-: SJC 13622.
Jacqueline Johnson versus Energy Facilities Siting Board.
-: Hi, is it Attorney Senie?
-: Yes. -: Okay.
-: May it please the court.
My name is Christopher Senie.
I represent the appellant in this matter,
Jacqueline Johnson, who owns property near the site
where a substation is proposed.
Ms. Johnson is in the courtroom today.
As you know, this is a matter
that comes up from the Energy Facility Siting Board appeals
from that board come directly here.
At the heart of this issue is a sound study,
which is somewhat typical in EFSB decisions.
In fact, there are two sound studies in the record.
And that's because the engineers
who prepared the sound study in the case at bar
relied on one that they had done four years earlier
for another substation to be built in Barnstable
to take electricity from the offshore wind turbines.
And it is the difference between these two sound studies
that caused me to take this case.
And the basic difference is that a guide was used.
The EEI guide, Edison Electrical Institute guide,
which is a reference guide.
It's 40 years old today.
It was 38 years old when it was used in this matter.
And that's not the gold standard for sound studies.
Typically, we want to have sound power data entered
into a model that is
confirmed by the manufacturers of the equipment
that will generate the sound.
And in 2019, the board accepted the EEI noise guide
as the starting point for an acoustical model
and approved that project and no one appealed it.
The same engineering firm used the same guide in this case,
but then made further reductions from the sound powers
that one would arrive at by using the formulas in the guide
in order to make the model show compliance
with the DEP noise policy.
And when I saw that, I thought something was wrong
with this sound study
because just like getting ambient readings
on the back end of an analysis,
which you are comparing this, the projected sounds to,
to see if this new facility will increase the ambient
by 10 decibels or more.
You need reliable information on the front end,
which would be the sound power levels
that get entered into the model.
There are 34 pieces of equipment
that will go into this substation that generate noise.
They are covered in two tables.
And actually these further adjustments in sound power,
which the Siting Board called,
subjective noise reduction adjustments apply to 28 of them.
So 82-
-: Can I focus, I'd like to focus on something
that I want to hear your response
'cause my questions are gonna really be directed
at your opponents for the most part.
You're getting into a technical level of
sort of process that I understand,
but what I'm focused on in particular is findings 42.
And, really, 42.
I guess actually maybe it's 41, 42.
The sudden word states
that it shares Ms. Johnson's skepticism
regarding the company's self-described
aggressive assumptions.
While the Siting Board does not prescribe
specific types of evidence,
we do ensure the results of
such modeling are reasonable, enforceable.
The language I'm focused on is this,
the Siting Board stated,
"While there is reason to be skeptical of such adjustments,
the company may in fact be able to secure equipment
that meets these specifications
and achieves the modeled noise levels at nearby receptor."
That is an odd formulation to me.
I guess the first question is,
if 10 dB is the maximum.
I understand if they wrote the following,
there's substantial evidence
to support all of the science you're talking about here
that it will achieve the 10 dB.
But they don't say that.
They say it may and then they're gonna take a second look.
Do you win because of that?
Do we have to remand this to require them to clarify
that they believe it will work?
That it's not enough to say it may and build a big building.
Is that enough for you to win?
Because I'm gonna pursue that with them
because that's what, I don't understand all this science,
but we have a lot of deference on science.
If the Siting Board actually makes a finding
that says this will do this.
We don't know deference if the Siting Board says,
"Well, I don't know, maybe it will, maybe it won't.
And we'll take another look later."
Do you win?
-: Well, I don't know, Your Honor,
and only this court will decide that,
but-
Justice Kafker: Well, I'm asking you, should you win?
(crowd laughing)
I know you don't know if you're gonna win.
-: I briefed that that's pretty weak to say, well,
maybe they will be able to get manufacturers
who will be able to make uniquely quieter equipment
and therefore the model will prove to have been true.
And the way I view what you're reading is,
if they may be able to succeed
and there's really no evidence from manufacturers
in the record, they also may not be able to.
