JACQUELINE JOHNSON v. ENERGY FACILITIES SITING BOARD & Another

• Court: Massachusetts Supreme Judicial Court
• Decided: January 9, 2025
• Docket: SJC-13622
• Status: Published

Opinion

SUPREME JUDICIAL COURT

JACQUELINE JOHNSON vs. ENERGY FACILITIES SITING BOARD & another[1]

Docket:	SJC-13622
Dates:	November 6, 2024 - January 9, 2025
Present:	Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Wolohojian, JJ.
County:	Suffolk
Keywords:	Energy Facilities Siting Board. Environment, Noise. Public Utilities, Energy company, Electric company. Electric Company. Administrative Law, Substantial evidence, Decision, Judicial review.

      Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 20, 2023.

      The case was reported by Gaziano, J.

      Christopher G. Senie for the petitioner.

      Thaddeus Heuer (Aaron Lang also present) for the intervener.

      John R. Hitt, Assistant Attorney General (Katherine M. Fahey, Assistant Attorney General, also present) for the respondent.

      David S. Rosenzweig, Erika J. Hafner, & Michael J. Koehler, for NSTAR Electric Company, amicus curiae, submitted a brief.

      WENDLANDT, J.  "And no one dared / Disturb the sound of silence."[2]  Comprised of multiple cacophonous industrial components, including two particularly loud step-up transformers, the substation[3] at the center of the present dispute, which will connect an offshore wind farm to the New England electric grid, indubitably will not be silent.  But the substation's potential clangor will be dampened by implementing design features, according to acoustical experts' reports and testimony presented by the project's proponent, Park City Wind LLC (PCW), to the Energy Facilities Siting Board (board).  These features, the experts opined, will lessen the substation's contribution to the ambient sound level at the abutting home of the petitioner, Jacqueline Johnson;[4] more specifically, the experts told the board, the substation, designed with these proposed softening features, will affect the sound levels at Johnson's home by, at the most, eight A-weighted decibels (dBA),[5] a benchmark that is well within the allowable noise impact of ten dBA set by the Department of Environmental Protection (DEP).[6]

      To arrive at the noise estimate, the experts relied on industry-standard sound-modeling software to optimize the variables that will contribute to the expected noise levels.  Among the variables the experts tweaked were certain sound level design specifications for the yet-to-be-manufactured substation equipment, which will require PCW to procure equipment with features to meet the needed "quieted" levels of sound emissions.  Acknowledging that the specifications were "aggressive," the experts nonetheless anticipated them to be within the equipment manufacturers' ken.

      Following a three-year administrative process, during which Johnson was allowed to participate fully, to demand discovery from PCW, to submit briefing materials setting forth her position, and to cross-examine PCW's experts, the board approved PCW's petition to construct the substation, subject to several conditions.[7]  See G. L. c. 164, § 69J.  Because the experts' modeling relied, in part, on sound level specifications of yet-to-be-manufactured equipment, and because Johnson had raised concerns regarding manufacturers' abilities to meet these design specifications, the board required PCW to confirm, prior to construction, that the predicted eight dBA ambient sound level increase at Johnson's home would not be exceeded once the actual sound level specifications of the substation equipment are known;[8] this preconstruction compliance filing must set forth any additional noise mitigation measures that PCW intends to take.  The board further required that, after the construction, PCW confirm that the as-built operational substation does not exceed the eight dBA sound level increase at Johnson's home.  At each of these stages, the board directed PCW to cooperate with Johnson and to attempt to reach consensus on any proposed noise mitigation efforts.  If these preconstruction or postconstruction reviews show that PCW will be unable to ensure that the substation's contribution to ambient noise levels at Johnson's home will be capped at eight dBA, PCW will need to submit a project change petition in order to proceed with the proposed construction and operation of the substation, reopening proceedings and providing Johnson a renewed opportunity to participate in the approval process.

