxins, and other potentially hazardous material would be discharged from effluent generated by . . . proposed
[privately owned wastewater treatment facility] . . . was speculative in nature and not reliable”).
II. THE CPA COMPLIES WITH TITLE VI AND THE EPA’S TITLE VI REGULATIONS
A. The Requirements of Title VI and the EPA’s Title VI Regulations
Title VI is part of the landmark Civil Rights legislation that the U.S. Congress enacted in
1964 to outlaw discrimination in the U.S. based on race, color, religion, sex, or national origin.
Title VI provides that:
[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal assistance.
42 U.S.C. § 2000d; Ruling on Issue 4: Environmental Justice Claim, June 30, 2015
(“Interlocutory EJ Ruling”), at p. 9. Here, it is undisputed that the Department receives federal assistance from the United States Environmental Protection Agency (“EPA”), and, accordingly is subject to Title VI requirements. Interlocutory EJ Ruling, at p. 9.
Title VI authorizes federal agencies providing federal financial assistance to adopt
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regulations to enforce the statute. 42 U.S.C. § 2000d-1. In accordance with that authority, the
EPA has promulgated regulations at 40 CFR 7 to enforce Title VI requirements (“EPA’s Title VI
Regulations”) with respect to the EPA’s provision of federal financial assistance to state agencies or other entities. Id.13
Under EPA’s Title VI Regulations, a recipient of EPA financial assistance may not intentionally discriminate on the basis of race, color, national origin, or sex in administering any program receiving the assistance. 40 CFR 7.35(a). The Regulations also prohibit the siting of a facility in a community where there will be discriminatory effects (discriminatory disparate impact) on the community based on race, color, national origin, or sex. Interlocutory EJ Ruling, at p. 9, citing, 40 CFR 7.35(b), 7.35(c). Specifically, the EPA’s Title VI Regulations provide that:
[a] recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, national origin, or sex.
40 CFR 7.35(b). The Regulations also provide that:
[a] recipient shall not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program or activity to which this [regulation] applies on the grounds of race, color, or national origin or sex; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of this [regulation].
40 CFR 7.35(c).
13 The EPA first adopted its Title VI Regulations in 1972, two years after the agency’s creation. Nondiscrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency-Effectuation of Title VI of the Civil Rights Act of 1964, 38 Fed. Reg. 17968, 17969 (1973).
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The EPA’s Office of Civil Rights (“OCR”) is responsible for enforcing Title VI and the
EPA’s Title VI regulations. 40 CFR 7.20. Under the EPA’s Title VI Regulations, parties may file administrative complaints with the EPA’s OCR asserting Title VI violations against a recipient of EPA financial assistance, but recipients are also required to have “grievance procedures [in place] that assure the [recipient’s] prompt and fair resolution of [Title VI] complaints . . . .” 40 CFR 7.90(a). If a Title VI complaint is filed with the EPA’s OCR, the recipient of EPA financial assistance may lose the assistance if OCR determines that the recipient violated Title VI. 40 CFR 7.130. Only the federal financial assistance is impacted; a permit issued by a State agency found by OCR to have violated Title VI requirements is not vacated. See 40 CFR 7.130.
B. The Petitioners’ Right to Pursue Title VI Claims in this Administrative Appeal of the Department’s CPA
At the outset of this administrative appeal, the Department sought dismissal of the
Petitioners’ Title VI claims, contending that the Office of Appeals and Dispute Resolution
(“OADR”) lacks jurisdiction to adjudicate the claims based on the 2001 Final Decision in
Refusetech.14 Department’s Motion to Dismiss [Petitioners’] Environmental Justice and Title VI
Claims (November 10, 2011) (“Department’s Motion to Dismiss”), at pp. 14-15. In Refusetech, a Ten Citizens Group and 12 individuals (collectively “the appellants”) asserted a Title VI disparate impact discrimination claim in an administrative appeal challenging the Department’s issuance of an air permit to the applicant in that case for a municipal waste combustor that it operated in North Andover, Massachusetts. Relying on the U.S. Supreme Court’s decision in
14 In the Matter of Massachusetts Refusetech, Inc., Docket No. 99-126, Recommended Final Decision (June 26, 2001), 2001 MA ENV LEXIS 174, adopted as Final Decision (August 1, 2001).
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Alexander v. Sandoval, 532 U.S. 275 (2001), the Hearing Officer in Refusetech recommended to the Department’s then Commissioner that the petitioners’ Title VI claim be dismissed for lack of jurisdiction. 2001 MA ENV LEXIS 174, at 16, 25, 40-48. The basis of the Hearing Officer’s recommendation was that Alexander held that Title VI does not authorize a private right of action to enforce disparate impact discrimination regulations promulgated by federal agencies pursuant to Title VI. Id. The Department’s then Commissioner agreed with the Hearing
Officer’s recommendation and issued a Final Decision dismissing the appellants’ Title VI claims for lack of jurisdiction. Id.
Here, the prior Presiding Officer responsible for adjudicating this case15declined to follow Refusetech and denied the Department’s Motion to Dismiss the Petitioners’ Title VI claims. Interlocutory EJ Ruling, at pp. 16-24. I concur with the prior Presiding Officer’s ruling for the following reasons.
First, Alexander, upon which Refusetech relies, “governs . . . access to federal courts” to enforce disparate impact discrimination regulations promulgated by federal agencies pursuant to
Title VI and not an administrative appeal such as this case which “arises in a different context.”
Interlocutory EJ Ruling, at p. 17. In the words of the late Justice Antonin Scalia who authored the U.S. Supreme Court’s majority opinion in Alexander: “[Alexander] present[ed] the question whether private individuals may sue to enforce disparate-impact regulations promulgated under
Title VI of the Civil Rights Act of 1964.” Alexander, 532 U.S. at 278. In this case, “the
[Petitioners’] . . . [Title VI] claim aris[e] within the context of a challenge [to] the
[Department’s] CPA by aggrieved persons under the Department’s regulations . . . .”
15 The prior Presiding Officer, Pamela D. Harvey, retired from State service on June 30, 2015.
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Interlocutory EJ Ruling, at p. 17. “The Department’s factual and legal basis for its determination that a permit complies with applicable regulatory standards typically may be challenged in [an evidentiary Adjudicatory Hearing in administrative appeal filed with OADR challenging the permit].” Id., at pp. 17-18.
Second, in my view, Refusetech did not give sufficient consideration to the appellants’ claim that the Department’s lack of a formal Title VI Complaint Policy in contravention of the
EPA’s Title VI Regulations left the appellants with no effective administrative remedy with the
Department to assert their Title VI disparate impact discrimination claim except in their administrative appeal challenging the Department’s air permit in that case. Refusetech, 2001
MA ENV LEXIS 174, at 44-48. In the appellants’ words: “the Department has not promulgated regulations regarding Title VI compliance [and] denying jurisdiction to adjudicate Title VI claims based on the absence of such regulations would ‘punish the victims of DEP’s inaction on environmental justice.’” Id., at 44. Putting aside whether the appellants in Refusetech had a meritorious Title VI claim against the Department, their point that they had no administrative remedy with the Department to pursue the claim except in their administrative appeal challenging the Department’s air permit was meritorious in light of the absence of a formal Title
VI Complaint Policy at the Department. Moreover, the Department was required by the EPA’s
Title VI Regulations to have such a Policy in place. For these reasons, and also because the prior
Presiding Officer in this case noted that the Department does not have a formal Title VI
Complaint procedure, I agree with the prior Presiding Officer that “[i]n absence of [a] formal
[grievance] procedur[e]” of the Department to resolve Title VI complaints, “this appeal [should] allo[w] . . . the [Petitioners] . . . to challenge the Department’s [Title VI] finding in the CPA that
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any impacts [from the proposed Power Plant] would be de minimis, i.e., that there will be no legally significant adverse impact and therefore no disparate impact [in violation of Title VI].”
Interlocutory EJ Ruling, at p. 22. This appeal has provided the Petitioners with “a formal opportunity . . . to file testimony that incorporates their [Title VI] concerns and for the
Department’s Commissioner to ultimately confirm whether or not the environmental justice population will be adversely affected by [the] impacts [of the proposed Power Plant].” Id.16
Lastly, Refusetech is distinguishable because it was decided one year prior to the issuance of the 2002 EJ Policy. The Policy, which is discussed in detail below in Section III (pp.
83-101), was issued by EEA’s predecessor agency, the Executive Office of Environmental
Affairs (“EOEA”),17 to make “environmental justice . . . an integral consideration to the extent applicable and allowable by law in the implementation of all [EOEA, and later EEA] programs, including but not limited to, the grant of financial resources, the promulgation, implementation and enforcement of laws, regulations, and policies . . . .” 2002 EJ Policy, at p. 4. The Policy was intended “to reinforce and enhance [the] efforts [of EOEA and its agencies, including the
Department], to meet the existing legal mandates [of] Title VI[.]” 2002 EJ Policy, at p. 4;
Interlocutory EJ Ruling, at p. 7. Indeed, the Policy incorporated by reference “[t]he legal requirements of Title VI [and the EPA’s Title VI Regulations],” including those at 40 CFR
7.35(b) and 7.35(c) barring disparate impact discrimination by EOEA agencies, specifically any
16 As part of his review of this Recommended Final Decision, I recommend that the Department’s Commissioner issue a directive clarifying whether an administrative appeal with OADR challenging Department action based on Title VI requirements is the Department’s formal Title VI Complaint Procedure or whether another procedure should be followed.
17 In April 2007, the Legislature created EEA, and placed within EEA, the former EOEA and its agencies, including the Department, “and two energy-related agencies, the Department of Public Utilities (under which the [EFSB] is organized, see G. L. c. 164, § 69H) and the Department of Energy Resources . . . .” Brockton 1, 469 Mass. at 199, n.9.
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action by an EOEA agency “deeming a site suitable [f]or locating a facility where it will have discriminatory effects on the basis of race, color, or national origin.” 2002 EJ Policy, at p. 4.
The Policy also requires EEA agencies, including the Department, to “identify and promote . . . rulemakings or other actions intended to further environmental justice in the Commonwealth.”
2002 EJ Policy, at p. 7 (¶ 11). Adopting a rule that allows parties to pursue a Title VI claim in an administrative appeal challenging a Department issued permit on the ground that it is discriminatory in violation of Title VI furthers environmental justice, especially where clarification is needed regarding the procedure to be followed at the Department to review and resolve a Title VI claim in accordance with the EPA’s Title VI Regulations.18
The Department’s reliance on certain disclaimer language in the 2002 EJ Policy to support its contention that Title VI claims cannot be pursued in administrative appeals before
OADR is unavailing. See Department’s Motion to Dismiss, at p. 15. The disclaimer language at issue provides that:
[the] [P]olicy is intended only to improve the internal management of [EEA] agencies and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against [EEA], its agencies, its officers, or any person. [Additionally, the Policy provides that it] shall not be construed to create any right to judicial review involving the compliance or noncompliance of [EEA], its agencies, its officers, or any other person with [the] policy.
2002 EJ Policy, at p. 12; Interlocutory EJ Ruling, at p. 16. “[This] disclaimer [language] specifically refers to appeals to court [seeking judicial review] to challenge agency actions.”
Interlocutory EJ Ruling, at p. 16. “An administrative appeal [before OADR of a Department permit] provides a de novo review of a challenged agency action, so that the [Department’s]
18 See note 16 above, at p. 16.
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Commissioner may determine final agency action.” Id. Additionally, in the Petitioners’ prior unsuccessful appeal to the SJC challenging the EFSB’s approval of the proposed Power Plant, the SJC rejected the EFSB’s and the Applicant’s claim that the same disclaimer language precluded the SJC’s judicial review of the EFSB’s decision approving the proposed Power Plant.
Brockton I, 469 Mass. at 202-03.
The SJC rejected the EFSB’s and the Applicant’s claim because Section 69J1/4, the statute governing the EFSB’s authority to review and approve the construction of the proposed
Power Plant, requires the EFSB:
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 such energy policies as are adopted by the commonwealth for the specific purpose of guiding the decisions of the [EFSB],” and also that the [Commonwealth’s 2002] EJ policy is among the “environmental protection policies of the Commonwealth.” [Accordingly,] [i]t follows, therefore, that the [EFSB’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 § 69J1/4, fifth par.
Id. The SJC’s reasoning applies with equal force to the Department’s issuance of Air Permits pursuant to 310 CMR 7.00 because the requirements of the 2002 EJ Policy, including the EPA’s
Title VI Regulations that the Policy incorporated by reference, apply to all of the Department’s regulatory activities. Thus, it follows that the Department’s application of the 2002 EJ Policy in issuing an Air Permit pursuant to 310 CMR 7.00 is subject to both de novo review in an administrative appeal before OADR challenging the Permit and judicial review in Court if the
Department’s Commissioner issues a Final Decision in the appeal upholding the Permit.
C. The Petitioners’ Title VI Claims Fail on the Merits.
According to the Petitioners, their “Title VI claims against [the Department] fall under
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the disparate impact/effects theory, according to which discrimination will be established if: 1)
[the Department] uses a facially neutral practice that has a disparate impact/effect on the
Petitioners; and 2) there is no ‘substantial legitimate justification’” for the practice.” Petitioners’
Closing Brief, at p. 27. The Petitioners contend that “[e]ven if [the Department] shows that it has a substantial legitimate justification, discrimination will be established if there are ‘equally effective alternatives’ that would result in less disproportionality.” Id., at pp. 27-28. The
Petitioners contend that ”[t]he preponderance of evidence presented [at the Hearing] shows that
[the Department’s] practice, specifically the issuance of the [CPA], will have a disparate impact on the Petitioners, for which there is no substantial legitimate justification, and for which there are equally effective alternatives.” Id., at p. 28. As fully discussed below, I disagree with the
Petitioners that they have proven a Title VI disparate impact discrimination claim against the
Department.
1. The Presumptive Protective Nature of the NAAQS Under the EPA’s 2000 Draft Guidance for Evaluating Disparate Impact Discrimination Claims
In 2000, the EPA “issued [a] draft guidance for recipient agencies involved in environmental permitting on Title VI compliance and on Title VI investigations by [the] EPA.”
Interlocutory EJ Ruling, at p. 10, citing, Draft Title VI Guidance for EPA Assistance Recipients
Administering Environmental Permitting Programs and Draft Revised Guidance for
Investigating Title VI Complaints Challenging Permits. 65 Fed. Reg. 39650, 39667-39687
(June 27, 2000) (“the Draft EPA Guidance”). The Draft EPA Guidance is useful in evaluating the Petitioners’ Title VI disparate impact discrimination claim against the Department’s CPA because the Guidance “is intended to provide a framework for [the EPA’s OCR] to process
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[Title VI] complaints . . . alleging discriminatory effects resulting from the issuance of pollution control permits by recipients of EPA financial assistance.” 65 Fed. Reg 39650, 39668. “[T]his guidance provides a detailed framework explaining how OCR intends to process and investigate allegations about discriminatory effects resulting from environmental permitting decisions[.] . . . ” 65 Fed. Reg. 39650, 39668.
The Draft EPA Guidance provides that “[i]n order to find a recipient in violation of the discriminatory effects standard in [the] EPA’s Title VI implementing regulations, OCR would determine whether the recipient’s programs or activities have resulted in an unjustified adverse disparate impact.” 65 Fed. Reg. 39650, 39670. In making this determination, “OCR would assess whether the impact is both adverse and borne disproportionately by a group of persons based on race, color, or national origin, and, if so, whether that impact is justified.” Id.
The Draft EPA Guidance sets forth the following “Potential Steps for Conducting
Adverse Disparate Impact Analyses” under Title VI:
1. Assess Applicability: Determine the type of permit action at issue (i.e., new permit, renewal, modification). Generally, OCR will not initiate an investigation [of a Title VI Complaint] where the permit that triggered the complaint is a modification, such as a facility name change or a change in a mailing address, that does not involve actions related to the stressors identified in the complaint. . . .
2. Define Scope of Investigation: Determine the nature of stressors, sources of stressors, and/or impacts cognizable under the recipient's authority; review available data; determine which sources of stressors should be included in the analysis; and develop a project plan.
3. Conduct Impact Assessment: Determine whether the activities of the permitted entity at issue, either alone or in combination with other relevant sources, are likely to result in an impact.
4. Make Adverse Impact Decision: Determine whether the estimated risk or
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measure of impact is adverse. If the impact is not adverse, the allegation will not form the basis of a finding of non-compliance with EPA's Title VI regulations and will be closed. If the permit action clearly leads to a decrease in adverse disparate impacts, it is not expected to form the basis of a finding of a recipient's non-compliance with EPA's Title VI regulations and will be closed.
5. Characterize populations and conduct comparisons: Determine the characteristics of the affected population. Conduct an analysis to determine whether a disparity exists between the affected population and an appropriate comparison population in terms of race, color, or national origin, and adverse impact.
6. Make Adverse disparate impact decision: Determine whether the disparity is significant. If it is not significant, the allegation will not likely form the basis of a finding of non-compliance with EPA's Title VI regulations and will likely be closed.
Draft EPA Guidance, 65 Fed. Reg. 39650, 39676-84; Interlocutory EJ Ruling, at p. 10, n.6.
As noted above, the Draft EPA Guidance for conducting adverse disparate impact analysis for Title VI purposes calls for the recipient agency to make a determination whether the alleged discriminatory act has a significant adverse impact. Id. (emphasis supplied). If it finds that there is a significant adverse impact, the recipient agency must determine if the impact is disparate to an EJ community and if that disparate impact is justified. Id. (emphasis supplied). Finally, the recipient agency must determine if there is a less discriminatory alternative that will mitigate the significant adverse impact so that it is not disparate. Id.
The Draft EPA Guidance states that “benchmarks” can be used to determine if an adverse impact exists. 65 Fed. Reg. 39650, 39680. Specifically, the Guidance provides that
“OCR would first evaluate the risk or measure of impact compared to benchmarks for significance provided under any relevant environmental statute, EPA regulation, or EPA policy,” and that “[w]here the risks or other measure of potential impact meet or exceed a
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significance level, they generally would be recognized as adverse under Title VI.” Id.
These environmental benchmarks include whether a proposed facility’s air emissions will comply with the National Ambient Air Quality Standards (“NAAQS”) promulgated by the
EPA pursuant to the federal Clean Air Act (“CAA”), 42 U.S.C. §§ 7408, 7409 (2006). Id.
The CAA directs the 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.” Brockton I, 469 Mass. at 205, citing, 42 U.S.C. § 7408(a)(1)(A). Particulate matter or “PM” as it is commonly referred “is
. . . found in the air, including dust, dirt, soot, smoke, and liquid droplets.” http://www3.epa.gov/pmdesignations/faq.htm#0. “Particles can be suspended in the air for long periods of time. Some particles are large or dark enough to be seen as soot or smoke.
Others are so small that individually they can only be detected with an electron microscope.”
Id.
“Particles less than 2.5 micrometers in diameter (PM2.5) are referred to as ‘fine’ particles and are believed to pose the greatest health risks. Because of their small size (approximately
1/30th the average width of a human hair), fine particles can lodge deeply into the lungs.” Id.
“Sources of fine particles include all types of combustion activities (motor vehicles, power plants, wood burning, etc.) and certain industrial processes. Particles with diameters between 2.5 and 10 micrometers are referred to as ‘coarse.’ Sources of coarse particles include crushing or grinding operations, and dust from paved or unpaved roads. Other particles may be formed in the air from the chemical change of gases. They are indirectly formed when gases from burning
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fuels react with sunlight and water vapor. These can result from fuel combustion in motor vehicles, at power plants, and in other industrial processes.” Id.
According to the EPA, “[r]oughly one out of every three people in the United States is at a higher risk of experiencing PM2.5 related health effects. One group at high risk is active children because they often spend a lot of time playing outdoors and their bodies are still developing. In addition, . . . the elderly population [is often ] at risk. People of all ages who are active outdoors are at increased risk because, during physical activity, PM2.5 penetrates deeper into the parts of the lungs that are more vulnerable to injury.” Id.
The NAAQS, therefore, are health based standards established by EPA pursuant to the
CAA that are designed to preserve public health and protect sensitive populations, including persons suffering from asthma or cardiovascular disease, children, and the elderly with an adequate margin of safety in accordance with the statute. 42 U.S.C. § 7409(b); 40 C.F.R. Part 50
(2006). “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 . . . and recommendations of the Clean Air Scientific Advisory Committee, a seven-member, independent scientific review committee.” Brockton I, 469 Mass. at 205, citing, 42 U.S.C. §§ 7408(a)(2), 7409(d)(2). “The
EPA reviews and, if necessary, revises the NAAQS every five years.” Brockton I, 469 Mass. at
205, citing, 42 U.S.C. § 7409(d)(1). “The NAAQS are implemented, maintained, and enforced by the States under EPA-approved State implementation plans.” Brockton I, 469 Mass. at 205.
In the Commonwealth, the Department, “in the course of the permitting process for new emission sources, enforces NAAQS in part [through Appendix A of the Department’s Air
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Pollution Control Regulations at 310 CMR 7.00] by comparing total level of expected criteria pollutant (the sum of the background concentration and expected emissions from the new source) with the NAAQS.” Brockton I, 469 Mass. at 205-06.19
“The [CAA] requires [the] EPA to set two types of [NAAQS] standards: [1] primary standards, to protect public health, and [2] secondary standards, to protect the public against adverse environmental effects.”20 “The law requires that primary [NAAQS] . . . be ‘requisite to protect public health with an adequate margin of safety,’ including the health of people most at risk from PM exposure.” EPA NAAQS Summary Sheet, at p.1. “These include people with heart or lung disease, children, older adults and people of lower socioeconomic status.” Id.
“Secondary [NAAQS] . . . must be ‘requisite to protect the public welfare’ from both known and anticipated adverse effects [from PM].”21 Id.
“[The] EPA has set both an annual and a 24-hour [NAAQS] for PM2.5.” Id., at p. 2.
“These [two] standards work together to protect public health from harmful health effects from both long- and short term [PM] exposures.” Id. “The primary annual [NAAQS for PM2.5] is designed to protect against health effects associated with both long and short term exposure to
PM2.5.” Id. From 1997 to 2012, the primary annual NAAQS for PM2.5 was 15.0 micrograms per cubic meter (“µg/m3”). Id. In December 2012, the EPA lowered the standard to 12.0 µg/m3 after determining that 15.0 µg/m3 was not protective enough of public health as required by the
CAA. Id., at pp. 1-2. The EPA established the 12 µg/m3 standard after “review[ing] thousands
19 Appendix A is discussed further below, at pp. 101-152.
20 https://www3.epa.gov/airquality/particlepollution/2012/decfsstandards.pdf (“EPA NAAQS Summary Sheet”), at p.1.
21 The secondary NAAQS standards are intended to protect against decreased visibility, and damage to animals, crops, vegetation, and structures. Mr. Pacheco's PFDT, at p. 8.
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of studies[,] . . . includ[ing] more than 300 . . . epidemiological studies [performed from 2006 to
2012],” and after “consider[ing] analyses by agency experts, input from the independent Clean
Air Scientific Advisory Committee[,] . . . and extensive public comments.” Id., at p. 1. “An area will meet the [annual NAAQS] of 12.0 µg/m3] if the three-year average of its annual average
3 PM2.5 concentration (at each monitoring site in the area) is less than or equal to 12.0 µg/m .”
EPA NAAQS Summary Sheet, at p. 2.
“The primary 24-hour [NAAQS for PM2.5] is designed to work with the [primary] annual
[NAAQS] to provide supplemental health protection against short term [PM2.5] exposures, particularly in areas with high peak PM2.5 concentrations.” Id. The current 24-hour NAAQS for
3 PM2.5 is 35.0 µg/m and was established in 2006. Id. “An area meets the 24-hour [NAAQS] if the 98th percentile of 24-hour PM2.5 concentrations in one year, averaged over three years, is less than or equal to 35 μg/m3.” Id
The Draft EPA Guidance provides that:
[b]y establishing an ambient, public health threshold, the primary NAAQS contemplate multiple source contributions and establish a protective limit on cumulative pollution levels that should ordinarily prevent an adverse air quality impact on public health. Air quality that adheres to such standards (e.g. air quality in an attainment area) is presumptively protective of public health in the general population. If [a Title VI] investigation includes an allegation raising air quality concerns regarding a pollutant regulated pursuant to a primary NAAQS, and where the area in question is attaining that standard, the air quality in the surrounding community will generally be considered presumptively protective and emissions of that pollutant should not be viewed as “adverse” within the meaning of Title VI. However, if the investigation produces evidence that significant adverse impacts may occur, this presumption of no adverse impact may be overcome.
65 Fed. Reg. 39650, 39680 (emphasis supplied).
“The EPA’s Environmental Appeals Board has stated that ‘[i]n the context of an
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environmental justice analysis, compliance with the NAAQS is emblematic of achieving a level of public health protection that, based on the level of protection afforded by a primary NAAQS, demonstrates that minority or low-income populations will not experience disproportionately high and adverse human health or environmental effects due to exposure to relevant criteria pollutants.’” In the Matter of Palmer Renewable Energy, LLC, OADR Docket No. 2011-021 &
0122, Recommended Final Decision After Remand (July 9, 2012), 2012 MA ENV LEXIS 120, at 97, adopted in part, Final Decision (September 11, 2012), 2012 MA ENV LEXIS 113,22 citing, In re Shell Gulf of Mexico, Inc. and Shell Offshore, Inc., OCS Appeal Nos. 10-01 through 10-04 (“Shell”), slip. op. at 74, Order Denying Review in Part and Remanding Permits
(December 30, 2010).23 In another case involving a Title VI complaint filed with the EPA’s
OCR asserting that the Michigan Department of Environmental Quality violated Title VI in issuing an air permit to a private entity, the OCR “stated that the first inquiry [in a disparate impact complaint] is whether there is an adverse effect on the EJ community, and if not there can be no finding of a disparate impact[.] . . .” Interlocutory EJ Ruling, at p. 10, n.6, citing,
EPA File No. 5R-98-R5 (Select Steel Complaint). In that case, the OCR determined that “there was no adverse effect within the meaning of Title VI from the facilities emissions where they met the health-based NAAQS.” Id.; See also In Re Knauf Fiber Glass, GmbH, PSD Permit, No.
22 The Final Decision in Palmer adopted all findings and rulings of the Presiding Officer’s Recommended Final Decision After Remand except on the issue whether the petitioners in that case had standing to challenge the air permit at issue there. 2012 MA ENV LEXIS 113, at 1. The Final Decision is presently on appeal in Hampden Superior Court by the petitioners who seek judicial review of the Final Decision pursuant to G.L. c. 30A, § 14. See Ten Residents of the Commonwealth, et al. v. Massachusetts Department of Environmental Protection, et al., C.A. No. 1279-CV-00833, Hampden Superior Court.
23 The EAB’s decision in Shell may be accessed at http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/(Filings)/41B37138DABA5A54852578090072B80A/$File/Shell %20Gulf%20of%20Mexico.pdf.
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97-PO-06, PSD Appeal Nos. 99-8 through 99-72, U.S. EPA, Environmental Appeals Board, 9
E.A.D. 1 (March 14, 2000), 2000 EPA App. LEXIS 5, at 36-39; (petitioners’ appeal of
Prevention of Significant Deterioration (“PSD”) permit dismissed because emissions from proposed facility would not exceed the NAAQS and “the air quality within the area surrounding the proposed site would remain well within the levels determined to be healthful and environmentally acceptable”).
To sum up, since the EPA sets the NAAQS at levels to preserve public health and protect vulnerable populations, including persons suffering from asthma or cardiovascular disease, children, and the elderly, it is reasonable to conclude that if a proposed facility’s emissions are below the NAAQS, vulnerable populations should not suffer any adverse health effects from the proposed facility. Moreover, the EPA has established Significant Impact
Levels (“SILs”) for each criteria pollutant, including PM2.5. Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC), 72 Fed.
Reg. 54112, 54130, 54138-39; Mr. Barten’s PFDT, at p. 15, lines 21-22; p. 16, lines 1-2; Mr.
Cushing’s PFRT,24 p. 6, ¶ 23; Ms. Hendrick’s PFRT, at p. 11, lines 8-9; p. 21, lines 7-9; Mr.
Pacheco’s PFRT, p. 4, ¶ 10; Dr. Valberg’s PFRT, at p. 13, lines 11-12. SILs are numerical values determined by the EPA that are used to evaluate the impact a proposed source will have on the NAAQS. Id. The SILs are a small fraction of the NAAQS and emissions below the SILs are considered to be “de minimis.” Id. If a project’s impacts are below the SILS, the
24 “PRFT” means Pre-field Rebuttal Testimony.
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EPA considers a source to have an insignificant impact on air quality. Id.
However, while the Draft EPA Guidance provides that a proposed project meeting the NAAQS is considered “presumptively protective” of ambient air quality, “if an investigation produces evidence that significant adverse impacts may occur, this presumption of no adverse impact may be overcome.” 65 Fed. Reg. 39650, 39680. Hence, the NAAQS are rebuttable presumptive protective standards for ambient air quality that can be challenged, and even overcome, by a party in administrative appeal asserting a disparate impact discrimination claim under Title VI. See Shell (EPA regional office “clearly erred
[in] . . . rel[ying] solely on [permittee’s] demonstrated compliance with the then-existing annual NO2 NAAQS” because EPA’s agency head had recently proposed a new NO2
NAAQS based on “updated scientific evidence”); Brockton I, 469 Mass. at 207 (“[parties] may, of course, challenge the basis of a NAAQS standard set by the EPA and relied on by [a state permitting agency] in its statutory review [of a permit application]”). Nevertheless, as is the case with all rebuttable presumptions, the presumptive protective standards established by the NAAQS for ambient air quality “impos[e] on the party against whom [the standards are] directed the burden of production to rebut . . . that presumption” with probative evidence. Massachusetts Guide to Evidence, 2016 Ed., Article III, § 301(d). “If that party fails to come forward with [such] evidence to rebut . . . that presumption, the fact is to be taken by the fact finder as established.” Id.
In issuing its CPA approving the proposed Power Plant, the Department determined that the Applicant’s air quality modeling for the facility satisfied the EPA’s NAAQS standards for PM2.5, and as such, determined that the proposed facility would not have an
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adverse impact on the Brockton EJ community. See below, at pp. 29-58. In response, the
Petitioners attack the Department’s determination on two fronts. First, the Petitioners assert that the Applicant’s air quality modeling was inadequate and, as such, “casts doubt on the validity of [the Department’s] claim regarding [the proposed Power Plant’s] compliance
[with the NAAQS for PM2.5].” Petitioners’ Closing Brief, at p. 28. Second, the Petitioners assert that the proposed Power Plant’s compliance with the NAAQS for PM2.5 is not enough for the Department to demonstrate compliance with Title VI because in the Petitioners’ view: (a) the NAAQS for PM2.5 are not set at a “zero-risk” level, meaning that they do not eliminate all potential health risks from the facility’s emissions to the EJ communities in
Brockton; and (b) Brockton “[has] complexly overburdened environmental conditions
[which] cast substantial doubt on the [Department’s] contention that compliance with the
NAAQS means that there will be no adverse health impact on already-overburdened minority members of the EJ communities.” Petitioners’ Closing Brief, at pp. 28-29, 38-40.
For the reasons discussed below, the Petitioners did not prove their claims at the Hearing.
2. The Applicant Properly Performed Two Air Quality Modeling Studies Pursuant to 40 CFR Part 51, Appendix W, § 8.3 Demonstrating that the Proposed Power Plant Satisfies the NAAQS for PM 2.5.
a. The Requirements of 40 CFR Part 51, Appendix W, § 8.3
To address the regulatory application of air quality models for assessing criteria pollutants for permitting a new facility such as the proposed Power Plant, the EPA has issued a
Guideline on Air Quality Models (“the Guideline”), which is set forth in Appendix W to 40
CFR Part 51 (“Appendix W”). The Guideline specifies models and provides guidance for their
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use in estimating the air quality concentrations of criteria pollutants, assessing control strategies, and developing emission limits for sources of air emissions. Appendix W, Preface.