-: And if they don't prior to the build,
don't they...
Then they won't be able to build this thing.
Right, because the board said, "We don't know."
These are aggressive assumptions.
Epsilon is saying that they can do this,
but these are, everybody thinks it's aggressive
and this is the maximum that we can do on sound levels
as they responded to the board, we can't do more.
The board says, "I don't know."
But before you start building,
come back and show me
that you've obtained the equipment from the manufacturers
that achieves these sound levels,
which I think was 8 dB.
-: I see, 8 dB. -: Right?
So why is that not good enough?
-: Can I ask, is that actually right though?
Is that what they say?
They don't say that.
They say you build it
and is that your understanding of what it says
or is it say you can build it?
-: They do both, right?
-: Both, they do both. -: They say come to me
before you build it with the, you know, then
you know, manufacturer specs
and then if you achieve 8 dB, great.
Then build it.
And then after 180 days of operation, do it again.
-: Yes, they have both.
In this Condition S, which is at the heart of the matter,
the Siting Board requires both.
And the board says, "To get earlier visibility,"
meaning before you spend all the money to build it,
"When these sound power profiles," which is what it says,
noise profiles still have to come into us,
"Are available from the manufacturers,
come back with a compliance filing to satisfy us
that the manufacturers really can do this."
The reason- -: And why, and so my question
to you was, why isn't that good enough, right?
The board's saying, "I don't know, these are aggressive.
Show me."
-: Yeah.
The regulations that control this process
and your judicial review say that the decision has
to be supported by substantial evidence
of record in the proceeding
and the compliance filing is coming after the proceeding.
It's not here today.
We don't know what it's gonna say.
And a final was issued based on
what the board is skeptical of.
-: Your position is that this
substation
shall be built
even if
they come back pre-built and they can't meet the 8 dB
that they've said that they couldn't.
-: Yes, and it comes from the very language of the condition
that was intended to fix the problem here
or the lack of substantial evidence before the board.
The languages do two things with this compliance filing.
Give us the noise, noise profiles that are missing,
and give us your plan to further mitigate sound as a result.
And so this sets the scope.
-: Well, it's not just to further mitigate sound.
I thought it was further mitigate sound.
If you can't get the manufacturers
to give you the equipment
under the aggressive standards, right?
Then we're not gonna say no substation.
But you're gonna have to build a wall
and close the transformer, I don't know,
do whatever you need to do in order to meet
what you've said you can meet, which is less than 10 dB.
-: Yes, that's correct.
My concern is that there is no set of mitigation measures
that can accomplish it.
-: Can I'm confused though.
Where in the opinion is this?
I understand there's the decision
and then there's these Condition S or whatever it's called
after the thing is built.
Where in the opinion is this compliance?
What does it say?
'Cause I wanna make sure that I understand that interim step
and how that works.
Where in the opinion is that?
-: The compliance filing is in appendix one.
Justice Kafker: Yeah, I've got the Siting Board decision.
I really wanna read, I'd like you to read us the language.
-: Yes.
So there there is a series of appendix volumes.
Volume 1, page 244,
Justice Kafker: Volume 1, 244.
Okay.
-: I can read it but if you're searching for it, I'll wait.
Justice Kafker: No, read it.
Read it. -: Okay.
In addition, to gain earlier visibility
of the steps being taken by the company
to achieve this result,
the Siting Board further directs the company
to provide a pre-construction compliance filing,
documenting A, than noise profiles
of the substation equipment types listed in exhibits
such and such.
When the relevant information from the equipment supplier
is made available to Park City Wind,
and B, any additional noise mitigation measures such
as additional or taller sound walls that the company intends
to take as a result.
-: And is there a follow-up sentence or two that says,
that they can't build unless this decreases this below 10?
'Cause that's the key sentence.
I understand submitting it,
but do they get to build before they've made a finding
that it's below 10 or not?
I just don't know.
