NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11406

CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD (No. 1)

(and two consolidated cases1).

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

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, 

& Lenk, JJ.2

Energy Facilities Siting Board. Public Utilities, Energy 

company, Electric company. Electric Company. 

Massachusetts Environmental Policy Act. Administrative 

Law, Decision, Judicial review, Substantial evidence.

Environment, Air pollution, Environmental impact report.

Municipal Corporations, Electric plant, Water supply.

Civil actions commenced in the Supreme Judicial Court for 

the county of Suffolk on August 24, August 28, and September 2,

2009.

After consolidation, the case was reported by Spina, J.

Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & 

Staci Rubin with her) for Frank J. Babbin & others.

John L. Holgerson for town of West Bridgwater.

Gregor I. McGregor (Nathaniel Stevens with him) for city of 

Brockton.

1 Frank J. Babbin & others vs. Energy Facilities Siting 

Board; Town of West Bridgewater vs. Energy Facilities Siting 

Board.

2 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.

 
2

Sookyoung Shin, Assistant Attorney General, for Energy 

Facilities Siting Board.

David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler

with him) for Brockton Power Company LLC.

The following submitted briefs for amici curiae:

Veronica Eady for Conservation Law Foundation.

Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. 

Crosby, & Priya A. Lane for Lawyers' Committee for Civil Rights 

and Economic Justice.

Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the 

River Coalition.

BOTSFORD, J. Brockton Power Company LLC (Brockton Power, 

or company) filed a petition pursuant to G. L. c. 164, § 69J1⁄4

(§ 69J1⁄4), with the Energy Facilities Siting Board (board) to 

construct and operate a 350-megawatt combined-cycle energy 

generating facility (facility) powered by natural gas and ultralow sulfur distillate (ULSD) on a 13.2-acre lot in the city of 

Brockton (city). After extensive hearings, the board approved 

Brockton Power's petition, with conditions. The city, the town 

of West Bridgewater (town), and a group of residents of the city 

and the town (residents), all interveners in the proceedings 

before the board (collectively, interveners), filed appeals in 

the county court pursuant to G. L. c. 164, § 69P, and G. L. 

c. 25, § 5.3 A single justice reserved and reported the case to 

the full court.4

3 The following interveners participated in the proceeding 

before the board: Taunton River Watershed Alliance; the city of 

Brockton (city); the town of West Bridgewater (town); various 

residents of the city and the town who were represented by 

Alternatives for Communities and Environment, Inc.; and New 

England Power Company, Custom Blends, LLC. In addition the 

 
3

On appeal the interveners argue5 that the board (1) failed 

to adopt and apply the 2002 environmental justice policy that is 

a binding environmental protection policy of the Commonwealth;

(2) improperly relied on the National Ambient Air Quality 

Standards for fine particulate matter; (3) erroneously accepted

Logan Airport weather data as representative of the proposed 

facility site; (4) erroneously determined that the facility's 

impact on the town's water supply was accurate and complete; and 

following limited participants took part in the proceedings: 

Brockton City Councilor Thomas G. Brophy; State Representative 

Geraldine Creedon; former State Senator Robert S. Creedon, Jr.;

Linda Balzotti, mayor of the city; State Representative 

Christine E. Caravan; and Susan Nicastro.

4 The single justice granted the parties' joint motion to 

consolidate the appeals and proceed on a single record. In 

2011, while the consolidated appeal was pending, Brockton Power 

Company LLC (Brockton Power or company) submitted a project 

change filing (PCF) to the board, seeking approval of 

modifications to its proposal including changing its proposed

water source from wastewater obtained from the advanced 

wastewater reclamation facility (AWRF) operated by the city to 

the city's municipal potable water supply, eliminating the use 

of ultra-low sulfur distillate (ULSD) as an auxiliary fuel, and 

certain changes to facility structure height. The board denied 

the PCF with respect to the modification of the water source for 

the project, but approved the elimination of the secondary fuel 

source and changes to facility structure. Brockton Power and 

the city appealed; we consider the appeals in Brockton Power Co. 

v. Energy Facilities Siting Bd., post (2014).

5 We list here all the claims raised by the interveners, 

some of which are raised by all the interveners and some of 

which are not.

 
4

(5) improperly designated delivery routes to and from the 

facility. We affirm the decision of the board.6

Section 69J1⁄4 requires the board to conduct an evidentiary 

hearing7 on a petition to construct a generating facility within 

180 days of filing, and to approve a petition within one year of 

filing if it "determines that the petition meets the following 

requirements: (i) the description of the proposed generating 

facility and its environmental impacts are substantially 

accurate and complete; (ii) the description of the site 

selection process used is accurate; . . . (iii) the plans for 

the construction of the proposed generating facility are 

consistent with current health and environmental protection 

policies of the commonwealth and with such energy policies as 

are adopted by the commonwealth for the specific purpose of 

guiding the decisions of the board; [and] (iv) such plans 

minimize the environmental impacts consistent with the 

minimization of costs associated with the mitigation, control, 

and reduction of the environmental impacts of the proposed 

6 We acknowledge the amicus briefs submitted in support of 

the interveners' appeals by the Conservation Law Foundation, 

Hands Across the River Coalition, and the Lawyers' Committee for 

Civil Rights and Economic Justice.

7 Under G. L. c. 164, § 69J1⁄4 (§ 69J1⁄4), fourth par., the 

evidentiary hearing is an adjudicatory proceeding conducted 

pursuant to G. L. c. 30A.

 
5

generating facility." G. L. c. 164, § 69J1⁄4, fourth & fifth 

pars.