      On appeal, Johnson contends that the board's decision, insofar as it rests on the substation's anticipated noise impact, is not supported by substantial evidence because the predicted rise in ambient sound levels rests, in part, on aggressive sound level design specifications for yet-to-be-manufactured substation equipment.  Concluding that Johnson failed to surmount the heavy burden required to overturn the board's decision, to which we owe great deference, and further concluding that the preconstruction and postconstruction reviews are not improper, we affirm.[9]

      1.  Discussion.[10]  In conducting our review of the board's decision,[11] "we give great deference to the board's expertise and experience."  Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 51 (2006) (Alliance I).  We do not "substitute our judgment or the petitioners' judgment for that of the board."  Sudbury v. Energy Facilities Siting Bd., 487 Mass. 737, 738 (2021).  A party challenging the board's decision "bears the burden of proving that the decision is invalid, and that burden is a heavy one."  Alliance I, supra, citing G. L. c. 25, § 5.

      a.  Substantial evidence.  Johnson first contends that the part of the board's decision concerning the noise impact of the substation[12] is not supported by substantial evidence.  See G. L. c. 164, § 69P.  "'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion."  G. L. c. 30A, § 1 (6).  See Andover v. Energy Facilities Siting Bd., 435 Mass. 377, 386 (2001).  When reviewing the board's decisions, we do not determine "whether, faced with the same set of facts, we would have drawn the same conclusion as [the board], but only 'whether a contrary conclusion is not merely a possible but a necessary inference.'"  Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 690 (2010) (Alliance II), quoting Goldberg v. Board of Health of Granby, 444 Mass. 627, 638 (2005). 

      Here, the board was presented with reports and testimony of PCW's experts,[13] who performed an acoustical analysis of the proposed substation's sound level impacts at thirteen locations -- including at Johnson's home.  The experts explained to the board that their analysis was conservative, assuming a worst-case scenario vis-à-vis noise impact from the substation. 

      For example, the analysis was based on a sound survey conducted in January to establish baseline ambient noise levels near the proposed substation site.  The experts explained that the choice of midwinter leafless conditions maximized the predicted sound level impact of the substation.  The analysis also assumed meteorological conditions that provided the least amount of natural sound level dampening, and that the ground throughout the substation site comprised hard reflective surfaces rather than the planned crushed stone, thereby increasing the modeled sound levels.  Moreover, the sound analysis focused on conditions between 12 A.M. and 4 A.M. when traffic from Route 6 would be reduced and the effect of the substation noise levels would be greatest.[14] 

      The engineers also assumed that all substation equipment would be operating at full capacity, a scenario that maximized the substation's impact on ambient sound levels.  Such a scenario, according to the record, would be atypical; the highest possible project sound levels -- which included cooling equipment running at maximum capacity -- would likely not occur simultaneously with the lowest midwinter ambient sound levels.[15]

      Based on these assumptions and using industry-standard modeling software, the experts optimized the substation design guided by the requirement that sound level increases at nearby residences, such as Johnson's home, must fall below the DEP noise policy level of ten dBA.[16]  Iteratively adjusting sound-contributing and sound-mitigating variables, they proposed a substation design that resulted in ambient sound level increases of no more than eight dBA at Johnson's home, even under the worst case conditions.[17]

      For example, the experts determined the optimal layout for the various substation equipment to reduce noise level along the site's western boundary, which abuts Johnson's property.  They adjusted the dimensions of a proposed sound-absorbing three-sided barrier enclosing the two static synchronous compensators (STATCOMs) closest to Johnson's home, arriving at a configuration that is 400 feet long and thirty-five feet high along its western side, which the software showed will help to deflect sound away from Johnson's residence.  They also adjusted the materials to be used for the sound barrier to improve its dampening effects.  They housed the gas-insulated switchgear (GIS) in a switchgear building that will act as a sound barrier for the noise levels emitted by the GIS, planned to be located near the center of the substation site.  They included a ninety-foot long and ten-foot high sound wall at the southern end of the substation site[18] identified by earlier modeling.[19]

      Relevant to Johnson's present challenge, PCW's experts also set design specifications for the sound levels of yet-to-be-manufactured substation equipment, requiring PCW to procure equipment with features designed to meet the "quieted" levels of sound emissions.[20]  The experts used, as a starting point for the sound analysis of the substation's transformers, data from the Edison Electric Institute Noise Guide, which was last updated in 1984.[21]  Then, informed by conversations with equipment manufacturers during the experts' involvement in the procurement process for Vineyard Wind I, a previously approved substation to connect the wind farm to another site in Barnstable,[22] as well as their own expertise in mechanisms for sound dampening, the experts set "aggressive" sound level specifications for the substation equipment, which will require PCW to procure equipment that meets specifications that emit less sound than similar equipment to be used in the Vineyard Wind I project.[23]   PCW's experts explained that features, such as denser casings around the transformers[24] and the use of larger but slower fans for the STATCOMs' cooling fan banks, could be implemented by manufacturers to help achieve the specified lower sound levels. 