-: I actually went through the exercise, Your Honor, myself
because there is no following sentence
that says that of rewriting conditions.
-: When I read the S discussion,
it says they have to mitigate it,
but mitigation doesn't necessarily,
it doesn't say we will shut down the building
if it doesn't get to below 10.
I'm just trying to understand.
-: Yeah. -: 'Cause we defer
to these people tremendously.
If they are making findings that this is below 10.
-: Yes. -: And we don't do what you do,
which is, say, well, I don't like their science.
We're just not very good at that.
-: Yeah. -: But if they don't reserve
the right to prevent this from being built
until they're established that it's below 10,
then I understand your point.
-: Yes, and Condition S would've been lawful
if it had said two things.
One, when the compliance filing comes in,
there shall be a public hearing
as a continuation of this hearing,
and all parties shall have a chance
to cross examine that evidence.
And number two, at that time,
the board should have the full array of its normal powers
to deny the certificate.
-: So what happens in the second stage then?
This compliance, what?
So, okay, so now at phase two,
they're gonna submit their actual plans.
And does there have to be a finding that it's below 10?
Do you get any participation in that?
What, how does that work?
-: Well, a compliance filing is
a unilaterally filed document.
There is no guarantee that that will be
the subject of any public discussion.
If you look at the transcript where this is.
-: But do they have to make a finding?
Is there something in here that gives me a comfort
that the Siting Board
who does very sophisticated legal work.
Atty. Senie: I think, counsel-
-: Find that it supports it. -: Yeah, I don't see it.
The reason I'm here is that I'm concerned
that if the compliance filing contains evidence
of which the board is equally skeptical, I think,
because it didn't warn parties
and reserve to itself the right to deny the certificate,
it has no choice.
It has no authority to to revise its decision.
And all we will be left with is trying more
and more versions of mitigation.
But in my opinion,
there's testimony
that at least the perimeter wall separating
my client's property from the substation is
at the point of diminishing returns.
And they've testified that the kind of wall,
what it's made of and the heights involved.
-: But again, if they found substantial evidence
to say it would mitigate it, you're out of luck.
I just can't tell if they found it
or reserved the right to make that finding, you know.
-: My client has only wanted
to have the opportunity in a public hearing format
to look at the real evidence.
And I think the evidence that was presented is too weak
to meet the substantial evidence of record
in the proceedings standard.
And my concern is that my client won't be given
that due process right.
To be in a hearing room and be able to question those
who are offering this evidence that's coming in later.
Unless there are further questions, I'll yield the podium.
Justice Budd: Okay, thank you.
Attorney Heuer.
-: Chief Justices, may it please the court.
Thad Heuer on behalf of Park City Wind.
As a logistical note, Mr. Hitt and I have divided our time.
We're both prepared to answer questions on any topic.
Although technical questions about evidence may be better
directed towards me
and questions about the board's statutory authority
may be better directed toward him.
Ms. Johnson asks this court to do something
and has never done before,
which is to second guess and reverse the board's conclusions
on the sufficiency and credibility
of technical scientific expert evidence.
And I wanna emphasize three points.
-: [Justice Wendlandt] But the board doesn't actually-
-: Stop me.
Yeah.
-: The board didn't actually make a finding
on the technology.
It said, "We don't know."
Seems aggressive.
-: Two things.
One, it's Epsilon, the engineers here who said
that they thought these were aggressive assumptions,
but they knew from their expertise
that they were reasonable ones to make.
-: Yeah, and it would be a different story if the board said,
"You know, Epsilon, they're really qualified.
They know what they're doing and so we believe them."
And therefore,
we're gonna find that the project has 8 dBs
at Ms. Johnson's house.
-: I believe they did.
If you look at the end, they say,
"We have indeed agreed that if these conditions are met,
the project will mitigate."
And here's how we know that the conditions are going to
-: But the conditions.
The conditions, the parameters were set
in order to meet the 8 dB outcome.
And what the board says is, "We don't know if you can."