Pursuant to G. L. c. 164, § 69P, in reviewing a decision of 

the board, we are limited to considering

"whether the decision of the board is in conformity with 

the constitution of the commonwealth and the constitution 

of the United States, was made in accordance with the 

procedures established under [G. L. c. 164, §§ 69H to 69O,] 

and with the rules and regulations of the board with 

respect to such provisions, was supported by substantial 

evidence of record in the board's proceedings, and was 

arbitrary, capricious or an abuse of the board's discretion 

under the provisions of [§§ 69H to 69O]."

We give the board's evidentiary rulings great deference, and the

interveners, as appellants, bear the burden of showing that the 

board's decision is invalid. G. L. c. 25, § 5, seventh par.

Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities 

Siting Bd., 448 Mass. 45, 51 (2006) (Alliance I).

1. Environmental justice policy. The interveners8 argue 

that the board erred by failing properly to apply the 

Commonwealth's environmental justice (EJ) policy, as promulgated 

by the predecessor to the Executive Office of Energy and 

Environmental Affairs (EOEEA).9 The resolution of this issue 

8 The residents principally advance the argument concerning 

the environmental justice (EJ) policy in this case, joined by 

all the other interveners.

9 The EJ policy was promulgated in 2002 by the Executive 

Office of Environmental Affairs (EOEA), the predecessor to the 

Executive Office of Energy and Environmental Affairs (EOEEA). 

At the time the EJ policy was issued, the Energy Facilities 

Siting Board (board) was under the jurisdiction of the Executive 

 
6

requires a two-part analysis: whether the EJ policy is among 

the factors the board must consider under § 69J1⁄4 (and is 

therefore subject to our review); and if so, whether the board 

correctly applied the policy to Brockton Power's petition.

The EJ policy states: "Environmental justice is based on 

the principle that all people have a right to be protected from 

environmental pollution and to live in and enjoy a clean and 

healthful environment. Environmental justice is the equal 

protection and meaningful involvement of all people with respect 

to the development, implementation, and enforcement of 

environmental laws, regulations, and policies and the equitable 

distribution of environmental benefits." The EJ policy defines 

"[e]qual [p]rotection" to mean "that no group of people, because 

of race, ethnicity, class, gender, or handicap bears an unfair 

share of environmental pollution from industrial, commercial, 

state and municipal operations or have limited access to natural 

resources, including greenspace (open space) and water 

Office of Consumer Affairs. The EJ policy expressly states that 

"[t]his policy is not intended to regulate agencies outside the 

EOEA secretariat. . . . This policy is not intended to 

interfere with, super[s]ede, or create any new obligations on 

the [board], an entity which is not by law or otherwise a part 

of the EOEA secretariat." In April, 2007, the Legislature 

created the EOEEA, and placed the former EOEA and two energyrelated agencies, the Department of Public Utilities (under 

which the board is organized, see G. L. c. 164, § 69H) and the 

Department of Energy Resources, within the new executive office. 

See St. 2007 c. 19, §§ 12, 28, 53. See also G. L. c. 21A, § 1.

The board concluded in this case that as of April, 2007, it was 

subject to the EOEEA's EJ policy, and all parties agree with 

this determination.

 
7

resources."10 An "[e]nvironmental [j]ustice [p]opulation" is 

defined as "a neighborhood whose annual median household income 

is equal to or less than [sixty-five] percent of the statewide 

median or whose population is made up [of twenty-five] percent 

[m]inority, [f]oreign [b]orn, or [l]acking [e]nglish [l]anguage 

[p]roficiency." Brockton Power's proposed project site was 

within one-half mile of EJ communities to the west, north, and 

northeast.

The EJ policy directs agencies within the EOEEA to "develop 

their own strategies to proactively promote environmental 

justice in all neighborhoods in ways that are tailored to the 

specific mission of each agency. . . . [EOEEA] agencies shall

identify and promote agency-sponsored projects, funding 

decisions, rulemakings or other actions intended to further 

environmental justice in the Commonwealth."11 The EJ policy also 

10 "Meaningful [i]nvolvement" is defined in the EJ policy to 

mean "that all neighborhoods have the right to participate in 

partnership with government in environmental decision-making 

including needs assessment, planning, implementation, 

enforcement, and evaluation, and neighborhoods are enabled and 

administratively assisted to participate fully through education 

and training means, and encouraged to develop environmental 

stewardship."

11 The board apparently has not yet undertaken any 

"rulemakings" or developed guidelines in order to carry out 

these EJ policy directives, but of course it may establish rules 

and agency policy through adjudication as well as rulemaking. 

See Alliance to Protect Nantucket Sound, Inc. v. Energy 

Facilities Siting Bd., 448 Mass. 45, 51 (2006), quoting Arthurs

v. Board of Registration in Med., 383 Mass. 299, 312–313 (1981). 

 
8

mandates specific agency action in two areas: enhanced public 

participation in EJ communities and, in certain circumstances, 

enhanced substantive review of new projects in EJ communities 

when a proposed generating facility exceeds thresholds 

established by the Massachusetts Environmental Policy Act, G. L. 

c. 30, §§ 61-62H (MEPA).12

With respect to public participation, the EJ policy 

mandates that "all [EOEEA] agencies shall have an inclusive, 

robust public participation program that focuses agency 

resources on outreach activities that enhance public 

participation opportunities for agency activities that 

potentially affect EJ populations." The policy calls for 

See also Securities & Exch. Comm'n v. Chenery Corp., 332 U.S.

194, 203 (1947).

