Box Pond Ass'n v. Energy Facilities Siting Board

Summary

The Massachusetts Supreme Judicial Court affirmed the Energy Facilities Siting Board’s approval of IDC Bellingham, LLC’s proposed natural-gas-fired electric generating facility. The court rejected challenges concerning the denial of a continuance, quashing of a subpoena for a withdrawn noise expert, limited consideration of that expert’s testimony, exclusion of additional noise evidence in a compliance proceeding, and refusal to reopen the record regarding air-pollution-control technology. The court applied deferential review and found no legal error, abuse of discretion, or lack of substantial evidence.

Holdings

1. The hearing officer acted within her discretion in denying the requested six-week extension because the interveners lacked record support for the delay and the statutory time requirement for deciding the generating-facility petition weighed against extending the proceedings.
2. The hearing officer properly revoked or quashed the subpoena because the applicable subpoena procedures did not require a formal seven-day opposition period, the interveners suffered no prejudice, and no exceptional circumstances required compelling an expert retained by another party to give his previously formed opinion.
3. The board did not err in giving limited consideration to the withdrawn expert's prefiled testimony and was not required to address every aspect of that evidence in its final decision.
4. The board acted within its authority by excluding testimony concerning ambient noise measurements that did not relate to the turbine change and instead sought to relitigate issues decided in the original proceeding.
5. The board did not abuse its discretion by refusing to reopen the record for draft Department of Environmental Protection materials concerning ambient-noise measurement methodology because the materials were insufficiently authenticated and of questionable reliability.
6. The hearing officer did not abuse her discretion by excluding a manufacturer's press release concerning SCONOx technology and refusing to reopen the proceedings because the press release did not materially support the interveners' assertions and was an unsupported marketing document rather than a scientific study.

Questions Presented

1. Whether the hearing officer abused her discretion by denying an intervener's request for a six-week extension to retain a replacement noise expert.
2. Whether the hearing officer improperly revoked or quashed a subpoena directed to the withdrawn noise expert without providing a formal opposition period.
3. Whether the board erred by giving limited consideration to the withdrawn expert's unsworn, uncross-examined prefiled testimony.
4. Whether the board properly excluded a second noise expert's testimony from the compliance proceeding as beyond the scope of the turbine-change proceedings.
5. Whether the board abused its discretion by refusing to reopen the proceedings to receive evidence concerning SCONOx air-pollution-control technology.

Disposition

affirmed