-: I would beg to differ.
So what the board says in its decision is
we are skeptical of the ability for the sound power numbers
for the equipment
to be the reductions that you say they are.
They are not saying that eight decibels
at the property line is not the appropriate number.
And they also say there's an absolute obligation
to meet that eight decibel number
regardless of how you get there.
Justice Kafker: Where?
Where do they say that 'cause.
-: The absolute obligation?
-: 'Cause I want you to give us, 'cause again,
I agree with you.
If they made a finding that it is under 10 dB,
that we conclude based on all this evidence that, you know,
there's reason to believe that it will be under 10.
I'm with you.
What I'm not with you on is it may work, it may not.
File some other stuff later that may work, that may not.
And then build it and it doesn't work, mitigate it.
But mitigating, I know a lot about mitigation
that isn't necessarily getting it to below 10.
I need you to find,
and I would encourage you to be specific,
if you can find in the opinion language that proves that,
because I'm very troubled by the language I read.
-: Right.
So I believe it's page 244
of Volume 1 of the appendix.
Halfway down, it says,
"In addition the Siting Board notes that the findings
in this decision are based upon the record in this case.
A project proponent has an absolute obligation to construct
and operate its facility in conformance with all aspects
of its proposal as presented to the Siting Board.
And the proposal made by Park City Wind was
that at the site, at the property line of Ms. Johnson,
it will be no greater than eight decibels."
That is the promise that they made.
That's the thing that we would be held to.
We cannot construct and move forward.
Not only can we not construct,
we can't even get the authorization to construct
until we have provided a compliance filing.
And I'd say the distinction between a compliance filing
and additional evidence is
the decision here has already been made.
The Siting Board has said eight decibels
and we think it's eight decibels is appropriate
because of your modeling.
Which is how the Siting Board routinely
and always determines what a noise profile will look at.
And they say, "That's perfectly fine as long
as you can do a pre-construction filing
before you even get in the ground.
And then once you've met that obligation,
you've gotta do a post-construction filing
to prove it actually works."
-: May I ask you a question?
Because to my mind, part of this is maybe a drafting issue.
If what I hear you saying,
is that the company
understands what the board to have done is to require a
no greater noise increase
at Ms. Johnson's property line than 8 dB.
You understand that your construction of the project
depends upon you proving that.
Atty. Heuer: Yes, I would also say, as a practical labor,
our financing probably depends on us proving that.
-: Okay, so, and we're gonna take, and now unfortunately,
it's not quite as clearly written
in the Siting Board's decision.
But if there is agreement that that is actually
what the Siting Board meant,
that in other words construction depends upon your meeting
this representation that was made
and that you establish that before construction,
that that's actually what's meant by Condition S.
Is there a way that, what do we do?
Do we remand for clarification
so that that's rock solid?
Can we do that?
Or because I'm looking at the language on page 170.
Where it looks to me that,
that what the board is saying is that,
you're going to have to prove that you actually meet that
within 180 days after operation.
-: Undeniably. -: Actual compliance.
Atty. Heuer: Absolutely.
-: But then the second sentence,
when it comes to the pre-construction compliance report,
it doesn't actually repeat the 8 dB standard.
It says,
you must give us
a pre-construction compliance filing document
that the noise profiles on the equipments listed
in these tables are going to be made available to you
from the manufacturers.
In other words, it seems to be more like a requirement
that you have to prove that you can get
what you've listed from manufacturers.
But it doesn't repeat the,
what I assume is really the relevant thing for Ms. Johnson,
which is that
what comes across her property line is no more than 8 dB.
Atty. Heuer: Right, so I'd make two points.
One, I think we need to continue reading
that sentence there.
-: Okay. -: Right, so we're
in the middle of 170.
-: Yeah. -: And it says,
"To gain earlier visibility, et cetera."
We've read that, and it says,
"B, any additional noise mitigation measures
such as additional or taller sound walls
that the company intends to take as a result."