12 The Massachusetts Environmental Policy Act, G. L. c. 30, 

§§ 61-62H (MEPA), and its implementing regulations establish a 

process to ensure that State permitting agencies have adequate 

information on which to base their permitting decisions, and 

that environmental impacts of the project are avoided or 

minimized. See G. L. c. 30, §§ 61 & 62C, fourth par.; 301 Code 

Mass. Regs. § 11.00 (2013). Pursuant to MEPA, a project 

proponent requiring a permit from a State agency files an 

environmental notification form (ENF) with the Secretary of the 

EOEEA (Secretary), who determines whether the project meets the 

review threshold requiring an environmental impact report (EIR). 

See G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.06. If so, 

and after submission of a final environmental impact report 

(FEIR) and opportunity for review by the public, the Secretary 

certifies whether the FEIR has complied with MEPA. G. L. c. 30, 

§ 62C, fourth par. Certification under MEPA, however, "does not 

constitute final approval or disapproval of a particular 

project, which ultimately is left to various permitting 

agencies." Allen v. Boston Redev. Auth., 450 Mass. 242, 247 

(2007), citing G. L. c. 30, § 62C. 

 
9

"enhanced public participation" through "use of alternative 

media outlets such as community or ethnic newspapers . . . and 

translation of materials or interpretation services at public 

meetings" in cases where a project exceeds Environmental 

Notification Form (ENF) thresholds for "air, solid and hazardous 

waste . . . or wastewater and sewage sludge treatment and 

disposal" as determined by the Secretary of EOEEA (Secretary) 

under MEPA and its implementing regulations, and the project 

site is within one mile (or, in the case of air emissions, five 

miles) from an EJ population.

In addition to these procedural requirements, the EJ policy 

substantively provides for enhanced analysis and review of 

"impacts and mitigation" in relation to projects that meet two 

conditions: (1) the project exceeds "a mandatory EIR 

[environmental impact report] threshold for air, solid and 

hazardous waste . . . , or wastewater sewage sludge treatment 

and disposal"; and (2) the project is located within one mile of 

an EJ population, or within five miles for projects exceeding 

the EIR threshold for air. "Enhanced analysis . . . may include 

analysis of multiple air impacts; data on baseline public health 

conditions within affected EJ [p]opulation; analysis of 

technological, site planning, and operational alternatives to 

reduce impacts; and proposed on-site and off-site mitigation 
10

measures to reduce multiple impacts and increase environmental 

benefits to the affected EJ [p]opulation."

The project at issue here, construction of Brockton Power's 

facility, was subject to mandatory MEPA review. In conducting 

that review, the Secretary certified that because the project 

exceeded the ENF threshold for air and is located within five 

miles of an EJ community, it was subject to enhanced public 

participation under the EJ policy. However, the Secretary also 

certified that the project did not exceed the mandatory EIR 

threshold for air pollutants, and therefore was not subject to 

enhanced review under the EJ policy.

The board addressed the EJ policy in its decision,

interpreting it to provide for both "enhanced analysis" and 

additional procedures during a review of a petition filed with 

the board pursuant to § 69J1⁄4. The board concluded, however, 

that the EJ policy's enhanced analysis provisions applied only 

to § 69J1⁄4 petitions that propose a generating facility that 

would exceed the EIR threshold for air emissions. Because the 

Secretary's MEPA certification had determined that the 

facility's expected emissions did not exceed this threshold, the 

board found that the policy, as applied to Brockton Power's 

petition, was limited to additional procedures, namely, 
11

"enhanced outreach and public participation" during the board's 

review process.13

Before turning to the interveners' claims, however, we 

first discuss whether the board's interpretation and application 

of the EJ policy in its decision is subject to our review at 

all. The board, joined by Brockton Power, contends that 

judicial review of this aspect of its decision is not available, 

because the EJ policy states that it "is intended only to 

improve the internal management of [EOEEA] agencies" and 

expressly disclaims the creation of "any right, benefit, or 

trust responsibility, substantive or procedural, enforceable at 

law or equity," as well as "any right to judicial review 

involving compliance or noncompliance" with the policy.

The board's contention fails. As the board recognized in 

its decision, § 69J1⁄4, fifth par., requires the board to 

determine whether "plans for the construction of the proposed 

generating facility are consistent with current health and 

environmental protection policies of the commonwealth and with 

13 The board concluded that Brockton Power had complied with 

the "enhanced outreach and public participation" requirements of 

the EJ policy. As the board noted, the procedures in this case 

"included numerous public meetings, translations of Companyissued public information into multiple languages, translation

[of] material on its website into multiple languages, and the 

posting of meeting notices in multiple languages at many 

locations within the [city]. The record shows both enhanced 

outreach and tremendous public participation through the [board] 

proceedings." The interveners do not argue that the company's 

petition was deficient in this respect.

 
12

such energy policies as are adopted by the commonwealth for the 

specific purpose of guiding the decisions of the board," and 

also that the EJ policy is among the "environmental protection 

policies of the Commonwealth."14 It follows, therefore, that the 

board's application of the EJ policy is subject to judicial 

review as part of the court's consideration whether the board's 

decision meets the requirements of § 69J1⁄4, fifth par. Cf. 

Communities Against Runway Expansion, Inc. v. Federal Aviation 

Admin., 355 F.3d 678, 688-689 (D.C. Cir. 2004) (where defendant 

agency included analysis of compliance with Federal EJ executive 

order on environmental justice in its evaluation of compliance 

with National Environmental Policy Act [NEPA], issue of agency's 

compliance with EJ executive order was reviewable by court 

because it arose under NEPA, not executive order, which

disclaimed right of judicial review). Accord Allen v. National 

Insts. of Health, 974 F. Supp. 2d 18, 46-47 (D. Mass. 2013).15 

The standard of review is that set out in § 69P, namely, whether 

14 General Laws c. 21A, § 2 (1), provides that "the [EOEEA] 

and its appropriate departments and divisions shall carry out 

the state environmental policy and in doing so . . . shall . . . 

develop policies, plans, and programs for carrying out their 

assigned duties." By placing the board under the authority of 

the EOEEA, the Legislature made it subject to the State 

environmental policies as identified by the EOEEA, including the 

EJ policy.

