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SJC-11405
SJC-11407

 BROCKTON POWER COMPANY LLC      vs. ENERGY FACILITIES SITING BOARD
                                & others.1

         CITY OF BROCKTON    vs. ENERGY FACILITIES SITING BOARD
                            & another2 (No. 2).



             Suffolk.       March 4, 2014. - July 31, 2014.

 Present:     Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
                              & Lenk, JJ.3


Energy Facilities Siting Board. Public Utilities, Electric
     company, Energy company. Municipal Corporations, Electric
     plant, Water supply. Environment, Air pollution. Electric
     Company. Administrative Law, Decision, Judicial review,
     Substantial evidence.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 28, 2011.

     The case was reported by Spina, J.


     1
       City of Brockton (city), and various residents of the city
and the town of West Bridgewater, interveners.
     2
       Brockton Power Company LLC, intervener (Brockton Power or
company).
     3
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                   2


     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 26, 2011.

    The case was reported by Spina, J.


     Gregor I. McGregor (Nathaniel Stevens with him) for city of
Brockton.
     David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler
with him) for Brockton Power Company LLC.
     Sookyoung Shin, Assistant Attorney General, for Energy
Facilities Siting Board.
     Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, &
Staci Rubin with her) for Frank J. Babbin & others.
     Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts
Rivers Alliance & others, amici curiae, submitted a brief.


    BOTSFORD, J.      On August 7, 2009, the Energy Facilities

Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼

(§ 69J¼), approved the petition of Brockton Power Company LLC

(Brockton Power or company), to build and operate a 350-megawatt

combined-cycle energy generating facility (facility or project)

powered by natural gas and ultra-low sulfur distillate (ULSD) in

the city of Brockton (city).     As approved by the board, the

facility would use wastewater from the city's advanced

wastewater reclamation facility (AWRF) for its cooling tower.

In a consolidated appeal by three of the interveners, we

affirmed the board's decision.     See Brockton v. Energy

Facilities Siting Bd. (No. 1), ante        (2014) (Brockton [No.

1]), decided today.

    On April 9, 2010, while the consolidated appeal was

pending, Brockton Power submitted a project change filing (PCF)
                                                                     3


to the board, seeking approval of three changes to its project.

In the PCF, Brockton Power sought to:     (1) change the source of

the facility's cooling tower water from the AWRF to the Brockton

municipal water supply (BMWS); (2) eliminate the use of ULSD as

an alternative fuel and rely solely on natural gas as the

facility's fuel; and (3) make certain changes in the design of

the facility.   After additional public comment, extensive

discovery, testimony, and six days of evidentiary hearings that

the board considered as a "continuation of the [o]riginal

[p]roceeding," the board issued its PCF decision, denying

Brockton Power's proposal to use BMWS but approving the two

other project changes.4   Brockton Power appealed from the board's

denial of the PCF with respect to the facility's water source,5

and the city appealed from the board's approval of the design

and fuel changes.   A single justice of this court reserved and

reported the appeals to the full court.    We affirm the board's

final decision with respect to both appeals.



     4
       The city, Brockton Power, various residents of the city
and the town of West Bridgewater represented by Alternatives for
Communities and Environment, Inc., and the Taunton River
Watershed Alliance intervened in the project change filing (PCF)
proceeding.
     5
       We acknowledge the amicus brief filed by Massachusetts
Rivers Alliance, Charles River Watershed Association, Jones
River Watershed Association, North and South Rivers Watershed
Association, and Taunton River Watershed Alliance.
                                                                     4


     The scope of our review of the board's PCF decision is the

same as in Brockton (No. 1), supra, and is set forth in G. L.

c. 164, § 69P.6    The board's evidentiary rulings are entitled to

deference, and the appellants bear the burden of showing that

the board's decision is invalid.     Alliance to Protect Nantucket

Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 51

(2006) (Alliance I).