The method for obtaining “input data” for air dispersion modeling is addressed in
Section 8.3 of Appendix W (“Section 8.3”), which provides that:
[t]he meteorological data used as input to a[n] [air] dispersion model should be selected on the basis of spatial and climatological (temporal) representativeness as well as the ability of the individual parameters selected to characterize the transport and dispersion conditions in the area of concern. The representativeness of the data is dependent on: (1) the proximity of the meteorological monitoring site to the area under consideration; (2) the complexity of the terrain; (3) the exposure of the meteorological monitoring site; and (4) the period of time during which data are collected.
Appendix W, § 8.3(a). The Guideline states that “model input data are normally obtained either from the National Weather Service (NWS) or as part of a site specific measurement program.” Appendix, W, § 8.3(b). Among the recommendations for meteorological input selection, the Guideline states the following:
Five years of representative meteorological data should be used when estimating concentrations with an air quality model. Consecutive years from the most recent, readily available 5-year period are preferred. The meteorological data should be adequately representative, and may be site specific or from a nearby NWS station. Appendix W, § 8.3.1.2(a) (emphasis in the original). The Guideline also states: “If NWS data are judged to be adequately representative for a particular modeling application, they may be used.” Appendix W, § 8.3.2.2(a).
b. The Applicant’s Initial Air Modeling in 2010 Based on Meteorological Data from Logan Airport in Boston Demonstrated the Proposed Power Plant’s Compliance with the NAAQS for PM 2.5.
Utilizing the EPA approved Atmospheric Dispersion Modeling (“AERMOD”) analysis
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tool,25 the Applicant initially conducted its air modeling in 2010 for the proposed Power Plant by using meteorological data from a National Weather Service (“NWS”) monitoring station at
Logan Airport in Boston and determined that the relevant background annual concentration of
3 3 PM2.5 for the site of the facility was 9.9 µg/m or 5.1 µg/m less than the annual NAAQS limit at the time of 15.0 µg/m3. Brockton I, 469 Mass. at 206; Mr. Barten’s PFDT, at p. 14, lines 13-
15.26 The Applicant also determined that “[u]pon completion, the [proposed] facility would emit
3 approximately 85 [tpy] of PM2.5 pollutants, resulting in a 0.25 µg/m increase in the annual
3 PM2.5. These emissions represent[ed] a cumulative annual impact of 10.15 µg/m PM2.5, or about two-thirds of the annual NAAQS [limit of 15.0 µg/m3] . . . .” Brockton I, 469 Mass. at
206. These determinations were also the result of the Applicant having “conservatively . . . 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.” Id., at 206, n.22.
In issuing their respective permits approving the proposed Power Plant, both the EFSB and the Department accepted the Applicant’s air modeling determinations derived from the
Logan Airport meteorological data in concluding that the facility would satisfy the annual
NAAQS for PM2.5. Brockton I, 469 Mass. at 208-10; Petitioners’ Appeal Notice in OADR
Docket No. 2011-026, at pp. 11-16. The Petitioners challenged the EFSB’s and the
25 AERMOD was developed by the American Meteorological Society/EPA Regulatory Model Improvement Committee (“AERMIC”) as part of AERMIC’s charge “to introduce state-of-the-art modeling concepts into the EPA's air quality models.” http://www3.epa.gov/scram001/dispersion_prefrec.htm. “Through AERMIC, . . . AERMOD, was introduced [as a steady-state plume modeling system] that incorporate[s] air dispersion based on planetary boundary layer turbulence structure and scaling concepts, including treatment of both surface and elevated sources, and both simple and complex terrain.” Id. As discussed below, at pp. 32-58, the Applicant’s two AERMOD analyses of the site of the proposed Power Plant, first using meteorological data from Logan Airport and then data from the Taunton Municipal Airport, were sound.
26 3 3 In 2002, the EPA lowered the annual NAAQS for PM2.5 from 15.0 µg/m to 12 µg/m . Mr. Barten’s PFTD, at p. 15, lines 14-15.
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Department’s acceptance of that data, contending that the Applicant’s air modeling based on the
Logan Airport meteorological data “did not accurately and completely describe the [proposed] facility's impact [in violation of Appendix W, § 8.3], 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[.]” Brockton I, 469 Mass. at 208-09; Petitioners’ Appeal Notice in OADR Docket No. 2011-026, at pp. 11-16. They contended that Logan Airport is located approximately 20 miles from the site of the proposed Power Plant, and, as such, the Applicant should have used meteorological data from the Taunton Municipal Airport NWS monitoring station, “[which is located 12 miles from] the site of the proposed [facility] in Brockton and that in their view, “more closely approximate[d] meteorological conditions in Brockton.” Brockton I,
469 Mass. at 209; Petitioners’ Appeal Notice in OADR Docket No. 2011-026, at pp. 11-16.
Alternatively, they contended that the Applicant “should have gathered data itself specifically from the facility site.” Id.
The SJC rejected the Petitioners’ claims and affirmed the EFSB’s acceptance of the
Applicant’s Logan Airport meteorological data 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.’” Brockton I, 469 Mass. at
209. Also, the record of the EFSB’s proceedings“[showed] that no suitable meteorological data for the Brockton site were available,” and that “[n]othing in [the EFSB’s governing statute,
Section 69J1/4,] . . . require[d] the [EFSB] to use on-site meteorological data in its review of a petition [seeking approval of an energy generating facility] . . . .” Id., at 209-10.
The SJC also approved the Applicant’s use of the Logan Airport meteorological data
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because it was undisputed that at the time of the EFSB’s hearings on the Applicant’s petition for approval of the proposed Power Plant, the only data available from the Taunton Municipal
Airport NWS monitoring station (the Petitioners’ preferred monitoring station at the time),27
“failed to meet the EPA guidelines [in Appendix W § 8.3(a)] for air quality modeling data capture in four out of five years prior to [the Applicant’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.” Brockton I, 469
Mass. at 209. “Despite the inadequacy of the Taunton meteorological data, at [Brockton’s] request, [the Applicant] modeled data from 2005 (the single year for which the Taunton data met the EPA guidelines) for both the Taunton and Logan Airport sites.” Id. “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 annual or twenty-four hour thresholds set by the EPA.”
Id. Additionally, “the expected cumulative concentrations of criteria pollutants using Taunton data were below the NAAQS threshold.” Id. at 209, n. 26. “With respect to annual PM2.5, for example, models from both sites yielded nearly identical cumulative expected concentrations below the NAAQS . . . .” Id., at 209-10.
c. The Applicant’s Updated March 2015 Air Modeling Impact Report Utilizing Five Years (2002-2012) of Taunton Airport NWS Meteorological Data Demonstrated the Proposed Power Plant’s Compliance with the NAAQS for PM 2.5.
As discussed above, the Petitioners opposed the Applicant’s air modeling based on Logan
27 As discussed below, at pp. 33-58, the Petitioners have since changed their position regarding the use of meteorological data from the Taunton Municipal Airport NWS for air modeling.
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Airport meteorological data because, in their view, meteorological data from the Taunton Airport
NWS monitoring station, a site located 12 miles from the site of the proposed Power Plant, would generate a more accurate determination regarding whether the proposed facility satisfies the annual NAAQS for PM2.5. Brockton I, 469 Mass. at 208-10; Petitioners’ Appeal Notice in
OADR Docket No. 2011-026, at pp. 11-16. Indeed, in their Appeal Notice challenging the
Department’s CPA, the Petitioners contended that “Taunton Airport is closer to Brockton than
Logan Airport and presumably would have weather more like Brockton than Logan . . . .”
Petitioners’ Appeal Notice in OADR Docket No. 2011-026, at pp. 15-16.
Following the SJC’s decision in Brockton I approving the Applicant’s air modeling based on Logan Airport meteorological data, the Applicant updated its air modeling impact study of the proposed Power Plant to address new NAAQS that had been adopted by the EPA in 2012 when
3 3 it lowered the annual NAAQS for PM2.5 from 15.0 µg/m to 12.0 µg/m . Mr. Pacheco’s PFDT, at p. 3; Mr. Barten’s PFDT, at p. 15, lines 13-15. Relying once again on the EPA approved
AERMOD air modeling analysis tool and following the requirements of Appendix W, § 8.3, the
Applicant updated its air modeling impact study by utilizing five consecutive years (2008-2012) of meteorological data from the Taunton Airport NWS for air modeling that had become available28 and consequently presented an updated air modeling impact report to the Department in March 2015 that confirmed that the proposed Power Plant’s compliance with the new annual
3 NAAQS for PM2.5 of 12.0 µg/m . Mr. Barten’s PFDT, at p. 15, lines 13-15, 21-22; p. 16, lines 1-
19; p. 17, lines 1-11; Exhibits T-4, T-5, and TB-6 to Mr. Barten’s PFDT; Ms. Hendrick’s PFRT,
28 The Applicant chose the five year period of 2008-2012 because meteorological data for 2013 and 2014 from the Taunton Airport NWS was either incomplete or not available. Mr. Pacheco’s PFDT, at p. 5. The five years of meteorological data from 2008-2012 supplied over 43,000 hours of meteorological conditions for assessment by the Applicant using AERMOD. Ms. Hendrick’s PFRT, at p. 12, lines 12-16; Mr. Pacheco’s PFRT, at p. 3, ¶ 8.
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p. 4, lines 10-21; p. 5, lines 1-13; p. 6; Hearing Transcript, at pp. 343-47, 508; Mr. Pacheco’s
PFDT, at pp. 3-5; Mr. Pacheco’s PFRT, at pp. 2-3. The annual NAAQS for PM2.5 was estimated to be 7.7 µg/m3 or 64% of the annual limit of 12.0 µg/m3. Table 5.3-2, at p. 5-8 of Exhibit T-4 of
Mr. Barten’s PFDT.
At the Hearing, the Petitioners did not present an air modeling impact study of their own to counter the Applicant’s March 2015 updated air modeling impact report. They failed to present a counter study even though they had the evidentiary burden to rebut the presumptive protective nature of the NAAQS. Instead, as discussed below, the Petitioners, through one of their expert witnesses, Dr. Selin, made generalized and unsupported assertions that the
Applicant’s meteorological data from the Taunton Airport NWS was not reliable and should not be considered because in their view: (1) AERMOD is not a reliable air modeling analytical tool; and (2) the Taunton Airport NWS meteorological data was not representative of the site of the proposed Power Plant in Brockton. See below, at pp. 36-58; Petitioners’ Closing Brief, at pp. 32-37. The Petitioners made this contention notwithstanding that AERMOD is an EPA approved air modeling analytical tool and their earlier position that meteorological data from the
Taunton Airport NWS would be more reliable than meteorological data from Logan Airport to assess the air quality impacts of the proposed Power Plant.
For the reasons discussed below, the lack of a counter air modeling impact study to support Dr. Selin’s testimony, coupled with the persuasive testimony of the Applicant’s and the
Department’s respective expert witnesses, Ms. Hendrick, and Mr. Pacheco (refuting Dr. Selin’s testimony) leads to my finding that a preponderance of the evidence demonstrates that the
Applicant’s use of Taunton Airport NWS meteorological data in its March 2015 updated air
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quality modeling for the site of the proposed Power Plant was proper and complied with the requirements of Appendix W, § 8.3. The updated air quality modeling also supports my finding that emissions from the proposed Power Plant would comport with the annual and 24-hour
NAAQS limits for PM2.5.
d. The Applicant’s Use of AERMOD for its Air Modeling Impact Study Was Proper
(1) The Testimony of the Petitioners’ Witness, Dr. Selin, Challenging the Applicant’s Use of AERMOD
Dr. Selin is an Associate Professor in the Institute for Data, Systems, and Society and the
Department of Earth, Atmospheric, and Planetary Sciences at the Massachusetts Institute of
Technology (“MIT”) in Cambridge, Massachusetts. Dr. Selin’s Supplemental PFT, at p. 1, lines
1-5. She holds three degrees from Harvard University: (1) a Bachelor of Arts degree in
Environmental Science and Public Policy (2000), (2) a Master of Arts degree in Earth and
Planetary Science (2000), and (3) a Ph.D. in Earth and Planetary Science (2007). Dr. Selin’s
PFDT, at p. 1, lines 7-10. Although she has conducted research and written extensively on various topics, including atmospheric modeling in the air pollution field, Dr. Selin is not a meteorologist and has never used AERMOD, the EPA approved air modeling impact analytical tool that the Applicant used to predict the emissions from the proposed Power Plant, or a similar model to predict the contributions from a single new emissions source to ambient pollutant concentrations. Dr. Selin’s PFST,29 at p. 1, lines 10-14; Hearing Transcript, at p. 162, line 6; p.
163, lines 9-24; p. 164, line 1. She also did not prepare her own air impact modeling study of the proposed Power Plant to support her testimony and refute the findings of the Applicant’s March
29 “PFST” means Pre-filed Supplemental Testimony.
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2015 updated air modeling impact report. Nevertheless, at the Hearing, she attempted to discredit the report by questioning the Applicant’s use of AERMOD in conducting its air modeling studies for the proposed Power Plant.
Specifically, Dr. Selin testified that the Applicant’s updated March 2015 air quality modeling assessment does not accurately depict the potential air quality impacts on the residential areas surrounding the proposed Power Plant because, in her view, dispersion modeling such as AERMOD is intended to be used as a “screening tool” to identify the transport of atmospheric pollutants from a single source, and that “under real-world conditions, there are many other processes that can affect pollutant concentrations and air quality.” Dr. Selin’s PFDT, at p. 7, lines 14-20. She testified that in particular, dispersion modeling such as AERMOD does not incorporate many processes that might be expected to occur under “real–world” conditions.
Dr. Selin’s PFDT, at p. 7, lines 20-21. She testified that in the atmosphere, chemicals interact with each other, and that an important consideration in the real atmosphere is that chemical reactions can create pollutants of concern, such as PM and ozone. Dr. Selin’s PFDT, at p. 7, lines 21-23; p. 8, line 1. She testified that, for example, sulfur dioxide can form particulate atmospheric sulfate, an important component of atmospheric PM2.5, and that nitrogen oxides
(NOx) form particulate atmospheric nitrate, also a component of PM2.5. Dr. Selin’s PFDT, at p. 8, lines 1-3. She also testified that these secondary particulates can be significant and that in many areas of the country, they contribute a major fraction of total PM2.5. Dr. Selin’s PFDT, at p. 8, lines 3-5. She testified that atmospheric dispersion analysis tools such as AERMOD do not
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include these effects and thus would underestimate the air quality impacts of a particular project.
Dr. Selin’s PFDT, at p. 8, lines 5-6.
In addition, Dr. Selin testified that AERMOD is an unreliable air modeling tool because in her view the data inputs into the model are uncertain. Dr. Selin’s PFDT, at p. 6, lines 7-9. By way of example, she testified that the monitored wind speed may differ from the actual wind speed by plus or minus 30%. Dr. Selin’s PFDT, at p. 6, lines 9-10. She testified that inaccurate emissions assumptions that either over-estimate or under-estimate the PM2.5 released from a facility’s operations could also result in differences in predicted concentrations. Dr. Selin’s
PFDT, at p. 6, lines 10-12. She also contended that that AERMOD is unreliable because “a common assumption in the literature” is that dispersion models such as AERMOD are accurate within about a factor of two, and that one performance evaluation of AERMOD concluded that
AERMOD “is generally capable of capturing the important regulatory concentrations within a factor of 2 or better.” Dr. Selin’s PFDT, at p. 6, lines 17-20.
Dr. Selin testified that the Applicant’s two sets of air modeling results for the proposed
Power Plant using AERMOD (the first set based on meteorological data from the Logan Airport
NWS and the second based on meteorological data from the Taunton Airport NWS) have a greater degree of uncertainty (more than a factor of two) because, in her opinion, the model output for peak 24-hour concentrations of PM2.5 calculated by the two studies differed by 50%, and the concentrations showed a dramatically different pattern. Dr. Selin’s PFDT, at p. 7, lines
4-8. She testified that this purported difference in the results demonstrates the strong sensitivity to the input meteorological data, and suggests that using site-specific data could lead to at least a comparable difference in predicted concentrations. Dr. Selin’s PFDT, at p. 7, lines 8-10. She
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testified that another reason why in her view the Applicant’s updated March 2015 air modeling impact report is inaccurate is that emission estimates for model-measurement comparisons typically come from monitored emissions, whereas the Applicant’s analysis used emissions estimates, and the variability or uncertainty in these estimates could lead to additional differences. Dr. Selin’s PFDT, at p. 7, lines 10-13.
(2) The Testimony of the Applicant’s Witness, Ms. Hendrick, and the Department’s Witness, Mr. Pacheco, Effectively Refuted Dr. Selin’s Testimony Challenging the Applicant’s Use of AERMOD
The Applicant’s expert witness, Ms. Hendrick, and the Department’s expert witness, Mr.
Pacheco, provided persuasive testimony refuting Dr. Selin’s testimony asserting that AERMOD is just a “screening tool” and an unreliable air modeling tool. Their testimony supports the conclusion that AMEROD is a reliable air modeling methodology.
(a) Ms. Hendrick’s Testimony
Ms. Hendrick is an American Meteorological Society Certified Consulting Meteorologist
(“CCM”) with more than thirty years of consulting experience in the analysis of air quality and meteorological data and the development and application of air quality models for regulatory applications. Ms. Hendrick’s PFRT, at p. 2, lines 8-11. She holds a Bachelor of Science degree in Atmospheric Science and Mathematics from the University at Albany in New York (1983), and during the past 30 years she has participated in numerous air quality permitting projects and has performed dispersion modeling analyses for a number of entities, including independent power producers. Ms. Hendrick’s PFRT, at p. 2, lines 11-15.
Utilizing AERMOD, Ms. Hendrick prepared the Applicant’s updated March 2015 air modeling impact report that used the five years of meteorological data (2008-2012) from the
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Taunton Airport NWS. Hearing Transcript, at p. 332, line 24; p. 333, lines 1-12; Exhibit TB-4 to
Mr. Barten’s PFDT. She has also utilized AERMOD to evaluate air quality impacts of other significant power generation and combined heat and power projects for clients such as the
Braintree Electric Light Department, Dominion Power/Brayton Point, Montgomery Billerica
Power Partners, Harvard University’s Blackstone Plant in Cambridge, Massachusetts, and MIT.
Ms. Hendrick’s PFRT, at p. 2, lines 15-19; p. 3, line 1. In addition to applying a wide range of air modeling, her professional experience includes model development, evaluation, and training.
Ms. Hendrick’s PFRT, at p. 3, lines 3-4. She has also served as a subject matter expert reviewer on air quality and meteorology for the U.S. Nuclear Regulatory Commission, and is a member of a National Academy of Sciences’ Transportation Research Board’s Airport Cooperative
Research Program panel. Ms. Hendrick’s PFRT, at p. 3, lines 4-7. As part of her work, she has provided expert testimony on air quality modeling to the EFSB and has published and presented several papers at national conferences on the topic. Ms. Hendrick’s PFRT, at p. 3, lines 7-10.
With respect to Dr. Selin’s testimony questioning AERMOD’s reliability, Ms. Hendrick testified that AERMOD is not a “screening tool” as Dr. Selin contended, but rather, an EPA approved refined air quality dispersion model that considers not only transport of atmospheric pollutants, but also dispersion of the pollutants as they are transported into the atmosphere. Ms.
Hendrick’s PFRT, at, p. 16, lines 18-21; p. 17, lines 1-2. Ms. Hendrick also provided persuasive testimony refuting Dr. Selin’s contention that dispersion modeling such as AERMOD does not incorporate many processes that might occur under “real–world” conditions such as secondary
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PM2.5 formation. Ms. Hendrick’s PFRT, at, p. 17, lines 3-13; Mr. Pacheco’s PFDT, at p. 7; Mr.
Pacheco’s PFRT, at p. 4, ¶ 11.
Ms. Hendrick testified that in May 2014, the EPA issued a guidance document,
“Guidance for PM2.5 Permit Modeling,” which provides guidance on demonstrating compliance with the NAAQS for PM2.5 especially with regard to considerations of the secondarily formed
PM2.5. Ms. Hendrick’s PFRT, at, p. 17, lines 6-9. She testified that the guidance states that
“[the] [f]ormation of secondary sulfate and nitrate particulate is a fairly slow process with conversion rates taking many hours to days,” and “[t]hus, the peak secondary impacts are expected to occur well downwind of the peak primary impacts.” Ms. Hendrick’s PFRT, at, p. 18, lines 1-4. She testified that following the procedures in this guidance, the Applicant properly made a secondary PM2.5 assessment to demonstrate that the NAAQS for PM2.5 will be complied with by the proposed Power Plant. Ms. Hendrick’s PFRT, at, p. 17, lines 9-12; Exhibit TB-5 to
Mr. Barten’s PFDT. She testified that the assessment accounts for primary PM2.5 impacts and potential contributions from secondary PM2.5 due to precursor emissions from the proposed
Power Plant. Ms. Hendrick’s PFRT, at, p. 17, lines 9-13; Exhibit TB-5 to Mr. Barten’s PFDT.
She testified that the assessment also demonstrates that an estimate of the projected secondary formation of PM2.5 was computed and found to be a small contributor for the proposed Power
Plant. Ms. Hendrick’s PFRT, at, p. 17, lines 15-21; Exhibit TB-5 to Mr. Barten’s PFDT.
Specifically, the assessment demonstrates that an additional 1% of the direct PM2.5 modeled impact can be attributable to secondarily formed PM2.5. Ms. Hendrick’s PFRT, at, p. 17, lines
19-21; Exhibit TB-5 to Mr. Barten’s PFDT.
Regarding Dr. Selin’s testimony that inaccurate emissions assumptions in AERMOD
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may over-estimate or under-estimate the PM2.5 released from a facility’s operations, Ms.
Hendrick testified that the emission rates used in the modeling are not assumptions but rather are the guaranteed maximum emission rates from the facility which are enforceable and monitored through the Department’s air permit emission limits for the facility. Ms. Hendrick’s PFRT, at p. 12, lines 2-6.
With respect to Dr. Selin’s testimony that monitored wind speed may differ from the actual wind speed by plus or minus 30% and that this will impact emissions projections for a facility, Ms. Hendrick refuted Dr. Selin’s testimony by noting that the Applicant’s updated
March 2015 air modeling impact report assessed over 43,000 hours of historical meteorological parameters in the modeling, and that it was designed to assess worst-case impacts by incorporating many conservative assumptions in the modeling analysis. Ms. Hendrick’s PFRT, at p. 12, lines 12-16. She testified that Dr. Selin was erroneous in her contention that “real world processes” are poorly represented in air modeling such as AERMOD and that “real world variability” such as small scale atmospheric turbulence are not accounted for very well in the modeling. Ms. Hendrick’s PFRT, at p. 12, lines 17-19. She testified that contrary to Dr. Selin’s assertions, AERMOD specifically accounts for small scale turbulence induced downwash caused by nearby structures affecting the wind flow which, in turn, can affect the plume rise and the predicted concentrations. Ms. Hendrick’s PFRT, at p. 12, lines 19-21; p. 13, line 1.
As for Dr. Selin’s contention that AERMOD is unreliable because the Applicant’s two air modeling impact studies (the initial study using meteorological data from Logan Airport NWS in
Boston and the updated study using meteorological data from the Taunton Airport NWS) demonstrated a 50% difference in 24-hour PM2.5 concentrations, Ms. Hendrick refuted the
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contention by pointing out the following deficiencies in Dr. Selin’s testimony. Ms. Hendrick’s
PFRT, at p. 13, lines 3-21; p. 14, lines 1-17; p. 15, lines 1-15.
First, Ms. Hendrick noted that Dr. Selin did not specify which particular 24-hour PM2.5 concentrations she referred to that purportedly showed the 50% difference at issue. Ms.
Hendrick’s PFRT, at, p. 13, lines 14-15. She testified that it was likely that Dr. Selin was
3 comparing the 24-hour PM2.5 predicted impact of 0.61 µg/m set forth in Table 6.4-1 of the
Applicant’s 2010 Air Plan Application, which was based on modeling with the Logan Airport
3 NWS meteorological data, to the predicted 24-hour PM2.5 concentration of 0.4 µg/m presented in Table 5.3-1 of the Applicant’s updated March 2015 air modeling impact report (Exhibit TB-5 to Mr. Barten’s PFDT), which was based on modeling with the Taunton Airport NWS meteorological data. Ms. Hendrick’s PFRT, at, p. 13, lines 15-20. She testified these two different figures represent a 34% decrease in concentrations from the 2010 modeling to the 2015 modeling, rather than a 50% increase as contended by Dr. Selin.30 Ms. Hendrick’s PFRT, at, p.
13, line 21; p. 14, lines 1-3. She testified that the difference between the two figures is not due to meteorological data having been collected from two different locations as Dr. Selin contended, but rather, how the data were analyzed using the EPA’s updated AERMOD analytical model and the annual NAAQS of 12.0 µg/m3 that the EPA adopted in 2012 which was 3.0 µg/m3 lower than
15.0 µg/m3 limit in 2011 when the Department issued the CPA to the Applicant. Ms. Hendrick’s
PFRT, at p. 14, lines 6-8; p. 15, lines 9-15.
Ms. Hendrick testified that between 2010 and 2014, the EPA revised the AERMOD
30 3 The difference between the 24-hour PM2.5 predicted impact of 0.61 µg/m using the Logan Airport NWS 3 meteorological data and the 24-hour PM2.5 figure of 0.4 µg/m using the Taunton Airport NWS meteorological data is .21 µg/m3 or 34% of the initial 0.61 µg/m3 figure.
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analytical model several times and issued guidance documents for modeling 24-hour PM2.5,1- hour NO2, and 1-hour SO2. Ms. Hendrick’s PFRT, at, p. 14, lines 8-10. She testified that these guidance documents specifically set forth how the air modeling should be conducted and which predicted values should be used as the design concentrations for comparisons with the SILs and
NAAQS. Ms. Hendrick’s PFRT, at, p. 14, lines 10-13. She testified that the 2010 modeling analysis, relying on the meteorological data from the Logan Airport NWS, used the highest 24- hour PM2.5 impact over five years to compare to the SIL and the five year average maximum 24- hour PM2.5 for comparison to the NAAQS. Ms. Hendrick’s PFRT, at, p. 14, lines 13-15. This
3 produced the following results: the highest 24-hour PM2.5 impact over five years of 0.61 µg/m for comparison with SILs and the five year average concentration 0.41 µg/m3 for comparison with the NAAQS. Ms. Hendrick’s PFRT, at p. 15, lines 4-6.
Ms. Hendrick testified that following the Applicant’s 2010 air modeling impact study, the
EPA issued a clarification memorandum directing air modelers to use the five year average maximum 24-hour PM2.5 concentration as the design concentration for comparisons to both the
SILs and NAAQS. Ms. Hendrick’s PFRT, at, p. 14, lines 15-17; p. 15, line 1. She testified that in accordance with the EPA’s clarification memorandum, the five year average maximum 24-
3 hour PM2.5 impact of 0.4 µg/m for both the SIL and NAAQS comparisons was reported in the
Applicant’s March 2015 updated air modeling impact report using the Taunton Airport meteorological data. Ms. Hendrick’s PFRT, at, p. 15, lines 1-3, lines 7-9.
Ms. Hendrick also refuted Dr. Selin’s contentions that the proposed Power Plant’s air quality impacts on sensitive receptors could increase above the SILs using different model assumptions and chemical interactions and nearby sources. Ms. Hendrick’s PFRT, at, p. 18,
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lines 6-21; p. 19, lines 1-8. She testified that the AERMOD analysis predicted that impacts at sensitive receptors across the entire modeling domain, are below the SILs. Ms. Hendrick’s
PFRT, at, p. 18, lines 8-9. She testified that even if the modeled impacts from the proposed
Power Plant were doubled, the impacts would still be low enough to remain below the SILs. Ms.
Hendrick’s PFRT, at, p. 18, lines 9-10. She also testified that although not required under regulatory methodology, interactive modeling with the Brockton AWRF located adjacent to the site of the proposed Power Plant was performed because PM2.5 was a pollutant of concern. Ms.
Hendrick’s PFRT, at, p. 18, lines 11-13.
Ms. Hendrick also testified that cumulative modeling is not compared to the SILs, but instead, the modeled impacts from all sources are combined and then added to a background concentration based on monitored data, and that total concentration is then compared to the
NAAQS. Ms. Hendrick’s PFRT, at, p. 18, lines 13-16. She testified that the cumulative modeling in the Applicant’s updated March 2015 air modeling impact report demonstrated compliance with all of the NAAQS, and that the ambient background comprises most of the
NAAQS, with the proposed Power Plant contributing a very small amount. Ms. Hendrick’s
PFRT, at, p. 18, lines 16-19; Exhibit TB-5 to Mr. Barten’s PFDT. She testified that even if the proposed Power Plant’s impacts were to double, the impacts would still comply with the
NAAQS. Ms. Hendrick’s PFRT, at, p. 18, lines 19-20. By way of example, she testified that the
3 24 hour PM2.5 background concentration of 19.1 µg/m comprises 55% of the NAAQS and the
3 maximum 24 hour PM2.5 modeled impact of 0.4 µg/m comprises only 1% of the NAAQS. Ms.
Hendrick’s PFRT, at, p. 18, lines 20-21; p. 19, lines 1-2. She testified that in fact, the majority of the modeled air quality impacts would need to increase many times over in order to exceed the
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NAAQS. Ms. Hendrick’s PFRT, at, p. 19, lines 2-3. Lastly, Ms. Hendrick testified that an estimate of the projected secondary formation of PM2.5 from precursor emissions emitted from the proposed Power Plant was computed, and the result revealed that an additional 1% of the direct PM2.5 modeled impact can be attributable to secondarily formed PM2.5 for the proposed
Power Plant. Ms. Hendrick’s PFRT, at, p. 19, lines 4-8; Exhibit TB-5 to Mr. Barten’s PFDT.
(b) Mr. Pacheco’s Testimony
Mr. Pacheco has been employed by the Department since July 2013 as a Senior Air
Quality Modeling Specialist in the Department’s Bureau of Air and Waste based in Boston. Mr.
Pacheco’s PFDT, at p. 1. He holds a Bachelor of Science degree in Meteorology from Lyndon
State College in Lyndonville, Vermont (1984), and has 30 years of experience in the analysis of air quality and meteorological data. Id. Prior to joining the Department in 2013, Mr. Pacheco was employed in the private sector for 27 years (1986 to 2013) as an Air Quality Scientist by the engineering firms Chas. T. Main, Inc. (1986-1994) and Parsons Corporation (1994-2013).31 Mr.
Pacheco’s PFDT, at p. 1. During his tenure in the private sector, Mr. Pacheco’s responsibilities progressed from data analysis duties to data collection design and implementation, and ultimately to the preparation of air quality impact assessments, many of which included dispersion modeling analyses. Mr. Pacheco’s PFDT, at p. 1.
At the Department, Mr. Pacheco is responsible for reviewing and making recommendations on air quality impact assessments and dispersion modeling analyses that are
31 Chas. T. Main, Inc. (“Main”) was a Boston engineering company founded in 1893 that over the next century grew into a major national engineering firm principally involved in the development of energy facilities, including hydro- electric plants and nuclear power plants. http://www.library.neu.edu/archives/collect/findaids/m152find.htm. In the late 1980’s, Parsons Corporation of Pasadena, California purchased Main. Id. In 1992, Main’s name was changed to Parsons Main, Inc., to reflect its status as a subsidiary of Parsons Corporation based in Canton, Massachusetts. Id.
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included in Comprehensive Air Plan Approval applications. Mr. Pacheco’s PFDT, at p. 1. He reviews air quality modeling analyses for permit applications in order to recommend to the
Department’s Regional Office permitting staff whether the modeling was performed in accordance with the EPA’s and the Department’s air modeling guidelines and practices. Mr.