15 But cf. Sur Contra La Contaminacion v. Environmental 

Protection Agency, 202 F.3d 443, 449 (1st Cir. 2000) (declining 

to review claim that Environmental Protection Agency's decision 

to grant environmental permit was in violation of executive 

order).

 
13

the board's application "was supported by substantial evidence 

of record in the board's proceedings; and was arbitrary, 

capricious or an abuse of discretion."

The interveners' claims concerning the EJ policy, however, 

fail on the merits. As mentioned, the Secretary certified that 

the proposed facility did not exceed the mandatory EIR threshold 

under MEPA for air pollutants.16 Under the express language of 

the EJ policy, therefore, Brockton Power's petition was not 

subject to "enhanced analysis." The interveners do not 

challenge the Secretary's determination under MEPA, nor do they 

argue that the board failed to meet the EJ policy's procedural 

requirements. In the context of this case, we cannot accept the 

interveners' contention that, independent of a triggering MEPA 

threshold for enhanced analysis, the EJ policy required the 

16 As explained, the EJ policy calls for "enhanced analysis 

of impacts and mitigation" when, among other possible triggering 

factors, increased air pollution above the "mandatory EIR 

threshold for air" is likely to be the result of the proposed 

project. With respect to air, the MEPA regulations call for a 

mandatory EIR if the new project, "after construction and the 

imposition of required controls," is likely to produce, inter 

alia, potential emissions of "250 [tons per year (tpy)] of any 

criteria air pollutant; 40 tpy of any [hazardous air pollutant 

(HAP)]; or 100 tpy of any combination of HAPs." 301 Code Mass. 

Regs. § 11.03(8)(a)(1). With respect to Brockton Power's 

proposed project, the Secretary, in conducting his MEPA review, 

determined that it would result in the following increases

related to air pollution: 85 tpy of particulate matter; 109 tpy 

of carbon monoxide; 7 tpy of sulfur dioxide; 31 tpy of volatile 

organic compounds; 107 tpy of oxides of nitrogen; 1.134 million

tpy of carbon dioxide; and 7.247 tpy of HAPs. There is no 

argument made here that these projected quantities exceed the 

mandatory EIR threshold for air pollution.

 
14

board to apply unspecified "substantive equal protection" 

principles to its review of Brockton Power's proposed facility 

and that the board's failure to do so rendered its decision 

arbitrary, capricious, or an abuse of the board's discretion. 

The interveners do not point to a specific or affirmative 

requirement in the EJ policy to do so, and we have found none.17

2. Air quality standards. The city and the residents 

object to the board's reliance on the National Ambient Air 

Quality Standards (NAAQS) to review the environmental and 

cumulative health impacts of particulate matter 2.5 micrometers 

or less in diameter (PM2.5). They argue that the NAAQS for PM2.5

are insufficiently protective of public health, and that the 

board's reliance on the standards is unsupported by substantial 

evidence.

17 The issue of timing is important here -- i.e., the fact 

that the petition in this case was filed within a few months 

after the EJ policy became applicable to the board. The EJ 

policy does impose a general, but affirmative, requirement on 

all agencies covered by it (and therefore the board) to develop 

strategies designed "to proactively promote environmental 

justice in all neighborhoods" in a manner tailored to and 

consistent with that agency's "specific mission"; and to 

promote, inter alia, "rulemakings or other actions intended to 

further environmental justice in the Commonwealth." There may 

be an argument that under this general requirement, the board, 

in connection with issuing "its own list of [petition review] 

guidelines" pursuant to § 69J1⁄4, fourth par., or otherwise, has 

an obligation under the EJ policy to incorporate specific 

environmental justice principles into its consideration of 

petitions to construct generating facilities. We do not reach 

the question, however, because even if the EJ policy did impose 

such an obligation, the board reasonably could not be expected 

to have carried it out in time to apply to its review in this 

case.

 
15

The Clean Air Act, see 42 U.S.C. §§ 7408, 7409 (2006), 

directs the Environmental Protection Agency (EPA) to develop 

national standards for ambient air quality -- the NAAQS -- that 

are to cover for air pollutants "reasonably . . . anticipated to 

endanger public health or welfare," including particulate 

matter.18 42 U.S.C. § 7408(a)(1)(A). The Clean Air Act charges 

the EPA with promulgating NAAQS that are protective of public 

health with an adequate margin of safety. See 42 U.S.C. 

§ 7409(b); 40 C.F.R. Part 50 (2006).19 In setting the NAAQS, the 

EPA relies on criteria developed by EPA staff that "accurately 

reflect the latest scientific knowledge useful in indicating the 

kind and extent of all identifiable effects on public health or 

welfare" from the pollutant, 42 U.S.C. §§ 7408(a)(2), and 

recommendations of the Clean Air Scientific Advisory Committee, 

a seven-member, independent scientific review committee. 42 

18 No challenge is made to the board's reliance on NAAQS 

standards for other criteria pollutants analyzed by the board: 

sulfur dioxide, carbon monoxide, nitrogen dioxide, ozone, and 

particulate matter with diameter up to 10 micrometers in 

diameter.

19 The National Ambient Air Quality Standards (NAAQS) are 

expressed as ambient pollutant concentrations, measured in 

micrograms per cubic meter (μg/m3), and averaged over a specified 

period of time, usually twenty-four hours or one year. In 

addition to the "primary" standards intended to protect human 

health, 42 U.S.C. § 7409(b)(1) (2006), the Clean Air Act

provides for "secondary" NAAQS to "protect the public welfare 

from any known or anticipated adverse effects associated with 

the presence of such air pollutant in the ambient air." 42 

U.S.C. § 7409(b)(2) (2006). The secondary NAAQS for PM2.5 are 

not at issue in this appeal.