     1.     Board's authority to consider PCF as part of original

proceeding.    In its August 7, 2009, final decision, the board

required Brockton Power to notify it of "any changes other than

minor variations to the proposal so that the [board] may decide

whether to inquire further into a particular issue."     In

addition to this general requirement, noting "the uncertainty

. . . around the availability of the Brockton AWRF water

supply," the board directed Brockton Power to "work with the

[city] regarding use of [the city's] AWRF water, and to provide

a report to the [board] with respect to the outcome of such

efforts."    In the event that Brockton Power determined not to


     6
       General Laws c. 164, § 69P, provides that the court's
review is limited to "whether the decision of the board is in
conformity with the constitution of the commonwealth and the
constitution of the United States, was made in accordance with
the procedures established under [G. L. c. 164, §§ 69H to 69O,]
and with the rules and regulations of the board with respect to
such provisions, was supported by substantial evidence of record
in the board's proceedings, and was arbitrary, capricious or an
abuse of the board's discretion under the provisions of [§§ 69H
to 69O]."
                                                                   5


use the AWRF water and instead "to use potable [municipal] water

for the majority of the water requirements of its proposed

facility," the board directed the company to "provide a project

change filing to the [board], together with a detailed analysis

focused on those issues that are germane to the use of potable

water, including opportunities for water conservation."

     Consistent with this directive, on April 9, 2010, Brockton

Power submitted its PCF to the board seeking approval of a

change in the source of the facility's water supply for the

cooling tower, approval of the nonuse of ULSD as an alternate

fuel, and approval of building design changes.   Over the

objection of interveners, who argued that the PCF should be

treated as a new petition, the board, as previously described,

held evidentiary hearings on the PCF and issued a decision

rejecting the proposed change in source of water supply for the

cooling tower, but approving the two other changes.

     Under § 69J¼, fifth and sixth pars., the board may approve,

reject in whole or in part, or conditionally approve a petition

for an electrical generating facility.7   The statute provides


     7
       General Laws c. 164, § 69J¼ (§ 69J¼), fifth and sixth
pars., provide in relevant part:

     "The board shall, within one year from the date of filing,
     approve a petition to construct a generating facility if
     the board determines that the petition meets [certain
     enumerated] requirements . . . .
                                                                   6


that "[i]n the event of rejection or conditional approval, the

applicant may, within 180 days, submit an amended petition.

Public and evidentiary hearings on the amended petition shall be

held on the same terms and conditions applicable to the original

petition."   G. L. c. 164, § 69J¼, sixth par.   See note 7, supra.

The city contends that Brockton Power's PCF was an "amended

petition" within the meaning of § 69J¼, sixth par., and because

it was submitted on April 9, 2010, 245 days after the board

issued its original decision, the board did not have the

authority to consider it as part of the original proceeding --

the window for filing an amended petition had already closed.

According to the city, the board should have reviewed the PCF as

a new petition, which would have required readjudication of the

full range of issues the board considered in its original

decision issued on August 7, 2009.   The city's argument fails.

    "We accord substantial discretion to an agency to interpret

the statute it is charged with enforcing . . . ."   Alliance to

Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd.,



    "If the board determines that the standards set forth above
    have not been met, it shall, within one year of the date of
    filing, either reject, in whole or in part, the petition,
    setting forth in writing its reasons for such rejection, or
    approve the petition subject to stated conditions. In the
    event of rejection or conditional approval, the applicant
    may, within 180 days, submit an amended petition. Public
    and evidentiary hearings on the amended petition shall be
    held on the same terms and conditions applicable to the
    original petition."
                                                                     7


457 Mass. 663, 681 (2010).   Moreover, "administrative agencies

have broad discretion over procedural matters before them."

Zachs v. Department of Pub. Utils., 406 Mass. 217, 227 (1989)

(Zachs).   We defer to an agency's procedural rulings and review

them for "error of law or abuse of discretion."   Id.   This is so

in particular when the ruling concerns whether to reopen a

proceeding or an administrative record.   See Alliance to Protect

Nantucket Sound, Inc. v. Department of Pub. Utils. (No. 2), 461

Mass. 190, 193-194 & n.7 (2011); Box Pond Ass'n v. Energy

Facilities Siting Bd., 435 Mass. 408, 420 (2001) (Box Pond).

