Costello v. Department of Public Utilities

• Decision Date: 27 March 1984
• Citation: 391 Mass. 527,462 N.E.2d 301
• Parties: Nicholas J. COSTELLO v. DEPARTMENT OF PUBLIC UTILITIES et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 301

462 N.E.2d 301

391 Mass. 527

Nicholas J. COSTELLO v. DEPARTMENT OF PUBLIC UTILITIES et al. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 8, 1983.

Decided March 27, 1984.

Harvey Salgo, Boston, for plaintiff.

E. Michael Sloman, Asst. Atty. Gen., for defendant.

John F. Sherman, III, Westborough, for intervener.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

This petition for appeal under G.L. c. 25, § 5, was filed in the Supreme Judicial Court for Suffolk County and reserved and reported to the full court by a single justice without decision. The petitioner, Costello, alleges error in decisions of the Department of Public Utilities (department) issued in connection with its January, 1983, approval of three petitions filed by New England Power Company (company). The company's petitions sought the department's approval on three matters necessary for construction and operation of a proposed 345 kilovolt electrical transmission line extending between the towns of Amesbury and Tewksbury. ² The company's petitions sought the following: a determination that under G.L. c. 164, § 72, as amended through St.1978, c. 322, § 1, the proposed line is "necessary for the purpose alleged, and will serve the public convenience and is consistent with the public interest," and that the company will be allowed to construct and use the line; a determination under G.L. c. 40A, § 3, that the transmission line be exempted from the zoning by- laws or ordinances of the affected cities and towns; and authority under G.L. c. 164, § 72, and G.L. c. 79, to take certain land by eminent domain.

Costello, a resident of a town through which the proposed transmission line will pass, ³ alleges error in the department's denial of his motion to reopen the proceedings after the record was closed, and of his motion for reconsideration and supplemental findings filed in response to the department's January 6, 1983, approval of the company's petitions. He then asserts error in the department's findings and rulings as to (1) health considerations and (2) underground transmission. We find no merit in Costello's two allegations of error concerning health considerations and underground transmission. We conclude, however, that the department's subsidiary findings are insufficient for us to review its denial of Costello's motions, and we remand the case to the department for further findings in support of those denials.

We summarize the agreed statement of proceedings. In June of 1978, the company commenced proceedings before the department for approval of the company's plans to construct and operate a 32.03 mile long, 345 kilovolt overhead electric transmission line that will pass through the towns of Tewksbury, Andover, Dracut, Methuen, Boxford, Groveland, Georgetown, West Newbury, Merrimac, and Amesbury, and the city of Haverhill. It filed the three petitions described above. In May of 1980, Costello intervened before the department, in opposition to the line. From May 13, 1980, to September 10, 1981, the department held fifteen days of hearings on the company's petitions. The company offered the testimony of nine witnesses in support of its petitions, and Costello offered three witnesses in opposition, each of whom testified under oath. In addition, the department heard numerous unsworn statements from local residents and governmental officials. The evidentiary record before the department closed in September of 1981. Subsequently, in February of 1982, Costello moved to reopen the record to admit further evidence regarding the need for the line and the feasibility of an alternate route. The department heard oral argument on this motion on May 12, 1982. On January 6, 1983, the department issued its final decision and order on the company's petitions. In this decision and order, the department granted each of the company's petitions and denied Costello's motion to reopen the record. On January 10, 1983, the company filed with the department a request for certain supplemental findings and clarification of certain language. On January 24, 1983, the department issued a second decision and order granting the company's request for supplemental findings and clarification. On January 28, 1983, Costello moved for reconsideration of the department's January 6 decision and order, and for supplemental findings. On February 9, 1983, the department issued a third decision and order denying Costello's motion for reconsideration and supplemental findings. ⁴ Costello filed a petition for appeal with the department and with the county court. On March 29, 1983, the company moved to intervene in this appeal by consent.

Costello first argues that the denials of his motions were an abuse of discretion. Second, he argues that the department's conclusions as to certain health matters were not supported by substantial evidence in the record. Third, he claims it was arbitrary and capricious, on the record before the department, to conclude that underground transmission was neither necessary nor in the public interest. We consider each claim below.