 
16

U.S.C. § 7409(d)(2). The EPA reviews, and, if necessary 

revises, the NAAQS every five years. 42 U.S.C. § 7409(d)(1). 

The NAAQS are implemented, maintained, and enforced by the 

States under EPA-approved State implementation plans. 42 U.S.C. 

§ 7410. See Reitze, Air Quality Protection Using State 

Implementation Plans -- Thirty-Seven Years of Increasing 

Complexity, 15 Vill. Envtl. L.J. 209, 210-213 (2004). In 

Massachusetts, the Department of Environmental Protection (DEP),

in the course of the permitting process for new emission 

sources, enforces NAAQS in part by comparing total level of 

expected criteria pollutant (the sum of the background 

concentration and expected emissions from the new source) with 

the NAAQS. See, e.g., G. L. c. 111, § 142D; 310 Code Mass. 

Regs. §§ 7.00 (2014).20 Pursuant to its statutory mandate to 

review siting petitions for new energy facilities, the board 

relied on NAAQS to determine whether Brockton Power's petition

"minimize[d] the environmental impacts consistent with the 

minimization of costs associated with the mitigation, control, 

20 General Laws c. 111, § 142D, authorizes the Department of 

Environmental Protection (DEP) to promulgate a State 

implementation plan and comply with Federal Clean Air Act 

requirements. Pursuant to 310 Code Mass. Regs. § 7.02(3)(j)

(2005), the DEP will approve a plan for an energy facility 

subject to, inter alia, a requirement that the facility's 

emissions "do not result in air quality exceeding either the 

Massachusetts or National Air Quality Standards." The DEP has 

not promulgated a standard for PM2.5. See 310 Code Mass. Regs. 

§ 6.04 (2002). Accordingly, the DEP and the board refer to the 

NAAQS standard for this pollutant.

 
17

and reduction of the environmental impacts of the proposed 

generating facility." G. L. c. 164, § 69J1⁄4, fifth par.

At the time of Brockton Power's petition, the annual NAAQS 

for PM2.5 was 15 micrograms per cubic meter (μg/m3). 40 C.F.R. 

Part 50. According to Brockton Power's atmospheric dispersion

modeling (AERMOD) analysis -- a model approved by the EPA, 70 

Fed. Reg. 68,218 (2005) -- the relevant background annual 

concentration of PM2.5 for the facility site was 9.9 μg/m3.21 Upon 

completion, the facility would emit approximately 85 tons per 

year (tpy) of PM2.5 pollutants, resulting in a 0.25 μg/m3 increase 

in the annual PM2.5. These emissions represent a cumulative 

annual impact of 10.15 μg/m3 PM2.5, or about two-thirds of the 

annual NAAQS standard for this criteria pollutant at the time 

the petition was filed.22 Considering this evidence, the board 

determined that Brockton Power's description of the health and 

environmental impacts of PM2.5 emissions from the facility was 

substantially accurate and complete, and that such environmental 

impacts would be minimized under the proposal.

The interveners argue, however, that by relying on the 

NAAQS set by the EPA and DEP, the board failed to comply with 

21 Brockton Power established background ambient 

concentration levels for PM2.5 from a DEP monitoring site in 

Brockton.

22 The board noted that Brockton Power conservatively had 

included all expected emissions of particulate matter over ten 

micrometers in diameter (PM10) in its PM2.5 analysis, which 

necessarily overestimated the PM2.5 emissions.

 
18

its independent duty to analyze the petition under G. L. c. 164, 

§ 69J1⁄4, fifth par., and that, moreover, the NAAQS standards for 

PM2.5 are themselves arbitrary, capricious, and not based on 

substantial evidence. The interveners' arguments fail. As the 

board explained, it "gives great weight to expected compliance 

with [EPA] and [DEP] air quality regulatory requirements as an 

indicator of whether the potential impacts to air quality of a 

proposed facility would be minimized." The board's position is 

reasonable in light of the EPA's mandate and expertise under the 

Clean Air Act, 42 U.S.C. §§ 7408, 7409, as implemented by the 

EPA's regulations and enforced by the DEP in Massachusetts. 

Moreover, the NAAQS methodology, as well as the data used to 

calculate the estimated ambient pollutant concentrations for the 

facility, were fully presented in Brockton Power's petition and 

analyzed in the board's final decision.23 Although the board 

must ensure that the facility's environmental impacts are 

accurately modeled and described, G. L. c. 164, § 69J1⁄4, fifth 

par., it is not required to establish its own quantitative 

23 The board expressly addressed the issue whether the 

annual NAAQS standards for PM2.5 are adequate to demonstrate that 

the cumulative health impacts of criteria pollutants are 

minimized, including whether the standards are adequate to 

protect public health; the board was not required in its 

decision specifically to discuss testimony by the residents' 

expert that measurable health effects occur below the NAAQS 

threshold for PM2.5. See Box Pond Ass'n v. Energy Facilities 

Siting Bd., 435 Mass. 408, 418 (2001) ("An agency need not refer 

to all evidence in its decision").

 
19

values with respect to criteria pollutants (or any other 

environmental impact) to guide its siting decisions. "The 

legislative scheme contemplates that much of what the board does 

in the area of air pollution will be dependent on decisions of 

the department, which has a significant and independent role in 

the permit process for new generating facilities." Andover v. 