    The board determined that Brockton Power's PCF was not an

"amended petition" within the meaning of § 69J¼, sixth par.     As

interpreted by the board, the "amended petition" provision is

limited to an amended filing submitted by a project proponent

within six months after the board has issued a final decision

rejecting the original petition or imposing conditions from

which the proponent seeks relief.   The board contends that its

power under § 69J¼, fifth and sixth pars., to approve a petition

with conditions, combined with its ability to "issue orders with

respect to any matter over which it has jurisdiction," see G. L.

c. 164, § 69H, provides it with more than sufficient authority

to include in a final decision an order requiring the project

proponent to bring back to the board for potential review any
                                                                     8


proposed changes to the project that may affect the basis on

which it was originally approved.

     The board's interpretation of its "statutory mandate will

be disturbed only if the interpretation is patently wrong,

unreasonable, arbitrary, whimsical, or capricious."     Box Pond,

435 Mass. at 416, quoting TBI, Inc. v. Board of Health of N.

Andover, 431 Mass. 9, 17 (2000).    Where, as here, the relevant

statutes are silent on the means of enforcing compliance with

its orders, the board has broad discretion to establish

appropriate procedures.   See Zachs, 406 Mass. at 227-228.    An

administrative agency may, as here, "adopt policies through

adjudication as well as through rulemaking."     Alliance I, 448

Mass. at 51, quoting Arthurs v. Board of Registration in Med.,

383 Mass. 299, 312–313 (1981).     The board's interpretation of

§ 69J¼, fifth and sixth pars., is a reasonable one to which we

accord deference, and the procedure the board adopted to review

potentially material changes to Brockton Power's project does

not constitute an abuse of its discretion.8

     2.   Water source.   The board in its original final decision

approved Brockton Power's proposed use of water from the city's

     8
       Moreover, requiring new proceedings on the full petition
would be futile, because "[a] final order of an administrative
agency in an adjudicatory proceeding . . . precludes
relitigation of the same issues between the same parties." Box
Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408, 419
(2001) (Box Pond), quoting Tuper v. North Adams Ambulance Serv.,
Inc., 428 Mass. 132, 135 (1998).
                                                                    9


AWRF for the facility's cooling tower.   Because the city refused

to supply recycled wastewater from the AWRF for the facility,

Brockton Power submitted a PCF based on the use of water from

BMWS, which supplies potable water to the city.    The board

concluded that the environmental impacts associated with the

Brockton Power's use of BMWS water failed to "minimize the

environmental impacts consistent with the minimization of costs

associated with the mitigation, control, and reduction of the

environmental impacts of the proposed generating facility."

G. L. c. 164, § 69J¼, fifth par.

     Brockton Power argues that the board's analysis of

environmental impacts intruded on the authority of the

Department of Environmental Protection (DEP) was unsupported by

substantial evidence.   We disagree, and conclude that Brockton

Power has not met its burden of showing that the board's

decision is invalid.    See Alliance I, 448 Mass. at 51.

     The record reflects the following facts.   The city draws

its water supply from the Silver Lake system, the Brockton

Reservoir, the Hubbard Avenue well and, beginning in 2008, a

desalination plant owned and operated by Aquaria, LLC (Aquaria),

in Dighton.9   The city's permits issued under the Water

Management Act (WMA), G. L. c. 21G, authorize withdrawals of


     9
       The Silver Lake system includes Silver Lake, Monponsett
Pond, and Furnace Pond.
                                                                   10