      On appeal, Johnson asserts that the engineers applied unsubstantiated reductions to the sound levels of already quieted modeled equipment.  She notes that the specifications for the modeled equipment -- which have not yet been confirmed by any manufacturer -- are lower than those for the acoustical model presented in Vineyard Wind I.  Yet, Johnson presented no evidence to the board that the sound specifications could not be met.  See Duggan v. Board of Registration in Nursing, 456 Mass. 666, 675 (2010) (petitioner's unsupported denial failed to meet burden to show "'overwhelming probability' against the [agency's] credibility determinations and ultimate conclusions"). 

      More importantly, Johnson ignores that PCW's experts opined that the specifications were commercially feasible.  Specifically questioned whether the quieted levels were "speculative," one expert averred that

"[t]he sound-level data we have for each piece of equipment is based on . . . the real world.  It's based on real pieces of equipment used in other projects of a similar order of magnitude.  So it's not . . . fictitious or anything like that.  It's based on typical, appropriately sized and commercially available equipment that we would expect to be similar in nature here for this particular project."

The expert concluded:  "At this juncture, the company is confident that the modeled levels can be met."[25]

      Despite lingering questions as to the quieted equipment specifications,[26] the board approved PCW's proposal for the substation, stating that PCW has an "absolute obligation to construct and operate its facility in conformance with all aspects of its proposal as presented to the [board]," including that the ambient sound level increase at Johnson's residence will not exceed eight dBA.  The board was entitled to rely on the experts' opinions to require PCW to abide by its proposed ambient sound level increase.  See Brockton v. Energy Facilities Siting Bd. (No. 1), 469 Mass. 196, 213 (2014) (board has "broad discretion to weigh and assess the credibility of evidence" supporting its final decision); Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012) (agency, not court, is "sole judge of the credibility and weight of the evidence before it").

      Rather than grant what the board described as the "drastic" remedy sought by Johnson -- namely, rejection of the project on the Barnstable site -‑ the board determined to monitor the sound levels of the various substation components once they are procured.  Specifically, it included a condition, "Condition S," requiring PCW to demonstrate preconstruction and postconstruction compliance with the modeled noise impacts.  Eschewing a singular focus on the noise levels that will be emitted by each individual component comprising the substation, the condition evidences the board's recognition that the increase in ambient sound levels from the substation is a multi-variable problem that depends on, inter alia, the equipment noise levels as well as noise mitigation elements.  The preconstruction and postconstruction reviews allow PCW the flexibility to modify these sound variables -- with Johnson's consensus[27] -- to limit the sound level increase at Johnson's home to eight dBA.  Accordingly, Johnson has not shown that the board's decision is not supported by substantial evidence.    

      b.  Propriety of the board's conditional decision.  Johnson next contends that Condition S, requiring preconstruction and postconstruction compliance filings, is unlawful insofar as it delegates a decision on the noise impact of the proposed substation to a future board.  But, as Johnson acknowledges, G. L. c. 164, § 69J, expressly authorizes the board to "approve the petition subject to stated conditions," an authority the board has often exercised.  See, e.g., GreenRoots, Inc. v. Energy Facilities Siting Bd., 490 Mass. 747, 749 (2022) (noting board's final decision subject to condition that company "enter into discussions with the City of Boston" to relocate facility site); Box Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408, 410-411 (2001) (describing board's final decision subject to specific conditions).

      Indeed, we previously have concluded that a condition is particularly apt where, as here, pertinent information is not readily available and the board cannot act with "absolute finality."  Alliance I, 448 Mass. at 53-54.  See Andover, 435 Mass. at 384-388 (affirming conditions requiring project to meet estimated air emissions and imposing periodic monitoring of noise levels).  In such circumstances, issuing a condition to demonstrate compliance with the applicant's proposal does not reserve a decision but rather requires the applicant to show compliance with its proposal once the relevant information becomes available.[28]  See Alliance I, supra at 54.  The board's final decision, together with the noise condition discussed supra, fall comfortably within its statutory authority.  See G. L. c. 164, § 69J.