Pacheco’s PFDT, at p. 1. His work duties at the Department require him to be familiar with
AERMOD, the NAAQS, and the extensive set of EPA guidance documents governing
AERMOD and the NAAQS. Mr. Pacheco’s PFDT, at p. 2. During his tenure with the
Department, he has participated in the technical review of many air quality impact assessments that relied on the input of suitable meteorological data in dispersion models for the purpose of demonstrating compliance with the NAAQS. Mr. Pacheco’s PFDT, at p. 2. He was responsible for reviewing the Applicant’s updated March 2015 air modeling impact report for the proposed
Power Plant and determined that the study complied with the requirements of Appendix W,
§ 8.3. Mr. Pacheco’s PFDT, at pp. 2-9; Mr. Pacheco’s PFRT, at p. 1, ¶ 3; pp. 2-3, ¶ 7; p. 3, ¶¶ 8-
9.
At the Hearing, Mr. Pacheco corroborated Ms. Hendrick’s testimony, refuting Dr. Selin’s testimony that questioned AERMOD’s reliability. Mr. Pacheco’s PFDT, at pp. 3-9; Mr.
Pacheco’s PFRT, at p. 2, ¶¶ 5-6. He testified that contrary to Dr. Selin’s assertions, “AERMOD is not a screening tool[,] . . . but a refined dispersion model listed in Appendix W and required to be used in the support of air permitting” by the Department. Mr. Pacheco’s PFRT, at p. 2, ¶ 6.
He also testified that “AERMOD is [the] USEPA’s preferred/recommended model by regulation” as set forth in Appendix W, “and thus its use is prescribed within the context of
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regulatory permitting.” Mr. Pacheco’s PFRT, at p. 2, ¶ 5 (emphasis in original).
Mr. Pacheco also corroborated Ms. Hendrick’s testimony regarding AERMOD’s consideration of secondary PM2.5 impacts by testifying that “[c]ontrary to statements made in
[Dr.] Selin’s testimony . . . [the Applicant] . . . incorporated an analysis of secondary PM2.5 impacts, as well as interactive dispersion modeling . . . to the overall air quality impact assessment” for the proposed Power Plant. Mr. Pacheco’s PFRT, at p. 4, ¶ 11. He testified that
“a qualitative assessment of secondarily formed PM2.5 was performed [by the Applicant] and added to the direct emission that were modeled via AERMOD to show that the total impact from
PM2.5 (direct emissions of PM2.5 plus converted emissions of NOx/SO2 into secondary PM2.5) was below the NAAQS over the modeling domain.” Mr. Pacheco’s PFDT, at p. 7.
Mr. Pacheco also corroborated Ms. Hendrick’s testimony that the emission rates used in the AERMOD modeling are not assumptions (as Dr. Selin contended), but rather are the guaranteed maximum emission rates from a facility which are enforceable and monitored through the Department’s air permit limits for the facility. Mr. Pacheco’s PFRT, at p. 4, ¶ 10.
He testified that the emission rates input to AERMOD are those rates guaranteed to be the maximum rates by the facility’s equipment vendor and are relied upon by the Department to approve a proposed project. Id. He testified that the emission rates are also set forth in the
Department’s air permit as emission limits that are subject to monitoring and are enforceable by the Department against the permittee. Id. He also emphasized that the proposed Power Plant’s maximum model-predicted impacts are well below the SILs, ranging from less than 1% to 33% of the SILs for the pollutants modeled. Id. He confirmed that the SILs are a de minimis threshold set by the EPA to determine whether modeled emissions from a source of air emissions
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have significant or insignificant ambient air impacts, and are small fractions of the NAAQS. Id.
He confirmed that if impacts are found to be below the SILs (i.e., impacts are insignificant) then typically the air quality impact assessment would end at that point and additional cumulative modeling would not be required. Id.
Mr. Pacheco also testified that Section 5.0 of the Applicant’s updated March 2015 air modeling impact report (Exhibit TB-4 to Mr. Barten’s PFDT) describes in great detail the
Applicant’s: (1) performance of the air modeling in accordance with the EPA’s regulatory requirements to predict the maximum ambient concentrations for SO2, PM10, PM2.5, NO2 and
CO, and (2) comparison of the predicted concentrations to the applicable SILs for each NAAQS.
Mr. Pacheco’s PFDT, at p. 8. He testified that the report concludes that all of the pollutant impacts are below the respective SIL for each averaging time, which means that the ambient air impacts of emissions from the proposed Power Plant are “insignificant.” Id. He testified that this conclusion is supported by Table 5.3-1 of the report, which includes the analysis of how the proposed Power Plant’s emissions impacts compare to the SILs. Id. He testified that Table 5.3-1 clearly demonstrates that for all of the pollutants modeled, the maximum modeled concentrations are below the SILs. Id. In sum, Mr. Pacheco testified that “while . . . some uncertaint[y] and variability can exist in [an air] modeling analysis[,] . . . in this case there is little or no risk that a varying set of inputs would lead to impacts that threaten the NAAQS,” and that “[i]n fact, project emissions could double and the model-predicted impacts would still remain below the SILs, and
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thus, not require further assessment.” Id., at p. 4, ¶ 10.
e. The Taunton Airport NWS Meteorological Data is Representative of the Site of the Proposed Power Plant in Brockton
(1) The Testimony of the Petitioners’ Expert Witness, Dr. Selin, Challenging the Representativeness of the Taunton Airport NWS Meteorological Data
At the Hearing, Dr. Selin also contended that the Applicant’s updated March 2015 air modeling impact report failed to comply with Appendix W, § 8.3 because in her view the five years of meteorological data from the Taunton Airport NWS forming the basis of the report did not provide sufficient information to determine whether it is adequately representative of meteorological conditions at the site of the proposed Power Plant in Brockton. Dr. Selin’s
PFDT, at p. 4, lines 8-22; p. 5, lines 1-11. She testified that “[s]ite-specific data would provide more reliable estimates of atmospheric dispersion for the proposed [Power Plant]” because the facility would be located “adjacent to an environmental justice community,” and accordingly,
“the specific dispersion pattern from [the facility] is particularly important” in order “to adequately address potential air impacts.” Dr. Selin’s PFDT, at p. 5, lines 12-18. She testified that “using off-site meteorological data” such as the meteorological data from the Taunton
Municipal Airport NWS “will not accurately reflect the potential air quality impacts of the facility in this specific setting.” Dr. Selin’s PFDT, at p. 6, lines 1-6.
I do not find Dr. Selin’s testimony persuasive because her testimony is based on speculation that the meteorological data from the Taunton Municipal Airport NWS is not representative of the conditions at the site of the proposed Power Plant in Brockton. The speculative nature of her testimony is apparent by the fact that she did not prepare and/or present
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any alternative air modeling impact study that provided site-specific data to support her position that the Taunton Municipal Airport NWS meteorological data was non-representative. Simply stated, the Applicant’s March 2015 updated air modeling impact report stands alone and is unrefuted by any other evidence of the Petitioners. Moreover, as discussed below, Dr. Selin’s testimony was refuted by Ms. Hendrick’s and Mr. Pacheco’s persuasive testimony, which demonstrated that the Taunton Airport NWS meteorological data is representative of the site of the proposed Power Plant in Brockton.
(2) The Testimony of the Applicant’s Witness, Ms. Hendrick, and the Department’s Witness, Mr. Pacheco, Effectively Refuted Dr. Selin’s Testimony Challenging the Representativeness of the Taunton Airport NWS Meteorological Data
Ms. Hendrick and Mr. Pacheco provided persuasive testimony that the Taunton Airport
NWS meteorological data used by the Applicant to prepare its updated March 2015 air modeling impact report for the proposed Power Plant satisfies the four criteria in Appendix W,
§ 8.3 for representativeness for the following reasons. Ms. Hendrick’s PFRT, at p. 9, lines 12-
21; p. 10, lines 1-20; Mr. Pacheco’s PFDT, at pp. 3-5; Mr. Pacheco’s PFRT, at pp. 2-3, ¶¶ 7-9.
First, Ms. Hendrick and Mr. Pacheco testified that the Taunton Airport NWS and the site of the proposed Power Plant are in close proximity with each other; the Airport is located only 12 miles away from the site of the proposed Power Plant in Brockton. Ms. Hendrick’s
PFRT, at p. 5, lines 15-17; p. 10, lines 1-5; Mr. Pacheco’s PFDT, at pp. 3-5; Mr. Pacheco’s
PFRT, at pp. 2-3, ¶¶ 7-9. As Mr. Pacheco testified, “Taunton Airport is the closest representative NWS observing station to the project site[,] . . . located 12 miles to the south and
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contains the requisite data over daily 24-hour periods of time required for running AERMOD.”
Mr. Pacheco’s PFDT, at p. 4. He testified that “the air flow in the vicinity of Taunton Airport, as well as other meteorological variables collected there such as temperature, cloud cover, and ceiling height, are characteristic of the flow regimes and daily weather conditions at the Project site in Brockton.” Id. He testified that “[b]ecause [the] Taunton Airport is so close to the
Project location, there is no reason to believe that the two locations experience significantly different weather conditions, including effects from the bay waters off the nearby coastline.”
Mr. Pacheco’s PFDT, at p. 4.
Second, Ms. Hendrick and Mr. Pacheco testified that the terrain and elevation of both the Taunton Airport and the site of the proposed Power Plant in Brockton are very similar. Ms.
Hendrick’s PFRT, at p. 5, lines 15-17; Ms. Hendrick’s PFRT, at p. 10, lines 1-5; Mr. Pacheco’s
PFDT, at p. 5. As Mr. Pacheco testified, “[t]he terrain and elevation at both Taunton Airport and the Project location . . . can be described as flat coastal plain with elevations under 100 feet above mean sea level (MSL).” Mr. Pacheco’s PFDT, at p. 5. He testified that “[t]here are no complex terrain features such as foothills, mountains or river valleys at either location,” and that “[t]he setting at both locations is urban to suburban, consistent with the modeling domain.”
Id.
Third, Ms. Hendrick and Mr. Pacheco testified that the meteorological measurement instruments at the Taunton Airport NWS are properly sited with adequate exposure to weather conditions. Ms. Hendrick’s PFRT, at p. 10, lines 1-5; Mr. Pacheco’s PFDT, at p. 5. Mr.
Pacheco added that “[a]irports are openly exposed areas and very suitable for accurately measuring the weather conditions and meteorological inputs required for dispersion modeling
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with AERMOD.” Mr. Pacheco’s PFDT, at p. 5.
Lastly, Ms. Hendrick and Mr. Pacheco testified that the Taunton Airport NWS meteorological data is recent in time. Ms. Hendrick’s PFRT, at p. 10, lines 1-5; Mr. Pacheco’s
PFDT, at p. 5. As Mr. Pacheco testified “[t]he time period selected for use in the modeling
[was] 2008 to 2012, the most recent period for which Taunton Airport data was readily available at the time [that] the modeling work commenced . . .” Mr. Pacheco’s PFDT, at p. 5.
“Data from 2013 was not used because a complete record for that year was not available,” and
“[d]ata from 2014 was not readily available, nor complete, at the time the modeling analysis was performed.” Mr. Pacheco’s PFDT, at p. 5.
I also find that Ms. Hendrick’s and Mr. Pacheco’s testimony that the Taunton Airport
NWS meteorological data is representative of the site of the proposed Power Plant in Brockton is persuasive because neither Appendix W, § 8.3 nor the EPA’s guidance document entitled
“Use of ASOS Meteorological Data in AERMOD Dispersion Modeling” (“the EPA’s
ASOS/AERMOD Guidance”)32 require applicants to undertake collection of site specific data, even where an EJ community is located within the vicinity of the proposed facility, but only require that “representative and ‘readily available’ NWS data” be used in the AERMOD analysis. Ms. Hendrick’s PFRT, at p. 10, lines 17-19; Mr. Pacheco’s PFRT, at pp. 2-3, ¶ 7;
32 “ASOS” is the acronym for “Automated Surface Observing System.” http://www.nws.noaa.gov/ost/asostech.html. “The [ASOS] program is a joint effort of the [NWS], the Federal Aviation Administration (FAA), and the [U.S.] Department of Defense (DOD) [that] . . . serves as the nation's primary surface weather observing network.” Id. “ASOS is designed to support weather forecast activities and aviation operations and, at the same time, support the needs of the meteorological, hydrological, and climatological research communities.” Id. The ASOS has a large complement of weather sensors and full-time surface weather observing locations, and “works non-stop, updating observations every minute, 24 hours a day, every day of the year.” Id. “ASOS detects significant changes, disseminating hourly and special observations via the [ASOS] networks. . . . ASOS observes, formats, archives, and transmits observations automatically.” Id.
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p. 3, ¶ 9. Appendix W, § 8.3.1.2 provides that “[f]ive years of representative meteorological data should be used when estimating concentrations with an air quality model,” and that
“[c]onsecutive years from the most recent, readily available 5-year period are preferred . . . .”
Ms. Hendrick’s PFRT, at p. 10, lines 6-9. With respect to the EPA’s ASOS/AERMOD
Guidance, it provides that “when using [NWS] . . . meteorological data, five consecutive years of the most recent, readily available data should be used,” and that “[a]lternatively[,] . . . 1 year, up to 5 years, of site specific meteorological data may be used.” Ms. Hendrick’s PFRT, at p.
10, lines 10-13.
Regarding Dr. Selin’s contention that the Applicant’s Taunton Municipal Airport NWS meteorological data did not adequately capture variations in wind speed and direction at the site of the proposed Power Plant in Brockton, Mr. Pacheco refuted that contention by testifying that the five years of meteorological data collected from the Taunton Airport NWS “was collected with a NWS Automated Surface Observing System (ASOS) to record hourly weather conditions with the most modern sensors available for long-term monitoring.” Mr. Pacheco’s PFDT, at p. 5.
He testified that “the availability of ASOS data allowed for the use of the AERMINUTE module to process 1-minute ASOS wind data to generate hourly average winds for input to AERMET
(the meteorological data preprocessor for AERMOD).”33 Mr. Pacheco’s PFDT, at p. 5.
Ms. Hendrick supported Mr. Pacheco’s testimony by testifying that Dr. Selin’s focus on wind speed and direction was inappropriate because the purpose of using five years of hourly
33 According to the EPA, “[s]urface and upper air data, provided by [the] NWS, are important inputs for air quality models,” and that “[b]efore these data are used in [AERMOD,] . . . meteorological processors are used to manipulate the data.” https://www3.epa.gov/scram001/metobsdata_procaccprogs.htm. These processors include AERMET. Id. “AERMET processes commercially available or custom on-site met data and creates two files: a surface data file and a profile data file [and] “[t]he tool AERSURFACE can be used to estimate the surface characteristics for input to AERMET.” Id. The EPA AERMINUTE module “processes 1-minute ASOS wind data to generate hourly average winds for input to AERMET.” Id.
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historical meteorological data is to have over 43,000 combinations of meteorological conditions, including wind speed, direction, and stability assessed so as to predict concentrations that can be compared with the NAAQS. Ms. Hendrick’s PFRT, at p. 7, lines 16-
21. She testified that based on decades of modeling precedent and practice, the EPA believes that this is ample information to adequately assess a multitude of possible combinations of weather conditions in the area of the proposed Power Plant. Ms. Hendrick’s PFRT, at p. 7, line
21; p. 8, lines 1-2. She testified that with this many hours (43,000 plus) evaluated, there is a high level of confidence that the natural variability across five years of data will adequately cover the variability that might be expected 12 miles away in any given hour. Ms. Hendrick’s
PFRT, at p. 8, lines 2-5. Indeed, notwithstanding her aversion to AERMOD, Dr. Selin conceded at the Hearing that it “absolutely” would be better to have five years of off-site meteorological data rather than one-year of site- specific data, if the five years of off-site data were deemed “representative” in accordance with the EPA’s guidance document. Hearing
Transcript, at pp. 164-65.
Regarding Dr. Selin’s contention that site-specific data would be more reliable in estimating air pollution impacts of the proposed Power Plant because the facility would be located adjacent to an EJ community, Ms. Hendrick testified that site-specific data is not warranted for several reasons. Ms. Hendrick’s PFRT, at p. 8, lines 13-18.
First, as discussed above, the site of the proposed Power Plant and the Taunton Airport
NWS are located only within 12 miles of each other, in very similar regional weather pattern
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flows, and are not separated by any meaningful terrain change. Ms. Hendrick’s PFRT, at p. 8, lines 13-18.
Second, the five years of off-site meteorological data from the Taunton Airport NWS is a much more robust dataset than one year of site-specific data. Hearing Transcript, at p. 345, lines 10-24; p. 346, lines 1-24. The five year off-site dataset presents all possible meteorological combinations (over 43,000 hours) that have occurred during a recent five year consecutive period, whereas one year of site-specific data only provides a very limited data stream of 8,760 hours. Id. As noted above, Dr. Selin conceded at the Hearing that she would accept five years of off-site meteorological data that is representative of the site of a proposed facility over one year of site-specific data. Hearing Transcript, at pp. 164-65.
Lastly, site-specific data is not warranted because the modeled air quality impacts
(ground level concentrations) predicted for the proposed Power Plant based on the Taunton
Airport NWS meteorological data are small fractions of the NAAQS, and not expected to change with the use of site-specific meteorological data. Ms. Hendrick’s PFRT, at p. 8, lines
19-21. Ms. Hendrick demonstrated this by pointing to: (1) the maximum modeled 1-hour NO2 design value which was determined to be 1.1 µg/m3 compared with the corresponding NAAQS
3 standard of 188 µg/m , and (2) the maximum modeled 24-hour PM2.5 value which was determined to be 0.4 µg/m3 compared with the corresponding NAAQS standard of 35.0 µg/m3.
Ms. Hendrick’s PFRT, at p. 8, line 21; p. 9, lines 1-2. She testified that the Applicant’s air modeling demonstrates that the EJ community will not be disproportionately affected by potential air quality impacts from the operation of the proposed Power Plant. Ms. Hendrick’s
PFRT, at p. 9, lines 3-5. She testified that even if site specific meteorological data showed a
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shift in annual wind patterns, the NAAQS would still be protective of all areas in the vicinity of the proposed Power Plant, and the EJ community would not have disproportionate impacts in comparison to any other area. Ms. Hendrick’s PFRT, at p. 9, lines 5-8. In sum, she testified that Dr. Selin’s perceived benefits of using site specific meteorological data in this case would not change the conclusions of the Applicant’s air modeling analysis. Ms. Hendrick’s PFRT, at p. 9, lines 9-10.
Mr. Pacheco corroborated Ms. Hendrick’s testimony by testifying that the Applicant’s updated March 2015 air modeling impact report accurately estimated potential worst-case impacts to the EJ community in Brockton because the analysis presented conservative estimates for impacts and demonstrated that maximum modeled impacts across the entire modeling domain would be far below the health-protective NAAQS and the SILs, which are set at small percentages of the NAAQS. Hearing Transcript, at p. 510, lines 17-23; p. 517, lines 13-2; p.
519, lines 6-2. Mr. Pacheco testified that the Applicant’s updated report “very clearly shows the air quality impacts over the entire modeling domain without regard to any particular demographic,” and accordingly, “it adequately addresses the air quality impacts [a]nd certainly there was enough information in [the report] to assess those impacts in the environmental justice community.” Hearing Transcript, at p. 510, lines 17-23. Mr. Pacheco testified that selective consideration of demographics within any portion of a modeling domain would not affect the accuracy of the calculations or the modeling results, and confirmed that the maximum modeled results for all pollutants at all receptor locations within or outside of the EJ
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community are well below the NAAQS and the SILs. Hearing Transcript, at p. 517, lines 13-
21; 519, lines 6-21.
3. The Petitioners Failed to Prove their Claim that the NAAQS for PM2.5 Are Not Protective Enough of Brockton’s EJ Community.
At the Hearing, the Petitioners attempted to prove that the NAAQS for PM2.5 are not protective enough of the EJ community in Brockton through the testimony of their witnesses, Dr. Levy and Dr. Faber. They did not succeed.
a. The Testimony of the Petitioners’ Witness, Dr. Levy, Challenging the NAAQS for PM2.5
Dr. Levy is a Professor of Environmental Health and Chair of the Department of
Environmental Health at Boston University’s School of Public Health in Boston. Dr. Levy’s
PFDT, at p. 1, lines 1-4; Dr. Levy’s PFST, at p. 1, lines 1-4. He holds a Bachelor of Arts degree in Applied Mathematics from Harvard University (1993) and a Doctor of Science (“Sc.D.”) degree in Environmental Science and Risk Management from Harvard University’s School of
Public Health (1999). Dr. Levy’s PFDT, at p. 1, lines 7-10; Exhibit JL-1 to Dr. Levy’s PFDT, at p. 1. He completed post-doctoral fellow training in environmental health and biostatistics at
Harvard University’s School of Public Health (1999-2001). Id. He has held several academic positions since completing his post-doctoral fellowship: Assistant Professor (2001-2006) and
Associate Professor (2006-2010) at Harvard University’s School of Public Health, and his current position, Professor of Environmental Health at Boston University (2010-the present). Dr.
Levy’s PFDT, at p. 1, lines 10-13. He has conducted research and written extensively on air pollution exposures and health effects, including studies analyzing the exposures or public health effects associated with emissions from power plants. Dr. Levy’s PFDT, at p. 1, lines 13-17; p. 2,
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lines 1-3; Exhibit JL-1 to Dr. Levy’s PFDT, at pp. 1-5. He served as one of the Petitioners’ expert witnesses in the related proceedings before the EFSB involving the proposed Power Plant.
Dr. Levy’s PFDT, at p. 2, lines 14-17.
At the Hearing, Dr. Levy testified that “the current regulatory limits for PM2.5 and other criteria air pollutants are not intended to result in zero risk to public health.” Dr. Levy’s PFDT, at p. 2, lines 19-20. In support of his testimony, Dr. Levy prepared a report titled: “Evaluation of
Factors Influencing Health Risks from Power Plants Sited in Massachusetts, June 19, 2015.” Dr.
Levy’s PFDT, at p. 3, lines 7-9; Exhibit JL-2 to Dr. Levy’s PFDT. In his report, Dr. Levy
“outline[d] the regulatory and health evidence” which in his view “suppor[t] the notion that public health effects from . . . PM2.5 exist at levels below the NAAQS” and that the “adequate margin of safety” provided by the NAAQS “is clearly not commensurate with there being no risk to anyone in the population from the given pollutant.” Exhibit JL-2 to Dr. Levy’s PFDT, at pp. 1-2. He contended that this “regulatory and health evidence” included: (1) a 2002 study that
3 “found mortality risks for PM2.5 concentrations exist below 10 µg/m on annual average basis”;
3 (2) a 2008 study that “found mortality risks for PM2.5 concentrations down to 7-8 µg/m on annual average basis”; (3) a 2012 study that “found an essentially linear relationship between
3 daily mortality and PM2.5 concentrations down to 2 µg/m ”; (4) another 2012 study that
“observed PM2.5 related mortality risks in a population with a mean annual average exposure of
8.7 µg/m3 with a near-linear association down to 2 µg/m3”; and (5) a 2015 “study examining the
Medicare population in Massachusetts” that “found effects of long-term exposure of PM2.5 starting at 6 µg/m3.” Exhibit JL-2 to Dr. Levy’s PFDT, at p 3.
With respect to Brockton, Dr. Levy stated that his report presented “published evidence
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indicating that exposures at levels currently observed in Brockton can influence the health of the population.” Dr. Levy’s PFDT, at p. 4, lines 1-2. At the Hearing, he followed up on that point, by testifying that “[a]n urban environmental justice population, such as Brockton, would tend to exhibit more health effects from a given increment of air pollution than other populations, all else being equal.” Dr. Levy’s PFDT, at p. 5, lines 14-16. He contended that “Environmental justice populations in Brockton and surrounding communities, which include a disproportionate number of vulnerable individuals with pre-existing diseases, will suffer disproportionate environmental health burdens.” Dr. Levy’s PFDT, at p. 5, lines 20-22.
Dr. Levy also stated that “[w]hile the concentration increments from the [proposed Power
Plant] were not projected to lead to a violation of the NAAQS and were below the SILs, leading to the de minimis determination, this does not imply zero health risk.” Dr. Levy’s PFDT, at p. 6, lines 22-23; p. 7, lines 1-2. He testified that “[logically], any concentration increment above any observed population threshold would contribute to health impacts, and the magnitude of those health impacts would be greater in a setting with more vulnerable individuals, such as Brockton.”
Dr. Levy’s PFDT, at p. 7, lines 2-5. While acknowledging that the question of whether emissions from a proposed facility will comply with the NAAQS “is an important question that the [Department] must address,” he contended that “[t]he most relevant question is what the magnitude of health risk would be and whether it could be lower given other sites or configurations.” Exhibit JL-2 to Dr. Levy’s PFDT, at p. 4. He testified that “[w]hile [he] . . . appreciat[ed] the regulatory requirements that exist, the standing policies of MassDEP, and the definitions of the NAAQS and SIL and their implications, from a public health perspective, the size and attributes of the exposed population will by definition have an influence on health
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outcomes.” Dr. Levy’s PFST, at p. 4, lines 20-22; p. 5, lines 12. Thus, in his opinion, “[t]he fact that Brockton includes an . . . EJ population with individuals more vulnerable to the effects of air pollution than non-EJ populations is therefore relevant.” Dr. Levy’s PFST, at p. 5, lines 2-4.
I do not find persuasive Dr. Levy’s testimony that the NAAQS for PM2.5 are not protective enough with respect to the proposed Power Plant for the following reasons.
First, on cross-examination, Dr. Levy acknowledged that the NAAQS have not been adopted by the EPA to establish a “zero risk” health standard. Hearing Transcript, p. 122, lines
8-14. He also acknowledged that the NAAQS have been set at levels designed that protect “the health of at-risk populations such as people with pre-existing heart or lung disease, children, and older adults” with an “adequate margin of safety.” Hearing Transcript, p. 122, lines 8-24; p. 123, lines 1-17. He also acknowledged that he did not calculate the specific degree of health risk posed by the proposed Power Plant’s emissions and that the purpose of his testimony “was to articulate [the risk as being] non-zero.” Hearing Transcript, at p. 123, lines 18-24; p. 124, lines
1-2.
Second, Dr. Levy testified that “population dose-response [thresholds] . . . are continuous[,] . . . and any increments above any population threshold will contribute some incremental health risk,” but when he was asked about the proposed Power Plant’s modeled concentrations as set forth in the Applicant’s updated March 2015 air modeling impact report
(See Table 5.3-2 of Exhibit TB-4 to Mr. Barten’s PFDT), he conceded “any one source contributes a pretty small fraction of the total ambient concentration.” Hearing Transcript, p. 133, lines 13-19; p. 150, lines 11-24; p. 151, lines 7-24; p. 152, lines 1-6.
Third, with respect to the studies that he cited in his report from 2002 to 2015 purportedly
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supporting his contention “that public health effects from . . . PM2.5 exist at levels below the
NAAQS” and that the “adequate margin of safety” provided by the NAAQS “is clearly not commensurate with there being no risk to anyone in the population from the given pollutant,” Dr.
Levy stated that “a 1 microgram per cubic meter increment [in 24-hour average PM2.5 concentrations] is associated with a 0.1 percent increase in risk of death, and you can keep doing the math onward, and so that would give insight again of what quantitatively a 0.4 microgram per cubic meter increment in PM2.5 would do for the risk of death.” Hearing Transcript, p. 146, lines 18-24; p. 147, lines 1-24; p. 148, lines 1-24; p. 149, lines 1-15. Hence, based on Dr. Levy’s hypothetical model, the maximum potential change in daily risk of mortality associated with the
3 proposed Power Plant’s maximum 24-hour PM2.5 concentration of 0.4 μg/m would be only 0.04 percent. Indeed, the 2015 cited by Dr. Levy in his report suggested a 6.5 percent increase in
3 mortality for each 10 μg/m increase in long-term PM2.5. Exhibit JL-2 to Dr. Levy’s PFDT, at p. 12. Applying Dr. Levy’s hypothetical model to that figure, the maximum potential change in annual risk of mortality associated with the proposed Power Plant’s maximum annual concentration of 0.05 μg/m3 would be only 0.0325 percent.
b. The Testimony of the Applicant’s Witness, Dr. Valberg, and the Department’s Witness, Mr. Cushing, effectively refuted Dr. Levy’s Testimony Challenging the NAAQS for PM2.5
I also do not find Dr. Levy’s testimony persuasive because the Applicant’s witness, Dr.
Valberg, and the Department’s witness, Mr. Cushing, provided solid critiques of Dr. Levy’s testimony and demonstrated that the NAAQS for PM2.5 are protective of the Environmental
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Justice community in Brockton.
(1) Dr. Valberg’s Testimony
Dr. Valberg is a principal of Gradient, an environmental consulting firm based in
Cambridge, Massachusetts. Exhibit PV-1 to Dr. Valberg’s PFRT. His areas of expertise include
“[p]ublic health, inhalation toxicology, epidemiology, human health risk assessment, risk communication, [and] indoor /outdoor air quality . . . .” Exhibit PV-1 to Dr. Valberg’s PFRT.
He has 40 years of experience in these fields, both in academia and as an environmental consultant. Exhibit PV-1 to Dr. Valberg’s PFRT. He holds a Bachelor of Arts degree in Physics and Mathematics from Taylor University in Upland, Indiana; a Master of Arts in Physics from
Harvard University; a Ph.D. in Physics from Harvard University; and a Master of Science in
Human Physiology and Inhalation Toxicology from Harvard University’s School of Public
Health. Exhibit PV-1 to Dr. Valberg’s PFRT. His experience in academia has included serving as an Assistant Professor of Physics at Amherst College in Amherst, Massachusetts (1970-76), and as an Assistant Professor of Respiratory Physiology (1976-1985), Associate Professor of
Human Physiology (1985-90), and Adjunct Professor of Human Physiology (1991-2000) at
Harvard University’s School of Public Health. Exhibit PV-1 to Dr. Valberg’s PFRT. He has been an environmental consultant since at least 1990, mostly with Gradient. Exhibit PV-1 to Dr.
Valberg’s PFRT.
At the Hearing, Dr. Valberg characterized Dr. Levy’s analysis of the air impacts of the proposed Power Plant as being “theoretical” in nature, because, among other things, “Dr. Levy ha[d] not [performed] any actual air dispersion modeling or impact analysis specific to the
[proposed facility],” in stark contrast to the Applicant’s air modeling studies which demonstrated
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“minimal air impacts.” Dr. Valberg’s PFRT, at p. 9, at lines 11-12; p. 10, lines 1-19; p. 11, lines
1-3. He testified that “Dr. Levy’s analyses are not based on any substantive analysis that focuses on the [proposed Power Plant’s] predicted air emissions,” and that his “generic approach” to analyze the facility’s emissions “could be applied to any emissions source (e.g., motor vehicles, home heating, commercial baking and cooking).” Dr. Valberg’s PFRT, at p. 10, lines 1-8. Dr.
Valberg supported his point by citing a 2007 study that Dr. Levy had co-authored with others which had “analyzed people’s exposure to airborne particulate matter [and had] concluded that
[emissions from motor vehicle] traffic was more important than [emissions from] power plants[.]” Dr. Valberg’s PFRT, at p. 10, lines 8-11. In that study, which Dr. Levy did not discuss in his testimony, Dr. Levy and his co-authors stated that: “Compared to power plants, the mobile source intake fractions tended to be larger and exhibit their impacts closer to where the emissions originated due to lower stack heights and co-location of populations with emissions sources.” Dr. Valberg’s PFRT, at p. 10, lines 11-14. Dr. Valberg testified “[u]nder this analysis, vehicle exhaust, which is emitted far closer to ground level and people’s breathing zones than power plant emissions, has a greater impact in [Dr.] Levy’s own model than power plant air emissions.” Dr. Valberg’s PFRT, at p. 10, lines 14-16. He testified that a “recent (2015) [study]
. . . concluded that pollutant levels ‘were elevated near highways and had measurable decreases within approximately 1,300 [feet] of the highway,’ [and that] ‘[h]igher levels of UFP [ultrafine particles] were recorded on days with heavy traffic[;] [l]ower levels of UFP were recorded on hot or windy days[;] [and that] [h]igher UFP were predicted on and near major roads, and in near- highway areas.’” Dr. Valberg’s PFRT, at p. 10, lines 16-19; p. 11, lines 1-3.