11.94 million gallons per day (mgd) from the Silver Lake system

and Brockton Reservoir.10   In addition, the city is authorized to

purchase up to 4.07 mgd from Aquaria, which draws water from the

Taunton River.11

     In 1986, subsequent to a prolonged drought, the predecessor

agency of the DEP issued an administrative order and emergency

declaration that, among other requirements, directed the city to

control water demand and withdrawals, and to develop new water

sources.   Thereafter, in 1995, an administrative consent order

(ACO) replaced the emergency declaration.   Pursuant to the ACO,

the city reestablished its water commission and, among other

measures, prepared a comprehensive water management plan

concerning its water supply.   In 1997, a modification to the ACO


     10
       The Water Management Act (WMA), G. L. c. 21G, permits for
the Silver Lake system authorize withdrawals of 11.11 million
gallons per day (mgd). The WMA permit for the Hubbard Avenue
well authorizes withdrawals of 0.04 mgd, but this well may be
used only in emergency situations with permission of the
Department of Environmental Protection (DEP). The WMA permit
for the Brockton Reservoir authorizes a withdrawal of 0.83 mgd.
Since 1994, however, the city has obtained less than ten per
cent of its supply from the Brockton Reservoir.
     11
       By contract, the city is entitled to 3.5 mgd from
Aquaria, LLC (Aquaria), in 2014, a withdrawal amount that will
increase incrementally to 4.07 mgd by 2019. The city also has
the right to purchase the first 1 mgd of excess water from
Aquaria and to demand Aquaria produce and provide a minimum of
0.5 mgd of excess water during June, July, and August in
addition to the contracted amounts described above. In 2014,
the city is expected to pay Aquaria $5.8 million for the right
to 3.5 mgd of water from the plant, not including any payments
for excess water purchased.
                                                                      11


also established a "safe yield" of 10.33 mgd for the city from

its then existing sources, which did not yet include the Aquaria

plant.      The ACO provides that in the event the city's water

withdrawals exceed 11.3 mgd or 110 per cent of the "safe

yield,"12 whichever is larger, the excess withdrawal will

"constitute a request for the imposition of a [d]eclaration of

[w]ater [e]mergency."13     From 1996 to 2010, the city's average

annual water use was relatively constant, at approximately 10

mgd.    In 2014, the city is estimated to require between 10.15

and 11.44 mgd of water from all sources.      The ACO, and the safe

yield limits, remain in effect.14

       As proposed to be modified by the PCF, the facility's

cooling tower will require 1.75 mgd of water at full capacity on



       12
       Pursuant to G. L. c. 21G, § 2, "[s]afe yield" is defined
as "the maximum dependable withdrawals that can be made
continuously from a water source including ground or surface
water during a period of years in which the probable driest
period or period of greatest water deficiency is likely to
occur; provided, however, that such dependability is relative
and is a function of storage and drought probability."
       13
       In its November, 2009, comprehensive water management
plan (CWMP), which has not yet been approved by the DEP, the
city sought to increase its permissible withdrawals from the
Silver Lake system and Brockton Reservoir to 13.1 mgd from the
currently approved 11.3 mgd.
       14
       In its draft CWMP required as a part of the MEPA
certification for use of water from the Aquaria plant, the city
requested that the administrative consent order (ACO) be lifted.
However, the DEP has not yet lifted the ACO.
                                                                  12


a typical day, or 1.1 mgd on an average annual basis.15,16   During

the summer electrical peak period, when the Silver Lake system

is the most stressed, the facility is expected to use water at

the rate of 2.1 mgd, roughly twice its estimated annual average

rate.17

     Brockton Power contends that BMWS readily can supply the

volume of potable water necessary for the facility's cooling

tower, essentially because, in Brockton Power's view, "most (if

not all) of the incremental water needed to supply [the

facility] will come from Aquaria rather than the city's historic

system."   The board disagreed, noting that the city had never

had to manage the supply demand of a water customer the size of

the Brockton Power facility, that the facility would account for


     15
       The estimate for operating at full capacity on a typical
day is based on the facility's operation at one hundred per cent
capacity on a day with a temperature of fifty-nine degrees
Fahrenheit. The average annual basis estimate is based on
operation at seventy per cent capacity, which Brockton Power
asserts would be typical for the facility, on a day with a
temperature of fifty-nine degrees Fahrenheit. Due to design
changes, these estimates represent reductions from the volumes
initially approved by the board for the use of effluent from the
city's AWRF.
     16
       In Brockton Power's original petition as approved by the
board, it was estimated the facility would require 0.257 mgd of
potable water from the city for process and sanitary water
needs. The city has issued a permit approving the facility's
use of this quantity, and this aspect of the original project
filing remains unchanged in Brockton Power's PCF.
     17
       This estimate is based on operation at full capacity on a
day with a temperature of ninety degrees Fahrenheit.
                                                                  13


more than ten per cent of the city's current water demand, and

that despite greater flexibility in water withdrawal allocations

due to Aquaria, "some, and possibly even a significant portion,

of the [facility's] municipal water could come from Silver

Lake."   Noting that the city's water supply problems have

resulted in significant environmental impacts to the Silver Lake

system over the years and that Brockton Power had not provided

evidence concerning the additional environmental impacts on that

system that might result from Brockton Power's increased

consumption for the project, the board concluded that Brockton

Power had not met its burden to show that the environmental

impacts of the proposed change would be minimized consistent

with the minimization of related costs, as required by § 69J¼,

fifth par.

