JACQUELINE JOHNSON v. ENERGY FACILITIES SITING BOARD & Another

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).