-: I understand. -: And those words are critical
because if you've met the 8 dB
with simply your sound power levels of your equipment,
then there is no additional noise mitigation measures.
-: But it doesn't actually reference the 8 dB.
That's my only point.
Atty. Heuer: But again-
-: In order is 244, the sentence you read us there
also doesn't reference the 8 dB.
It just says if you make changes in the project,
you gotta tell us about it.
And the first sentence is you gotta build it as
with all aspects of its proposal.
But the proposal.
The proposal is the construction,
not necessarily the result of the construction.
I don't know.
-: No, again, I'd go back to the words absolute obligation.
You have to read this.
Not just page 244,
but this is a hundred and some odd page decision
with several thousand pages of application.
That application says,
and we can put into the record
that 8 decibels at the property line,
it's in the record, it's not in the appendix.
8 decibels at the property line is
what we are going to build to.
And that's what we are instructed by the Siting Board to do.
We have an absolute obligation, we can't get out of it.
It's not, maybe you can come in at 10,
and we'll talk about it.
Maybe you're at six and a half and that's okay.
They said eight and we have to meet eight.
I'd make other one other point briefly.
-: [Justice Wendlandt] But you could be less.
-: Certainly, we could be less.
But I think that's another key point here.
-: But it's the, or else.
I understand you have to meet it,
but they're skeptical that you can do it.
And then they have this three stages of evaluating it,
including, the whole post-construction indicates
they're not comfortable
that you're gonna achieve it at either the first
that your proposal achieves it,
the compliance documents achieves it,
or so we've got this third mitigation.
Shouldn't we require them to be,
if the Siting Board has said it, why not make them do it?
-: First of all, I'd say that as a practical matter,
they are going to do it.
That's what they, as Justice Wolohojian said,
that's our understanding of what this requires.
That we have to meet eight decibels
at the pre-construction filing
and the post-construction filing.
I don't wanna get to a point where we're saying
that modeling isn't substantial evidence,
modeling is how substantial evidence is found.
Justice Kafker: I think we disagree
with the science. -: Okay.
-: It's how they articulate what they've found.
We understand we owe, what we use the words,
great deference.
We go on and on about the deference we owe,
but we require them to say it.
We don't sort of let them dance
around about their skepticism and things like that.
And we will ask him directly but,
do we- -: So, I'd make two points
on this one.
I just wanna bring the court back to
what it said in the Andover case about 20 years ago
where the exact same question was raised
and the court said, "The interveners challenged
the proposed sound mitigation measures
as lacking in final design specifications,
as with air emissions,"
which we're also at issue in that case,
"It makes little sense to require a developer
to finalize the details of sound mitigation measures
until it learns what additional measures
the department might require."
This court has already recognized
that these are complex projects
and that there is some level of determination
when you go forward as to exactly
how you're going to meet the standard
that the board has set.
Here, we have a situation
where they have said there are two ways,
and you see this in the expert testimony,
to determine where you're gonna get your sound level to.
One is making the equipment quieter
and the other is onsite mitigations,
balls or blankets or whatever else you're going to mitigate.
External power levels of the equipment.
All the board is saying when it is saying we are skeptical
and we can go back to that language,
is the board says, "We are skeptical.
Here's the skepticism
regarding the company's self-described
aggressive assumptions,
regarding the noise profiles
of its intended substation equipment."
It is saying, "We are not sure you can meet it
with the substation equipment,
but we're not saying we don't think you can meet it,
you just may need to do more mitigation."
And that's exactly what they say in the next page
when they say, "Right, your pre-compliance filing,
show us your sound power levels.
But if they're coming in too high,
you better be showing us some more mitigation."
That's exactly what this condition says.
And that's exactly what this preceding says.
I think- -: This is table 7-3,
all of the equipment or is there missing
from that requirement?
Table 7-4.
-: Table 7-4 was an errata.
The decision has been revised by the Siting Board
to incorporate 7-4.
