City Council of Agawam v. Energy Facilities Siting Board

776 N.E.2d 1002, 437 Mass. 821, 2002 Mass. LEXIS 642
Massachusetts Supreme Judicial Court·Decided October 21, 2002·Published·Cited by 12 cases

Opinion

Cordy, J.

On September 3, 1999, the Energy Facilities Siting Board (board) granted a certificate of environmental impact and public interest to Berkshire Power Development, Inc. (Berkshire), approving the proposed storage of fuel oil on the grounds of its power plant in the city of Agawam. Four appeals were taken from that decision to a single justice of this court, who consolidated the appeals and reserved and reported the case to the full court. We now affirm the decision of the board.

1. Background. Pursuant to its statutory mission to “provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost,” G. L. c. 164, § 69H, the board is charged with issuing construction permits for energy generation facilities. G. L. c. 164, § 69J lU, inserted by St. 1997, c. 164, § 210. On June 20, 1995, Berkshire filed a petition to construct, requesting such a permit from the board.3 The petition to construct stated that Berkshire planned to build an electric generating facility in Agawam that would be powered primarily by natural gas but that would contain, in reserve, a storage tank of fuel oil available as a power source to prevent disruptions in generation. The board [823] held two public hearings and thirteen days of evidentiary hearings regarding the petition, examining the environmental effects, the energy benefits, and the local impacts of the project. Prior to the evidentiary hearings, the board’s hearing officer granted several petitions to intervene and petitions to participate as interested persons. These petitions were filed by groups ranging from energy companies to environmental organizations to concerned citizens. None of the plaintiffs before this court intervened or petitioned to intervene in those proceedings. On June 19, 1996, the board issued its final decision approving the petition to construct the generating facility. As part of its approval, the board noted that it expected Berkshire to abide by its representation to the board that fuel oil burning would not exceed one hundred hours in most years.4 It also directed Berkshire to work with the city to develop a plan to minimize the impact of traffic to and from the facility.

After the board had issued the construction permit, Berkshire and the zoning board of appeals of Agawam (zoning board) fell into a dispute over certain local zoning restrictions. The dispute was resolved when the two parties entered into a settlement agreement (agreement), in which Berkshire agreed to modifications in its fuel storage and delivery plans, including reducing the capacity of the oil storage tank by fifty per cent.5 The board approved the agreement on December 22, 1997.

In order to operate the facility, Berkshire was required by law to obtain various additional permits, including an oil storage license from the city pursuant to G. L. c. 148, § 13 (oil storage [824] license),6 and a storage tank permit from the State fire marshal, pursuant to G. L. c. 148, § 37 (§ 37 permit). On October 5, 1998, the city council rejected Berkshire’s application for an oil storage license by an eight-to-three vote.

Under the provisions of G. L. c. 164, §§ .69K V2-690 V2, a prospective operator of an electric generating facility can apply to the board for a certificate of environmental impact and public interest that has the effect of overriding any conflicting burdens or limitations imposed by a State or local agency’s permit. The board has jurisdiction to hear a petition for a certificate only if the applicant meets one of the statutory requirements established by § 69K V2. On October 23, 1998, Berkshire filed an initial petition with the board requesting that it accept Berkshire’s application for a certificate to override the city council’s rejection of its oil storage license application. Berkshire argued that it met three of the jurisdictional bases set out in § 69K V2, namely: (1) that the city council’s denial of a permit created “inconsistencies among resource use permits” under § 69K V2 (iii); (2) that the denial had been based on a “nonregulatoiy issue or condition” establishing jurisdiction under § 69K V2 (iv); and (3) that the denial had “imposed a burdensome condition or limitation” on a license or permit that substantially affected the board’s effort to execute its legislative mandate to ensure a reliable energy supply in the Commonwealth. G. L. c. 164, § 69K V2, second par.

The board consolidated Berkshire’s initial petition with its subsequent application for a certificate and scheduled public hearings on the matter.7 On March 26, 1999, it granted [825] intervener status to the plaintiffs in this case.8 On April 27, 1999, the first day of the hearings, the city council filed a motion to dismiss the application. It argued that Berkshire’s failure to obtain (or even apply for) a § 37 permit from the State fire marshal divested the board of the power to issue a certificate, both because a § 37 permit was a prerequisite for a certificate and because Berkshire had stated falsely in its initial petition that it had obtained or applied for all necessary permits.9

On May 12, 1999, the board’s hearing officer requested that all interested parties submit arguments to the board regarding whether jurisdiction existed under the first and third bases submitted by Berkshire in its initial petition, that is, whether the city council’s denial of an oil storage license created an inconsistency among resource use permits or was a burdensome condition or limitation.10 There is no record of the city council’s submitting a response addressing these issues. On July 16, 1999, the hearing officer denied the city council’s motion to dismiss, holding that neither Berkshire’s failure to obtain a § 37 permit nor its failure to inform the board that it had not applied for one voided the board’s jurisdiction over the application.

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City Council of Agawam v. Energy Facilities Siting Board, 776 N.E.2d 1002, 437 Mass. 821, 2002 Mass. LEXIS 642 (Mass. 2002).

776 N.E.2d 1002 (City Council of Agawam v. Energy Facilities Siting Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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