As for Dr. Levy’s testimony that “[the] current regulatory limits for PM2.5 and some other
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pollutants are not intended to result in zero risk to public health,” Dr. Valberg testified to the obvious: “[t]hat . . . no human activity has zero risk, and the NAAQS do not require a zero-risk standard, but rather, allow [the] EPA to regulate air quality with respect to what are reasonable risks based upon many factors.” Dr. Valberg’s PFRT, at p. 12, lines 4-10. He testified that even
“Dr. Levy acknowledge[d] this in his . . . testimony [by testifying that] ‘the NAAQS setting process is a complex interchange between scientific and policy considerations.’” Dr. Valberg’s
PFRT, at p. 12, lines 10-14.
Dr. Valberg disputed Dr. Levy’s premise that any increment of risk above zero is unacceptable where an environmental justice community is present and population density is greater, by testifying that “[t]here is no useful judgment that can derive from a theory that a proposed facility (or any proposed human activity) should achieve ‘zero-risk,’ i.e., invariably, higher population density will always result in higher predicted hypothetical risk in Dr. Levy’s model.” Dr. Valberg’s PFRT, at p. 13, lines 5-8. He testified that “[o]n the other hand, the
NAAQS are stringent health-based standards that are specifically designed, as Dr. Levy acknowledge[d] [at the Hearing], to protect public health with an adequate margin of safety, with consideration of the most vulnerable groups of the population.” Dr. Valberg’s PFRT, at p. 13, lines 8-11. He testified that the proposed Power Plant’s “compliance with the NAAQS, and indeed, being below the SILs (which are set at a small fraction of the NAAQS), clearly demonstrates that any potential health risks associated with the Project's expected air emissions have been minimized.” Dr. Valberg’s PFRT, at p. 13, lines 11-14.
Dr. Valberg also disputed Dr. Levy’s assertion that studies of statistical correlations of health impacts and air concentrations that Dr. Levy cited in his testimony support his claim that
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any increment of risk is significant and disproportionate. Dr. Valberg’s PFRT, at p. 15, lines 18-
20; p. 16, lines 1-6; p. 17, line 1. He testified that “[w]hile such statistical correlations can be useful, and are under active investigation, they should not be mistaken as establishing a cause- and effect relationship between a small fluctuation in the level of an air pollutant and someone’s death, i.e., correlation is not equivalent to causation.” Dr. Valberg’s PFRT, at p. 15, lines 18-20; p. 16, line 1. He testified that “[n]o toxicological or experimental studies have demonstrated that small incremental changes in PM concentrations at levels close to the NAAQS can cause any serious health effects, let alone death,” and that “[t]he very paper Dr. Levy refer[red]s to [his testimony], namely Shi et al. (2015, in press), note[d] that ‘whether the associations exist below
3 3 the new EPA standards (12 μg/m annual average PM2.5, 35 μg/m daily) is unclear.’” Dr.
Valberg’s PFRT, at p. 16, lines 1-6.
(2) Mr. Cushing’s Testimony
Mr. Cushing has been with the Department for nearly 30 years: since 1987. Mr.
Cushing’s PFDT, at p. 2. Since 2012, he has served as the Air Quality Section Chief in the
Bureau of Air and Waste in the Department’s Southeast Regional Office. Mr. Cushing’s PFDT, at p. 2. As Section Chief, Mr. Cushing is responsible for administering air permitting activities in the Department’s Southeast Regional Office. Mr. Cushing’s PFDT, at p. 2. He is responsible for making final air permitting determinations for air plan applications submitted to the
Department pursuant to its Air Pollution Control Regulations at 310 CMR 7.00. Mr. Cushing’s
PFDT, at p. 2. He holds a Bachelor of Science degree in Chemical Engineering from Clarkson
University (1986) in Potsdam, New York; has taken graduate courses in Public Administration at
Union College in Schenectady, New York; and technical and regulatory training courses
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sponsored by the EPA and the Northeast States for Coordinate Air Use Management
(“NESCAUM”), an association of eight northeast states, including Massachusetts. Mr.
Cushing’s PFDT, at p. 2.34
At the Hearing, Mr. Cushing corroborated Dr. Valberg’s concerns about Dr. Levy’s testimony. Mr. Cushing’s PFRT, at p. 2, ¶¶ 6, 8-9; pp. 5-7, ¶¶ 19-27. He testified that Dr. Levy
“provided a general discussion concerning the health impacts to people when ambient PM2.5 concentrations are below the [NAAQS] PM2.5 [standard],” but “fail[ed] to discuss how the projected emissions from the [proposed] Power plant will cause an adverse impact on the EJ community in Brockton.” Mr. Cushing’s PFRT, at p. 5, ¶ 19. He also testified that “[c]onsistent with the CAA and application of NAAQS, it is MassDEP’s long standing statewide policy that when predicted ambient impacts of emissions of criteria pollutants from proposed facilities like
[the proposed Power Plant], in combination with background ambient air quality concentrations from the [municipality in which the facility will be located], are below NAAQS, [MassDEP] conclude[s] that public health risks [posed by the facility] are not unacceptable.” Mr. Cushing’s
PFRT, at p. 6, ¶ 24. He testified that this Policy was followed by the Department in approving the proposed Power Plant and supported his testimony with the Applicant’s updated March 2015 air modeling impact report demonstrating the facility’s compliance with the NAAQS and the
Department’s “Massachusetts 2014 Air Quality Report” demonstrating a downward trend from
2004 to 2014 of ambient PM2.5 concentrations in Brockton and all of Massachusetts. Mr.
34 The eight states that comprise NESCAUM are: (1) Connecticut, 2) Maine, (3) Massachusetts, (4) New Hampshire, (5) Rhode Island, (6) Vermont, (7) New Jersey, and (8) New York. http://www.nescaum.org/about-us/overview. NESCAUM “provide[s] scientific, technical, analytical, and policy support to the air quality and climate programs of [its member] states . . . [and[ assist[s] [its] member states in implementing national environmental programs required under the Clean Air Act and other federal legislation.” Id.
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Cushing’s PFDT, at p. 4; Mr. Cushing’s PFRT, at pp. 6-7, ¶ 24; Exhibit TC Rebuttal-1 to Mr.
Cushing’s PFRT, at pp. 1-4, 10, 25-29.
c. The Testimony of the Petitioners’ Witness, Dr. Faber, Challenging the NAAQS for PM2.5
Dr. Faber is a Professor of Sociology and Professor of Public Policy and Urban
Affairs in the College of Social Sciences and Humanities at Northeastern University in
Boston. Dr. Faber’s PFST, at p. 1, lines 1-4. He holds a Bachelor of Arts degree in
Sociology from the University of Kentucky (1983) in Lexington, Kentucky; a Master of Arts degree in Sociology from the University of California, Santa Cruz (1987) in Santa Cruz,
California; and a Ph.D. in Sociology (1989) also from the University of California, Santa
Cruz. Dr. Faber’s PFDT, at p. 1, lines 6-10. He has conducted research and written extensively on Environmental Justice, and served as the Petitioners’ expert witness in the related proceedings before the EFSB involving the proposed Power Plant. Dr. Faber’s
PFDT, at p. 1, lines 9-17; p. 2, lines 1-3; Exhibit DF-1 to Dr. Faber’s PFDT.
At the Hearing, Dr. Faber did not dispute that the emission limits set forth in the
Department’s CPA for the proposed Power Plant will comply with the NAAQS for PM2.5.
Hearing Transcript, p. 270, lines 16-24. He nevertheless contended that the NAAQS for PM2.5 are not protective enough of the EJ Community in Brockton because “[the] current regulatory limits for PM2.5 and other criteria air pollutants do not eliminate all public health risks associated with air pollution from the proposed power plant.” Dr. Faber’s PFST, at p. 4, lines 2-4; Hearing
Transcript, p. 270, lines 8-13. On cross-examination, however, Dr. Faber admitted that he does not have any education or training in the fields of public health, human health risk assessment,
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epidemiology, environmental engineering, environmental science, air quality modeling, and air quality engineering. Hearing Transcript, at p. 244, lines 10-24; p. 245, lines 1-9.
At the Hearing, Dr. Faber also contended that the NAAQS for PM2.5 are not protective enough of the EJ Community in Brockton based on a report that he prepared entitled “The
Proposed Brockton Power Plan: An Environmental Justice Perspective 2015.” Dr. Faber’s
PFDT, at p. 2, lines 5-7; Exhibit DF-2 to Dr. Faber’s PFDT (“Exhibit DF-2”). In his report, Dr.
Faber contended that the proposed Power Plant “[will] be located in Brockton, a low-income community of color that is one of the more environmentally overburdened communities in the
Commonwealth,” and that the facility “[will] exacerbate a disparate concentration of environmentally hazardous sites and facilities in . . . Brockton.” Exhibit DF-2, at p. 1.
According to Dr. Faber, “[m]any past studies on the disproportionate exposure of low income communities and communities of color have focused on single indicators of environmental hazards” and that his report “provides a composite measure to assess community exposure rates which includes all hazardous facilities and sites.” Exhibit DF-2, at p. 25. His report states that he “developed a point system that weighs the average risks of each various type of hazardous facility/site to arrive at a cumulative measure of community exposure to all potential hazards.” Exhibit DF-2, at p. 25. “[T]o determine the cumulative exposure of environmentally hazardous facilities and sites, [Dr. Faber] totaled the points for each hazardous facility and site in each community in the [Commonwealth].” Exhibit DF-2, at p.25. “[T]o control for the spatial size of each community[,] . . . [he also] calculat[ed] the average number of hazard points per square mile [in a community].” Exhibit DF-2, at p.25. As a result of making these calculations, he concluded that there are “gross imbalances in average hazard point totals
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for lower income communities and communities of color,” including Brockton. Exhibit DF-2, at p.25; p. 26 (Table 6B).
Specifically, Dr. Faber’s report states that “low-income communities average[d] 16 environmental hazard points per square mile in 2015,” and that “[t]his rate stands in dramatic contrast to the exposure rates for all other communities (where median household income is
$50,000 or greater), which ranges from 5.4 to 6.2 points per square mile.” Exhibit DF-2, at p.25; p. 26 (Table 6B). With respect to communities of color, Dr. Faber’s report states that he determined that “low minority communities (less than 5% people of color) average only 2.9 hazard points per square mile, compared to 46.2 points per square mile for high minority communities.” Exhibit DF-2, at p.25; p. 26 (Table 6C).
Dr. Faber stated in his report that the “environmentally hazardous sites and facilities” overburdening Brockton include mostly Chapter 21E contaminated sites and Toxic Inventory
Facilities (“TIFS”) or “Large Quantity Toxics Users.” Exhibit DF-2, at pp. 8-9; pp. 15-18;
Hearing Transcript, at p. 246, lines 12-15, 20-22; p. 249, lines 2-24; p. 250, lines 1-6.
“Chapter 21E” is the short name for the Massachusetts Oil and Hazardous Material
Release Prevention and Response Act, G.L. c. 21E. “[Chapter 21E] was enacted to require owners and operators of real property (among others) with releases of oil or hazardous materials on their properties to assess and remediate those releases to protect health, safety, public welfare and the environment.” In the Matter of James M. Knott, OADR Docket No. 2011-011,
Recommended Final Decision (January 31, 2012), 2012 MA ENV LEXIS 52, at 7, citing, G.L. c. 21E, §§ 1, 2, 3, 4, and 5, adopted as Final Decision (March 12, 2012), 2012 MA ENV LEXIS
51. Chapter 21E is a privatized environmental cleanup program supervised by the Department
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pursuant to which “[parties] responsible for cleaning up contamination . . . hire licensed site professionals (LSPs) to oversee most cleanups . . . to ensure compliance with [Chapter 21E and] the MCP.”35 Contaminated properties regulated by Chapter 21E are often referred to “21E Sites” and the Department’s regulations at 310 CMR 40.0000 implementing Chapter 21E are known as
“the Massachusetts Contingency Plan” or “MCP.”36
Under the MCP, Chapter 21E contaminated sites are ranked by complexity, the number of sources, and how serious a potential threat the contamination poses. Historically, the more seriously contaminated sites are Tier I (with Tier IA deemed as the most contaminated sites) or
Tier II (less contaminated).”37 The Department maintains a searchable online (internet) database to track the cleanup progress of reported sites.38
The MCP sets forth performance standards for the conduct of response actions to cleanup contaminated sites, particularly for completion of final site remediation opinions which were historically known as Response Action Outcome Statements (“RAO Statements”). An RAO
Statement was filed with the Department when a site had been remediated in compliance with the MCP to a level where there was “No Significant Risk.”39
Dr. Faber stated in his report that the Department’s database indicates that “there are
35 http://www.mass.gov/eea/docs/dep/cleanup/laws/bhfs.pdf.
36 Id.
37 In 2014, the Department amended its MCP Regulations, and certain aspects of the Tier ranking system were revised. However, since Dr. Faber relied on the Department’s database for c. 21E sites, his review presumably focused upon site data that was primarily available prior to the 2014 amendments to the MCP.
38 http://www.mass.gov/eea/agencies/massdep/cleanup/sites.
39 The 2014 MCP amendments also replaced RAOs with new cleanup endpoints known as “Permanent” or “Temporary” solutions. The RAO system is discussed here because it was utilized in Dr. Faber’s report, discussed above.
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currently . . . 45,937 . . . [Chapter 21E] . . . sites [in Massachusetts], including 1,820 more serious
Tier 1, 2, 1D sites.” Exhibit DF-2, at p. 8. He stated in his report that “there is an average of 126
[Chapter 21E] sites per [municipality] in . . . Massachusetts,” but in Brockton, “there is a significant concentration of [Chapter 21E sites[:] 519[,] . . . some 393 more sites than the state average,” and “when controlling for the [geographical] size of a [municipality], there is an average of 5.1 [Chapter 21E] sites per square mile for all [municipalities, while] . . . Brockton averages over 24 [Chapter 21E] sites per square mile.” Exhibit DF-2, at p. 14.
With respect to TIFS or “Large Quantity Toxics Users” these facilities or entities are regulated by the Department pursuant to the Massachusetts Toxics Use Reduction Act
(“TURA”), G.L. c. 211, §§ 1-23. Exhibit DF-2, at pp. 15-18. “Enacted in 1989 and amended most recently in 2006, TURA requires Massachusetts companies that use large quantities of specific toxic chemicals to evaluate and plan for pollution prevention opportunities, implement them if practical, and annually measure and report the results [to the Department].”40
Dr. Faber contends in his report that “[b]etween 1990-2002, . . . [TURA regulated] facilities [in the Commonwealth] released onsite some 204,302,113 pounds of chemical waste byproduct directly into the environment (discharged into the air, ground, underground, or adjacent bodies of water) of the communities in which they were located.” Exhibit DF-2, at p. 17. According to Dr. Faber, “[l]ow-income communities and medium-low income communities together comprised 47 percent of all communities in Massachusetts, but were home to 58.5 percent of all TURA facilities and 79.4 percent of all chemicals used by TURA facilities.” Exhibit DF-2, at p. 17. His report states that the average total chemical releases in
40 http://www.mass.gov/eea/agencies/massdep/toxics/tur.
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high income municipalities was 246,428 pounds or 12,656 pounds per square mile, and that
Brockton exceeded these figures with 341,090 pounds of chemicals released to the environment or 15,791 per square mile. Exhibit DF-2, at p. 17. His report states that this trend continued for the period of 2003-2012 during which 243,379 pounds of chemicals were released into the environment in Brockton or 11,309 pounds per square mile. Exhibit DF-2, at p. 18. According to his report in high income communities, a total of 9,839,780 pounds of chemicals were released into the environment or 3,498 pounds per square mile, and in communities with a low population of persons of color 20,199,505 pounds of chemicals were released into the environment or 4,146 pounds per square mile. Exhibit DF-2, at p. 18.
Dr. Faber contends in his report that “[l]andfills can also pose health hazards to communities,” and that based on a 2005 study he performed using 2000 Census data, he documented a total of 980 different landfill-type operations (including transfer stations and incinerators) in the Commonwealth, and determined that these facilities were more heavily concentrated in lower income communities. Exhibit DF-2, at p. 19. According to his calculations, low-income communities averaged .22 landfills per square mile, in comparison to
.13 to .17 landfills per square mile for all other communities. Exhibit DF-2, at p. 19. He also determined communities with a low minority population averaged .12 landfill types per square mile while communities with a high minority population averaged .35 landfill types per square mile. Exhibit DF-2, at p. 19. He stated in his report that at the time he performed the study,
Brockton had six landfill type facilities which exceeded the statewide average of 2.7 landfill-type operations in municipalities. Exhibit DF-2, at p. 19. He also stated that Brockton had .28 landfill type operations per square mile which exceeded the statewide average of .15 landfill-type
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operations per square mile. Exhibit DF-2, at p. 19. He stated in his report that according to
Department records, Brockton currently has two operating handling and/or transfer facilities, and four “not operating” land disposal sites. Exhibit DF-2, at p. 19. His report also notes that the
Thatcher Landfill in Brockton is located approximately 1.5 miles from the site of the proposed
Power Plant. Exhibit DF-2, at p. 19.
Under his point system, Dr. Faber assigned:
(1) 10 points for a Tier 1 Chapter 21E Site;
(2) 3 points for a Tier 2 Chapter 21E Site;
(3) 3 points for a Tier 1D Chapter 21E Site;
(4) 1 point for RAO and all other Chapter 21E Sites;
(5) 5 points for a TFI/TURA Facility;
(6) 6 points to an operating Landfill;
(7) 3 points to an inactive Landfill;
(6) 6 points to an operating Handling/Transfer Facility; and
(7) 3 points to an inactive Handling/Transfer Facility.
Exhibit DF-2, p. 26 (Table 6A). Using his point system, Dr. Faber calculated a total of 677
“environmental hazard points” for Brockton, “[an] amount equal to 31.5 [environmental] hazard points per square mile” in the city. Exhibit DF-2, at p. 28; p. 28 (Table 6D). His report states that these figures far exceed the statewide average of 171 environmental hazard points per municipality and state-wide average of 6.9 environmental hazard points per square mile for each municipality. Exhibit DF-2, at p. 28; p. 28 (Table 6D). For these reasons, he testified that
“[s]iting the [proposed] power plant [in Brockton] would exacerbate a disparate concentration of
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environmentally hazardous sites and facilities in the City[.] . . .” Dr. Faber’s PFST, at p. 2, lines
9-11.
While promising in theory to measure cumulative environmental impacts on a community based on the existence of “environmentally hazardous sites and facilities” in the community, Dr. Faber’s point system does not have a reliable evidentiary foundation for me to conclude in this case that the NAAQS for PM2.5 are not protective enough of the EJ Community in Brockton, for the following reasons.
First, during cross-examination, Dr. Faber acknowledged that his point system is based on generalized assumptions about the hazards or risks presented mostly by Chapter 21E Sites and
TFI/TURA facilities, and that he had not reviewed any files maintained by regulatory agencies, including the Department, for any specific facility or site in order to assess site-specific conditions or activities or to calculate actual exposure or risk. Hearing Transcript, p. 247, lines
12-24; p. 248, lines 1-24; p. 249, lines 1-8; p. 250, lines 13-17; p. 251, lines 3-8; p. 282, lines 4-
14. He also acknowledged that he had not consulted with expert consultants or facility operators to understand how any specific facility or site might contribute to actual exposure or risk.
Hearing Transcript, p. 258, lines 4-8; p. 271, lines 14-17; p. 275, lines 8-23. When he was asked to address whether he had evaluated actual exposure scenarios or risks associated with sites or facilities included in his report, Dr. Faber stated that “[he] did not concern [himself] with the content of each individual site [and] what was there,” and that “[he did not] know enough about the differences for each one of these individual sites.” Hearing Transcript, p. 251, lines 6-8; p. 252, lines 7-9. He explained that the terms “weigh” and “measure” that he used in his report were not intended to represent actual impacts or activities for any facility or site, and referred
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only to addition of points assigned in his point system. Hearing Transcript, p. 261, lines 11 to
24; p. 262, lines 1-5. He also admitted that the terms “exposure” and “exposure rate” that he used in his report did not reflect any quantitative estimate based on epidemiology, toxicology or risk assessment, but rather were used “in a more sociological sense, which is preponderance of facilities within a community.” Hearing Transcript, p. 262, lines 6-14.
Dr. Faber also acknowledged that the points assigned to sites in the Chapter 21E sites contributed “a very significant proportion” of the total environmental hazard points he calculated for Brockton in his report. Hearing Transcript, p. 249, lines 20-24; p. 250, lines 1-6. He indicated that the assignment of alternative values to Chapter 21E sites in his point system would not reduce the dominating effect of Chapter 21E sites on the ranking of communities in his report because “the sheer number of [Chapter 21E] sites tends to overpower differentials in the point system.” Hearing Transcript, p. 256, lines 19-24.
When Dr. Faber was asked to describe how he had determined that the same number of points should be assigned to every facility in each category (e.g., six points for every “active solid waste handling facility”) and that a different number of points should be assigned in different categories (e.g., ten points, and not six points, for Tier 1 sites in the Chapter 21E category), Dr. Faber indicated that his point system and his report were intended to provide a
“general way in which you can compare the overall environmental burden in terms of the number of different facilities and sites in a community with other communities.” Hearing
Transcript, p. 255, lines 7-19. He also conceded that his point system is informative and informational but does not give specific information about the true exposure risks to humans from the different types of facilities at the sites he assessed points against. Hearing Transcript,
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p. 255, lines 20-24; p. 256, lines 1-4. He acknowledged that the purpose of his point system was
“to present an image of the total number of waste sites that exist in a given community throughout the state and looking at the relative comparison based upon the state’s database” and
“[i]It wasn’t any more than that.” Hearing Transcript, p. 267, lines 4-9.
d. The Testimony of the Applicant’s Witness, Dr. Valberg, and the Department’s Witness, Mr. Cushing, Effectively Refuted Dr. Faber’s Testimony Challenging the NAAQS for PM2.5
The less than solid evidentiary footing for Dr. Faber’s testimony was confirmed by the persuasive testimony of the Applicant’s witness, Dr. Valberg, and the Department’s witness, Mr.
Cushing.
(1) Dr. Valberg’s Testimony
Dr. Valberg testified that he had concerns about Dr. Faber’s analysis because it was
“grounded on the belief that merely adding up the number of ‘environmentally hazardous sites and facilities’ in a community translates into what he has termed a ‘cumulative exposure rate.’”
Dr. Valberg’s PFRT, at p. 3, lines 7-9. He testified that “[w]ithout doing anything to verify if actual ‘exposure’ [was] taking place, Dr. Faber speculate[d] that the location of certain facilities
[in Brockton] bears upon the evaluation of actual public health effects in [that] community, and bears on the decision as to whether [the proposed] gas-fired power plant should be sited in that community.” Dr. Valberg’s PFRT, at p. 3, lines 9-13. He expressed concern that “Dr. Faber ha[d] not conducted any Project-specific analysis, or any study of baseline air quality conditions in the City of Brockton, or any evaluation of how the Project power plant would affect air quality, or to what degree public health in Brockton is determined by Brockton’s ambient air
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quality.” Dr. Valberg’s PFRT, at p. 3, lines 13-16.
Dr. Valberg also testified that he “[is] not aware of any scientific basis for Dr. Faber’s premise that, if a community is ‘overburdened’ vs. ‘less burdened’ according to the parameters compiled by Dr. Faber (e.g., based only on a numerical ‘count’ of ‘hazardous sites or facilities’), then people in that community are subject to public health risks per se, without regard to what a health- risk assessment would predict, based on established exposure pathways, known human toxicology, medicine, and public health.” Dr. Valberg’s PFRT, at p. 3, lines 17-18; p. 4, lines 1-
4. He testified that Dr. Faber’s “[s]imple enumeration of existing ‘hazardous waste sites, incinerator, and landfills,’ and an assignment of seemingly arbitrary so-called ‘hazard points’ to various subcategories of hazardous sites and facilities for purposes of comparison, is not an appropriate method for evaluating environmental impacts of such facilities or sites in a specific community [because it] . . . provides no substantive, quantitative, or comparative basis for the evaluation of the environmental or human health impacts.” Dr. Valberg’s PFRT, at p. 4, lines 4-
10.
Regarding Dr. Faber’s point system, Dr. Valberg testified that “[it] is inconsistent with accepted health risk assessment methods, because to properly evaluate potential health impacts, the actual quantified impact on the environment must be considered for each facility.” Dr.
Valberg’s PFRT, at p. 4, line 20; p. 5, lines 13. He testified that the unsoundness of Dr. Faber’s point system is evidenced “by his giving all ‘sites and releases’ listed in a particular category the identical ‘hazard point score,’ and not allowing for any differences in relative emissions and
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human health impact among sites given a particular name.” Dr. Valberg’s PFRT, at p. 5, lines 3-
7.
Dr. Valberg testified that Dr. Faber’s analysis was also problematic because “[w]ithout making any quantitative analysis or reference to any existing air impact or health risk data, Dr.
Faber suggest[ed] [that] ‘the potential health impacts for residents living in close proximity to
[power-plant] facilities are severe,’ [but he did not provide any] air concentrations for impacts at schools and residences between 1.5 to 2 miles from the [proposed Power Plant] site.” Dr.
Valberg’s PFRT, at p. 6, lines 17-21. He testified that “throughout his report Dr. Faber [had also] confuse[d] the relative importance of annual air emissions numbers with actual ground- level concentrations in air,” and that “total emissions do not translate into a potential for health effects, because the important factor is the actual concentration of substances in air that people breathe.” Dr. Valberg’s PFRT, at p. 6, lines 21-24; p. 7, line 1. He testified that “[a]s far as the impact of facility emissions on ground-level air concentrations, the disparity among different source types grows even larger when one considers the fact that area sources and mobile sources both contribute to emissions closer to ground level and closer to the air that people breathe, because there is less opportunity for dilution.” Dr. Valberg’s PFRT, at p. 7, lines 1-5. He testified that “[p]oint sources such as the [proposed Power Plant], on the other hand, are designed to discharge their emissions through high stacks (e.g. ~250 feet above ground level) in order to provide opportunity for dilution during long-distance transport, protecting the local populations, and maintaining local ambient air quality at levels that comply with health-protective standards.”
Dr. Valberg’s PFRT, at p. 7, lines 5-9. He testified that as the Applicant’s air modeling impact
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studies demonstrated, “[the proposed Power Plant’s] emissions will comply with all health-based standards such as the NAAQS and the SILs . . . .” Dr. Valberg’s PFRT, at p. 9-10.
(2) Mr. Cushing’s Testimony
In his testimony, Mr. Cushing corroborated Dr. Valberg’s concerns about Dr. Faber’s testimony. Mr. Cushing’s PFRT, at p. 2, ¶¶ 6, 8-9; pp. 3-5. Specifically, he testified that Dr.
Faber “[did] not identify any significant adverse impacts attributable to the emissions from, or the operation of the proposed [Power Plant], much less a significant adverse impact on the
Environmental Justice communities in Brockton.” Mr. Cushing’s PFRT, at p. 2, ¶ 9. He described Dr. Faber’s [Environmental Hazards] [P]oint [S]ystem as “inherently flawed and
[containing] errors in interpreting the data [Dr. Faber] used to assign points to the communities.”
Mr. Cushing’s PFRT, at p. 3, ¶ 9.
Mr. Cushing testified that Dr. Faber’s assignment of 677 Environmental Hazard Points to
Brockton and his state-wide average determination of 171 Points “are unsubstantiated because
[Dr. Faber did] not provide sufficient information to be able to independently recreate the points,” and “[m]ore importantly, [Dr.] Faber . . . [did] not establish a risk-to-point proportional relationship, to ensure each point represents an equivalent health risk.” Mr. Cushing’s PFRT, at p. 3, ¶ 12. He testified that “[l]acking such a risk-to-point relationship, the point value assigned to each item within the matrix is arbitrary and unhelpful in the Environmental Justice analysis.”
Mr. Cushing’s PFRT, at p. 3, ¶ 12. He also noted the marked deficiencies in the specific points
Dr. Faber assessed for particular facilities, including Chapter 21E Sites and TFI/TURA
Facilities. Mr. Cushing’s PFRT, at pp. 3-5, ¶ 13.
With respect to Chapter 21E Sites, Mr. Cushing testified that “[Dr.] Faber . . . incorrectly
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stated that there are 519 [Chapter 21E Sites] in Brockton [because] [a]ccording to information publicly available on the MassDEP website41 there are 519 Release Tracking Numbers (“RTNs”) that have been issued for releases or conditions associated with an existing release in the [City].”
Mr. Cushing’s PFRT, at p. 4-5, ¶ 13E. Mr. Cushing explained that “[a]n RTN is a mechanism that allows MassDEP to track different reportable conditions,” and that “[Dr.] Faber . . . fail[ed] to recognize that each [Chapter 21E Site] may have multiple RTNs associated with it, each corresponding to a different site condition.” Mr. Cushing’s PFRT, at pp. 4-5, ¶ 13E. He testified that “[f]or example, a single release may be issued more than one RTN based on the discovery of down gradient impacts on neighboring property,” and “[c]onsequently, there are likely significantly less than 519 [Chapter 21E] sites within Brockton.” Mr. Cushing’s PFRT, at pp. 4-
5, ¶ 13E. He also testified that Dr. Faber’s method of “[a]ssigning points [ranging from one to ten] simply based on the associated Tier classification is likely insufficient in that it fails to take into account the type of release.” Mr. Cushing’s PFRT, at pp. 4-5, ¶ 13E. For example, as Mr.
Cushing testified, “a solvent release would likely migrate off site, thereby having a higher potential to impact a nearby water supply than a metals release, which may have a more localized impact, yet both could be assigned the same Tier classification.” Mr. Cushing’s PFRT, at pp. 4-5, ¶ 13E.
Mr. Cushing testified the Dr. Faber’s assessment of five points for each TFI/TURA
Facility is problematic for a number of reasons. Mr. Cushing’s PFRT, at pp. 3-4, ¶ 13C. First, with respect to Dr. Faber’s contention that during the period of 1990 through 2002 Brockton- based industry released a much higher amount of TURA reportable material into the
41 http://public.dep.state.ma.us/SearchableSites2/Search.aspx).
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environment (341,090 pounds of TURA reportable material or 15,791 per square mile) than high income municipalities (246,428 pounds on the average per municipality or 12,656 pounds per square mile), Mr. Cushing testified that Dr. Faber’s “[s]umming [of the] data, some of which is
25 years old, over a 12-year span misses the point of the [TURA] program, which is to reduce usage of reportable materials and the associated collateral emissions.” Mr. Cushing’s PFRT, at pp. 3-4, ¶ 13C. He testified that “[t]he data is most useful if evaluated on a successive annual basis to assess reductions [of reportable materials and the associated collateral emissions].” Mr.
Cushing’s PFRT, at pp. 3-4, ¶ 13C.
Mr. Cushing also testified that “[a] review of more current data indicates that there were only 17,337 pounds of reportable air emissions from Brockton [TFI/TURA] facilities in 2013, consisting solely of acetone,42 [which] represents a 51.4% reduction in acetone air emissions from 2003, when 35,712 pounds were emitted.” Mr. Cushing’s PFRT, at pp. 3-4, ¶ 13C. He testified that “[w]hen the [TFI/TURA] data is correctly interpreted, [it] shows a reduction in emissions to the host community,” and, accordingly, “it is unclear why a TURA reporting facility merits 5 ‘Environmental Hazard Points’” under Dr. Faber’s point system. Mr. Cushing’s
PFRT, at pp. 3-4, ¶ 13C. He testified that Dr. Faber’s five point assessment for TFI/TURA facilities assumes “that emissions [of TURA reportable material from those facilities] directly translate into health risk” even though “[t]here has been no evaluation of the ambient acetone
42 “Acetone is a manufactured chemical that is also found naturally in the environment.” http://www.atsdr.cdc.gov/substances/toxsubstance.asp?toxid=1. “It is a colorless liquid with a distinct smell and taste[,] [i]t evaporates easily[;] is flammable[;] and dissolves in water.” Id. “Acetone is used to make plastic, fibers, drugs, and other chemicals[,] [and] also used to dissolve other substances.” Id. “[Although] [i]t occurs naturally in plants, trees, volcanic gases, forest fires, and as a product of the breakdown of body fat[,] [i]t is [also] present in vehicle exhaust, tobacco smoke, and landfill sites.” Id. “Industrial processes[,] [however,] contribute more acetone to the environment than natural processes.” Id.