It was always intended that they were both done.
-: [Justice Wendlandt] Okay.
-: So all the equipment at the site is subject
to these requirements.
I think the analogy I might give is you have a patient
who goes to a doctor and says, "I wanna lose 10 pounds,
but I only wanna do it through exercise
'cause I don't wanna give up the ice cream."
Right?
The doctor says, "There is substantial evidence
that you're gonna be able to lose 10 pounds,
but I'm skeptical that exercise alone is gonna do it.
But exercise and diet, you can get to that 10 pounds."
That's essentially what the Siting Board is saying here.
We're not sure you're gonna get to it
with your aggressive presumptions
on the sound power noise levels of the equipment.
But we're not saying you can't get to eight
and regardless, we're holding you to eight.
If there are no further questions,
I would defer to the attorney general.
Justice Budd: Okay.
Attorney Hitt.
-: May it please the court.
Assistant Attorney General John Hitt
for the Siting Board in this case.
I'm gonna kind of restructure my argument to try
and jump right to answering some of your questions
that were just proposed or proposed by you all.
In particular,
so the Siting Board does go through and discuss
and find substantial evidence to support the noise modeling
and what ultimately becomes its discussion of Condition S.
If you look in the Siting Board's decision
at pages 153 to 154, I'm referring to a page number,
which is actually on the upper right hand corner
of the Siting Board decision,
because the Siting Board appears in, you know,
different addendums and appendices.
There, the Siting Board,
this is where the skepticism language is
and where they kind of get into the heart of discussing
what they ultimately convert into the language
in Condition S.
The skepticism that the board expresses is simply on the
ability to mitigate the noise.
So, you know, once the equipment is built,
if it's going to have the, you know,
all of the sound baffles
and things built into the particular piece of equipment,
the use of the word skepticism really just refers
to that narrow.
-: Why don't you?
You know, I find, read it to us and tell us why,
'cause and I thought.
I was reading, is 171 the same as the other page
where we get these two clauses 'cause...
-: Yeah, it's 169. -: Yes.
-: Yeah. -: Yes.
-: So, tell us why that means that they're not skeptical.
You know, I'm at a loss
that they think the mitigation won't work.
They're skeptical on the mitigation,
but they're not skeptical
that this is gonna produce the 10 dB.
-: So, Your Honor, I would start on
the second page of their discussion at the,
where they say, "In addition, the Siting Board notes
that the record demonstrates
that several aspects of the Cadden A sound model
used to assess noise impacts at
or near receptors are likely to be conservative
and actual noise impacts may be less than model.
So on all the evidence, you know,
obviously, it's not like we're going to Home Depot
and taking something off the shelf to,
you know, to be the basis of what is going
to be in evidence before the Siting Board.
Here, they're relying on this modeling
and in terms of the evidence that was submitted
at the Siting Board hearing relating to the modeling,
there was substantial evidence to show
that they would meet their either eight decibel.
Yes, Your Honor.
-: Oh, as I understand the crux of Ms. Johnson's argument
as it was presented here today.
Is that the true objection is that there'll never be
in a procedure
by which
the pre-construction report
or the post-construction report can be tested.
And particularly, the pre-construction report.
So that when the company comes back and says,
"Oh, here's, you know, whatever.
We have more modeling, we have quotes from manufacturers,
et cetera, et cetera."
There's never going to be an evidentiary process by which
to test the accuracy of those things.
That's what I understood
to be the crux of the argument today was that,
that the plaintiff could essentially live with Condition S,
understanding it as it's been explained today
to actually require 8 dB at her property line,
provided there's an evidentiary process for testing it.
What do you say about that?
Because that sort of makes sense to me that
where there's an express skepticism about
the evidence the company presented at this stage,
the board has expressed that skepticism,
and has asked for a report to try to allay that
for the future because they want to make sure
that the company's going to be able
to report to meet this standard.
Why shouldn't there be some kind of process built in
similar to what occurred before the Siting Board decision
as to this one open piece?