    On appeal, Brockton Power contends that the board

impermissibly intruded into the DEP's statutory and regulatory

authority as expressed in the ACO’s threshold for triggering a

declaration of water emergency for the city.   Brockton Power

argues that the DEP's "determination of safe yield as the basis

for the 1995 ACO limit of 11.3 [mgd] specifically included

minimization and balancing of environmental protection factors"

to which the board was obligated to defer in conducting its

review of the PCF.   We disagree.
                                                                    14


    In evaluating a claim that the board's determination is

arbitrary, capricious, or unsupported by substantial evidence,

we "give[] great deference to the board's expertise and

experience."   Alliance I, 448 Mass. at 51. "In determining

whether an agency decision is supported by substantial evidence,

we must consider the record as a whole and reverse the agency's

decision if 'the cumulative weight of the evidence tends

substantially toward opposite inferences.'"    Boston Gas Co. v.

Department of Telecomm. & Energy, 436 Mass. 233, 237 (2002),

quoting Cobble v. Commissioner of the Dep't of Social Servs.,

430 Mass. 385, 391 (1999).   Here, Brockton Power has not met its

burden of showing that board's decision was erroneous.

    Pursuant to § 69J¼, fifth par., the board is the agency

charged with determining whether a project proponent's petition

is an accurate and complete description of the environmental

impacts of the proposed facility, and also minimizes

environmental impacts consistent with the minimization of costs

associated with mitigation, control, and reduction of

environmental impacts.   "A permit issued by the board is only

the first of many permits and licenses that will be required of

a developer of a generating facility, and no other State agency

may issue a construction permit for a generating facility until

it has first been approved by the board."     Andover v. Energy

Facilities Siting Bd., 435 Mass. 377, 380 (2001) (Andover).       The
                                                                   15


Legislature has provided for complementary but independent roles

for the board and the DEP.   Just as the board does not delegate

or abdicate its statutory responsibility by recognizing the

authority and expertise of the DEP over water management issues,

see id. at 381, the board's independent exercise of its

statutory authority does not intrude upon DEP's authority over

issues relating to municipal water supplies under the WMA, G. L.

c. 21G, §§ 3, 7.

     In short, the board's and the DEP's mandates are not

identical although they touch on many of the same environmental

concerns; "sensible administrative coordination" between the two

agencies is necessary.18   See Andover, 435 Mass. at 382.   The

board's approval of a petition to construct an energy facility

will not necessarily satisfy the DEP's requirements for a permit

for that facility under the WMA.   Cf. id. at 380-381 (discussing

different roles of board and DEP in relation to review of air

emissions).   Likewise, a DEP permit issued to a municipality


     18
       General Laws c. 164, § 69H, fourth par., provides in
part: "In carrying out its functions, the board shall cooperate
with, and may obtain information and recommendations from every
agency of the state government and of local government which may
be concerned with any matter under the purview of the board.
Each state or local government agency is directed to provide
such information and recommendations as may be requested by the
board." In addition, § 69H, second par., provides that the
board membership include "the secretary of energy and
environmental affairs, who shall serve as chairman, . . . the
commissioner of the department of environmental protection,
. . . or the designees of any of the foregoing . . . ."
                                                                  16


