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 ________________________ 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 In the Matter of Brockton Power Co., LLC, OADR Docket Nos. 2011-025 & 026 Recommended Final Decision Page 2 of 155 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. In the Matter of Brockton Power Co., LLC, OADR Docket Nos. 2011-025 & 026 Recommended Final Decision Page 3 of 155 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. In the Matter of Brockton Power Co., LLC, OADR Docket Nos. 2011-025 & 026 Recommended Final Decision Page 4 of 155 “[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.