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concentrations,” and “[t]he associated health or environmental risks have not been identified.”
Mr. Cushing’s PFRT, at pp. 3-4, ¶ 13C. Indeed, Mr. Cushing noted that “[a]lthough acetone is still reportable in the TURA program, the USEPA has de-listed acetone as a volatile organic compound (“VOC”) due to its negligible contribution to the formation of ground level ozone,” and that acetone “is not subject to regulation under the [CAA] as either a hazardous air pollutant or a criteria pollutant, i.e., with emissions that might affect ambient air quality relative to [the
NAAQS].” Mr. Cushing’s PFRT, at pp. 3-4, ¶ 13C.
At the Hearing, Mr. Cushing also confirmed that any potential risks presented by the proposed Power Plant’s air emissions are below the levels deemed acceptable under the stringent
NAAQS standards set by the EPA. Hearing Transcript, at p. 476, lines 13-241; p. 477, lines 1-5.
He testified that, although the proposed Power Plant would contribute some increment to ambient air concentrations in the surrounding areas, including the environmental justice community, the risk associated with that increment had not been shown to be “disparate” in any area because the impact “will not be any different in the neighboring EJ areas as they will anywhere else, such as the non-EJ areas; . . . they are consistent throughout the region.” Hearing
Transcript, p. 480, lines 4-24; p. 481, lines 1-3.
III. THE CPA COMPLIES WITH THE 2002 EJ POLICY
The Petitioners contend that the Department failed to comply with the requirements of the 2002 EJ Policy in issuing the CPA, and as a result, the CPA should be vacated.43 See
Petitioners’ Closing Brief, at pp. 18-26. The Petitioners’ claim is without merit.
43 At the outset of this administrative appeal, the Department also sought dismissal of the Petitioners’ claims under the 2002 EJ Policy for lack of jurisdiction based on Refusetech, Alexander, and the Policy’s disclaimer language. Department’s Motion to Dismiss, at pp. 14-15. The prior Presiding Officer declined to dismiss the Petitioners’ claims under the 2002 EJ Policy. Interlocutory EJ Ruling, at pp. 16-24. I concur with the prior Presiding Officer’s
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A. The Department Complied with the 2002 EJ Policy’s Title VI Compliance Requirement In Issuing the CPA
As discussed previously, the 2002 EJ Policy was issued by EEA’s predecessor agency,
EOEA, “to reinforce and enhance [the] efforts [of EOEA and its agencies, including the
Department], to meet the existing legal mandates [of] Title VI[.]” 2002 EJ Policy, at p. 4;
Interlocutory EJ Ruling, at p. 7. To that end, the Policy incorporated by reference “[t]he legal requirements of Title VI [and the EPA’s Title VI Regulations],” including those at 40 CFR
7.35(b) and 7.35(c) barring disparate impact discrimination by EOEA agencies, specifically any action by an EOEA agency “deeming a site suitable [f]or locating a facility where it will have discriminatory effects on the basis of race, color, or national origin.” 2002 EJ Policy, at p. 4.
Hence, the 2002 EJ Policy has a Title VI compliance requirement that all EEA agencies, including the Department, must comply with if they receive federal financial assistance to administer agency programs.
Here, the Department complied with the Policy’s Title VI compliance requirement when it issued the CPA because, as discussed in detail above, the proposed Power Plant will not result in disparate impact discrimination on the EJ communities in Brockton. Therefore, the
Petitioners’ disparate impact discrimination claim under Policy fails.
ruling for the same reasons discussed above why the Petitioners’ Title VI claims were allowed to proceed and not dismissed. See above, at pp. 13-18. These reasons include Refusetech’s misplaced reliance on Alexander and that Refusetech was decided one year prior to the issuance of the 2002 EJ Policy, which requires EEA agencies, including the Department, to among other things, “promote . . . rulemakings or other actions intended to further environmental justice in the Commonwealth.” See above, at pp. 16-17. Adopting a rule that allows parties to pursue claims under the 2002 EJ Policy in an administrative appeal challenging a Department issued permit on the ground that it is discriminatory in violation of the Policy furthers environmental justice. The Department’s Commissioner, as the Final Decision-maker in the appeal, may of course prescribe another procedure for parties to pursue claims under the 2002 EJ Policy. See note 16, at p. 16 above. Regarding the Department’s contention that the Policy’s disclaimer language precludes the Petitioners from pursuing their claims under the Policy in this appeal, I reject the claim based on the SJC’s recent interpretation of the language in Brockton I. See above, at pp. 17-18.
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B. The Proposed Power Plant Was Subject to the 2002 EJ Policy’s Enhanced Public Participation Requirement and the Department Complied with the Requirement In Issuing the CPA
The 2002 EJ Policy “mandates that ‘all [EEA] 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.’”
Brockton I, 469 Mass. at 201; 2002 EJ Policy, at p. 7 (¶ 13). The Policy “calls for ‘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 [under MEPA]44 for ‘air [emissions], solid and hazardous waste … or wastewater and sewage sludge treatment and disposal’ as determined by the [EEA] Secretary . . . under MEPA and [the MEPA regulations [at 301 CMR 11.00], and the project site is within one mile (or, in the case of air emissions, five miles) from an EJ population.” Brockton I, 469 Mass. at 201; 2002 EJ Policy, at p. 8 (¶ 14).
Here, the proposed Power Plant was subject to the Policy’s enhanced public participation
44 “MEPA” is the acronym for the Massachusetts Environmental Policy Act, G. L. c. 30, §§ 61-62H. MEPA and the MEPA Regulations at 301 CMR 11.00 “establish a process to ensure that State permitting agencies [such as the Department] have adequate information on which to base their permitting decisions, and that environmental impacts of the project are avoided or minimized.” Brockton I, 469 Mass. at 201, n.12. “Pursuant to MEPA, a project proponent requiring a permit from a State agency files an environmental notification form (ENF) with the [EEA] Secretary[,] . . . who determines whether the project meets the review threshold requiring an . . . [Environmental Impact Report (“EIR”)].” Id. “If so, and after submission of a final environmental impact report (FEIR) and opportunity for review by the public, the [EEA] Secretary certifies whether the FEIR has complied with MEPA . . . .” Id. A Certification by the EEA Secretary that the FEIR complies with MEPA “does not constitute final approval or disapproval of a particular project, which ultimately is left to various permitting agencies.” Id. The Certification “[also] does not mean that a proposed project meets applicable permitting standards.” In the Matter of Stephen D. Peabody, Final Decision on Reconsideration (December 27, 2011), 2011 MA ENV LEXIS 141, at 47-48. “Instead, it only means that the project’s proponent has adequately described the environmental impacts and addressed mitigation” as required by MEPA. Id. The permitting agency “retains [its] authority to fulfill its statutory and regulatory obligations in permitting or reviewing [the] Project that is subject to MEPA review . . . .” 301 CMR 11.01(1)(b).
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requirement because the facility exceeded a MEPA ENF threshold for air emissions and would be located within five miles of an EJ population. Brockton I, 469 Mass. at 202. As discussed below, the Department fully complied with this requirement during the course of its review of the proposed Power Plant, and the Petitioners presented no evidence to the contrary. Indeed, the
Department’s enhanced public participation efforts were in addition to the significant enhanced public participation efforts that took place during the EEA Secretary’s MEPA review of the proposed Power Plant and the EFSB’s separate permitting proceedings for the facility.
1. The Enhanced Public Participation During the EEA Secretary’s MEPA Review of the Proposed Power Plant
a. The Applicant’s ENF
In 2007 and in accordance with MEPA requirements, the Applicant submitted an ENF to the EEA Secretary for the proposed Power Plant. Exhibit B to Department’s Motion to Dismiss
[Petitioners Group’s] Environmental Justice and Title VI Claims (November 10, 2011)
(“Department’s Motion to Dismiss”). The Applicant’s ENF provided a detailed description of the proposed Power Plant stating that it would be “a state of the art 350-MW combined cycle power plant,” and that the facility “[would] result in important benefits for the Commonwealth, southeastern Massachusetts[,] and . . . Brockton,” specifically, that the facility would:
(1) be one of the most efficient and cleanest power stations in the region;
(2) provide ISO-New England45 with greater flexibility, additional capacity and a more reliable generation network;
(3) provide approximately 250 construction jobs, 20 to 25 long-term jobs
45 ISO-New England describes itself as an “independent, not-for-profit corporation responsible for keeping electricity flowing across the six New England states and ensuring that the region has reliable, competitively priced wholesale electricity today and into the future.” http://www.iso-ne.com/about.
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and more than $30 million in tax revenue for Brockton over 30 years;46
(4) purchase treated effluent from Brockton’s AWRF as well as water from Brockton’s municipal water system; and
(5) generate significant secondary economic benefits from local material purchases during plant construction and operation.
Exhibit B to Department’s Motion to Dismiss, at pp. 4-5.
The Applicant’s ENF also proposed measures to minimize environmental impacts of the proposed Power Plant, including measures to reduce air quality impacts. To minimize air quality impacts, the Applicant’s ENF stated that the facility would employ a full array of emission controls to meet Best Available Control Technology (“BACT”) and Lowest Achievable
Emissions Rate (“LAER”) requirements as set forth in the Department’s Air Pollution Control
Regulations and as finalized in the Department’s CPA for the facility. Id., at p. 5.47 The
46 An updated economic impact assessment study of the proposed Power Plant that the consulting firm of the Applicant’s witness, Ms. Petraglia, performed in 2015 estimated that approximately 540 construction jobs would be created as a result of the facility’s construction. See below, at pp. 120-131.
47 Under the Department’s Air Pollution Control Regulations, “BACT” and “LAER” are respectively defined as follows.
BACT is defined as:
an emission limitation based on the maximum degree of reduction of any regulated air contaminant emitted from or which results from any regulated facility which the Department, on a case-by-case basis taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems and techniques for control of each such contaminant. The [BACT] determination [cannot authorize] emissions in excess of any emission standard established under the New Source Performance Standards, National Emission Standards for Hazardous Air Pollutants or under any other applicable section of 310 CMR 7.00, and may include a design feature, equipment specification, work practice, operating standard, or combination thereof.
310 CMR 7.00 (definition for “Best Available Control Technology”). LAER is defined as:
the more stringent rate of emissions based on the following: (a) The most stringent emissions limitation which is contained in any [State Implementation Plan (“SIP”)] for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or (b) The most stringent emissions limitation which is achieved in practice by such class or category of stationary source. . . .
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Applicant’s ENF identified another principal environmental mitigation measure: water conservation through the reuse of approximately 2 million gallons per day of treated wastewater from Brockton’s AWRF. Id.48
b. The EEA Secretary’s Certificate on the Applicant’s ENF
On June 8, 2007, the EEA Secretary issued a Certificate on the Applicant’s ENF, which confirmed that the proposed Power Plant required permitting approval from the EFSB and the
Department; that the facility required an EIR under MEPA because it involved construction of a new electric generating facility with a capacity greater than 100 MW; and that the facility was subject to the enhanced public participation requirements of the 2002 EJ Policy because the facility exceeded an ENF threshold for air emissions (the facility had the potential to emit more than 50 tons per year of NOx) and would be located within five miles of an EJ population.
Exhibit C to Department’s Motion to Dismiss, at pp. 2-4.
The EEA Secretary’s Certificate on the Applicant’s ENF directed the Applicant to fulfill the enhanced public participation requirements of the 2002 EJ Policy through heightened public outreach to the environmental justice populations in Brockton. Id., at p. 4. Specifically, the
Applicant was required to make documents about the proposed Power Plant available to the public through the Brockton Public Library, Brockton City Hall, on Brockton’s internet website,
310 CMR 7.00, Appendix A (definition for “Lowest Achievable Emissions Rate”).
48 The Applicant’s reuse of the treated wastewater would be governed by the Department’s Reclaimed Water Program as set forth in the Department’s Reclaimed Water Regulations at 314 CMR 20.00, which was designed to preserve water resources of the Commonwealth. In the Matter of SEMASS Partnership, OADR Docket No. 2012- 015, Recommended Final Decision (June 18, 2013), 2013 MA ENV LEXIS 34, at 32-33, adopted as Final Decision (June 24, 2013), 2013 MA ENV LEXIS 37. Under the Program, “’reclaimed water’ is recycled wastewater that has been treated so that it can be reused for a variety of beneficial purposes.” Id. “These purposes can include ‘agricultural and landscape irrigation, industrial processes, toilet flushing, and replenishing a ground water basin (referred to as ground water recharge).’” Id. “Water recycling offers water resource and financial savings, and according to the Department, ‘[i]t is good environmental policy to reuse water whenever possible.’” Id.
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and upon request by Brockton residents. Id. Notification of these documents was to be published by the Applicant in the local newspaper and in alternative community resources such as newsletters and church bulletins, if appropriate. Id. Due to the significant non-English speaking population in Brockton, the Applicant was also to make project summary documents available in Portuguese and Spanish upon request. Id.
The EEA Secretary’s Certificate on the Applicant’s ENF also specified the scope of the environmental review of the proposed Power Plant that the Applicant was required to perform for its draft EIR (“DEIR”). Id., at pp. 3-10. This review was to include the following:
(1) an analysis of alternatives to the facility, including a no-build alternative, an evaluation of alternative sites, alternative designs, and an examination of how the facility would meet local and regional energy needs, Id., at pp. 3-5;
(2) an analysis of the impacts of the facility on air quality by utilizing air quality modeling to examine the impact of the facility on air quality and public health and the cumulative impact of the facility on the air quality in Brockton, Id., at pp. 6-8;
(3) an analysis of noise impacts that was to address all sources of sound associated with the facility and describe all proposed measures to avoid, minimize, and mitigate noise impacts, and demonstrate the facility’s compliance with the Department’s noise policy, Id., at p. 8;
(4) an analysis of the water quality and flow impacts to the Salisbury Plain River, the discharge waterbody for treated wastewater from Brockton’s AWRF, resulting from the facility’s use of the treated wastewater as cooling water for the facility’s cooling tower, Id., at p. 10; and
(5) an analysis of the facility’s plan to reuse approximately 2 million gallons per day of treated wastewater from Brockton’s AWRF, including an update on the Applicant’s consultations with Department personnel on the plan and a description of the measures that the Applicant would
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employ to ensure that the quality of the reused water would be consistent with applicable requirements. Id., at p. 10.
c. The Applicant’s DEIR and the EEA Secretary’s Certificate on the DEIR
In September 2007, the Applicant submitted its DEIR for the proposed Power Plant to the EEA Secretary setting forth the Applicant’s environmental review of the areas highlighted by the Secretary in his Certificate on the Applicant’s ENF. On November 1, 2007, the EEA
Secretary issued a Certificate on the Applicant’s DEIR stating that the DEIR “adequately and properly complied with [MEPA] . . . and with its implementing regulations (301 CMR 11.00),” but that he was requiring additional environmental review in certain areas for the Applicant’s
Final Environmental Impact Report (“FEIR”), including in the areas of air quality and reuse of treated wastewater from Brockton’s AWRF. Exhibit D to Department’s Motion to Dismiss, at pp. 1, 13-16.
In the Certificate, the EEA Secretary confirmed once more that the proposed Power
Plant was subject to the enhanced public participation requirements of the 2002 EJ Policy and acknowledged that the Applicant had complied with those requirements in preparing the DEIR through enhanced outreach to EJ communities, including providing interpreters at the MEPA consultation as required by the 2002 EJ Policy, and publicizing that the DEIR was available for review and comment by distributing notices to local churches and schools and postings on the
Brockton’s and the Cape Verdean’s community’s respective internet websites. Id., at pp. 5, 13.
The Secretary also confirmed that the proposed Power Plant was not subject to the Policy’s
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enhanced analysis of impacts and mitigation requirements because the facility did not exceed
MEPA’s mandatory EIR threshold for air emissions.49 Id., at p. 5.
d. The Applicant’s FEIR and the EEA Secretary’s Certificate on the FEIR
In February 2008, the Applicant submitted its FEIR to the EEA Secretary containing the additional environmental review of the proposed Power Plant that the Secretary had directed in his previous Certificate on the Applicant’s DEIR. On March 28, 2008, the EEA Secretary issued a Certificate on the Applicant’s FEIR stating that the FEIR “adequately and properly complie[d] with [MEPA] . . . and with its implementing regulations (301 CMR 11.00).”
Exhibit E to Department’s Motion to Dismiss, at p. 1; Exhibit K-4 to Mr. Kamieniecki’s PDFT, at p. 1. In the Certificate, the EEA Secretary also acknowledged that the Applicant had complied with the enhanced public participation requirements of the 2002 EJ Policy in preparing the FEIR,50 and confirmed again that the proposed Power Plant was not subject to the to the Policy’s enhanced analysis of impacts and mitigation requirements because the facility did not exceed MEPA’s mandatory EIR threshold for air emissions. Id., at p. 4.
2. The Enhanced Public Participation During the EFSB’s Permitting Proceedings On the Proposed Power Plant
During the EFSB’s permitting proceedings for the proposed Power Plant, there was additional enhanced public participation in accordance with the 2002 EJ Policy. Brockton I,
49 The requirements are discussed below, at pp. 93-94.
50 The Certificate noted that the FEIR had been made available for review at the Brockton and West Bridgewater public libraries, at the Brockton’s Clerk’s Office, Brockton’s website, and the West Bridgewater’s Clerk's office. Exhibit E to Department’s Motion to Dismiss, at p. 4; Exhibit K-4 to Mr. Kamieniecki’s PDFT, at p. 4. Additional copies were made available to residents upon request, and project information was made available in Portuguese, Spanish, French, Haitian Creole and Vietnamese on the Applicant’s website. Id. Notice that the FEIR was available for public comment was published in several publications, with several community organizations, churches and schools. Id.
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469 Mass. at 202, n.13. As the EFSB noted in its final decision approving the facility, the enhanced public participation procedures “included numerous public meetings, translation of
[Applicant]-issued public information into multiple languages, translation [of] materials on its
[internet] website into multiple languages, and the posting of meeting notices in multiple languages at many locations within . . . Brockton.” Id. “Indeed, the record [of the EFSB’s permit proceedings] show[ed] both enhanced outreach and tremendous participation through the . . . proceedings.” Id.
3. The Enhanced Public Participation During the Department’s Review of the Applicant’s CPA Application
In accordance with the 2002 EJ Policy, there was additional enhanced public participation regarding the proposed Power Plant during the Department’s review of the
Applicant’s CPA Application for the facility. Mr. Cushing’s PDFT, at p. 5. Notice of the public hearing on the draft CPA was: (1) published in two local newspapers: the Brockton
Enterprise and the Brockton Haitian Reporter; (2) posted on a Cape Verdean internet website51 and the Department’s internet website; (3) posted on the Applicant’s internet website in
English, French, Portuguese, Spanish and Vietnamese; and (4) provided in multiple languages at Brockton City Hall and Brockton’s Main Library East Branch and West Branch. Id. A
Spanish, Portuguese, and Cape Verdean Creole translator was also provided at the public hearing. Id. The Department also kept the public comment period on the draft CPA open after the public hearing took place in order to provide residents who could not attend the hearing
(including the elderly and residents from the south side of the Brockton) with an opportunity to comment on the draft CPA. Response to Comments, p. 14 (Exhibit G to Department’s Motion
51 www.forcv.com. This is a Cape Verdean internet website.
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to Dismiss). After the public comment period was closed, the Department issued a 73 page memorandum responding to all of the public comments it received on the draft CPA. See
Exhibit G to Department’s Motion to Dismiss.
C. The Proposed Power Plant Was Not Subject to the 2002 EJ Policy’s Enhanced Substantive Review Requirement
The 2002 EJ Policy requires an “enhanced analysis and review of ‘impacts and mitigation’ in relation to projects that meet two conditions: (1) the project exceeds ‘a mandatory
[MEPA] EIR . . . threshold for air [emissions], 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.” Brockton I,
469 Mass. at 201; 2002 EJ Policy, at p. 8 (¶ 15). “Enhanced analysis of impacts and mitigation may include [1] analysis of multiple air impacts; [2] data on baseline public health conditions within affected EJ [p]opulation; [3] analysis of technological, site planning, and operational alternatives to reduce impacts; and [5] proposed on-site and off-site mitigation measures to reduce multiple impacts and increase environmental benefits to the affected EJ [p]opulation.”
2002 EJ Policy, at pp. 8-9 (¶ 15); Brockton I, 469 Mass. at 202. “The project proponent may
[also] submit actual air modeling data on the project’s area of potential air impacts in its EIR, to modify the presumed five-mile impact area referred to [above].” 2002 EJ Policy, at p. 9 (¶ 15).
Here, as confirmed by the EEA Secretary’s Certificates on the Applicant’s DEIR and
FEIR as discussed above, the Department was not required to perform an enhanced substantive review of the proposed Power Plant under the 2002 EJ Policy because the facility did not exceed a MEPA EIR threshold for air emissions. Brockton I, 469 Mass. at 202. Although it was not required to perform such a review under the Policy, the Department did perform such a review
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during the course of the CPA permitting process under Appendix A(8)(b) of the Department’s
Air Pollution Control Regulations, at 310 CMR 7.00, and, as a result of its review, concluded that the Proposed Power Plant “[would] not have a discriminatory effect or overburden any surrounding area on the basis of race, color, nation or origin or age.” CPA, at p. 25; Mr.
Cushing’s PDFT, at pp. 4-8; See below, at pp. 101-152. As discussed below, a preponderance of the evidence introduced at the Hearing supports the Department’s conclusion. Id.
D. The Department’s Purported Lack of an Agency-Specific EJ Strategy Does Not Invalidate the CPA
The 2002 EJ Policy directs agencies within EEA, including the Department, 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.” 2002 EJ Policy, at p. 7; Brockton I, 469
Mass. at 200. The Policy also requires “[EEA] agencies [to] identify and promote agency- sponsored projects, funding decisions, rulemakings or other actions intended to further environmental justice in the Commonwealth.” Id.
The Petitioners contend that the CPA is invalid because the Department “has not developed an agency-specific EJ strategy to proactively promote environmental justice in all neighborhoods, including Brockton,” and that the lack of such a strategy led the Department to conclude erroneously, in the Petitioners’ view, that the proposed Power Plant will not have a discriminatory disparate impact on Brockton’s EJ communities. Petitioners’ Closing Brief, at pp. 19-20; Interlocutory EJ Ruling, at pp. 18-19. In the Petitioners’ words, “[the Department’s] failure to devise an EJ strategy [caused the Department to] lac[k] institutional mechanisms for assessing environmental justice issues when it issued the [CPA] in 2011 and the Revised [CPA] in 2015.” Petitioners’ Closing Brief, at p. 20. The Petitioners also assert that “[e]ven assuming
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that [the Department] had developed an EJ strategy as of 2011 or 2015, . . . the evidence clearly shows that [the Department] personnel responsible for assessing [the proposed Power Plant] lacked the training, knowledge and experience necessary to evaluate the [facility’s] environmental justice implications.” Petitioners Closing Brief, at pp. 20-21. “In particular,” the
Petitioners singled out Mr. Cushing and Mr. Pacheco as the Department personnel purportedly
“lack[ing] . . . relevant knowledge and experience, [and not being] in a position to assess the
Petitioners’ environmental justice concerns, or to make a determination on [the proposed Power
Plant].” Id., at pp. 21-22. The Petitioners contend that this “is evident from [their] handling of the evidence” that Dr. Faber presented at the Hearing on behalf of the Petitioners. Id., at p. 23.
The Petitioners contended that “Dr. Faber provided clear, convincing[,] credible testimony that
Brockton is already disproportionately overburdened with environmentally hazardous sites and facilities, and that the proposed [Power Plant] will only exacerbate this preexisting disparity.”
Id., at pp. 23-24.
I reject the Petitioners’ claims for the following reasons.
First, contrary to the Petitioners’ claims, the Department has taken agency-specific actions to promote Environmental Justice in accordance with the 2002 EJ Policy. This is publicly known on the Department’s internet website, specifically in the section of the website entitled “MassDEP Environmental Justice.”52 This section of the website, among other things:
(1) explains the concept of Environmental Justice as set forth in the 2002 EJ Policy and contains a link to the Policy enabling the public to access and review the Policy;53 (2) contains links to
52 http://www.mass.gov/eea/agencies/massdep/service/justice.
53 http://www.mass.gov/eea/agencies/massdep/service/justice/#2.
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Title VI and the EPA’s Title VI Regulations enabling the public to access and review their provisions;54 (3) sets forth the Policy’s definition of an EJ Community with links to MassGIS data and a MassDEP Interactive Map depicting the location of EJ Communities in the
Commonwealth;55 (4) explains former Governor Patrick’s November 2014 Executive Order on
Environmental Justice and contains a link to the Order enabling the public to access and review the Order;56 (5) lists “a number of [environmental] programs that [according to the Department] can be utilized and are sometimes targeted specifically at Environmental Justice communities,”57 including “Community Involvement Opportunities” in the area of Air Quality58 and other environmental protection programs;59 (6) has the contact information for the Department’s
54 http://www.mass.gov/eea/agencies/massdep/service/justice/#9.
55 http://www.mass.gov/eea/agencies/massdep/service/justice/#3.
57 http://www.mass.gov/eea/agencies/massdep/service/justice/#4.
58 http://www.mass.gov/eea/agencies/massdep/air/approvals/community-involvement-air.html. This portion of the website provides as follows:
The Massachusetts Department of Environmental Protection (MassDEP) seeks input from the public - including individuals, communities and groups - before it issues certain types of air quality permits or approvals. As part of this process, the agency requires distribution of a public notice either when it receives a permit application or before it makes a final decision, and accepts public comment for a specific period of time. In some cases, MassDEP also schedules a public hearing or meeting, which allows the agency to provide additional information about a proposed project and to receive feedback from the public. The information on this [internet web] page is intended to help you understand how and when you can be part of the review and decision-making process for certain air quality permits or approvals. To learn about current opportunities for you to participate, see: Public Hearings and Comments.
Id.
59 The other environmental protection programs include, among others, Hazardous Waste Management, Solid Waste Management, and Brownfields. http://www.mass.gov/eea/agencies/massdep/recycle/approvals/community-involvement-hazardous-waste- management.html; http://www.mass.gov/eea/agencies/massdep/recycle/approvals/community-involvement-solid-waste- management.html; http://www.mass.gov/eea/agencies/massdep/recycle/approvals/community-involvement-solid-waste- management.html.
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Environmental Justice Director and EEA’s Environmental Justice Director;60 (7) profiles several recent and notable Environment Justice Projects at the Department;61 and (8) informs the public that Environmental Justice interpreter and translation services for persons of Limited English
Proficiency (“LEP”) are available at the Department, including for LEP persons whose primary language is Spanish, Portuguese, Chinese, Vietnamese, Russian, Khmer (Cambodian), or Haitian
(French Creole).62
Second, assuming for the sake of argument that the Department has not adopted an agency-specific EJ strategy as the Petitioners contend, the Petitioners still do not prevail because:
(1) they failed to demonstrate that the absence of such strategy led the Department to issue a permit (the CPA) that will result in a disparate discriminatory impact on an EJ community in violation of Title VI and the 2002 EJ Policy; and (2) as the prior Presiding Officer ruled, “[t]he absence of an [agency-specific] EJ Strategy [at the Department] does not preclude a case-by-case approach [by the Department] to addressing environmental justice concerns.” Interlocutory EJ
60 http://www.mass.gov/eea/agencies/massdep/service/justice/#5.
61 http://www.mass.gov/eea/agencies/massdep/service/justice/#7. These Environment Justice Projects are: (1) the Department’s Project to Improve Environmental Quality in South Framingham, Massachusetts, an Environmental Justice Community; and (2) the Springfield, Massachusetts Urban Compliance Initiative, which was designed to improve environmental quality in Springfield’s Ward 1 Section, an Environmental Justice Community. Id.
62 http://www.mass.gov/eea/agencies/massdep/service/justice/#8. To further promote translation services to LEP persons, the provisions of 310 CMR 1.03(5)(a) which govern all administrative appeals filed with the Department’s Office of Appeals and Dispute Resolution (“OADR”) require that “all [MassDEP] communications [e.g. Permits and Enforcement Orders] which [might] result in the [filing of an administrative appeal with OADR must]” contain a notice printed in seven languages (English, Spanish, Portuguese, Italian, Greek, French, and Chinese) informing the reader that “the document is important and should be translated immediately.” This notice is provided in a separate Foreign Language Communications Form that is to be attached to every Permit, Enforcement Order, and any other document that the Department issues that can be appealed to OADR. Recently, in February 2016, the Department’s Commissioner approved a Revised Foreign Language Communications Form that provides the notice in English and in 18 foreign languages, including the top 10 foreign languages spoken in the Commonwealth (based on LEP statistics of the Commonwealth’s Department of Public Health). The notice appears on the Revised Form in the following 18 foreign languages: (1) Spanish, (2) Portuguese, (3) Chinese (Traditional and Simplified), (4) Haitian (French Creole), (5) Vietnamese, (6) Khmer (Cambodian), (7) Cape Verdean, (8) Russian, (9) Arabic, (10) Korean, (11) Armenian, (12), Farsi (Persian), (13) French, (14) German, (15) Greek, (16) Italian, (17) Polish, and (18) Hindi.
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Ruling, at 20; Cf., In Re Chemical Waste Management of Indiana, Inc. (“CWMII”), RCRA
Appeal Nos. 95-2 & 95-3, 6 E.A.D. 66, 78, 1995 EPA App. LEXIS 25 (1995). These are the same positions that the EPA’s EAB adopted in CWMII in response to a claim that an EPA issued permit was invalid because the EPA had not adopted an agency-specific Environmental Justice strategy required by the federal EJ Policy.
The federal EJ Policy, which was established by former President Bill Clinton in 1994 through Executive Order 12898 and preceded EOEA’s 2002 EJ Policy, required all federal agencies, including the EPA:
[t]o the greatest extent practicable and permitted by law, . . . [to] make environmental justice part of [their] mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, or activities on minority populations and low- income populations in the United States . . . .
6 E.A.D. at 69, citing, 59 Fed. Reg. 7629 (Feb. 16, 1994). The Order also required:
[e]ach Federal agency [to] conduct its programs, policies, and activities that substantially affect human health and the environment, in a manner that ensure[d] that such programs, policies, and activities [did] not have the effect of . . . subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.
6 E.A.D. at 69, citing, 59 Fed Reg. at 7630-31. The Order also required:
each Federal agency [to] develop an agency-wide environmental justice strategy . . . that identifie[d] and addresse[d] disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. The environmental justice strategy [was to] list programs, policies, planning, and public participation processes, enforcement, and/or rulemakings related to human health or the environment that should be revised to, at a minimum: (1) promote enforcement of all health and environmental statutes in areas with minority populations and low- income populations; (2) ensure greater public participation; (3) improve research and data collection relating to the health of and environment of minority
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populations and low-income populations; and (4) identify differential patterns of consumption of natural resources among minority populations.