      2.  Conclusion.  We affirm the decision of the board.

So ordered.

footnotes

[1] Park City Wind LLC, intervener.   

[2] Simon & Garfunkel, The Sound of Silence, on Wednesday Morning, 3 A.M. (Columbia Records 1964).

[3] The substation will connect an approximately 800-megawatt wind turbine generation facility in Federal waters south of Martha's Vineyard (wind farm) to the New England electric grid by converting the wind farm's electrical output from 275 kilovolts (kV) to 345 kV for transmission to an existing substation known as the West Barnstable substation.  Park City Wind LLC's (PCW's) proposed substation is to be located in Barnstable on an approximately 6.7-acre parcel southwest of the intersection of Routes 6 and 132.

[4] The experts estimated sound levels outdoors at Johnson's residence, which is 144 feet from where the substation's nearest noise-producing machinery will be located.  For purposes of this opinion, we use "home" and "residence" interchangeably in reference to this outdoor point of sound level estimation.

[5] According to PCW's experts, the A-weighted decibel (dBA) metric "is the accepted scale used [by engineers] for community sound level measurements" because it "most closely approximates how the human ear responds to sound at various frequencies."

[6] See note 16, infra.

[7] After the submission of Johnson's opening brief, in which Johnson noted that the board's preconstruction and postconstruction reviews, discussed infra, appeared not to include all the equipment contributing to the sound level effects of the substation, the board corrected its decision to clarify that the board intended that the preconstruction and postconstruction reviews apply to all the substation equipment.  Johnson does not object to the board's correction.  Accordingly, we review the board's final decision, as corrected.

[8] The board mandated that PCW must meet "all aspects of its proposal as presented to the [board]," including the eight dBA maximum approved sound level increase at Johnson's residence.  At oral argument, the board and PCW acknowledged that the board's approval required PCW, inter alia, to construct the substation so as not to exceed an eight dBA increase in ambient sound levels at Johnson's home.

[9] We acknowledge the amicus brief submitted by NSTAR Electric Company, doing business as Eversource Energy.

[10] As the statutory framework for the board's approval, G. L. c. 164, §§ 69H–69O, was reviewed recently in Conservation Law Found. v. Energy Facilities Siting Bd., 494 Mass. 594, 596-597 (2024), and Sudbury v. Energy Facilities Siting Bd., 487 Mass. 737, 739-740 (2021), we proceed directly to the merits of Johnson's arguments on appeal.

[11] Johnson sought judicial review of the board's final decision from a single justice of this court, pursuant to G. L. c. 25, § 5, and G. L. c. 164, § 69P.  The parties jointly moved that the matter be reserved and reported to the full court, and the single justice allowed the motion. 

[12] Johnson limits her challenge to the issue of the noise impact from the proposed substation.  Accordingly, we do not address any other aspects of the board's decision or the procedural aspects of its proceedings.

[13] Johnson marshals no challenge to the qualifications of PCW's experts.

[14] PCW's experts explained that during the day and evening hours, the noise from the substation would be dwarfed by the preexisting ambient sound levels from traffic along Route 6.

[15] PCW's experts added two dBA of "modeling uncertainty" to the sound level results predicted by the model, which the experts explained was a "good amount of margin."

[16] DEP regulates noise pursuant to 310 Code Mass. Regs. § 7.10 (2024).  Relevant to the present matter, DEP's noise policy generally sets ten dBA as the maximum allowable increase in ambient sound levels.  Executive Office of Environmental Affairs, Division of Air Quality Control Policy 90-001 (Feb. 1, 1990) (Policy 90-001).  The board treated the noise policy as the "upper bound of acceptable noise impacts" for PCW's project.

[17] To the extent Johnson challenges the use of the DEP noise policy standard to guide the design of the substation, the argument misapprehends a fundamental aspect of the engineering enterprise, which often requires a system to meet a design constraint (here, sound).