Energy Facilities Siting Bd., 435 Mass. 377, 381-82 (2001)

(Andover). We conclude that the board's reliance on the NAAQS 

was consistent with its statutory mandate and precedent, and was 

neither arbitrary nor an abuse of discretion. See Alliance I,

448 Mass. at 51.

The interveners may, of course, challenge the basis of a 

NAAQS standard set by the EPA and relied on by the board in its 

statutory review. Here, the interveners contend that the NAAQS 

standard for PM2.5 used by the EPA and DEP has been discredited, 

and that, consequently, the board erred by relying on this 

standard. This argument is also without merit. In American 

Farm Bur. Fed'n v. Environmental Protection Agency, 559 F.3d 512 

(D.C. Cir. 2009) (American Farm), the United States Court of 

Appeals for the District of Columbia Circuit considered the 

EPA's "decision to set the primary annual NAAQS for PM2.5 at 15 

μg/m3" and held that "the EPA failed adequately to explain why 

. . . its annual standard is sufficient 'to protect the public 

health [with] an adequate margin of safety.'" Id. at 519-520, 
20

quoting 42 U.S.C. § 7409(b)(1). Accordingly, the court remanded 

the standard to the EPA for reconsideration or an adequate 

explanation of the NAAQS. Id. at 528.

At the time of the board's final decision, the EPA was in 

the process of reconsidering the NAAQS standard for PM2.5, in 

light of the District of Columbia Circuit's decision in American 

Farm. As the board recognized, during the rulemaking process 

leading up to the adoption of this NAAQS standard, see 71 Fed. 

Reg. 61,144, 61,144-61,146 (2006), the EPA staff and the Clean 

Air Scientific Advisory Committee advocated an annual PM2.5 NAAQS 

of between 12 and 14 μg/m3.24 In its decision, the board 

observed that the total estimated annual PM2.5 of 10.15 μg/m3 "is 

far below the lowest of the possible limits (12 μg/m3) that were 

being considered and recommended during [the EPA] rulemaking." 

Accordingly, the board determined that "the facility meets the 

NAAQS standard that is currently in place, as well as any 

reasonably foreseeable revised standard that may be established 

by [the] EPA on remand." We note that in January, 2013, 

subsequent to the board's final decision, the EPA adopted an 

annual NAAQS for PM2.5 of 12 μg/m3. See 40 C.F.R. § 50.18 (2013); 

78 Fed. Reg. 3,086-01 (2013). We conclude, therefore, that the 

24 The United States Court of Appeals for the District of 

Colombia Circuit noted that 15 μg/m3 standard was higher than 

that recommended by the EPA staff and the Clean Air Scientific 

Advisory Committee. American Farm Bur. Fed'n v. Environmental 

Protection Agency, 559 F.3d 512, 520-521 (D.C. Cir. 2009).

 
21

board did not abuse its discretion by considering the NAAQS for 

PM2.5 in the course of its statutory review.

3. Logan Airport data. The meteorological data that 

Brockton Power used for predicting emissions of criteria 

pollutants under AERMOD, the atmospheric dispersion modeling 

system approved by the EPA, were derived from a National Weather 

Service (NWS) monitoring station at Logan Airport in Boston, 

approximately twenty miles from the proposed site. The city and 

the residents contend that this modeling did not accurately and 

completely describe the facility's impact, because the Logan 

Airport data were not representative of meteorological 

conditions at the site in Brockton, which lacks the influence of 

ocean breezes at Logan Airport; these interveners suggest that 

Brockton Power should have used meteorological data from a 

different source, or should have gathered data itself 

specifically from the facility site.

In its decision, the board found that the data at the Logan

Airport site were adequate for the purposes of its review under 

§ 69J1⁄4, fifth par., because "given established wind patterns and 

wind regimes experienced in general over eastern Massachusetts, 

meteorological data for Logan Airport is representative of 

conditions at the proposed Brockton site." In addition, the 

board noted that the DEP, which ultimately would be responsible 

for approving Brockton Power's air permit, raised no concerns 
22

with respect to the company's air modeling in its comments on

the final environmental impact report under MEPA.

The record shows that no suitable meteorological data for 

the Brockton site were available, and as none of the interveners 

disputes, the data from the Taunton Municipal Airport NWS 

monitoring station, a location closer to the Brockton site that 

the city and the residents contend more closely approximates 

meteorological conditions in Brockton, failed to meet the EPA 

guidelines for air quality modeling data capture25 in four out of 

five years prior to Brockton Power's petition, making it 

unsuitable for AERMOD dispersal analysis. In contrast, the 

Logan Airport NWS monitoring site provided five years of offsite data fully compliant with the EPA data capture guidelines.

Despite the inadequacy of the Taunton meteorological data, 

at the city's request, Brockton Power modeled data from 2005 

(the single year for which the Taunton data met the EPA 

guidelines) for both the Taunton and Logan Airport sites. This 

modeling exercise produced cumulative concentrations for several 

criteria pollutants that were higher than when the Logan Airport 

data were used. In no instance, however, did the Taunton data 

result in expected cumulative concentrations exceeding the 

25 See 40 C.F.R. Part 51, App. W § 8.3(a) (2005).

 
23

annual or twenty-four hour thresholds set by the EPA.26 With 

respect to annual PM2.5, for example, models from both sites 

yielded nearly identical cumulative expected concentrations 

below the NAAQS of 15 μg/m3 (the standard at the time of the 

board's final decision) and 12 μg/m3 (the NAAQS subsequently 

adopted by the EPA after American Farm).