6 E.A.D. at 75, n.12, citing, 59 Fed. Reg. at 7629.
In CWMII, several parties (“the appellants”) challenged the EPA Region V’s (“the
Region”) renewal of the federal portion of a Resource Conservation and Recovery Act
(“RCRA”) permit and a Class 3 modification of the same permit (“the Permit Decision”) for the permittee’s facility in Indiana, contending that the Permit Decision was improper because “[t]he
[EPA] ha[d] failed to promulgate a[n] . . . environmental justice strategy, as it [was] required to do under the [federal EJ Policy], and the Region’s effort to implement the Order [through the permitting proceedings] in the absence of such a strategy or other [EPA] guidance and criteria was erroneous . . . .” 6 E.A.D. 66-68, 75. The EPA’s EAB rejected the claim and upheld the
Region’s Permit Decision because the appellants “[had failed] [to] demonstrat[e] how the absence of a[n] [EPA] environmental justice strategy . . . le[d] to an erroneous permit decision
[by the Region in the case].” Id., at 78. The EPA’s EAB also did so because “[t]he absence of
[an EPA agency-specific EJ strategy] in no way prevent[ed] the [EPA] from addressing environmental justice issues in the meantime on a case-by-case basis, as [the Region had done in the case].” Id.
Given the absence of Massachusetts judicial and administrative law decisions to the contrary, the EPA’s EAB’s decision in CWMII is persuasive authority here supporting the conclusion that the CPA does not violate the 2002 EJ Policy. First, just as the Petitioners failed to do in CWMII with respect to their claims under the federal EJ Policy, the Petitioners here failed to demonstrate that the absence of an agency-specific EJ strategy that the Department was required to adopt by the 2002 EJ Policy led to the Department erroneously issuing the CPA. As
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discussed in detail above, the preponderance of the evidence introduced at the Hearing demonstrated that the CPA neither violates Title VI nor the 2002 EJ Policy because the operation of the proposed Power Plant will not have a disparate discriminatory impact on Brockton’s EJ communities. The testimony of the Petitioners’ witnesses on that issue, including that of Dr.
Faber, was not persuasive and was effectively refuted by the Applicant’s and the Department’s highly experienced witnesses. See above, at pp. 18-83. Those witnesses included the
Applicant’s witnesses, Ms. Hendrick and Dr. Valberg, and the Department’s witnesses, Mr.
Cushing, and Mr. Pacheco.
In addition, just as the federal EJ Policy did not preclude the EPA from considering
Environmental Justice issues “on a case-by-case basis” until it adopted an agency-specific EJ strategy, the Department here was not precluded by the 2002 EJ Policy from considering
Environmental Justice issues “on a case-by-case basis.” Here, despite the purported absence of an agency-specific EJ strategy at the Department, a preponderance of the evidence introduced at the Hearing demonstrated that at a minimum, the Department in practice relies on the MEPA thresholds in the 2002 EJ Policy to guide its response to proposed projects affecting an
Environmental Justice population, and then evaluates comments that it receives during the permitting process that raise Environmental Justice concerns. “[T[he Department clearly . . . consider[ed] the comments related to environmental justice despite its arguments that the 2002
EJ Policy applies only when the MEPA thresholds apply.” Interlocutory EJ Ruling, at 21.
Moreover, as stated previously above, the Department performed an enhanced substantive review of the proposed Power Plant under the 2002 EJ Policy even though the Department was not required by the Policy to perform such a review because the relevant MEPA thresholds were
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not triggered. As discussed in the next section below, the Department performed the review during the course of the CPA permitting process under Appendix A(8)(b) of the Department’s
Air Pollution Control Regulations, at 310 CMR 7.00, and, as a result of its review, properly concluded that the Proposed Power Plant “[would] not have a discriminatory effect or overburden any surrounding area on the basis of race, color, nation or origin or age.” CPA, at p. 25; Mr. Cushing’s PDFT, at pp. 4-8; See below, at pp. 101-152.
IV. THE DEPARTMENT PROPERLY DETERMINED PURSUANT TO APPENDIX A(8)(b) OF 310 CMR 7.00 THAT THE ECONOMIC AND SOCIAL BENEFITS OF THE PROPOSED POWER PLANT SIGNIFICANTLY OUTWEIGH ITS ENVIRONMENTAL AND SOCIAL COSTS.
A. The Requirements of Appendix A(8)(b) of 310 CMR 7.00
Appendix A of 310 CMR 7.00 (“Appendix A”) “sets forth the Massachusetts preconstruction review program for [proposed] stationary sources of air pollution[,] [including new energy generating facilities,] pursuant to sections 172(c)(5) and 173 of the [CAA].” 310
CMR 7.00, Appendix A(1). “A new major source or major modification either that is located in an area designated as nonattainment pursuant to section 107(d) of the [CAA], published at 40
CFR 81, for any . . . NAAQS for which the source or modification would be major or that is major for volatile organic compounds or oxides of nitrogen must meet the stringent conditions set forth in . . . [A]ppendix [A] prior to receiving [Department] approval to construct [the facility].” Id. “These conditions are designed to [e]nsure[:] [1] that the increased emissions will be controlled to the greatest degree possible [by imposing the Lowest Achievable Emission
Rate];63 [2] that more than equivalent offsetting emission reductions (emission offsets) will be
63 The definition of “Lowest Achievable Emission Rate” or “LAER” is set forth in note 47 above, at p. 87.
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obtained from existing sources; and that there will be reasonable further progress toward achievement of the . . . NAAQS.” Id. These conditions include those set forth in Appendix
A(8)(b).
Appendix A(8)(b) provides that:
[b]y means of an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed new or modified stationary source, the owner or operator of the proposed stationary source or modification shall demonstrate to the satisfaction of the Department that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.
The “environmental and social” costs determination that the Department is required to make under Appendix A(8)(b) arises from Section 173 of the CAA, 42 U.S.C. § 7503(a)(5), which provides that:
the permit program required by [42 U.S.C.] section 7502(b)(6) . . . shall provide that permits to construct and operate may be issued if— . . . an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.
The CAA, however, does not define the terms “costs” and “benefits” with respect to the environmental and social costs determination. In interpreting these terms, federal courts and the EPA’s EAB have assumed that the term “benefits” means the economic and social benefits of a proposed facility. See City of Seabrook Texas v. U.S. EPA, 659 F.2d 1349, 1362 (5th Cir.
1981) (“[t]he [CAA] does not indicate what sort of ‘benefits’ should be considered, but obviously the benefits must be economic and social ones [because] construction of a ‘major emitting facility’ will rarely result in environmental benefits”); In re Campo Landfill Project, 6
E.A.D. 505, 520, 1996 EPA App. LEXIS 25 (E.P.A. 1996) (“[t]he [CAA] contains no express
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requirements concerning the particular contents of the . . . ‘alternatives analysis,’ nor has the
[EPA] promulgated regulations addressing the required analysis”). The CAA also does not indicate how economic and social benefits are to be compared to environmental and social costs. Seabrook, 659 F.2d at 1362. As a result, applicants and permitting authorities may satisfy the environmental and social costs determination requirement in a number of different ways. Id.
For example, an applicant may quantify the costs of various alternatives and determine whether the benefits of each alternative outweigh the costs, but the CAA does not require this form of analysis. See In re Air Pollution Control Construction Permit Issued to the Wisconsin
Electric Power Applicant for the Elm Road Generating Station (“Elm Road Generating Station”),
2005 Wisc. ENV LEXIS 6, at 36-39 (Feb. 3, 2005) “([Wisconsin Department of Natural
Resources] . . . could have attempted to conduct such an alternatives analysis, if in its discretion it had deemed it possible, practicable, or necessary in assessing the environmental and social costs of the [proposed] project[,] [but] [n]othing in the law or administrative rule, however, require[d] utilization of this form of analysis, either in general or with respect to th[e] particular permit [at issue]”). Instead, the applicant may rely on information submitted during the environmental review process and the permit application process to evaluate the proposed project’s alternative sites, sizes, production processes, and environmental control techniques, then weigh the environmental and social costs of the project and alternatives against the benefits.
Id. In conducting this evaluation, the applicant may rely on the fact that air emissions from the proposed facility meet the NAAQS, and, as a result, the applicant need not conduct a separate health risk assessment. Id.; See also In re TransGas Energy Systems, LLC, N.Y. DEC Case No.
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2-6106-00149/00014 (Mar. 12, 2004), http://www.dec.ny.gov/hearings/11932.html, at p. 12 of
13 (New York City’s claim that project proponent had “fail[ed] to account for air pollution impacts to [proposed] residential buildings to be constructed” rejected because “[proponent’s] alternatives analysis contain[ed] an assessment of the air impacts revealed by the air modeling conducted pursuant to the protocol approved by the [New York] Department [of Environmental
Conservation] . . . [and] [t]hat analysis revealed that the project [would] comply with all
NAAQS”).
The permitting agency’s determination of whether a proposed facility’s benefits significantly outweigh its environmental and social costs has been characterized as a subjective determination, meaning that a party challenging the determination must demonstrate that the matters considered or not considered by the permitting agency in making the determination were unreasonable or failed to satisfy minimum legal requirements. Campo Landfill Project, 6 EAD at 521. As the EPA’s EAB has explained:
[Petitioners have a] heavy burden . . . in showing that they are entitled to review of the [permitting agency’s] alternatives analysis. Petitioners “may only prevail [in their challenge of a permitting agency’s alternatives analysis] if the evidence in the record in support of their view clearly outweighs the evidence presented by the [permitting agency] in support of its decision.” . . . [EAB] decisions have distinguished between instances where a permit issuer has failed to undertake an analysis required by the [CAA], and instances where the analysis was performed but the permit issuer arrived at a conclusion that a petitioner disagrees with. . . . Where a permit issuer has failed to undertake any required analysis, a remand is usually appropriate so that the analysis may be performed. In contrast, when an analysis has been performed and a determination made, those favoring a different outcome must show that the evidence “for” the outcome clearly outweighs the evidence “against” the outcome. . . . That heavy burden is particularly
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appropriate where, as here, the nature of the decision to be made is inherently subjective.
Id.
B. The Petitioners Failed to Demonstrate that the Department Erred in Determining that the Economic and Social Benefits of the Proposed Power Plant Significantly Outweigh Its Environmental And Social Costs
In issuing the CPA approving the proposed Power Plant, the Department determined that in accordance with Appendix A(8)(b), “[the Applicant] ha[d] demonstrated to the
[Department’s] satisfaction . . . that the benefits of the [facility would] significantly outweigh
[the facility’s] environmental and social costs.” CPA, at 2, 25. As the Department’s witness,
Mr. Cushing, testified, the Department’s determination was based on his review of: (1) the alternative site analysis that the Applicant performed during the EEA Secretary’s MEPA review of the facility and the EFSB’s separate permitting proceedings on the facility; (2) the
Applicant’s analysis of the benefits and costs of the facility; (3) the Applicant’s updated March
2015 Air Modeling Impact Report and Mr. Pacheco’s determination (as discussed above) that the facility’s air emissions will not have a detrimental impact on the environment and come well within the protective levels of the NAAQS; (4) the determinations of the Department’s witnesses, Mr. Friend and Mr. Hobill, that the facility will not have a detrimental environmental impact on the Salisbury Plain River; and (5) the determination of the
Department’s witness, Mr. Kamieniecki, that the facility complies with the Department’s Noise
Pollution Regulations and Noise Policy. Mr. Cushing’s PFDT, at pp. 5-6, 7-8.
The Petitioners take issue with the Department’s determination, contending that “[the
Applicant] failed to fully account for and assess the [proposed Power Plant’s] anticipated
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[environmental and social] costs, and because [the Department] relied on [the Applicant’s] purported cost-benefit accounting without careful scrutiny.” Petitioners’ Closing Brief, at p. 37. For the reasons discussed below, the Petitioners’ claims are without merit because a preponderance of the evidence introduced at the Hearing demonstrated that Applicant provided the Department with an extensive analysis reviewing alternative sites, production processes, environmental control techniques, economic and non-economic benefits, and potential environmental and social costs of the proposed Power Plant, and that the Department, in turn, conducted a thorough review of the Applicant’s data to reach its determination that the benefits of the proposed Power Plant will significantly outweigh the facility’s environmental and social costs. In sum, the Petitioners failed to satisfy their heavy burden of demonstrating that “the evidence in the record in support of their view clearly outweighs the evidence presented by the
[Applicant and the Department] in support of [the Department’s determination under Appendix
A(8)(b)].” Campo Landfill Project, 6 EAD at 521.
1. The Applicant Conducted a Proper Evaluation of Alternative Sites for the Proposed Power Plant
Mr. Cushing testified that “[i]t is MassDEP’s practice to rely on the alternatives [site] analysis [performed] by a project proponent during the MEPA environmental review process.”
Mr. Cushing’s PFDT, at p. 6. The Department’s practice is reasonable since it is consistent with the EPA’s reliance on Environmental Impact Statements (“EIS”) prepared pursuant to the
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4332, in connection with
EPA permitting matters under the CAA. See Campo Landfill Project, 6 EAD at 521-24 (EPA properly relied on EIS prepared by U.S. Bureau of Indian Affairs evaluating proposed construction of municipal solid waste landfill on Campo Band Indian Reservation in
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California). It is also consistent with the approach that other states, such as New York and
Wisconsin, have taken in CAA related permitting matters under their respective jurisdictions.
TransGas Energy Systems, LLC, supra (New York); Elm Road Generating Station, supra
(Wisconsin).
At the Hearing, the Applicant’s witness, Mr. Barten, provided persuasive testimony explaining the alternative site evaluation that the Applicant performed for the proposed Power
Plant during the EEA Secretary’s MEPA review of the facility and the EFSB’s permitting proceedings on the facility. Mr. Barten is a Managing Principal of Epsilon Associates, Inc., an engineering and environmental consulting firm based in Maynard, Massachusetts. Mr. Barten’s
PFDT, at p. 1, lines 1-3. He holds a Bachelor of Science Degree in Environmental Engineering from the Rensselaer Polytechnic Institute (“RPI”) (1973) in Troy, New York and completed a year of full-time graduate study in environmental engineering at RPI (1974). Id., at p. 1, lines
7-9. He also holds a Master’s Degree in Business Administration from Northeastern University in Boston (1980). Id., at p. 1, lines 9-10. He is also a Registered Professional Engineer in
Massachusetts, New Hampshire, Maine, Vermont, Connecticut, Rhode Island, and Illinois. Id;
Mr. Barten’s Resume at p. 1. He has 40 years of experience in engineering and environmental consulting. Mr. Barten’s PFDT at p. 1, line 12. His technical work has focused on siting, environmental analysis, licensing, permitting, and environmental compliance for independent power, electric utility, and industrial clients, and he has significant experience in this area. Id., at p. 1, lines 12-20; pp. 2-4.
With respect to the proposed Power Plant, Mr. Barten has served as an environmental engineering consultant and Project Manager for the Applicant on the project since 2007. Id., at
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p. 4, lines 14-16. In these roles, he has been responsible for the Applicant’s environmental analysis, and associated environmental review, licensing, and permitting efforts for the facility.
Id., at p. 4, lines 16-18. He has been involved in the preparation of the Applicant’s project licensing documents and permit applications, and the supporting evaluation of environmental data and analysis, particularly for air emissions, associated air quality control systems, and the proposed Power Plant’s acoustical characteristics. Id., at p. 4, lines 18-20; p. 5, lines 1-2.
In his testimony at the Hearing, Mr. Barten presented a detailed description of the proposed Power Plant’s design and its conformance with applicable standards for protecting health, air quality, and other environmental and social resources. Mr. Barten’s PFDT, at pp. 5-
24. His testimony noted the substantial review that had been conducted of the proposed Power
Plant prior to the Department’s issuance of the CPA, specifically during the EEA Secretary’s
MEPA review of the facility and the EFSB’s separate permitting proceedings on the facility.
Exhibit TB-3 to Mr. Barten’s PFDT (“Exhibit TB-3”), at pp. 4-9 to 4-11, 4-13 to 4-14, 4-20 to
4-21. This substantial review included an analysis of the Applicant’s evaluation of alternative sites for the proposed Power Plant, which the EEA Secretary and the EFSB accepted during their respective reviews of the facility. Id., at pp. 4-9 to 4-11.
As Mr. Barten’s testimony notes, the Applicant’s alternative site selection process for the proposed Power Plant considered a number of factors:
(1) sufficient land for the facility (a minimum of 10 acres);
(2) proximity to natural gas supply;
(3) proximity to a high voltage transmission grid;
(4) proximity to water/wastewater interconnects (for among other things,
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optimally cooling water availability);
(5) noise control considerations;
(6) compatible land uses and adequate site sizes and appropriate zoning;
(7) distance from residences;
(8) protection of wetlands resources; and
(9) minimization of visual impacts.
Exhibit TB-3, at pp. 4-9 to 4-10; CPA, at p. 20. The Applicant also sought to locate the proposed Power Plant in Eastern Massachusetts because this area is the largest electricity load center in New England. Exhibit TB-3, at p. 4-10. As a result, the Applicant focused on four sites in Eastern Massachusetts for the proposed Power Plant: (1) the Brockton site; (2) the Cabot
Power site in Everett, Massachusetts; (3) the IDC site in Bellingham, Massachusetts; and (4) the
Nickel Hill site in Dracut, Massachusetts. Id.
The Applicant focused on these four sites because the sites “had all received prior EFSB approval[,] [and] thus, each site had been determined [by the EFSB] to satisfy the EFSB’s
[statutory] objective . . . to provide a reliable energy supply with a minimal impact on the environment at the lowest possible cost.” Id. “These sites [also] . . . had been certified as having been properly evaluated . . . [in the MEPA] review process . . . .” Id. Additionally, as
Mr. Cushing testified, these “previously permitted sites . . . ha[d] the essential components of a site that is suitable for electric generation such as sufficient acreage, access to fuel supplies in reasonable proximity, close access to a high voltage transmission grid, appropriate zoning, and optimally cooling water availability.” Mr. Cushing’s PFDT, at p. 6.
As a result of this analysis of alternative sites for the proposed Power Plant, the
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Applicant ultimately determined that the Brockton site was the best site for the proposed Power
Plant because it had the following advantages over the Cabot Power, IDC, and Nickel sites: “[1] proximity to transmission lines, natural gas supply, treated wastewater from
[Brockton’s] wastewater treatment plant[,] and potable water from [Brockton’s] municipal supply; [2] appropriate zoning; [3] compatible adjoining land uses; and [4] adequate size.” Mr.
Cushing’s PFDT, at p. 6. In his testimony, Mr. Cushing explained in detail the Applicant’s analysis and conclusions as follows. Id.
First, the Applicant determined that the Cabot Power site in Everett “had many of the same advantages [as the Brockton site,] including proximity to natural gas supply and transmission interconnections, and compatible land uses, but the site “lacked an available source of water and as a result, the [proposed Power Plant] would have to rely on air cooling rather than the more efficient wet cooling.” Id. The site was also small, and owned by the Applicant’s competitor, “and thus would not likely . . . be available to the [Applicant].” Id.
Second, the Applicant rejected the IDC site in Bellingham because, although the site had good access to natural gas and transmission lines, was large, properly zoned, and was adjacent to compatible land uses, it lacked the water needed for the proposed Power Plant’s wet mechanical cooling system. Id. The site was also no longer available because it had been purchased for use as a Dunkin Donuts distribution facility. Id.
Lastly, the Nickel Hill site in Dracut had many of the same advantages as the Brockton site, including proximity to natural gas pipelines, transmission lines and a water zone, industrial use, sufficient size, and compatible land uses, but the Applicant determined that it would be more
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costly to locate the proposed Power Plant at the site because of higher acquisition costs and water/wastewater infrastructure costs. Mr. Cushing’s PFDT, at p. 6.
The Petitioners failed to present any probative evidence in rebuttal to Mr. Barten’s and
Mr. Cushing’s testimony to demonstrate that the Applicant’s alternative site analysis “[was] clearly insufficient” for the alternative sites analysis required by Appendix A(8)(b). Compare,
Campo Landfill Project, 6 EAD at 522 (petitioners failed “to provide evidence that portions of
EIS relied on by the [EPA] were clearly insufficient for purposes of the [required alternatives] analysis [under the CAA]”). Accordingly, I find that both the Applicant’s alternatives site analysis, and the Department’s review and reliance on that analysis in making its determination under Appendix A(8)(b), were proper.
2. The Applicant Conducted a Proper Evaluation of Alternative Sizes, Production Processes, and Emission Control Technologies for the Proposed Power Plant
In his testimony, Mr. Barten also confirmed that the Applicant evaluated alternative sizes, production processes, and emission control technologies for the proposed Power Plant during the EEA Secretary’s MEPA review of the facility and the EFSB’s permit proceedings on the facility. Exhibit TB-3, at pp. 4-12 to 4-13. His testimony was also corroborated by the testimony of the Applicant’s witness, Mr. Winslow.
Mr. Winslow is the Senior Vice President of Development at Advanced Power Services
(NA), Inc. (“APS”), a privately held energy development firm based in Boston, that “develops, own[s], and manage[s] power generation and related infrastructure projects throughout Europe and North America.” Mr. Winslow’s PFDT, at p. 1, lines 1-4; p. 2, lines 4-7; Exhibit JW-1 to
Mr. Winslow’s PFDT (“Exhibit JW-1”); Mr. Winslow’s PFRT, at p. 1, lines 1-4. APS , through
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the Applicant, is the developer of the proposed Power Plant. Id. Mr. Winslow is the
Applicant’s Project Manager on this project. Mr. Winslow’s PFDT, at p. 1, line 4; Mr.
Winslow’s PFRT, at p. 1, line 4. As Project Manager, Mr. Winslow “[is] responsible for schedule and budget development and corporate reporting . . . [and] involved with the
[Applicant’s Appendix A(8)(b)] cost/benefit evaluation for the [proposed Power Plant].” Mr.
Winslow’s PFDT, at p. 2, lines 16-17, 20-21; pp. 3-4; Mr. Winslow’s PFRT, at p. 1, lines 14-19; pp. 2-4. Mr. Winslow holds a Bachelor of Science degree in Secondary Education-
Environmental Sciences from the University of Vermont in Burlington, Vermont (2001), and a
Master in Business Administration (“MBA”) degree from Northeastern University in Boston
(2006). Mr. Winslow’s PFDT, at p. 1, lines 9-11. His professional experience since completing his undergraduate education in 2001 has been focused on business development in the energy and environmental sectors. Id., at p. 1, lines 12-19; p. 2, lines 1-7.
As discussed below, Mr. Barten’s and Mr. Winslow’s testimony demonstrated that the
Applicant’s evaluation of alternative sizes, production processes, and emission control technologies for the proposed Power Plant during the EEA Secretary’s MEPA review of the facility and the EFSB’s permit proceedings on the facility resulted in the Applicant’s selection of a highly efficient and environmentally protective electricity generation system for the facility.
CPA, at pp. 20-21.
a. Single Cycle vs. Combined Cycle Technology
Mr. Barten explained that “[t]he [Applicant’s] analysis of alternative facility sizes and environmental control techniques [for the proposed Power Plant] rest[ed] upon [the Applicant’s]
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decision to use combined cycle [combustion turbine] technology [instead of] simple cycle
[combustion turbine technology]” to generate electricity at the facility. Exhibit TB-3, at p. 4-12.
Under simple cycle combustion turbine technology, a turbine generally uses natural gas to generate shaft power that is converted into electricity and has four basic components: (1) a
“compressor raises the air pressure up to thirty times atmospheric”; (2) a “fuel compressor is used to pressurize the fuel”; (3) the “compressed air is heated in the combustion chamber at which point fuel is added and ignited”; and (4) the “hot, high pressure gases are then expanded through a power turbine, producing shaft power, which is used to drive the air and fluid compressors and a generator or other mechanical drive device.”64 Simple cycle combustion turbine systems, however, “are relatively inefficient, thus making them less attractive as base load [electricity] generating units.”65
In contrast, “[t]he combined cycle [combustion turbine] system incorporates two simple-cycle [combustion turbine] systems into one generation unit to maximize energy efficiency. Energy is produced in the first cycle using a gas turbine; then the heat that remains is used to create steam, which is run through a steam turbine. Thus, two single units, gas and steam, are put together to minimize lost potential energy. The second cycle is a steam turbine.”66 Under combined cycle combustion turbine technology, “the waste heat remaining from the gas turbine cycle is used in a boiler to produce steam,” and “[t]he steam is then put through a steam turbine, producing power. The remaining steam is re-condensed and either
64 Economic Impact Analysis of the Stationary Combustion Turbines NSPS: Final Report, USEPA (February 2006), at p. 2-1 (accessible at https://www3.epa.gov/ttn/ecas/regdata/EIAs/combusturbinenspsfinaleia.pdf).
65 Id., at pp. 2-1 to 2-2.
66 Id., at p. 2-2.
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returned to the boiler where it is sent through the process again or sold to a nearby industrial site to be used in a production process.”67
For the proposed Power Plant, Mr. Barten testified that the Applicant chose the more efficient combined cycle combustion turbine technology because “combined-cycle technology provides an excellent heat rate and can operate in [the] ‘mid-merit mode’” to generate electricity.68 Exhibit TB-3, at p. 4-12. Mr. Winslow corroborated Mr. Barten’s testimony by testifying that “[the Applicant] selected combined-cycle over simple cycle technology because of its reliability, superior heat rate (fuel-efficiency), lower emissions, and ability to operate [in] mid-merit [mode].” Mr. Winslow’s PFRT, at p. 2, lines 1-3. In response, the Petitioners failed
67 Id., at p. 2-2.
68 The mid-merit mode of generating electricity is part of the “economic dispatch” system designed to track the cost of electricity generation. U.S. Department of Energy Report to Congress: The Value of Economic Dispatch (November 7, 2005). “Economic dispatch” is defined as “the operation of generation facilities to produce energy at the lowest cost to reliably serve consumers, recognizing any operational limits of generation and transmission facilities.” Id., at p. 1. According to the U.S. Department of Energy:
[e]conomic dispatch benefits electricity users in a number of ways. By systematically seeking the lowest cost of energy production consistent with electricity demand, economic dispatch reduces total electricity costs. To minimize costs, economic dispatch typically increases the use of the more efficient generation units, which can lead to better fuel utilization, lower fuel usage, and reduced air emissions than would result from using less-efficient generation. . . . Over the long term, economic dispatch can encourage new investment in generation as well as in transmission expansion and upgrades that enhance both reliability and cost savings. In principle, all generation and transmission dispatchers practice economic dispatch to reduce the cost of serving loads. Economic dispatch reduces total variable production costs by serving load using lower-variable-cost generation before using higher-variable cost generation (i.e., by dispatching generation in “merit order” from lowest to highest variable cost). . . .
In economic dispatch theory, every resource has a schedule of production levels and costs that reflects its start-up time, ramp rates, and the like. All available units for a specific point in time are “stacked” in order from lowest to highest cost per megawatt hour (MWh), and the least expensive units are dispatched in increasing cost order until customer demands (plus line losses and operating reserves) have been met. The dispatch process is repeated over and over. When resources are dispatched from least to most expensive, this is termed “merit order dispatch.”
Id., at pp. 3-4, 16 (emphasis supplied).
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to present probative evidence to demonstrate that the Applicant erred in selecting combined cycle combustion turbine technology for the proposed Power Plant.
b. The Combustion Turbine Selected for Electricity Generation
As Mr. Barten confirmed in his testimony, as part of the EEA Secretary’s MEPA review of the proposed Power Plant and the EFSB’s permitting proceedings on the facility, the
Applicant also evaluated the options of using an F-Class turbine, the larger G-Class turbine, or multiple smaller turbines to generate electricity at the proposed Power Plant. Exhibit TB-3, at pp. 4-12 to 4-13. Based on its evaluation, the Applicant chose the F-Class turbine option because it was the best option for the following reasons. Id., at pp. 4-12 to 4-13.
First, “[t]o make full use of the [Brockton] site and the available 115 [kilovolts (“kV”)] transmission interconnection, [the Applicant] focused on the F-Class turbine.” Id., at p. 4-12.
As Mr. Winslow testified, “[t]he F-class turbine was selected to maximize output flexibility within the constraints of the 115kV transmission interconnection.” Mr. Winslow’s PFRT, p. 2, lines 6-8. The Applicant also chose the F-Class turbine because “[t]here are hundreds of F-
Class turbines operating nationwide, providing an extensive operating history for the unit.”
Exhibit TB-3, at p. 4-12.
Second, the Applicant rejected the G-Class turbine option because that turbine “is optimized for ‘base load’ service,” whereas the Applicant’s “concept [for the proposed Power
Plant] was focused on mid-merit or cycling duty,” which would be better suited for an F-Class turbine. Id., at p. 4-13. “A base load facility . . . generally operate[s] 24 hours per day seven days per week, while a mid-merit plant would operate a maximum of 70% of the year with the potential for frequent start-ups and shutdowns.” Id. “While the G-Class turbine can operate in a
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cycling mode, the increased number of start-ups and shutdowns can cause increased thermal stresses, leading to premature aging and replacement of equipment.” Id. Additionally, while a
“G-Class turbine . . . could produce 440 MW [of electricity], . . . th[e] size [of the proposed
Power Plant] could require substantial transmission interconnection capacity upgrades.” Id.
Lastly, the Applicant rejected the multiple smaller turbines option because it would involve higher capital costs and greater air emissions. Id., at p. 4-12.
The Petitioners failed to present any probative evidence to demonstrate that the
Applicant erred in selecting the F-Class turbine to generate electricity at the proposed Power
Plant.
c. The Fuel Source Selected for the Turbine
As Mr. Barten confirmed in his testimony, the Applicant also evaluated different fuels that could be combusted by the turbine to generate electricity at the proposed Power Plant.
Exhibit TB-3, at pp. 4-2 to 4-3, 4-19; Exhibit TC-3 to Mr. Cushing’s PFDT (“Exhibit TC-3”), at pp. 4-11 to 4-12. These fuels included natural gas and ultra-low sulfur diesel (“ULSD”) oil.69
Id.
Initially, the Applicant contemplated utilizing: (1) natural gas as the turbine’s principal fuel source and (2) ULSD as the turbine’s secondary fuel source (for no more than 60 days per year). Exhibit TC-3, at pp. 4-11 to 4-12. After re-evaluating this dual fuel source option, the
Applicant chose to use natural gas as the sole fuel source for the turbine because “natural gas . .
. is the fossil fuel that results in the lowest uncontrolled NOx emissions,” and using natural gas
69 “ULSD is a cleaner-burning diesel fuel that contains 97% less sulfur than low-sulfur diesel . . . .” https://www.fueleconomy.gov/feg/lowsulfurdiesel.shtml, “ULSD was developed to allow the use of improved pollution control devices that reduce diesel emissions more effectively but can be damaged by sulfur.” Id.
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as the only fuel source “[would] reduce PM2.5 emissions by 36.1 tons per year (42%) . . . .”
Exhibit TB-3, at pp. 4-2, 4-19. In response, the Petitioners failed to present any probative evidence to demonstrate that the Applicant erred in selecting the natural gas as the sole fuel source for the turbine.
d. Wet Mechanical Cooling vs. Air Cooling
As Mr. Winslow confirmed in his testimony, the Applicant also evaluated different cooling options to dissipate waste heat that will be generated from the proposed Power
Plant’s steam turbine generator, an integral part of the facility’s combustion turbine generator process. Mr. Winslow’s PFRT, at p. 2, lines 3-6; CPA, at pp. 9-10, 21; Exhibit TC-3, at pp. 4-8 to 4-9. These cooling options were either equipping the facility with a wet mechanical draft cooling tower or air cooling condensers. Exhibit TC-3, at pp. 4-8 to 4-9.
In general, “[c]ooling towers are heat exchangers that are used to dissipate large heat loads to the Atmosphere[,] [and] are used as an important component in many industrial and commercial processes needing to dissipate heat.”70 Water may be used as the heat transfer medium through a wet mechanical cooling tower.71 “[T]he primary heat dissipation mechanism in a wet cooling tower is the evaporation of water.” Exhibit TC-3, at p. 4-8. “As water evaporates from the cooling tower, it must be replaced continuously or ‘made up.’” Id. A wet mechanical cooling tower is suitable for a facility located in an area that has sufficient water from rivers, wells, municipal systems, or industrial water supply systems available for cooling
70 https://www3.epa.gov/ttnchie1/ap42/ch13/final/c13s04.pdf.