under the WMA is not equivalent to a determination that a

proposed facility would minimize environmental impacts as

required by § 69J¼, nor does the existence of such a permit

compel the board to grant a petition under that statute.    Far

from intruding on the DEP's authority, the board would have

abdicated its statutory duties if it had based its decision on

the proposed water source change wholly on the DEP's municipal

water withdrawal determinations under the WMA.19

     Moreover, the board's determination was supported by

substantial evidence.   In its PCF, Brockton Power contended that

because the city was already withdrawing close to the limit of

its ACO threshold from its traditional sources, the incremental

water volume required by the facility would primarily come from

the Aquaria plant, which provided a significant new source of

     19
        Although Brockton Power correctly notes that
environmental protection principles, including water
conservation, are an integral component of DEP's water
management authority, it does not follow that the ACO threshold
limit of 11.3 mgd (or 110 per cent of the system's safe yield at
the time of the ACO) is "fully protective" of the environmental
concerns that the board must consider under § 69J¼, fifth par.
Indeed, other than the DEP's general mandate to consider
environmental effects of water withdrawals under G. L. c. 21G,
§ 7, there is no evidence that the ACO specifically considers
the environmental effects of the safe yield threshold. Rather,
the focus of the ACO is to "ensure an ample supply of potable
water is available to [the city]." The safe yield established
by the ACO merely sets a threshold at which a declaration of
water emergency will be imposed on the city if the twelve month
average exceeds the designated amount; it does not purport to
establish a level of water withdrawals that is protective of the
city's traditional water sources, such as the Silver Lake
system.
                                                                   17


potable water for the city.   Consequently, Brockton Power urged,

despite the city's historical water supply challenges, the

facility would not have a negative effect on the environment of

the Silver Lake system.   As the board recognized, however, the

city's water conservation efforts and stable population forecast

made it likely that the city's withdrawals would remain under

the ACO threshold.   Moreover, Brockton Power had no control over

the origins of the municipal water required by the facility, and

given the city's view of the Aquaria plant as a supplemental

source of its water needs, the volume required by the PCF might

come entirely or at least in part from the Silver Lake system.

Given the evidence that the city's municipal water withdrawals

continue to have a significant environmental impact on the

Silver Lake system, the board concluded that Brockton Power had

not met its burden of proving that the environmental impacts of

the incremental potable water usage from BMWS had been minimized

consistent the requirements of § 69J¼, fifth par.

    Brockton Power complains that the board did not analyze

sufficiently the environmental impacts of the additional

withdrawals anticipated by the PCF on the Silver Lake system,

but this appears to have been the result of the position the

company itself took before the board:   the PCF filing proceeded

on the assumption that most or all of the increased water
                                                                 18


required by the facility would come from the Aquaria plant.20

Nevertheless, it is apparent that the board did analyze and

consider the effect of the proposed water use on the city’s

traditional water sources, including two studies and expert

testimony indicating that the city's withdrawals have a

continued impact on the environment of the Silver Lake system by

degrading freshwater mussel habitat and increasing environmental

stress on the Jones River, the major tributary of Silver Lake.

Moreover, contrary to Brockton Power's assertion, the board

considered the city's water conservation progress in light of

continuing environmental challenges to the Silver Lake system

and the facility's projected water needs.21


     20
       In its PCF decision, the board noted: "The [c]ompany did
not provide information on or analysis of the different
environmental impacts on the Silver Lake system that would
result from the [c]ity's water consumption with the [p]roject's
use of [Brockton municipal water supply (BMWS)] water as
compared to the [c]ity's water consumption without the
[p]roject. Rather the [c]ompany restricted its argument to the
unsubstantiated and, in fact, highly questionable, claim that
its cooling tower water would predominately come from Aquaria.
Without analysis specific to the Silver Lake system, the
environmental impacts of the [p]roject change cannot be reliably
assessed."
     21
       Brockton Power's remaining arguments are without merit.
The board need not address or make findings with respect to all
the evidence in the record. See Box Pond, 435 Mass. at 418.
The board's initial approval of 0.257 mgd of BMWS water for
sanitary and process use by the facility does not compel the
conclusion that the proposed use of 1.1 mgd for the facility's
cooling tower minimized environmental impacts as required by
§ 69J¼. Further, the board did not deviate impermissibly from
its precedent. Although the board previously has granted siting
                                                                  19