The city concedes that the Taunton data were not adequate 

for AERMOD analysis, but contends that the estimated differences 

between ambient air pollutants at each site demonstrate that 

"meteorological data may vary significantly from location to 

location, even within eastern Massachusetts" and consequently 

that modeling using Logan Airport data failed accurately and 

completely to describe the facility's air emission impacts as 

required by § 69J1⁄4, fifth par. Instead, the city and the 

residents suggest the board should have required Brockton Power 

to provide site-specific data -- although it did not exist, as 

the city and residents acknowledge. Nothing in the statute, 

however, requires the board to use on-site meteorological data 

in its review of a petition for accuracy, completeness, and 

26 Moreover, the expected cumulative concentrations of 

criteria pollutants using Taunton data were below the NAAQS 

threshold.

The largest increase for criteria pollutants was for 

twenty-four hour PM2.5, where the modeled facility contribution 

of twenty-four hour PM2.5 is 1.47 μg/m3 using Taunton data, as 

compared with 1.01 μg/m3 using Logan Airport data. The modeled 

cumulative impact using Taunton data, however, was still below 

the NAAQS threshold for twenty-four hour PM10.

 
24

minimization of environmental impacts. G. L. c. 164, § 69J1⁄4, 

fifth par. The five years of Logan Airport data, considered in 

combination with the one year of supplemental Taunton data, 

constituted substantial evidence on which the board could base 

its analysis of air emissions under § 69J1⁄4. Moreover, to the 

extent the interveners argue that the board abdicated its 

statutory duty by referencing the DEP's acceptance of Logan 

Airport data in the course of the MEPA review, we disagree. The 

board's role "with respect to air emissions is limited to a 

review of the [petitioner's] description of the environmental 

impacts of the proposed generating facility for substantial 

accuracy and completeness, and a determination whether [the] 

construction plans minimize the environmental impacts consistent 

with the minimization of costs associated with the mitigation, 

control, and reduction of the environmental impacts of the 

proposed facility." Andover, 435 Mass. at 380. The board's 

conclusion pursuant to § 69J1⁄4, fifth par., that air emission 

estimates using Logan Airport data were substantially accurate 

and complete necessarily referenced the DEP (which uses EPAderived NAAQS thresholds), as the agency responsible for 

evaluating Brockton Power's air dispersal modeling procedures 

and compliance with the air regulations.

4. Town drinking water. The town challenges the board's 

determination that the facility's impact on the town's drinking 
25

water supply was "substantially accurate and complete" as 

required by § 69J1⁄4. The town's challenge fails.

The facility's cooling tower would require an average 

annual volume of 1.6 million gallons per day (mgd) of water (or 

1.9 mgd at peak, during a hot summer day), which Brockton Power 

anticipated would be sourced from discharge from the city's

advanced water reclamation facility (AWRF). This would reduce 

the volume of the annual average flow immediately downstream 

from the AWRF, where the treated wastewater is discharged into 

the Salisbury Plain River, from 40.0 mgd to 38.4 mgd, which is 

still above the average annual naturally occurring flow of 20.5 

mgd. The board noted that the availability of AWRF water for 

use by the facility was uncertain at the time of its final 

decision, and directed the company to submit a project change 

filing to the board in the event that it modified the 

anticipated source for the majority of the project's water 

requirements.27

The town obtains its drinking water supply from high 

yielding wells in a Zone II aquifer encompassing a large portion 

27 As indicated previously, subsequent to the board's 

decision, Brockton Power was unable to secure an agreement with 

the city to use AWRF water, and pursuant to the board's 

directive, submitted a PCF to the board anticipating the use of 

Brockton municipal water. The board denied the project change 

filing based on the change of water source. We consider 

Brockton Power's appeal from that decision in Brockton Power Co. 

v. Energy Facilities Siting Bd., supra, also decided today. See 

note 4, supra.

 
26

of northeastern West Bridgewater and a small area of 

southeastern Brockton, totaling more than 740 acres.28 The 

town's current permit issued pursuant to the Massachusetts Water 

Management Act, G. L. c. 21G, authorizes up to 1.53 mgd of 

withdrawal from wells in the Zone II aquifer, although actual 

use is between 0.60 to 0.77 mgd. Under extremely conservative 

assumptions (low-flow conditions in the river and peak 

operations at the facility), the estimated effect on river flow, 

below the AWRF, would be fifteen per cent at most, or sufficient 

to maintain a flow of 10.9 mgd.29 Based on these estimates, the 

board concluded that recharge to the town's wells would not be 

adversely affected by the facility's withdrawals.

The town raises three primary objections to the board's 

analysis of the facility's impact on the aquifer. The first 

focuses on the timing of the testimony addressing the facility's 

water use. The town argues that because the expert testimony 

and the analysis regarding the aquifer were introduced in the 

course of the hearings before the board, rather than in the 

28 The DEP regulations define "Zone II" as "that area of an 

aquifer that contributes water to a well under the most severe 

pumping and recharge conditions that can be realistically 

anticipated (180 days of pumping at approved yield, with no 

recharge from precipitation)." 310 Code Mass. Regs. § 22.02

(2009).

29 These assumptions include: full permitted use of aquifer 

withdrawal from wells (1.5 mgd), forty per cent of recharged 

water from the Salisbury Plain River; peak project water use 

(10.9 mgd); and extreme low-flow conditions continuing for 

twelve weeks rather than one.

 
27

actual petition that Brockton Power submitted at the start of 

the review process, the description of environmental impacts in 

the petition was not "substantially accurate and complete," as 

required by § 69J1⁄4, fifth par. However, the language and 

structure of the statute make clear that the term "petition" 

refers to a project proponent's over-all submissions to the 

board, including evidentiary hearings in the course of the 

board's petition review process, and is not limited to the 

initial petition commencing the board's review. See Andover, 

435 Mass. at 386 (changes in estimates of air impacts during 

proceeding did not violate requirement that petitioner's 

description of proposed project and environmental impacts be 

"substantially accurate and complete"). Our review of the 

record here persuades us that the board properly considered all 

substantial evidence submitted in the course of its review, 

including Brockton Power's submissions and expert testimony 

addressing the facility's impact on the Zone II aquifer.