-: Well, I think here, Your Honor,
the board was trying to do that
and do that balancing trick that it has to do
where here, it is the agency that has to go first
in the entire permitting process, you know,
first, the model-
-: But doesn't it, at some point,
actually have to make a decision?
That whether that 8 dB can be or has been met?
Atty. Gen. Hitt: Yes, Your Honor.
And it did. -: So how will it do that
once these reports are filed?
Just accept the reports?
Those tests, those reports will just be taken at face value?
-: Well, Your Honor, they did make a decision
that based on the evidence in the record,
which was the modeling and the expert testimony
provided by the experts about the modeling
that the 8 dB level would be met.
So they made a decision on that issue.
-: And they said that expressly anywhere in this thing?
'Cause that would be great
if they actually had written that.
-: In those two pages of the decision which they discuss in,
we're looking in sub-part four of their decision
discussing the environmental impacts.
On those two pages, they do.
When you look at the use of the word skepticism,
it's not skepticism about the entire project.
-: Right. -: But if you read
the next part of it, you know,
they may be able to secure equipment, but then they go on.
Should the actual noise impacts
exceed those presented to the record,
especially if violated of the MassDEP noise policy.
The Siting Board can require additional mitigation.
I mean, is that the language we normally get
from the Siting Board?
-: This is consistent with its past practice
and also consistent with the language of this court
in the Andover case.
-: Is it your understanding?
By the way, they can't build this thing
unless it's demonstrated.
Do you have another look at this?
If this doesn't work, is this thing ready to build?
I'm just trying to understand.
Have you allowed them to build,
meaning the Siting Board has allowed them to build
and then whatever mitigations necessary
after it's built will be,
I'm just trying to understand what rights you have
if this doesn't work anymore.
-: So, they get the equipment built
once they have the permit issued and in hand.
So, the trick here or the-
Justice Kafker: They have the permit now?
-: Yes, the permit.
-: So they have the permit.
They can build this building
and all of this stuff is about mitigation after.
I'm just trying to understand.
Have you given the go ahead to build this
even though you're not sure this is gonna work?
-: Well, this is the first permit
and there's many different steps that, you know,
as you know, that they have to weave their way through.
So, you know, this grants them that permit to start,
you know, so they can start to, you know,
go out and have order equipment
and have what they need to have made.
-: Can they start to build the building?
The sub, this, whatever this thing is.
Atty. Gen. Hitt: Yeah, they start.
It's not in the record.
-: Based on what you have permitted right now,
can they start construction of this facility?
Atty. Gen. Hitt: I think they can move on
in the permit granting process.
-: And what's the next, what's the permit?
Does the DEP have a 10 dB review later in this?
I'm just trying to understand,
how does the 10 dB get enforced after this?
-: Well, again, here with this Condition S, you know,
this is in trying to balance.
-: Condition S happens after it's built.
After it's built, you can require additional mitigation.
-: There's a pre-construction filing condition,
compliance filing that's in contained in Condition S.
-: So, the Justice Wendlandt asked your opposing counsel
about, or your prior counsel about that.
What is your understanding of what happens there?
Do you have to make another judgment call that it works
before they start to build?
Or can you delay it until after it's built again?
-: Well, I think it will depend on what
that pre-construction compliance.
-: [Justice Wendlandt] So let's say it comes in at 14 dB
at Ms. Johnson's house.
What happens?
-: Well, at that point, you know,
based on what the Siting Board, you know,
does in these types of cases, they will, whole process.
So they will ask the project proponent
to submit additional information.
They will provide notice to the abutter for her
to also provide comments and ask for additional process.
This is, you know, the Siting Board has,
as it did in the Box Pond case,
has a process that they follow
that's been set forth in the decisions of this court
and also the Siting Board
whereby they will take additional steps in.
-: So your position today is
that Ms. Johnson would have the ability standing
and or be welcome by the board
to object to any pre-construction report
showing greater than 8 dB.