[18] The wall was initially added to eliminate a "pure tone" identified by earlier modeling.  A "pure tone" condition is defined by the DEP noise policy as "when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by [three] decibels or more."  Policy 90-001.  PCW's experts described a pure tone as "an objectionable squealing sound" like what one might hear from a fan.

[19] In the final environmental impact report, PCW's experts stated that "no [DEP]-defined pure tones are anticipated from operation of the Project substation at any modeled receptor."  Nonetheless, they explained, the wall would continue to serve as a noise barrier to mitigate sound levels following what the experts described as "a [ten]-foot elevation reduction across the balance of the substation area."

[20] PCW has not yet contracted with equipment manufacturers because the substation equipment will be custom-built.  The board's approval pursuant to G. L. c. 164, § 69J, is only the first of many licenses, permits, and approvals that PCW must obtain before beginning construction.  See Alliance II, 457 Mass. at 689 & nn.38, 39 (discussing additional local and State permits that applicant must seek).  To order the custom-built equipment at this initial stage would be premature, according to PCW.

[21] Johnson asserts that the Edison Electric Institute Noise Guide is unreliable.  However, PCW's experts maintained that the formulas and information within the guide are still generally accepted by the engineering community.  Johnson presented no contrary evidence.

[22] Vineyard Wind I is a separate project designed to bring wind farm energy resources to the New England electric grid.  The same experts who provided reports and testimony for the present project worked on the plans for the Vineyard Wind I substation.  In developing their opinion on the quieted specifications for PCW's substation's equipment, the experts used certain equipment specifications from Vineyard Wind I and incorporated further noise-reducing modifications based on suppliers' earlier representations.  One of the experts explained:   

"[W]e started with quieter equipment [from the Vineyard Wind I project], and then the company was greatly informed by the procurement process that we recently went through for Vineyard Wind I, where they did talk to . . . actual suppliers who can make this equipment, and they asked for . . . all the noise-reduction bells and whistles that they could get on that equipment.  And that informed us about the reality of how low we could go in modeling here."

[23] The expert continued:

"So this is aggressive.  This is very aggressive, in terms of the sound power levels that we're showing in here in the modeling. . . .  I've done a lot of modeling of transformers, and [ninety-three] decibels sound power for a 450-MVA transformer is extremely quiet.

"So we feel very confident, comfortable that, in terms of what's commercially available out there from companies that can make this and supply this in a timeline that's going to meet the company's goals, that this is as quiet as we can get." 

[24] The transformers are anticipated to be the loudest components of the substation.

[25] Pressed by the board whether the equipment could be manufactured to be even quieter than the specifications set forth in their modeling, the experts opined that they did not believe that further reductions would be consistent with the constraint that the equipment be commercially available on the timetable needed by the proposed project.

[26] Because the specifications were based on equipment not yet procured and because the sound levels were lower than those proposed for the Vineyard Wind I project, the board expressed "skepticism" whether PCW's manufacturers would be able to produce the modeled quieted equipment.

[27] The condition instructs PCW to communicate any additional noise mitigation measures with Johnson in an attempt to reach consensus. 

[28] Johnson's reliance on Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618, 623 (1986), is misplaced.  There, the Appeals Court concluded that the failure of a zoning board of appeals to adopt an express plan for dust mitigation despite substantial opposition based on anticipated dust from the proposed facility and despite a town bylaw requiring agreement on such a plan prior to issuance of a special permit was impermissible.  Id. at 624-625.  Assuming arguendo that Tebo applies outside of the zoning context, the board here has not left a substantive decision open for future determination; the board approved PCW's project as proposed, including the requirement that the sound level increase at Johnson's home be no more than eight dBA. 

      Should the substation, after PCW has procured and installed the equipment and implemented noise mitigation measures, cause ambient sound levels at Johnson's residence to increase beyond eight dBA, PCW must submit a project change petition, which would reopen the process and allow for public hearings where Johnson would be able to participate, as both the board and PCW acknowledged during the procedural evidentiary hearings and at oral argument before this court.  See GreenRoots, Inc., 490 Mass. at 749-750 (describing project change procedure taken by board when petitioner sought to relocate site); Brockton Power Co. v. Energy Facilities Siting Bd., 469 Mass. 215, 217-219 (2014) (affirming board's conditional final decision and project change proceedings, which included evidentiary hearings).