71 Id.
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tower makeup. Id.
In contrast, “[a]n air-cooled condenser, which uses no water, is an alternative to wet cooling.” Exhibit TC-3, at p. 4-9. “An air-cooled condensing system operates like a very large automobile radiator that transfers heat from the medium inside the radiator passages to the air stream flowing through it.” Id. “It is essentially a closed loop system wherein air is passed over large heat exchange surfaces to cool and condense the [heat] exhaust to a liquid state [for] return to the boiler.” Id.
“While air cooling is a reliable and proven technology,” Id., the Applicant chose the wet mechanical draft cooling tower option for the proposed Power Plant because it is more efficient, less expensive, and requires less land than air cooling condensers for the following reasons. Id., at pp. 4-8 to 4-9; Mr. Winslow’s PFRT, at p. 2, lines 3-6.
First, “[w]et mechanical draft cooling towers are a proven, economical[,] and energy efficient cooling technology.” Exhibit TC-3, at p. 4-8. These towers “[are] used at a number of operating combined-cycle [power] plants [in the Commonwealth that have been] reviewed under MEPA and approved by the [EFSB].” Id. These plants are: the Altresco Power Plant in Pittsfield, Massachusetts; the MASSPOWER Power Plant in Indian Orchard,
Massachusetts; the ANP Power Plant in Milford, Massachusetts; the Millennium Power Plant in Agawam, Massachusetts; and the Power Development Corporation (“PDC”) Power Plant in Agawam, Massachusetts. Id.
Second, the wet mechanical draft cooling tower at the proposed Power Plant will use treated wastewater from the adjacent Brockton AWRF as cooling water, thus promoting water conservation by “avoiding the need to draw clean water resources from other potable,
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surface or subsurface [water] supplies.” Exhibit TC-3, at p. 4-8. As noted above, the proposed Power Plant will use an annual average of 1.9 million gallons per day of treated wastewater from Brockton’s AWRF for cooling purposes. Id. The Applicant will also pay
$100,000 annually to the City of Brockton for the treated wastewater from Brockton’s
AWRF, which will assist the City’s municipal operating budget. CPA, at p. 21; Attachment
H-4 to Exhibit TB-3, at p. 5; Mr. Cushing’s PFDT, at p. 7; Exhibit TC-1 to Mr. Cushing’s
PFDT (“Exhibit TC-1”), at pp. 10-11; Mr. Winslow’s PFRT, at p. 2, lines 3-6. This annual
$100,000 payment is part of the February 2015 Settlement Agreement that the Applicant reached with the City to resolve the Applicant’s federal court litigation against the City and the City’s appeal of the CPA.72 Exhibit TC-1, at pp. 1-6, 10-11. It is also listed by the
Department in the CPA as one of the “Project Benefits” of the proposed Power Plant. CPA, at p. 21.
Lastly, the Applicant’s selection of the wet mechanical draft cooling tower option was appropriate because, as Mr. Barten pointed out in his testimony, the tower will limit drift to a rate of 0.0005% through the use of high efficiency drift eliminators, which was determined to be the BACT. Exhibit TB-3, at p. 4-33. This drift rate is well below the average drift rate of
0.0023% in the EPA’s RBLC data base, which “contains case-specific information on the ‘Best
Available’ air pollution technologies that have been required to reduce the emission of air
72 See note 4 above, at p. 2. Under the Settlement Agreement, the City, among other things, agreed not to oppose the CPA. Exhibit TC-1, at p. 5.
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pollutants from stationary sources (e.g., power plants, steel mills, chemical plants, etc.).” Id.; https://cfpub.epa.gov/RBLC/index.cfm?action=Home.Home.
In response, the Petitioners, through their witness, Dr. Curry, challenged the
Applicant’s selection of the wet mechanical draft cooling option solely on environmental grounds, contending that the Applicant’s use of treated wastewater from Brockton’s AWRF will be environmentally detrimental to water quantity and water quality in the Salisbury Plain
River, the water body in which the AWRF discharges. Dr. Curry’s PFDT, at pp. 1-4. As discussed in Section IV.B.4.c. below, at pp. 141-152, regarding the environmental and social costs of the proposed Power Plant, the Petitioners’ claim is without merit as it was effectively refuted by the thorough analysis and testimony of the Department’s witnesses, Mr. Friend and Mr. Hobill.
3. The Applicant Conducted a Proper Evaluation of the Proposed Power Plant’s Economic and Social Benefits
a. The Testimony of the Applicant’s Witness, Ms. Petraglia
Through the testimony of its witness, Ms. Petraglia, the Applicant demonstrated that it conducted a proper evaluation of the proposed Power Plant’s economic and social benefits.
Ms. Petraglia holds a Master of Science degree in Resource and Applied Economics from the University of Massachusetts at Amherst (1989) and has more than 25 years of experience performing economic impact assessments in the energy and environmental fields.
Ms. Petraglia’s PFRT, at p. 2, lines 1-22; p. 3, lines 1-6; Exhibit LP-1 to Ms. Petraglia’s PFRT
(“Exhibit LP-1”). Her work experience includes seven years (1993-2000) as an economic analyst and manager of consulting for Regional Economic Models, Inc. (“REMI”), a consulting firm based in Amherst, Massachusetts that conducts economic assessments of proposed
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government policies and is the creator the REMI Model, a widely used economic impact model.73 Ms. Petraglia’s PFRT, at p. 2, lines 1-5; http://www.remi.com/about-us. “In that role
[she] worked as a technical economist assembling, building, and improving conceptual aspects of the REMI economic impact model software. Later [she] served as [the] Head of [REMI’s]
Client Technical Consulting serving clients such as the South Coast Air Quality Management
District,74 the Western Governors’ Conference, and the US EPA.” Ms. Petraglia’s PFRT, at p.
2, lines 2-5.
In June 2000, Ms. Petraglia joined the Economic Development Research Group
(“EDRG”), a Boston based consulting firm that for the two past decades has evaluated economic
73 The REMI Model makes economic impact assessments by “incorporat[ing] . . . four major modeling approaches: [1] Input-Output, [2] General Equilibrium, [3] Econometric, and [4] Economic Geography. . . .” http://www.remi.com/the-remi-model#.
1. Input-Output analysis “measures the relationships between various industries in the economy.” http://www.bea.gov/papers/pdf/IOmanual_092906.pdf, at p. 1-2. “The REMI model at its core, has the inter-industry relationships found in Input-Output models, [and] [a]s a result, the industry structure of a particular region is captured within the model, as well as transactions between industries. . . .” http://www.remi.com/the-remi-model#.
2. General Equilibrium analysis deals with the supply and demand of goods and services. Id. “General Equilibrium is reached when supply and demand are balanced, [and] [t]his tends to occur in the long run, as prices, production, consumption, imports, exports, and other changes occur to stabilize the economic system. . . .” Id.
3. Econometrics uses statistics to evaluate economic data and estimate economic impacts. Id. Under the REMI Model, “[t]he speed of economic responses is also estimated, since different adjustment periods will result in different policy recommendations and even different economic outcomes.” Id.
4. Economic Geography “represent[s] the spatial dimension of the economy. [For example,] . . . [f]irms benefit [form] having access to a large, specialized labor pool and from having access to specialized intermediate inputs from supplying firms. The productivity and competitiveness benefits of labor and industry concentrations are called agglomeration economies, and are modeled in the economic geography equations.” Id.
74 The South Coast Air Quality Management District “is the air pollution control agency for . . . Orange[,] . . . Los Angeles, Riverside, and San Bernardino counties [in California], among the smoggiest regions of the U.S.” http://www.aqmd.gov
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development performance, impacts, and opportunities in various areas, including in the energy and environmental fields, “for public and private [entities] throughout North America as well as
Europe, Asia, and Africa.” Ms. Petraglia’s PFRT, at p. 1, lines 1-7; p. 3, lines 7-10, 15-16; p. 2, lines 6-7; http://www.edrgroup.com/consulting/energy-environment. Ms. Petraglia began her tenure at EDRG as its Director of Economic Modeling and currently serves as a Vice President at the firm. Ms. Petraglia’s PFRT, at p. 1, lines 1-4; p. 2, lines 6-7.
During her tenure with EDRG, Ms. Petraglia has performed a number of significant economic impact assessments for clients in the energy and environmental fields using the REMI
Model or the Impact Analysis for Planning (“IMPLAN”) input-output model, another widely used economic impact model.75 Id., at p. 2, lines 7-9. She has performed these economic impact assessments for major entities such as the California Energy Commission76; the Connecticut
Clean Energy Fund77; the New York State Energy Research and Development Authority78; the
75 The IMPLAN input-output model makes economic impact assessments by “provid[ing] economic impact data . . . to governments, universities, and public and private sector organizations for assessing the economic impacts of project decisions in all industry sectors.” http://implan.com/company. The model assists in ascertaining “how businesses, projects, or policies interact with and shape the [local] economy[.]” Id. The IMPLAN Model:
combines a set of extensive databases concerning economic factors, multipliers, and demographic statistics with a highly refined and detailed system of modeling software. IMPLAN allows the user to develop local- level input-output models that can estimate the economic impact of new firms moving into an area . . . . The model accomplishes this by identifying direct impacts by sector, then developing a set of indirect and induced impacts by sector through the use of industry-specific multipliers, local purchase coefficients, income-to-output ratios, and other factors and relationships. http://cier.umd.edu/RGGI/documents/IMPLAN.pdf.
76 The California Energy Commission (“CEC”) “is [California’s] primary energy policy and planning agency.” http://www.energy.ca.gov/commission. It is responsible for among, other things, “[f]orecasting [California’s] future energy needs; . . . [and] [ [d]eveloping renewable energy resources . . . .” Id.
77 The Connecticut Clean Energy Fund (“CCEF”) is the predecessor of the Connecticut Green Bank, which “leverages public and private funds to accelerate the growth of green energy in Connecticut.” http://www.ctcleanenergy.com/Default.aspx?tabid=62. The Bank is responsible for, among other things, “[d]evelop[ing] . . . programs to finance and support green energy investment in residential, municipal, small business, and larger commercial projects, [and] support[ing] financ[ing] or other expenditures that promote
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Regional Greenhouse Gas Initiative79; the U.S. Department of Energy; and the Applicant regarding the proposed Power Plant. Id., at p. 2, lines 11-13, 16-20; Exhibit LP-1, at pp. 1-2.
The Applicant retained EDRG in 2009 to perform an economic impact assessment of the proposed Power Plant’s construction and for a typical year of the facility’s operations, and retained EDRG again in 2015 to perform an updated assessment using current project budget information. Ms. Petraglia’s PFRT, at p. 3, lines 17-21; Mr. Winslow’s PFDT, at p. 3, lines 21-
24; p. 4, lines 1-17. Ms. Petraglia performed the economic impact assessments using “an
IMPLAN impact analysis of spending related to construction and ensuing operations of the proposed [Power Plant].” Exhibit LP-1, at p. 2. EDRG’s 2009 and 2015 Reports, which consists primarily of Ms. Petraglia’s economic impact assessments of the proposed Power
Plant, were introduced in evidence at Hearing. For my findings here, I have relied upon on
EDRG’s 2015 Report (Attachment H-4 to Exhibit TB-3) as it contains more recent data than
EDRG’s 2009 Report.
“Using the latest available spending and economic data,” EDRG’s 2015 Report identified the proposed Power Plant’s substantial economic and social benefits to Brockton and
investment in green energy sources to foster the growth, development, and commercialization of green energy sources and related enterprises.” Id.
78 The New York State Energy Research and Development Authority (“NYSERDA”) promotes energy efficiency in New York State and the use of renewable energy sources in order to reduce air pollution and foster an affordable energy system in the State. http://www.nyserda.ny.gov/About. NYSERDA is responsible for administering the Main Tier portion of the New York Renewable Portfolio Standard (“RPS”), which “seeks to increase the proportion of renewable electricity used by retail customers [in New York State] . . . .RPS energy targets fall into [several] groups[,] [including the] Main Tier or Large Scale Generators . . . that sell power to the wholesale grid or in some cases generate power for onsite use.” http://www.nyserda.ny.gov/About/Renewable-Portfolio-Standard.
79 The Regional Greenhouse Gas Initiative (“RGGI”) “is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce CO2 emissions from the power sector,” which cause global warming. https://www.rggi.org. RGGI’s “‘cap and trade’ program requires electric power generators in participating states to reduce carbon dioxide emissions.” Exhibit LP-1, at p. 2.
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the surrounding three-county Metro South Region consisting of Bristol, Norfolk, and Plymouth
Counties. Exhibit TB-3, at p. 4-17 to 4-19; Attachment H-4 to Exhibit TB-3, at p. 1. As discussed below, these benefits include the creation of 540 construction jobs, the Applicant’s investment of tens of millions of dollars in the City of Brockton and its surrounding region, and the Applicant’s substantial PILOT80 payments and community contributions that will provide direct long-term benefits for the overall welfare of the local population. Id.
As EDRG’s 2015 Report notes, “[the proposed Power Plant’s] construction will create significant economic activity in Brockton and the three-county region over a period of 26 to 30 months through recruitment of local workers and procurement of supplies. After construction is complete, on-going economic stimulus will continue, with continual O & M of the facility through long-term jobs and the purchase of local goods and services.” Attachment H-4 to
Exhibit TB-3, at p. 1.
“[The Applicant] will invest over $259 million in building materials and equipment and
$85 million in [construction wages] during the 26-30 month construction phase, as well as $2.85 million in education, public safety, and athletic field payments to the City of Brockton. The
Project will enlist local construction workers and pay wages that will be spent at local businesses. Also, locally sourced supplies will generate economic activity among contractors and manufacturers.” Id., at p. 2.
“The gross capital outlay [that the Applicant] need[s] to construct the [proposed Power
Plant] is $396 million. Deducting allocations of funds for escalation, contingency, overhead[,]
[and] fees, the [Applicant’s] net direct spending on supplies and labor is estimated to be $344.6
80 “PILOT” means Payment In Lieu of Taxes.
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million. Of this latter amount, $259.6 million is for equipment purchases [for the proposed Power
Plant] and $85 million is for construction wages” for the 540 new construction jobs that will be created by the facility’s construction. Attachment H-4 to Exhibit TB-3, at pp. 2-4; p. 3 (Table 1); p. 4 (Table 3).
EDRG’s 2015 Report states that $36.3 million of $259.6 million in equipment purchases will be made within the three-county Metro South Region. Attachment H-4 to Exhibit TB-3, at p. 3. This $36.3 million figure coupled with the $85 million that will be paid to the 540 construction workers means that $121.3 million in direct spending will occur within the region.
Id.
EDRG’s 2015 Report also states that during the 30 year operational life of the proposed
Power Plant, the Applicant will spend over $11 million annually on worker salaries, materials, and payments to the City of Brockton, as follows. Id. , at pp. 4-6.
First, the Applicant will pay annual wages totaling $2.9 million to 18 full-time employees who will operate the facility 24 hours per day, 7 days per week. Id., at pp. 4-5.
“[A]t least 9 of the workers will come from within the 3-county region, which means that approximately $1.5 million in payroll will remain with worker households in the region.” Id., at p. 5.
Second, pursuant to the February 2015 Settlement Agreement it reached with the City of Brockton, the Applicant will make annual payments to the City, totaling $4 million:
(1) $3,900,000 in PILOT payments and (2) $100,000 for the treated wastewater from
Brockton’s AWRF that will be used as cooling water for the proposed Power Plant’s wet mechanical draft cooling tower. Id.; Mr. Cushing’s PFDT, at p. 7; Exhibit TC-1, at pp. 10-11;
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CPA, at p. 21. These annual payments will support the City’s municipal operating budget.
Attachment H-4 to Exhibit TB-3, at p. 5. Under the February 2015 Settlement Agreement, the
City will also receive $2.85 million in additional financial support from the Applicant by the latter’s one time lump-sum payments to the City of: (1) $1,000,000 for the Brockton public schools, (2) $1,000,000 to be spent on public safety, and (3) $850,000 for an athletic field. Mr.
Cushing’s PFDT, at p. 7; Exhibit TC-1, at pp. 9-10; CPA, at 21.
Lastly, the Applicant will also spend $4.2 million to purchase materials related to the proposed Power Plant’s O & M. Attachment H-4 to Exhibit TB-3, at p. 5.81 Approximately
19% of this amount: $811,000 will be spent on purchasing materials within the three-county
Metro South Region. Id.
b. The Testimony of the Petitioners’ Witness, Dr. Stanton
The Petitioners’ witness, Dr. Stanton, is a Principal Economist at Synapse Energy
Economics, Inc. (“Synapse”), a consulting firm based in Cambridge, Massachusetts that
“specializ[es] in electricity and natural gas industry regulation, planning, and analysis.” Dr.
Stanton’s PFDT, at p. 1, lines 1-9. The firm’s work includes “[performing] economic and technical assessments of energy resources; electricity market modeling and assessment; integrated resource planning; energy efficiency policies and programs; renewable resource technologies; and climate change strategies.” Id., p. 1, lines 9-13. Synapse’s clients include local, state, and federal government agencies; natural governmental associations; non-profit organizations; and businesses. Id., at p. 1, lines 13-16; p. 2, lines 1-2.
81 I arrived at the $4.2 million figure after deducting the Applicant’s $4 million annual payments to Brockton city government from the $8.2 million that Ms. Petraglia determined “will be spent on all supplies and local government payments . . .” Id.
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Dr. Stanton has more than 15 years of professional experience as an environmental economist. Id., at p. 2, line 4. She holds a Bachelor of International Studies degree from the
School for International Training in Brattleboro, Vermont (1994); a Master of Arts degree in
Economics from New Mexico State University in Las Cruces, New Mexico (2000); and a Ph.D. in Economics from the University of Massachusetts at Amherst (2007). Exhibit EAS-1 to Dr.
Stanton’s PFDT (“Exhibit EAS-1”), at p. 2.
Dr. Stanton has been with Synapse since 2012. Id., at p. 1. “At Synapse, [she has] led studies examining environmental regulation, cost-benefit analyses, and the economics of energy efficiency and renewable energy. [She has] submitted expert reports and testimony in
Illinois, Vermont, New Hampshire, Massachusetts, and several federal dockets[.] [She has also] authored more than 80 reports, policy studies, white papers, journal articles, and book chapters on topics related to energy, the economy, and the environment.” Dr. Stanton’s PFDT, at p. 2, lines 4-10.
At the Hearing, Dr. Stanton criticized EDRG’s evaluation of the proposed Power Plant’s economic and social benefits and contended that the evaluation was not reliable. Specifically,
Dr. Stanton claimed that the inputs regarding direct spending, employment, and supply purchases that the Applicant provided to EDRG for use in the IMPLAN model were
“unsubstantiated,” and that EDRG should have selected different inputs from existing databases, e.g., state-wide vs. regional data, for use in the IMPLAN model. Dr. Stanton’s PFDT, at p. 7, lines 17-22; pp. 8-13; Dr. Stanton’s PFST, at p. 1, lines 13-16; pp. 2-3; p. 4, lines 1-8. I do not find Dr. Stanton’s testimony persuasive for the following reasons.
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First, while Dr. Stanton’s credentials are noteworthy, Ms. Petraglia’s significant economic impact assessment work for clients in the energy and environmental fields during the last 25 years, in particular the work that I highlighted above that she has performed in the past decade for the CEC, the CCEF, NYSERDA, RGGI, and the U.S. Department of Energy, has led me to accord greater weight to Ms. Petraglia’s testimony. See Exhibit LP-1, at pp. 1-2.
I have also accorded greater weight to Ms. Petraglia’s testimony because on cross- examination at the Hearing, Dr. Stanton admitted that she has neither prepared an analysis to address the requirements of Appendix A(8)(b) nor evaluated an Appendix A(8)(b) analysis prepared for another project. Hearing Transcript, at 76, lines 9-24. She also admitted that she has not run the IMPLAN model to evaluate economic impacts and stated that her consulting firm, Synapse, has not used the IMPLAN model to conduct an economic impact analysis for a new electricity generating facility. Hearing Transcript, at p. 79, line 7 to p. 80, line 3. She also admitted that she has not conducted an economic analysis that used inputs for hiring and supply purchases provided by a facility’s developer. Hearing Transcript, at p. 81, line 19 to p. 82, line
6.
Dr. Stanton also admitted that she did not conduct any evaluation of available data regarding the proposed Power Plant’s potential impacts in any of the categories of environmental and social costs set forth in her testimony,82 or how the facility’s impacts compare to applicable regulatory standards. Hearing Transcript, at p. 88, line 1 to p. 89, line 6.
Indeed, Dr. Stanton admitted that she did not review any MEPA findings or EFSB decisions for
82 Dr. Stanton testified that in addition to evaluating spending and employment-related economic impacts, an impact assessment for the proposed Power Plant should consider “increases in noise, traffic, air and water pollution, health impacts, and greenhouse gas emissions, . . . reduction in property values and impacts on people’s use and enjoyment of an area.” Dr. Stanton’s PFDT, at p. 5, line 23 to p. 6, line 2. Dr. Stanton testified as such even though Appendix A(8)(b) does not specifically require such an analysis.
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the proposed Power Plant and that the Petitioners did not request her to investigate or evaluate any non-monetary benefits of the facility. Hearing Transcript, at p. 102, lines 1-19; p. 103, lines
7-12. Dr. Stanton also admitted that monetization of environmental and social costs is not the only way for the Appendix A(8)(b) analysis to be conducted, stating: “I am not recommending that a monetized cost/benefit analysis should be the only way that these decisions are made.”
Hearing Transcript, at p. 98, lines 16-18.
Lastly, I have also accorded greater weight to Ms. Petraglia’s testimony because she effectively refuted Dr. Stanton’s testimony at the Hearing. Specifically, Ms. Petraglia demonstrated that Dr. Stanton: (1) did not accurately evaluate the input-output multiplier analysis that EDRG utilized in its IMPAN economic impact model, (2) made inaccurate claims regarding the appropriate geographic scales for multiplier analyses, and (3) failed to recognize how the narrative and tables in EDRG’s 2015 Report illustrated how specific assumptions and source information had been used to convert the proposed Power Plant’s budget data into model inputs. Ms. Petraglia’s PFRT, at p. 4, lines 6-18.
With respect to the input-output multiplier analysis, Ms. Petraglia demonstrated the accuracy of EDRG’s selection of regional multipliers, rather than state-level multipliers as Dr.
Stanton had advocated in her testimony,83 to predict the economic impacts of wages and supply purchases that will be locally procured in Brockton and the surrounding three-county Metro
Region during the proposed Power Plant’s construction. Ms. Petraglia’s PFRT, at p. 5, lines 2-
12. Ms. Petraglia testified that “[t]he use of state-level data for a city-based project would be
83 Dr. Stanton testified that “IMPLAN results are based on national input-output data that are adapted to smaller geographic areas” and that “[t]he smaller the geographic area, the less robust the findings.” Dr. Stanton’s PFDT, at p. 10, lines 4-6. She contended that “[a]n IMPLAN analysis for the Commonwealth of Massachusetts would be more robust than the same analysis performed for the three-county [Metro] area” that EDRG performed for the proposed Power Plant. Id., at p. 10, lines 6-7.
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inaccurate for [the] analysis [because] “State-level IMPLAN data reflect the breadth of the entire state’s economy, the mix of the industries observed[,] and a deeper labor market influence than those of any county’s economy (e.g., Plymouth County to which Brockton belongs), let alone [Brockton’s] economy.” Id., at p. 5, lines 4-8. Additionally, “the underlying economic ratios defined for the individual industries, the annual wages paid to workers in specific types of businesses, and the completeness of the supply-chain are greater with a larger, more diversified economy,” and, accordingly, “state-level multipliers would exaggerate what is expected to occur in the three-county metro and Brockton economies.” Id., at p. 5, lines 8-12.
In response to Dr. Stanton’s assertion that the “key assumptions” for direct spending and employment in construction and operations provided to EDRG by [the Applicant] were
“unsubstantiated,”84 Ms. Petraglia testified that it is an appropriate and standard procedure for a consulting group like EDRG to rely upon the proponent of a construction project to provide such inputs and update those inputs. Id., at p. 5, line 16 to p. 6, line 7; p. 8, lines 5-8; Hearing
Transcript, at p. 207, line 14 to p. 208, line 13; p. 214, lines 7-17. Ms. Petraglia explained how the inputs from the project proponent and regional data files properly are used to conduct an
IMPLAN analysis:
The client must always provide us the budget about what they’re building or operating. And then they can sometimes help us understand some of the technical components of what they have to buy and where those will come from. And then after that, if they cannot say where more general supplies like aggregate or cement or steel might come from, this is why we resort to buying regional data files for these economic models. We can
84 Dr. Stanton testified that “that EDRG’s findings combine[d] IMPLAN modeling with . . . unsubstantiated assumptions” that “strongly influence[d] the findings regarding spending and jobs in the three-county area.” Dr. Stanton’s PFDT, at p. 10, lines 8-11.
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look at information, and it’s not just the factors that Dr. Stanton referred to. That’s a very superficial way that people think they can use IMPLAN.
Hearing Transcript, p. 215, lines 9-21.
4. The Environmental and Social Costs of the Proposed Power Plant Are Minimal
Contrary to the Petitioners’ assertions, the environmental and social costs of the proposed Power Plant will neither be dire nor far exceed the considerable economic and social benefits that the facility will bring as discussed above. I make this finding based on the evidence presented at the Hearing on the environmental issues of air emissions, noise pollution, water quantity, and water quality arising from the proposed Power Plant’s operation.
For the reasons discussed below, a preponderance of the evidence introduced at the Hearing demonstrated that the environmental and social costs in these areas will be minimal.
a. Insignificant Air Emissions
As discussed in detail above at pp. 33-58, the Applicant’s updated March 2015 air modeling impact report complied with the EPA’s air modeling requirements and demonstrated that the emissions from the proposed Power Plant will be well within the NAAQS limits for
PM2.5 and the SILs, and, as such, are considered an insignificant or de minimis source of air pollution. The findings of the Applicant’s updated March 2015 air modeling impact report were fully supported by the testimony of the Applicant’s witnesses, Ms. Hendrick and Dr. Valberg, and the Department’s witnesses, Mr. Pacheco and Mr. Cushing. Also, as Mr. Cushing confirmed for the Department, the proposed Power Plant has been designed with air pollution controls that meet the LAER and BACT requirements of the Department’s Air Pollution Control
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Regulations, at 310 CMR 7.00.
b. Insignificant Noise Emissions
(1) The Petitioners’ Waiver of the Issue
The Petitioners asserted in their Appeal Notice that the Department should have required the Applicant to perform “additional noise mitigation” for the proposed Power Plant pursuant to the Department’s Noise Pollution Regulations at 310 CMR 7.10 and the
Department’s Noise Policy. Notice in OADR Docket No. 2011-026, at pp. 22-23.
Specifically, the Petitioners asserted that additional noise mitigation was necessary because the facility’s “proposed use of Heat Recovery Steam Generator (HRSG) open-top sound walls instead of a capped structure will permit additional noise to escape from the top of the sound walls resulting in increased noise impacts at nearby residences and decreased impacts at other locations.” Id., at p. 22. They asserted that “[t]here will be a 1 dBA85 increase at three receptor locations due to the lack of a cap on the HRSG structure and reduced wall height,” and consequently, the Department should have required the Applicant “to implement additional noise impact mitigation to ensure equal to or lesser noise impacts at each location than the previously HRSG design with an enclosed structure.” Id., at pp. 22-23 (emphasis in original). The Petitioners also asserted that “[w]ithout further mitigation by increased casing thickness, the new HRSG sound wall design will result in greater noise impacts in some locations than the original design,” and that “[t]he mitigation of residential noise impacts is
85 “A ‘dB(A)’ or decibels weighted for the ‘A’ scale, is a sound measurement where the actual sound measurement (in decibels) is altered (or weighted) to reflect human sound sensitivity.” Mr. Kamieniecki’s PFDT, p. at 3. “For instance, for those frequencies of sound which humans hear very well, the actual reading is enhanced, or increased, in the weighting process.” Id. As such, “[t]he ‘weighted’ reading therefore emphasizes the frequencies best heard by humans, and likewise de-emphasizes those sound frequencies which are less well heard.” Id.
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particularly important given the extended life of power plants and the small cost of the mitigation relative to the total project cost.” Id., at p. 23.
However, the Petitioners, the parties with the burden of proof, waived these noise pollution claims by failing to present any evidence at the Hearing supporting their assertions.
The Petitioners also waived their noise pollution claims by failing to address them in their
Closing Brief, instead choosing to focus exclusively on the issues relating to Title VI, the 2002
EJ Policy, the Applicant’s use of Taunton NWS Meteorological Data for its updated March
2015 air quality impact modeling, and Appendix A(8)(b). See Petitioners’ Closing Brief, at pp. 1-47. Accordingly, I find in favor of the Applicant and the Department on these claims by ruling that the CPA’s provisions governing the proposed Power Plant’s sound or noise emissions are consistent with the Department’s Noise Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy, and that no additional noise mitigation or monitoring is required.
(2) The Applicant’s and the Department’s Highly Probative and Undisputed Evidence Refuting the Petitioners’ Noise Pollution Claims
I also find in favor of the Applicant and the Department on the Petitioners’ claims on this issue because the Applicant and the Department presented highly probative and undisputed evidence at the Hearing demonstrating that any noise emitted from the proposed Power Plant will neither violate the Department’s Noise Pollution Regulations at 310 CMR 7.10 nor violate
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the Department’s Noise Policy.
(a) The Requirements of the Department’s Noise Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy
The Department’s Noise Pollution Regulations at 310 CMR 7.10(1) provide that:
[n]o person owning, leasing or controlling a source of sound shall willfully, negligently or through failure to provide necessary equipment service or maintenance or to take necessary precautions cause suffer, allow or permit unnecessary emissions from said sound of source that may cause noise.
(emphasis supplied). “Noise” is defined as any “means of sound of sufficient intensity and/or duration as to cause or contribute to a condition of air pollution.” 310 CMR 7.00 (definition of
“Noise”). The Department has promulgated a Noise Policy which provides that:
[n]oise is a type of air pollution that results from sounds that cause a nuisance, are or could injure public health, or unreasonably interfere with the comfortable enjoyment of life, property, or the conduct of business. Types of sounds that may cause noise include:
• “Loud” continuous sounds from industrial or commercial activity, demolition, or highly amplified music; • Sounds in narrow frequency ranges such as “squealing” fans or other rotary equipment; and • Intermittent or “impact” sounds such as those from pile drivers, jackhammers, slamming truck tailgates, public address systems, etc. http://www.mass.gov/eea/docs/dep/air/community/noisefs.pdf. Under the Department’s Noise
Policy:
[a] noise source will . . . violat[e] the Department’s noise regulation (310 CMR 7.10) if the source:
1. Increases the broadband sound level by more than 10 dB(A) above ambient, or
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2. Produce a “pure tone” condition – when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.86
These criteria are measured both at the property line and at the nearest inhabited residence. “Ambient” is defined as the background A-weighted sound level
[db(A)] that is exceeded 90% of the time, measured during equipment operating hours. “Ambient” may also be established by other means with consent of the Department.
Id.
(b) The Testimony of the Applicant’s Witness, Mr. Barten
At the Hearing, the Applicant’s witness, Mr. Barten, testified that the proposed Power
Plant has been designed to comply with the Department’s Noise Pollution Regulations at 310
CMR 7.10 and the Department’s Noise Policy. Mr. Barten’s PFDT, at p. 17, lines 12-14. He testified that the primary sources of sound from the proposed Power Plant will be from its gas turbine generator, the HRSG, the steam turbine generator, the seven-cell wet mechanical draft cooling tower, and the main transformer. Mr. Barten’s PFDT, at p. 17, lines 14-17. He described the Applicant’s evaluation of noise mitigation measures and how the Applicant’s planned expenditure of nearly $12 million in noise mitigation measures for the proposed Power
Plant will ensure that the facility comports with the Department’s Noise Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy. Id., at pp. 8, 22-24. His testimony is supported by the CPA’s detailed list of noise mitigation measures that the proposed Power
Plant must have in order to operate. CPA, at pp. 10-11, 28-29. Specifically, the CPA requires
86 “An example of a ‘pure tone’ is the ‘squealing’ sound that can be produced by a fan with a bad bearing.” Mr. Barten’s PFDT, at p. 19, lines 1-3.