     Although the board's denial of the PCF with respect to BMWS

appears to preclude construction of the facility as currently

proposed, we briefly review the city's appeal of the board's

approval of the two other proposed changes.22

     3.   Elimination of ULSD capacity.   As initially approved by

the board, the facility would use ULSD as an alternative fuel

for up to sixty days per year.   In its PCF filing, Brockton

Power proposed to construct the facility with natural gas-only

generators, eliminating the facility's capacity to use ULSD.23



permits for energy facilities utilizing municipal water for
their cooling towers, the board's decision on the PCF here
discussed and distinguished these precedents based on the
evidence of environmental threats to the Silver Lake system
contained in the record. See Tofias v. Energy Facilities Siting
Bd., 435 Mass. 340, 349 (2001), quoting Robinson v. Department
of Pub. Utils., 416 Mass. 668, 673 (1993) ("'reasoned
consistency' . . . means only 'that any change from an
established pattern of conduct must be explained'"). Finally,
Brockton Power asserts also that the board's decision interfered
with its right to obtain potable water from the BMWS in a
nondiscriminatory manner. Because of the projected quantity of
water that Brockton Power will need for the facility's cooling
tower, discussed infra, the company is not situated similarly to
other users of the system. See Rounds v. Board of Water & Sewer
Comm'rs, 347 Mass. 40, 44 (1964).
     22
        The board concluded, "The evidence in this case
demonstrated that the three proposed [p]roject changes are not
interrelated in such a way that implementation of one [p]roject
change without implementation of one, or both, of the other two
changes is prevented. Accordingly, our findings stated above
are made considering each proposed change on a stand-alone
basis."
     23
       The PCF did not propose modifying the facility's use of
three ULSD-powered "black-start" generators, used for restarting
the turbine when power is not available.
                                                                  20


According to Brockton Power, a gas-only plant would reduce air

emissions, visual impacts, most ULSD deliveries, and the

facility's water requirements, while the expansion of gas

supplies in the Northeast would guarantee the reliability of the

facility's energy supply.   The board found that a gas-only plant

would "reduce the environmental impacts, consistent with the

minimization of costs associated with the mitigation, control,

and reduction of the environmental impacts" of the facility, as

required by § 69J¼, fifth par.

     On appeal, the city primarily asserts deficiencies with

respect to the air emission findings in the board's original

final decision.24   As stated previously, in reviewing a PCF, the

board need not consider issues that have already been decided in

the original decision.   The board's PCF decision analyzed the

PCF for accuracy and completeness and "compared the

     24
       For example, the city argues that the board erred by
relying on the Environmental Protection Agency's National
Ambient Air Quality Standards (NAAQS) to evaluate the facility's
estimated emissions, and by using Logan Airport meteorological
data. We address these issues in Brockton v. Energy Facilities
Siting Bd. (No. 1), ante     (2014) (Brockon [No. 1]), also
decided today. In addition, the city alleges that the board
erred by not considering an alternative turbine and cooling
tower design. However, the board was under no obligation to
examine design alternatives in the context of a review of the
PCF for a facility that it had already approved. See Box Pond,
435 Mass. at 419-420. Finally, the city argues that the board
failed to apply the Environmental Justice policy (EJ policy) to
the PCF. We also discuss the EJ policy in Brockton (No. 1),
supra. In this appeal, the city does not claim that the board
failed to implement the procedural protections of the EJ policy
in relation to the PCF.
                                                                    21


environmental impacts of the facility as originally approved

with the environmental impacts of the project as changed."       This

approach is reasonable and consistent with the board's statutory

mandate.    See Zachs, 406 Mass. at 227 ("administrative agencies

have broad discretion over procedural aspects of matters before

them").    Our review of the city's appeal is limited to new

issues raised by the PCF.    See Box Pond, 435 Mass. at 419-420

(rejecting attempt to relitigate issues already decided in

underlying proceeding).    With respect to the elimination of ULSD

fuel, we conclude that Brockton Power's PCF was accurate and

complete, and "minimize[d] the environmental impacts consistent

with the minimization of costs associated with the mitigation,

control, and reduction of the environmental impacts."    G. L.

c. 164, § 69J¼, fifth par.

     The record indicates that with the elimination of ULSD, the

emissions of all criteria pollutants will be reduced from the

level estimated in the original petition, which the board has

already approved (and we have upheld).25   Accordingly, there is


     25
       Brockton Power's estimated percentage reductions based on
a comparison of the emission estimates in the proposal to those
in the original final decision are as follows:    nitrogen
dioxide (twenty-nine per cent); carbon monoxide (ten per cent);
particulate matter up to ten micrometers in diameter (thirty-
nine per cent); particulate matter up to 2.5 micrometers in
diameter (PM2.5) (forty-two per cent); sulfur dioxide (twenty-
three per cent); and volatile organic compounds (thirty-eight
per cent). A smaller portion of this reduction is due to
updated estimates (with respect to the proportion of particulate
                                                                   22


no basis upon which the board could have concluded that the PCF

would not minimize environmental impacts, as required by G. L.

c. 164, § 69J¼, fifth par.26   The city has not met its burden of

showing that the board's decision is invalid, unsupported by

substantial evidence, or an abuse of discretion.    See Alliance

I, 448 Mass. at 51.

