Appeals Court Sides with MassDEP in Brockton Power Plant Dispute

 In another example of Court deference to agency decisions, the Massachusetts Court of Appeals in Conservation Comm’n of Brockton v. Dept. of Envt’l Protection has upheld a MassDEP permit authorizing the construction of a 350 megawatt power plant near the Salisbury Plain River by the Brockton Power Company.  The proposed plant would use in its cooling towers 1.9 million gallons per day of treated effluent from the neighboring Brockton Water treatment facility.  Brockton Water would otherwise discharge the effluent into the river under an existing National Pollutant Discharge Elimination System/Massachusetts (NPDES/MA) permit.  Brockton Power’s use of the effluent would reduce the discharge into the river by 1.6 million gallons per day.  MassDEP granted the wetlands permit to Brockton Power reasoning that any effect on the river and bordering wetlands from the reduction of discharge into the river would be regulated through Brockton Water’s NPDES/MA permit, rather than through Brockton Power’s wetlands permit. 

 The Brockton Conservation Commission sought to block Brockton Power’s permit (and, therefore, construction of the power plant) arguing that Brockton Power failed to detail in its permit application what impact the project would have on the river’s water levels and the bordering wetlands.  Brockton Power prevailed on this question in the agency appeal process and then again in the Superior Court.  Deferring to the MassDEP’s discretion to regulate the reduction of effluent into the river through Brockton Water’s NPDES/MA permit instead of Brockton Power’s wetlands permit, the Appeals Court upheld the lower court’s decision. 

 The second question addressed by the Court involved Brockton Power’s application to the state Department of Public Utilities (DPU) for an exemption from local zoning requirements under G.L. c. 40A, §3.  Normally, under G.L. c. 131, §40 and 310 CMR §10.05(4)(e), applicants under the Wetlands Protection Act are required to apply for all local zoning permits and approvals prior to filing an application with the local conservation commission.  Here, MassDEP allowed Brockton Power to avoid the unnecessary delay and expense of local zoning applications while the exemption request to the DPU was pending.  If the exemption was denied, Brockton Power would have to return to the local authorities.  The Appeals Court upheld MassDEP’s determination noting that the purpose of the exemption for public service corporations would be frustrated if Brockton Power were required to apply for local permitting approvals at the same time it sought an exemption from them. 

 This case shows once again the wide latitude the courts will extend to agencies in their implementation of complex regulatory schemes.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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