Brockton Power Company LLC v. Energy Facilities Siting Board (Lawyers Weekly No. 10-132-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11405 SJC-11407 BROCKTON POWER COMPANY LLC vs. ENERGY FACILITIES SITING BOARD & others.[1] CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD & another[2] (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. 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) 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 […]