     The city also argues that the board erred by

underestimating the carbon monoxide (CO) emissions from the

facility by basing its analysis on Brockton Power's allegedly

inaccurate estimates of plant "start-up and shut-down" events.27

In its PCF decision, the board noted that the city and Brockton

Power disagreed about the modeling of the CO emissions.   Without

analyzing the dispute, the board noted Brockton Power's lower


matter classified as PM2.5) and improved aerodynamic downwash
resulting from changes in the design features in the PCF. See
note 26, infra.
     26
       With respect to the NAAQS for annual PM2.5 levels,
Brockton Power's new estimate, based on a gas-only plant,
updated projections regarding emissions, and design changes, is
9.46 micrograms per cubic meter (µg/m3) annual PM2.5. In Brockton
(No. 1), supra, we affirmed the board's approval of annual PM2.5
at a level of 10.15 µg/m3.
     27
       Brockton Power estimated that the gas-only facility plant
would emit 98.5 tons per year (tpy) of CO, a ten per cent
reduction from 108.9 tpy for the facility approved by the board
in the original final decision. According to the city's expert,
the correct estimate for the facility's CO emissions is 138.8
tpy. The city alleges that the lower figure, accepted by the
board, is "conveniently below the then-applicable 100 tpy
threshold for a rigorous review under the [F]ederal Clean Air
Act's Prevention of Significant Deterioration . . . permitting
process."
                                                                      23


figures and stated that the facility would be subject to

"enforceable annual and hourly limits . . . set out in [the

DEP's] Conditional Air Plan Approval."     Brockton Power's CO

emissions estimate, 98.5 tpy, represents 8.6 per cent of the

NAAQS threshold for one-hour CO, and 18.9 per cent of the NAAQS

threshold for eight-hour CO.   Although the city's estimate of

138.8 tpy is higher than Brockton Power's, it is still well

below the NAAQS limit for this pollutant.    The board is entitled

to rely on the NAAQS thresholds to determine whether a project

proposal has minimized the environmental impacts pursuant to its

review.   See Brockton (No. 1), supra at      .   The board did not

err by concluding that the CO emissions from a gas-only plant

satisfied the standards of § 69J¼, fifth par.

     4.   Structural design changes.   In the original final

decision, the board declined to grant Brockton Power's requested

zoning exemption under G. L. c. 40A, § 3, which would have

excused the facility from the Brockton zoning ordinance.

Brockton Power did not appeal this aspect of the board's

original decision.   In its PCF, however, Brockton Power proposed

three changes to the facility as approved in the underlying

decision, which, in its view, would make the facility compliant

with the city's zoning ordinance.28    Although the board took no


     28
       First, Brockton Power proposed to replace the 130-foot
building enclosing the heat recovery steam generator with four
                                                                     24


position on whether the modifications would meet the city's

zoning ordinance, it analyzed the changes with respect to noise

and visual impacts, and concluded that the changes minimized the

facility's environmental impacts as required by G. L. c. 164,

§ 69J¼, fifth par.29

     On appeal, the city argues that the board erred by

approving a project that does not comply with a local zoning

ordinance.    This argument is without merit.   In contrast to the

minimization of visual and noise impacts, compliance with local

zoning is not a precondition for the approval of a siting

petition under § 69J¼.    The board's determination that zoning

issues were "outside the scope" of its § 69J¼ review is

reasonable.

     5.   Conclusion.    We affirm the board's PCF decision in all

respects.

                                      So ordered.




116-foot sound walls. Second, Brockton Power proposed to reduce
the height of the main power facility building from sixty-four
to sixty feet. Third, Brockton Power proposed to redesign the
accessory buildings so that all of them would be under twenty-
five feet in height.
     29
        At the time of the board's PCF decision, the zoning
dispute was the subject of a case pending before the Land Court.