The town's second contention -- that the board neglected to 

make required subsidiary findings -- also fails.30 The board's 

decision contained a "statement of reasons . . . including 

30 The town complains that the board "failed to make the 

necessary subsidiary findings [1] as to the issues concerning 

the impacts of the proposed project upon the slope of the 

aquifer, the aquifer's saturated thickness, and the expansion of 

the wells laterally within it; and [2] as to [Brockton Power's] 

use of outmoded, [eighteen to twenty-two] year old assumptions, 

information and modeling."

 
28

determination of each issue of fact or law necessary to the 

decision," which is an adequate "'guide to its reasons' so that 

[a] court may 'exercise . . . [its] function of appellate 

review'" as required by G. L. c. 30A, § 11. Massachusetts Inst. 

of Tech. v. Department of Pub. Utils., 425 Mass. 856, 868 (1977)

(citations omitted). Our review of the extensive record before 

the board assures us that substantial evidence supported the 

board's conclusion that the facility would allow water flows in 

the Salisbury Plain River in excess of the volume necessary to 

ensure recharge of the aquifer.31 The absent subsidiary findings 

claimed by the town are either unnecessary or implicit in the 

board's decision.32

Finally, the town's arguments regarding the reliability and 

admissibility of testimony by Brockton Power's expert witness --

evidence the town contends was based on hydrology reports that 

are hearsay and otherwise unreliable -- lack merit. The board 

has broad discretion to weigh and assess the credibility of 

31 In this regard, the board based its conclusion on a

number of conservative assumptions regarding both wastewater 

volume and river flows that the town has not rebutted.

32 For example, the town contends that the board's 

determination was unsupported because, in its decision, the 

board referred to the impact of the facility's water withdrawals 

on the town's wells and water supply, and did not address 

expressly the impact on the "aquifer." However, a fair reading 

of the decision and the record makes clear that the board 

properly analyzed the project's impact on the Zone II aquifer 

for accuracy and completeness and to ensure that environmental 

impacts were minimized, as required by § 69J1⁄4.

 
29

evidence, including hearsay evidence. See, e.g., Box Pond Ass'n

v. Energy Facilities Siting Bd., 435 Mass. 408, 418 (2001) (Box 

Pond). Here, the expert's testimony and submissions referenced 

hydrology reports examining the Zone II aquifer in the context 

of conservative estimates of the wastewater recharge on the 

aquifer. The board had an opportunity to consider the 

methodology and accuracy of the reports in the course of the 

hearings. We conclude that Brockton Power's submissions, 

including the evidence presented by its expert, were 

substantially accurate and complete, and that the town has not 

met its burden of showing that the board abused its discretion 

in crediting the company's evidence. See Alliance to Protect 

Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 

663, 690 (2010) (Alliance II); Box Pond, supra.

5. Traffic impacts. We address briefly the city's 

contention that the board lacked statutory authority to 

establish traffic routes for deliveries of ULSD and aqueous 

ammonia as a condition of its approval of the petition. The 

board's final decision directed Brockton Power to require that 

its ULSD and aqueous ammonia vendors use one of two State 

highways (Routes 27 and 123) through the city, effectively 

precluding deliveries using Route 106, which runs through the 
30

town, unless the vendor is located in the town.33 The board 

concluded that, consistent with the company's petition and 

traffic analysis, limiting deliveries to these routes would 

minimize the traffic impacts of the facility.

Section 69J1⁄4, fourth par., requires the board to review a 

range of environmental impacts including "local and regional 

land use impact, local and regional cumulative health impact 

. . . , and noise impact of the proposed generating facility" as 

a part of its statutory review. The board has consistently 

interpreted this mandate to include the environmental impacts of 

traffic, and "[w]e accord substantial discretion to an agency to 

interpret the statute it is charged with enforcing." Alliance 

II, 457 Mass. at 681. See, e.g., City Council of Agawam v. 

Energy Facilities Siting Bd., 437 Mass. 821, 830-831 (2002); 

Andover, 435 Mass. at 391. Here, the effect of deliveries to 

the facility comes under the board's jurisdiction as a "local 

and regional land use impact." G. L. c. 164, § 69J1⁄4, fourth 

par. Considering that traffic from construction and regular 

deliveries presents potentially significant environmental 

impacts, the board's interpretation of the statute is entirely

reasonable. See, e.g., Alliance to Protect Nantucket Sound, 

33 The company predicted that aqueous ammonia deliveries 

would occur two to three times per month. At most, during the 

coldest days of winter, ULSD deliveries would occur twice per 

hour. The board noted that the company would minimize the 

impact of deliveries by scheduling deliveries during the period 

of lowest traffic.

 
31

Inc. v. Energy Facilities Siting Bd., 461 Mass. 166, 187 (2011) 

("agency's powers are shaped by its organic statute taken as a 

whole . . . [and] include those necessarily or reasonably 

implied" [citations omitted]).34

6. Conclusion. Because the board's procedures and

conclusions were proper in all respects, and supported by 

substantial evidence, we affirm the board's decision approving, 

with conditions, Brockton Power's petition.

So ordered.

34 The board's conclusion that the designated routes will 

minimize these impacts is supported by substantial evidence. 

G. L. c. 164, § 69P. The town's expert testified that it would 

be difficult for trucks carrying ULSD to make a left-hand turn 

from Route 106 to Route 18, as required to approach the facility 

from the town.