Atty. Gen. Hitt: Yes.
And when you look at the-
-: And so, any pre-construction report
showing greater than dB would be a change
in the proposed project, right?
-: I'm sorry. -: Or it could be, right?
If the company said, "I'm not mitigating anymore.
14 dB, just live with it."
-: Right. -: Right?
And that would be require a change
and that would reopen the process.
-: Yes.
-: Yes, to the public, right? -: What about nine.
Sorry.
Atty. Gen. Hitt: I'm sorry, I didn't hear both questions.
-: So it would open it to the public, right?
To Ms. Johnson, abutters, people like that.
Atty. Gen. Hitt: It rises to the level
of being a project change.
-: Yeah. -: Then yes.
There is additional process in this.
-: And even with regard to the pre-construction bill,
the board has specified that the company shall communicate
with Ms. Johnson about additional noise mitigation measures
and attempt to reach consensus.
So the board has actually inserted this particular abutter
into the conversation
regarding to the pre-construction compliance filing.
-: Yes, Your Honor.
The idea here is that this, I mean,
because this first step in the permitting process goes
so early and before the equipment is actually built,
the board is trying to build in process
and they have, with this condition,
for the abutter to have the ability
to have additional process beyond what would
typically exist.
-: And does the Siting Board need to do anything?
So, say it comes in as Justice Wendlandt just said at 14.
Does the Siting Board have to do anything at that point?
I understand you're getting some materials,
but does the Siting Board need to issue another decision
or can they build based on the fact that Condition S says,
they're gonna have to mitigate it afterwards?
-: No, the project proponent is gonna have
to satisfy the board that they can meet
the noise policy standard that what, you know,
the 10 decibels or the eight decibels.
Justice Kafker: Before they start to build?
-: Before they start.
They'll be required to take additional mitigation,
measures, and steps.
And it built into the,
when you get to the part of the decision
where the conditions are contained.
Right after Condition S,
there is the very standard language
that goes in to the Siting Board decisions that says
that at all times, the project proponent
has the burden of completely complying
with what they've told the Siting Board
that they are going to do.
So here, they have made the-
-: That includes results as well as the construction itself.
When they say that it's gonna have a mitigating,
it's gonna mitigate to 10,
that include, that's part of the project.
That it's not just that they're gonna build it exactly
as they did with these specs and these things,
but they have to achieve the result as well.
-: Right.
And here, when you look at the board's decision,
they do believe that they are going to meet
this eight decibel level.
However, just to be, you know, completely...
-: [Justice Wendlandt] Candid?
-: Candid and provide process to the abutter.
They've built in this condition
with these additional steps to make sure
that the eight decibel levels actually being met,
both before construction starts,
and definitely after construction is completed,
and you got the thing cranked up as high as it can go
to make sure that that level is met.
-: I wanna make sure.
I wanna make sure that we are talking about 8 dB here,
not simply 10 dB.
Correct? -: About 8 dB.
-: [Justice Wolohojian] 8 dB.
-: Yeah. -: Everyone's clear
that that's what Condition S requires.
Atty. Gen. Hitt: That's what the project
proponent indicated.
-: Okay.
-: They could get the equipment too.
And in at page two.
-: [Justice Wendlandt] And so that's what's required.
Just to finish your sentence?
-: Yes, it is. -: Okay, thank you.
-: Sorry.
And just on page 244,
after Condition S in the Siting Board's decision,
it says specifically, "The findings in this decision are
based upon the record.
In this case, a project proponent has
the absolute obligation to construct
and operate its facility in conformance
with all aspects of the proposal is presented
to the Siting Board."
Justice Budd: So it sounds like
what you're telling this court is that
Ms. Johnson doesn't have anything to worry about.
-: She's expressly built in.
Exactly, Your Honor, she's expressly built into Condition S
and her concerns will be addressed by the Siting Board.
-: Okay.
Thank you. -: Thank you.