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the Applicant to perform a number of noise mitigation measures for the proposed Power Plant, including:
(1) locating the facility’s gas turbine and steam turbine “in [an] acoustically treated steel framed building”;
(2) enclosing the facility’s HRSG within four sound attenuating walls to a height of approximately 116 feet;
(3) mitigating the sound levels from the facility’s air inlet through an evaporative cooler and pulse jet cartridge system;
(4) installing a silencer to the facility’s turbine exhaust stack;
(5) installing three sided 30 foot tall barriers around the facility’s main transformers;
(6) housing the facility’s natural gas compressors and a lube oil cooling system in an enclosed building at the site;
(7) installing cooling tower fan deck barrier walls;
(8) reducing cooling tower fan speeds;
(9) having cooling tower splash attenuation;
(10) orienting the cooling tower open sides to face north and south so they are facing away from the residential areas located to the east and west of the facility;
(11) enclosing the facility’s emergency generators in an enclosed building at the site; and
(12) not operating the facility’s auxiliary boiler and combustion turbine at the same time.
CPA, at p. 29. The CPA also bars the Applicant from “exceed[ing] the ‘Ambient & Brockton Power dB(A)’ sound levels’ [as set forth] in Tables 7A and 7B [of the CPA],” and provides that “[n]o combination of sound emitting sources shall result in a ‘pure tone condition”” as that term is defined
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in the Department’s Noise Policy: “any octave band level which exceeds the levels in adjacent octave bands by 3 dB or more.” Id., at pp. 29-30, 47-48.
In his testimony, Mr. Barten also provided a detailed explanation of how the Applicant analyzed the sound impacts of the proposed Power Plant. Mr. Barten’s PFDT, at p. 19, lines 6-
22; pp. 20-24. He testified that existing sound levels in the vicinity of the proposed Power Plant were measured using both short term and continuous, measurements at six locations over a nine day period, and that the measurements encompassed weekday daytime, weekday nighttime, weekend daytime and weekend nighttime periods. Id., at p. 19, lines 6-9. He testified that the sound impacts were analyzed using the Cadna/A noise calculation model (DataKustik
Corporation, 2005),87 and that key model inputs included the equipment data for major facility equipment, together with a dimensioned equipment layout drawing and site area mapping. Id., at p. 19, lines 10-13; p. 20, lines 1-20. He testified that the Cadna/A noise calculation model was run to calculate sound levels at nine separate discrete receptors at the site of the proposed Power
Plant. Mr. Barten’s PFDT, at p. 19, line 6. The nine discrete receptors included property line receptors in all four directions of the site of the facility and the nearest residences in several directions around the facility site. Id., at p. 19, lines 7-8. He testified that the nearest residences to the east of the facility are approximately 1,500 feet away; the nearest residences to the west are 1,100 feet away; and nearest residences to the south are 2,200 feet away. Id., at p. 19, lines
8-13.
Mr. Barten testified that for purposes of evaluating compliance with the Department’s
Noise Policy at the nearest residences, the Cadna/A projected sound levels from the facility
87 The Cadna/A noise calculation model is a computer software program for calculating, presenting, assessing, and predicting environmental noise. http://www.datakustik.com/en/products/cadnaa
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were added to the corresponding lowest background level to obtain the expected total sound level at each receptor. Id., p. 19, lines 14-17. He testified that, when combined with the quietest middle of the night background sound levels, the facility’s sound level was predicted to increase ambient sound levels by only 1 dBA to 5 dBA over nighttime background at the nearest residences. Id., at p. 19, lines 17-19. He testified that these sound levels are at least 5 dBA less than the 10 dBA authorized by the Department’s Noise Policy at a residence. Id., at p. 19, lines 19-20. He testified that the Applicant repeated the sound analysis using the generally higher daytime/evening background levels, and determined that the facility’s sound levels combined with the lowest measured daytime sound levels will result in a change of 0 dBA to 5 dBA at the nearest residential receptors, still well within the Department’s Noise
Policy. Id., at p. 21, lines 5-7.
Mr. Barten testified that the Applicant also performed a Best Available Noise Control
Technology (“BANCT”) analysis to examine whether any additional noise control measures beyond the approximate $12 million noise mitigation measures already planned for the proposed Power Plant as described above were technically feasible and cost-effective. Mr.
Barten’s PFDT, at p. 21, lines 16-18; pp. 22-24. He testified that the BANCT analysis confirmed the noise mitigation measures currently in place are sufficient, and that additional noise mitigation measures were not warranted given their effectiveness and high cost. Id., at p.
23, lines 20-22; p. 24, lines 1-18.
In sum, Mr. Barten’s testimony described how existing background sound levels in the vicinity of the proposed Power Plant were measured, and how the predicted sound from the proposed Power Plant was calculated and presented in the Applicant’s CPA Application to the
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Department. Mr. Barten’s PFDT, at pp. 19-21. He testified that the data contained in the
Applicant’s CPA Application demonstrated that the potential increase in sound caused by the proposed Power Plant’s operation would comply with the standards in the Department’s Noise
Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy. Id. This finding is set forth on p. 24 of the CPA which states that “[t]he [proposed Power Plant] will have no significant impact on existing sound levels at residential or other sensitive receptor locations and will meet MassDEP’s Noise Regulations at 310 CMR 7.10 and MassDEP’s Noise Policy.”
Notwithstanding this finding, and to further ensure compliance with the Department’s Noise
Pollution Regulations at 310 CMR 7.10 and the Department’s Noise Policy, the CPA requires the Applicant “[to] submit to MassDEP a Community Air Monitoring Plan for monitoring and abating air and noise impacts during the [proposed Power Plant’s] construction.” CPA, at p. 30
(Special Condition No. 1).
(c) The Testimony of the Department’s Witness, Mr. Kamieniecki
At the Hearing, the Department’s witness, Mr. Kamieniecki, corroborated Mr. Barten’s testimony that the CPA comports with the Department’s Noise Pollution Regulations at 310
CMR 7.10 and the Department’s Noise Policy, and that no additional noise mitigation or monitoring is required. Mr. Kamieniecki’s PFDT, at pp. 1-10. Mr. Kamieniecki is an
Environmental Engineer in the Department’s Bureau of Air and Waste based in the
Department’s Southeast Regional Office in Lakeville, where he is responsible for reviewing and making recommendations on air quality-related plan application work pursuant to the
Department’s Air Pollution Control Regulations at 310 CMR 7.00, including its Noise Pollution
Regulations at 310 CMR 7.10. Mr. Kamieniecki’s PFDT, at p. 2. He has been with the
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Department for 10 years (since April 2006). Id. Prior to joining the Department, he worked for
12 years (1990 to 2002) for the United States Air Force as a Bioenvironmental Engineer. Id.
His duties as a Bioenvironmental Engineer included conducting industrial sound surveys, using sound level meters and octave band analyzers to determine whether acoustic (sound) energy was adequately controlled. Id., at pp. 2-3. He holds a Bachelor of Science degree in Chemical
Engineering from Lehigh University (1981) in Bethlehem, Pennsylvania, and a Master of
Science degree in Industrial Hygiene88 from the University of Oklahoma (1993) in Oklahoma
City, Oklahoma. Id., at p. 2. He has been certified as an Industrial Hygienist by the American
Board of Industrial Hygiene since 1996. Id.
Mr. Kamieniecki testified that the proposed Power Plant’s layout is oriented to direct its primary noise sources away from the closest residential receptors, and that the facility “will have no significant impact on existing sound levels at residential or other sensitive receptor locations.” Mr. Kamieniecki’s PFDT, at pp. 1, 6. He testified that he reviewed the
Applicant’s study of the facility’s potential sound impacts and agreed with the study’s conclusion that the facility’s “sound impacts at residential locations are predicted to increase from background levels by no more than 5 db(A) or decibels weighted on the A scale, during the night and during the daytime/evening hours, resulting in impacts substantially below [the
88 “Industrial hygiene is the science of anticipating, recognizing, evaluating, and controlling workplace conditions that may cause workers’ injury or illness.” https://www.osha.gov/Publications/OSHA3143/OSHA3143.htm#Industrial. “Industrial hygienists use environmental monitoring and analytical methods to detect the extent of worker exposure and employ engineering, work practice controls, and other methods to control potential health hazards.” Id.
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Department’s] Noise Policy,” which as discussed above, limits noise increases to 10 db(A).
Id., at pp. 1, 7-9.
Mr. Kamieniecki testified that “[c]onditions will be inserted into the [final permit for the proposed Power Plant] . . . indicating [that] MassDEP will require the [Applicant] to conduct a noise survey (during daytime/evening and nighttime operations) in accordance with
MassDEP procedures/guidelines within 180 days of the startup of the Facility to verify compliance with the allowable sound impacts specified in the [CPA].” Id., at p. 9. He testified that the receptor stations for noise survey will include the same five receptors previously identified in the [CPA],” and that “[p]rior to conducting the sound survey, the [Applicant] will submit in writing to MassDEP for review a sound survey protocol at least thirty (30) days prior to commencing the sound survey.” Id. He testified that the Applicant will also be required to submit to the Department a written report, describing the results of the required sound survey, within 60 days after its completion. Id.
Mr. Kamieniecki also testified that the Applicant might be required to perform additional noise mitigation measures if the noise survey results show that the proposed Power
Plant’s sound levels are not in compliance with the CPA. Id. He testified that the Applicant
“will also be required to develop and implement an operational noise monitoring protocol in consultation with the City of Brockton and MassDEP that will include an ongoing periodic noise monitoring program and reporting procedures.” Mr. Kamieniecki’s PFDT, at pp. 9-10.
He testified that if the noise monitoring report shows that the noise levels at the receptors are above the limits established in the [CPA], then MassDEP may require [the Applicant to perform] additional noise mitigation.” Id., at p. 10.
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c. Insignificant Impacts to Water Quantity and Water Quality in the Salisbury Plain River
The Petitioner’s witness, Dr. Curry, is a Professor of Biological Sciences at Bridgewater
State University in Bridgewater, Massachusetts. Dr. Curry’s PFDT, at p. 1, lines 1-4. He holds a
Bachelor of Arts degree in Biology from Central College in Pella, Iowa (1973); a Master of
Science in Fisheries degree from the University of Arizona in Tucson, Arizona (1975); and a
Ph.D. in Aquatic Ecology from Purdue University in West Lafayette, Indiana (1979). Id., at p. 1, lines 8-10. He has conducted research and given conference presentations on stream ecology, fish biology, and aquatic insects. Id., at p. 1, lines 10-13; Exhibit KC-1 to Dr. Curry’s PFDT.
At the Hearing, the Petitioners, through Dr. Curry, contended that that the Applicant’s use of 1.9 million gallons per day of treated wastewater from Brockton’s AWRF will be environmentally detrimental to water quantity and water quality in the Salisbury Plain River, the water body in which the AWRF discharges. As discussed below, Dr. Curry’s testimony in support of the Petitioners was not persuasive and was effectively refuted by the thorough analysis and testimony of the Department’s witnesses, Mr. Friend and Mr. Hobill.
(1) Water Quantity
Regarding water quantity, Dr. Curry testified that “[the Department] fail[ed] to consider the real possibility that [the Applicant] may not use 1.9 million gallons per day . . . of AWRF water every day, such as during maintenance shutdowns,” and “[u]nder this scenario, the wastewater discharge to the Salisbury Plain River will not be reduced by [1.9 million gallons per day] via diversion to the [proposed Power Plant’s] cooling towers, and may therefore exceed the 18.5 [million gallons per day] limit set out in the [AWRF’s
National Pollutant Discharge Elimination System (“NPDES”)] permit.” Dr. Curry’s PFDT,
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at p. 2, lines 5-14. Dr. Curry also expressed concern about not enough water reaching the
Salisbury Plain River, suggesting that the River’s ecological system could be impacted by low flows if the proposed Power Plant’s use of treated effluent from the AWRF as cooling tower make-up water is “sudden,” i.e., “occurs quickly.” Dr. Curry’s PFDT, at p. 2, line18 to p. 3, line 18. According to Dr. Curry:
“[the Applicant] is likely to use different amounts of AWRF effluent depending upon the season, [and] “[t]he seasonal timing of the decrease in flow, resulting from [the Applicant’s] using a larger amount of AWRF effluent, can result in an increase in water temperature because [of] the loss of volume that would serve as a thermal buffer. Large or sudden decreases in volume can disrupt river connectivity if habitat is suddenly exposed and fish and invertebrates are stranded or unable to move to [a refuge habitat]. . . . [The Applicant’s] use of AWRF effluent will increase streamflow variability. If there is a startup of the [proposed Power Plant] in mid to late summer when the Salisbury Plain River is at low flow, then diversion of [1.9 million gallons per day of AWRF effluent] . . . could have an impact if it occurs quickly, exposes riffle habitat or creates disconnected pools where organisms were stranded and potentially impacted by increasing water temperature and decreasing dissolved oxygen. . . .
Id.
I do not find Dr. Curry’s testimony persuasive for the following reasons.
First, on cross-examination at the Hearing, Dr. Curry clarified that his concern about low flow in the Salisbury Plain River from the proposed Power Plant’s use of AWRF effluent was related only to potential for exposure of some area on the bottom of the River and not to a belief that segments of the River might become disconnected. Hearing Transcript, at p. 32, line 8 to p. 33, line 11. He also admitted that he was aware that the total 12-month rolling average discharged by the AWRF had been reduced by about 5 million gallons per day (from more than 20 million gallons per day during 2001 to 2009 to approximately 15 million gallons per day during 2010 to 2013), but clarified that his concern is related to a sudden
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change in daily flow. Hearing Transcript, at p. 34, line 19 to p. 36, line 15. He also admitted that there already is considerable “short-term variability” in the daily discharge from the
AWRF, as shown on a chart included in “Fact Sheet Attachment B” from the AWRF’s 2015 draft NPDES permit renewal, where the daily AWRF discharge fluctuated from a low of 5 million gallons per day to a high of 15 million gallons per day over a period of only six hours. Hearing Transcript, at p. 44, lines 2-19.
Dr. Curry also admitted that he did not investigate or identify a specific problem with the proposed Power Plant’s use of treated wastewater from the AWRF, but rather had raised the issue “hoping that folks at DEP or someone could clarify what the standard operating procedure would be so we could address the issue.” Hearing Transcript, at p. 37, lines 6-12; p. 38, lines 10-22; p. 47, line 17 to p. 48, line 1. He also confirmed that his concern about potential impacts on the Salisbury Plain River would arise only if the flow from the AWRF was “brought down quickly.” Hearing Transcript, p. 55, lines 1-21. Indeed, he stated that
“to be fair, [the Department’s witnesses had] addressed many of [his] concerns about volumes of water, the cycle, which was very helpful.” Hearing Transcript, p. 59, lines 18-24.
He also conceded that “it would certainly minimize the impact if [the withdrawal of 1.2 to
1.4 million gallons per day] were to be done over a long period of time,” and that “a full day is a long period of time.” Hearing Transcript, at p. 66, lines 3-11.
Dr. Curry’s testimony on the impact that the proposed Power Plant’s use of treated wastewater from the AWRF will have on the water quantity of the Salisbury Plain River also is not persuasive because it was effectively refuted by the Department’s witness, Mr. Friend.
Mr. Friend is an Environmental Analyst IV at the Department in the Department’s
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Bureau of Water Resources (“BWR”) based in the Department’s Boston Office. Mr.
Friend’s PFDT, at p. 1; Exhibit RF-1 to Mr. Friend’s PFDT (“Exhibit RF-1”), at p. 1. He has been employed at the Department since 2007 and his work at the Department includes administering and enforcing the Massachusetts Water Management Act (“WMA”), G.L., c.
21G, and the WMA Regulations at 310 CMR 36.00 et seq., which govern water withdrawals from a water source. Mr. Friend’s PFDT, at pp. 1-2. During his tenure with the Department, he has participated in the technical review of many water withdrawal permit applications submitted to the Department pursuant to the WMA Regulation, 310 CMR 36.00. Id., at p. 2.
Prior to joining the Department, he was employed for nearly 20 years in the private sector working for several engineering consulting firms on water supply projects. Exhibit RF-1, at p. 2. He holds a Bachelor of Science degree in Geology from the University of
Massachusetts at Amherst (1984). Id., at p. 3.
At the Hearing, Mr. Friend testified that he reviewed streamflow data for the
Salisbury Plain River to assess the potential impact to the River of the Applicant’s use of 1.9 million gallons per day of treated wastewater from Brockton’s AWRF for the proposed
Power Plant, and concluded that the resulting reduction in discharge of wastewater to the
River would not have a significant impact on the River’s ecological health. Mr. Friend’s
PFDT, at pp. 2-4; Mr. Friend’s PFRT, at pp. 1-3; Hearing Transcript, p. 411, lines 10 to 24.
He testified that:
[i]n the five year period from 2010 to 2014, the AWRF discharged an average of 14.8[million gallons per day into the River], [and] . . . the power plant will reduce that average discharge from 14.8 to 12.9 [million gallons per day]. Even with the reduction in wastewater discharge, the AWRF will continue to surcharge the river by 12.9 [million gallons per day] on an average annual basis, and therefore the use
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of the wastewater by the power plant will not have an adverse impact to the streamflow of the Salisbury Plain River.
Mr. Friend’s PFDT, at p. 1. Mr. Friend reached his conclusion after reviewing the U.S.
Geological Survey’s (“USGS”) estimates of affected and unaffected flow in the Salisbury
Plain River and the reduction in wastewater discharge into the River as a result of the proposed Power Plant’s use of the 1.9 million gallons per day of treated wastewater from
Brockton’s AWRF. Mr. Friend’s PFDT, at p. 2; Exhibit RF-2 to Mr. Friend’s PFDT
(“Exhibit RF-2”); Hearing Transcript, p. 412, lines 1-9. He testified that:
[t]he estimated flow data indicate[d] that the use of wastewater from the power plant will not significantly impact the streamflow of the Salisbury Plain River[,] [and that] [i]n fact, the decrease in wastewater discharge will cause the river flows to be closer to its natural flow levels[,] [meaning] [t]hat . . . it will become less surcharged as a result of the use of wastewater by the power plant. [Hence,] . . . there will be no adverse impact to the existing surcharged streamflow conditions in the Salisbury Plain River from the power plant’s use of 1.9 [million gallons per day] of Brockton AWRF wastewater.
Mr. Friend’s PFDT, at p. 4.
Regarding Dr. Curry’s testimony that the AWRF might exceed its maximum discharge limit under the NPDES permit if the proposed Power Plant does not use AWRF treated effluent,
Mr. Friend effectively refuted Dr. Curry’s testimony by testifying that:
[t]he [NPDES] permit specifies a discharge rate limit of 18.0 [million gallons per day rather than 18.5 million as Dr. Curry testified], based on a rolling 12-month average [and that] . . . [Dr.] Curry appear[ed] to assume that the . . . AWRF will rely on the power plant wastewater re-use to reduce the AWRF discharge such that the monthly rolling average stays below 18.0 [million gallons per day]. This is not true, because [the] AWRF will not rely on [the proposed Power Plant’s] continuous . . . wastewater reuse to remain under the 18.0 [million gallons per day] limit. Based on the 2010-2014 average discharge [by the AWRF] of 14.8 [million gallons per day], the 1.9 [million gallons per day] of power plant waste
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water use would not have been necessary for the AWRF discharge to stay below 18.0 [million gallons per day].
Mr. Friend’s PFRT, at p. 1, ¶ 1.
With respect to Dr. Curry’s testimony that the proposed Power Plant’s use of 1.9 million gallons per day of treated wastewater from the AWRF might cause adverse impacts due to reduced flow in the Salisbury Plain River, Mr. Friend refuted Dr. Curry’s testimony by testifying that the use of treated wastewater would not result in significant habitat disruption during natural low flow periods because AWRF discharges into River cause it to be continuously surcharged
(flows are always above natural). Mr. Friend’s PFRT, at p. 2, ¶¶ 4, 6. Mr. Friend testified that the proposed Power Plant’s reuse of the wastewater will cause the amount of surcharge to the
River to vary, but it will not stop the continuous surcharged flow condition of the River. Id. He testified that due to the AWRF discharge to the River, the River cannot experience low- flow conditions, and thus Dr. Curry’s assertion that the River’s ecosystem might be adversely affected by the proposed Power Plant’s reuse of the wastewater is incorrect. Id.
As for Dr. Curry’s testimony that the reduction in discharge of AWRF wastewater could result in an increase in the Salisbury Plain River’s water temperature and disrupt the
River’s habitat, Mr. Friend refuted the assertion by testifying that the AWRF’s NPDES
Permit establishes water temperature limits based on ecological impacts, and as a result, the proposed Power Plant’s reuse of the wastewater cannot result in temperature changes to the
River that would result in unacceptable ecological damage. Mr. Friend’s PFRT, at p. 2, ¶ 5.
(2) Water Quality
Regarding the impacts that the proposed Power Plant’s use of wastewater from the
AWRF will have on the water quality of the Salisbury Plain River, Dr. Curry testified that ”[the
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Department] fail[ed] to consider how, if it all, [the Applicant] plans to treat the [400,000 gallons per day] of AWRF water which [will] be returned from [the proposed Power Plant’s] cooling towers, and which is likely to contain chemicals designed to prevent scale and/or biofouling.”
Dr. Curry’s PFDT, at p. 3, line 19 to p. 4, line 1. He testified that “[w]hile the AWRF currently uses tertiary treatment for nutrient reduction and ultra violet (UV) light for bacteria reduction, there is no consideration of how, if at all, [the Applicant] will employ industrial pretreatment processes to reduce or remove chemicals used in the cooling towers.” Dr. Curry’s PFDT, at p. 4, lines 1-5. He also contended that “there is no consideration of the possibility that chemicals used in the cooling towers may not be permitted under the [AWRF’s] NPDES permit.” Id., at p. 4, lines 5-6.
Dr. Curry testified that he was concerned by the testimony of the Department’s witness,
Mr. Hobill (discussed below), that it was “impossible to know what chemicals and treatments will be used by the facility” because the proposed Power Plant has not been fully designed.
Hearing Transcript, at p. 57, lines 4-7. Dr. Curry stated that he was aware that “there are typical treatment chemicals from companies like Nalco used to prevent biofouling, used to prevent bacterial buildup and algae buildup in cooling towers,” and, accordingly, “it [is] possible to know the likely treatment chemicals that will be used in cooling towers.” Hearing Transcript, at p. 58, lines 5-10. Dr. Curry also stated that “[he had] raised the concern because in this particular case, the [waste]water that is being used is going to be rich in nutrients because it [is] treated wastewater and it is going to increase the potential for biological growth in the cooling towers,” and thus, “there [is] definitely going to be a concern about biofouling and then, more importantly, the aspirants that are coming off the cooling tower to bring about the reduction in
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heat.” Hearing Transcript, at p. 58, lines 11-23. He contended that “[i]f we do [not] know what the treatment chemicals are, the potential for bacteria to be transmitted in those aspirants to the surrounding area is a major concern.” Id.
I find that Dr. Curry’s testimony is not persuasive because it was effectively refuted by the testimony of the Department’s witness, Mr. Hobill.
Mr. Hobill is an Environmental Analyst VI for BWR in the Department's Southeast
Regional Office, who has 35 years of experience in environmental consulting, research, and regulation. Mr. Hobill’s PFDT, at p. 1; Exhibit A to Mr. Hobill’s PFDT (“Hobill Exhibit A”), at p. 1. He has been employed by the Department since 1994. Hobill Exhibit A, at pp. 1-2. Prior to joining the Department, Mr. Hobill worked in private industry for nearly 15 years (1980-
1993). Id., at p. 2. He holds a Bachelor of Science degree in Chemistry and Computer Science from Bridgewater State College (1982), and a Master of Science degree in Chemistry from Texas
A&M University (1987). Mr. Hobill’s PFDT, at p. 1
Mr. Hobill’s duties at the Department include technical review of reports, submittals, and permit applications for BWR. Mr. Hobill’s PFDT, at p. 1. His work involves many aspects relating to water quality, including wastewater, drinking water, and the protection and restoration of surface waters and groundwater. Id. With respect to the proposed Power Plant’s use of wastewater from the AWRF, Mr. Hobill testified that the use of the wastewater will not have a significant impact on the water quality of the Salisbury Plain River for the following reasons.
First, the proposed Power Plant will not discharge its wastewater directly into the
Salisbury Plain River, but rather, will discharge all of its wastewater to the AWRF, and that in doing so the facility will be required to participate in the City of Brockton’s EPA-approved
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Industrial Wastewater Pretreatment Program (“IWPP”) “to ensure that pollutants that would either disrupt the treatment processes or pass through the AWRF untreated in harmful concentrations are not discharged to the AWRF.” Mr. Hobill’s PFDT, at p. 2. The AWRF, in turn, will be required to meet the AWRF’s NPDES permit limits for discharges to the Salisbury
Plain River. Id. Mr. Hobill supported his testimony by citing to sections of the City of
Brockton’s Ordinance requiring compliance with the AWRF’s IWPP. Mr. Hobill’s PFRT, at pp. 1-2 (¶¶ 1, 2, 2a-2c); Exhibit JH Rebuttal 1 to Mr. Hobill’s PFRT (“Exhibit JH Rebuttal 1”).
As Mr. Hobill explained at the Hearing, Brockton’s Ordinance:
(1) applies to all industrial users in the City of Brockton;
(2) sets forth the discharges that cannot be made to the AWRF;
(3) prohibits any substance that would “create a toxic effect in the receiving waters from the facility”;
(4) prohibits discharges with a temperature of over 40 degrees Celsius;
(5) prohibits many other substances that would cause a violation of the AWRF’s NPDES permit;
(6) requires industrial users to provide pretreatment to meet all standards required by the Ordinance;
(7) requires industrial users to modify their pretreatment system if it does not satisfy the Ordinance’s standards or if the standards change; and
(8) sets forth the information that must be submitted in an application for an IWPP, including a description of all chemicals that will be used in processes. must be included, and boiler blowdown as a process must be considered.
Mr. Hobill’s PFRT, at pp. 1-2 (¶¶ 2, 2a-2c).
Regarding Dr. Curry’s contention that some water treatment chemicals may not be
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removed from the proposed Power Plant’s wastewater by the facility’s pre-treatment or the
AWRF’s treatment, Mr. Hobill testified that:
[t]hese chemicals are of such low amounts that the concentrations of these compounds in the discharge of the Brockton AWRF are not seen to pose a significant risk of harm to human health or the environment. These chemicals are measured six times a year with the whole effluent toxicity analysis that is required by the [AWRF’s] NPDES permit.
Mr. Hobill’s PFRT, at 2 (¶ 4).
Mr. Hobill also testified that the City of Brockton has primary responsibility for implementation and enforcement of the IWPP and the proposed Power Plant’s compliance with the IWPP, subject to the EPA’s and the Department’s concurrent enforcement authority to oversee the City’s compliance with its NPDES permit and the IWPP. Hearing Transcript, p. 431, line 11 to p. 432, line 7; p. 437, lines 7-24; p. 458, line18 to p. 459, line 23. Mr. Hobill testified that the NDPES and IWPP programs are “designed to prevent” harm to the ecology of waters receiving discharges from wastewater treatment facilities. Hearing Transcript, p. 447, line 23 to p. 448, line 6.
Lastly, Mr. Hobill gave a rational explanation for his earlier testimony in the case that
“[b]ecause the Applicant’s facility has not been fully designed, it is impossible to know what chemicals and treatments will be used by the facility.” Mr. Hobill PFRT at 3. Mr. Hobill explained that “it is impossible to know what chemicals and treatments will be used by the facility at this stage,” and that the specific compounds and treatment will be identified during the IWPP permitting process and the Department’s separate permit review under 314 CMR
20.00 of the reuse of the AWRF’s treated wastewater. Hearing Transcript, at p. 441, line 2 to
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p. 442, line 1 (emphasis supplied); p. 443, lines 2-12. He explained that the standards established by the Department’s Reclaimed Water Regulations at 314 CMR 20.00 for reuse of treated wastewater in cooling towers have been set at stringent levels reviewed by the
Department’s Office of Research and Standards to ensure they are protective of human health.
Hearing Transcript, at p. 452, line 6 to p. 454, line 4. He also explained that his use of the phrase “impossible to know” was meant only to suggest that while it is possible to know at this stage of the proposed Power Plant’s design what categories of materials may be used, it is impossible to know exactly what specific products will be selected because there are many manufacturer and product options from which to choose during the facility’s final design.
Hearing Transcript, at p. 444, line 11 to p. 445, line 7. In Mr. Hobill’s words: “The manufacturers design those chemicals for this type of use and the type of discharge that will likely occur from [the proposed Power Plant] so that they will not violate other permits.”
Hearing Transcript, at p. 460, lines 18-21; p. 462, lines 7-14.
CONCLUSION
Based on the voluminous testimonial and documentary evidence of the parties’ respective expert witnesses at the Hearing, I find that the Department properly issued the CPA. The CPA comports with the requirements of Title VI; the 2002 EJ Policy; the federal air quality impact modeling requirements at 40 CFR 51, App. W, § 8.3; Appendix A(8)(b) of the Department’s Air
Pollution Control Regulations at 310 CMR 7.00; and the Department’s Noise Pollution
Regulations at 310 CMR 7.10 and the Department’s Noise Policy. Accordingly, I recommend
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that the Department’s Commissioner issue a Final Decision affirming the CPA, as modified by the Department in September 2015.
Date: ______Salvatore M. Giorlandino Chief Presiding Officer
NOTICE-RECOMMENDED FINAL DECISION
This decision is a Recommended Final Decision of the Presiding Officer. It has been transmitted to the Commissioner for his Final Decision in this matter. This decision is therefore not a Final Decision subject to reconsideration under 310 CMR 1.01(14)(d) and/or 14(e), and may not be appealed to Superior Court pursuant to G.L. c. 30A. The Commissioner's Final
Decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect. Because this matter has now been transmitted to the Commissioner, no party and no other person directly or indirectly involved in this administrative appeal shall neither (1) file a motion to renew or reargue this Recommended Final Decision or any part of it, nor (2) communicate with the Commissioner's office regarding this decision unless the Commissioner, in his sole discretion, directs otherwise.
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SERVICE LIST
In The Matter Of: Brockton Power Co., LLC
Docket No. 2011-025 File No. W207973 2011-026 Brockton
Representative Party
Barry P. Fogel APPLICANT Cheryl A. Blaine Brockton Power Company, LLC Keegan Werlin, LLP 265 Franklin Street Boston, MA 02110 [email protected] [email protected]
Gregor I. McGregor PETITIONERS McGregor & Associates City of Brockton 15 Court Square, Suite 500 Boston, MA 02108 [email protected] [email protected]
Richard Juang Citizens Group (Brockton, West Alternatives for Community & Bridgewater, & East Bridgewater) Environment, Inc. 2201 Washington Street, Suite 302 Roxbury, MA 02119 [email protected]
Lisa C. Goodheart Phelps T. Turner Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street, 9th Floor Boston, MA 02114 [email protected] [email protected]
Marilyn Levenson, Senior Counsel DEPARTMENT MacDara Fallon, Senior Counsel
Mass DEP Office of General Counsel
In the Matter of Brockton Power Co., LLC, OADR Docket Nos. 2011-025 & 026 Recommended Final Decision Page 154 of 155
One Winter Street, 3rd Floor Boston, MA 02108 [email protected] [email protected]
. u s ; Cc: Daniel Kamieniecki, Environmental Engineer MassDEP – Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 [email protected]
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