Denial of Motion to Reopen.

Costello sought to reopen the record before the department on the issue of the proposed line's necessity. He asserts that he alleged "good cause" ⁵ for the reopening based on two pieces of evidence not available to him until after the record was closed. Costello first offered a report from Robert Bigelow, an executive of the company (the Bigelow report). Costello alleges that the Bigelow report contains information which contradicts testimony of, and suggests misrepresentations by, the company's expert witness at the hearings before the department. The information at issue concerns the prospective construction of a 345 kilovolt transmission line between Scobie, New Hampshire, and Tewksbury, Massachusetts (the Scobie-Tewksbury line). The Bigelow report states the following about the Scobie-Tewksbury line: "If for some reason the line is not justified by other considerations and is not planned for service by the time the Quebec tie is built, it will have to be added at that time." According to Costello, this evidence bears directly on the department's consideration of the Amesbury-Tewksbury line. He points out, and the company's expert, Dr. Robert H. Snow, admitted that, so long as only one reactor at the Seabrook nuclear generation station (Seabrook I) is on line, the need for the Amesbury-Tewksbury line would largely be obviated if an alternative set of 345 kilovolt lines extending from Seabrook to Scobie and Scobie to Tewksbury were operational. He stresses that at the hearings before the department the company's expert indicated no studies on this alternative had been done other than as part of preliminary studies in 1974. Costello asserts the Bigelow report contradicts this denial of inquiry into the alternative lines. He further claimed in his motion that even if inquiry had not been undertaken when the company's expert testified in September of 1980, it must have been done by September, 1981, when the company submitted a report to the department on the Scobie-Tewksbury line: the Bigelow report was released on January 16, 1981. Nonetheless, he asserts, no evidence of such inquiry was presented to the department in September, 1981. In his motion to reopen the record Costello states that the company's failure to present this information has left "the record devoid of certain essential information," rendering "impossible" an "adequate assessment of the costs of certain appropriate alternative transmission configurations." He asserts that the company's nondisclosure "has resulted in the possibility of substantial prejudice to the Intervenor's interests."

The second piece of evidence which he argues supported his motion to reopen was a letter provided by the company to the department and the parties in connection with the company's opposition to the motion to reopen. The letter, dated April 12, 1982, was from the Public Service Company of New Hampshire (PSNH). It stated that "PSNH has initiated construction of the Seabrook-Scobie 345 kV line and expects to have it in service by August 31, 1983," and that "PSNH has determined that Unit # 1 at Seabrook can operate at full load utilizing the Seabrook-Newington and Seabrook-Scobie 345 kV Lines as its transmission." According to Costello, this evidence that the Seabrook-Scobie line would be built before the Amesbury- Tewksbury line constituted a substantial change in circumstances bearing on the need for and relative cost of the Amesbury-Tewksbury line. He again points to the company's expert testimony that while only one reactor is on line at Seabrook, an operational Seabrook-Scobie-Tewksbury 345 kilovolt line would obviate the need for an Amesbury-Tewksbury line, including elimination of the "locked-in" generation problem. ⁶ In sum, he asserts that the Bigelow report and PSNH letter present evidence which, if established, so undercuts the basis upon which the company rests its argument that the Amesbury-Tewksbury line is necessary, that there is no "coherent rationale" for finding the line necessary during the period in which only Seabrook I is operating. On this ground, he argues that the department's denial of the motion was improper.

The department and the company contest Costello's assertion that the Bigelow report and the PSNH letter warrant reopening of the proceedings. They state that the Bigelow report was not necessarily a statement that the Scobie-Tewksbury line would be built. And even if it were, they claim, the letter assumes the prior existence of two operating reactors at Seabrook and the Amesbury-Tewksbury line. The department then goes on to claim that if the second nuclear reactor at Seabrook (Seabrook II) is not built, the record shows the Amesbury-Tewksbury line will be necessary to transfer power from Seabrook I to southern New England whether or...