Plymouth County Nuclear Information Committee, Inc. v. Energy Facilities Siting Council

• Decision Date: 12 January 1978
• Citation: 372 N.E.2d 229,374 Mass. 236
• Parties: PLYMOUTH COUNTY NUCLEAR INFORMATION COMMITTEE, INC. v. ENERGY FACILITIES SITING COUNCIL, Boston Edison Company, Intervener (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 229

372 N.E.2d 229

374 Mass. 236

PLYMOUTH COUNTY NUCLEAR INFORMATION COMMITTEE, INC. v. ENERGY FACILITIES SITING COUNCIL, Boston Edison Company Intervener (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 10, 1977.

Decided Jan. 12, 1978.

William S. Abbott, Boston, for plaintiffs.

Stephen Schultz, Asst. Atty. Gen., for Energy Facilities Siting Council.

George H. Lewald, Boston, for Boston Edison Co., intervener.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS and LIACOS, JJ.

WILKINS, Justice.

On April 30, 1976, the Boston Edison Company (Edison) filed with the Energy Facilities Siting Council (council) a long-range forecast of electric power needs. This forecast, which was filed in compliance with G.L. c. 164, § 69I, stated that Pilgrim Station Unit 2 (Pilgrim 2), a nuclear generating plant then proposed to be operational in Plymouth in 1982, was an exempt facility. The principal issue in these appeals is whether Pilgrim 2, a majority of which Edison will own, is exempt from the review and approval provisions of G.L. c. 164, §§ 69I and 69J. We agree with the council's determination that Pilgrim 2 is exempt. We defer to the end of this opinion consideration of Edison's claim that the appeals are not properly here.

After Edison filed its long-range forecast, the council referred the issue whether Pilgrim 2 was exempt from §§ 69I and 69J to a hearing officer. Plymouth County Nuclear Information Committee, Inc. (PCNIC), an organization of over 500 citizens principally from Plymouth and Barnstable Counties, and Stanley U. Robinson, Third, a customer of Edison, were permitted to intervene. The factual contest before the hearing officer focused on the question whether construction of Pilgrim 2 had commenced prior to May 1, 1976. Statute 1975, c. 617, § 15, provides that "(t)he provisions of (G.L. c. 164, §§ 69I and 69J) shall not apply to facilities under construction prior to (May 1, 1976)." General Laws c. 164, § 69G, as appearing in St.1975, c. 617, § 1, defines construction "(a)s used in (G.L. c. 164, §§ 69H through 69R)," as "any placement, assembly, or installation of facilities or equipment . . . , including contractual obligations to purchase such facilities or equipment, at the premises where such equipment will be used, including preparation work at such premises" (emphasis supplied). The significant legal question argued before the hearing officer was whether the definition of "construction," in G.L. c. 164, § 69G, applies to St.1975, c. 617, § 15, the "grandfather clause" referred to above, which exempts from §§ 69I and 69J those "facilities under construction prior to (May 1, 1976)." PCNIC and Robinson argued that the word "construction" has a less expansive meaning in St.1975, c. 617, § 15, than in G.L. c. 164, §§ 69H-69R.

The hearing officer concluded that there had been no preparation work at the site and that there had been no "placement, assembly or installation of facilities or equipment on the plant site." He did find, however, that Edison had made "contractual obligations to purchase such facilities" in the amount of $34,727,563. He then determined that the cost of the entire project was expected to be at least $1,396,000,000. He concluded that, even if "construction" does mean the same thing in St.1975, c. 617, § 15, as it does in §§ 69I and 69J, Pilgrim 2 was not under construction on May 1, 1976, because Edison's contractual obligations were de minimis. In his tentative decision, the hearing officer instructed Edison to file the required information concerning Pilgrim 2 with the council so that the council could begin a review of the project.

The council then considered the question of Pilgrim 2's exemption and rejected the hearing officer's conclusion. It ruled that the § 69G definition of "construction" should be used in determining whether St.1975, c. 617, § 15, exempts a facility from §§ 69I and 69J, and agreed with Edison that "construction" had commenced before May 1, 1976. The council accepted the propriety of a de minimis standard, as it had in an earlier decision, but ruled that Edison had "incurred substantial contractual obligations sufficient to constitute construction as of May 1, 1976 and that therefore the proposed Pilgrim II plant is exempt from the requirements of (G.L. c. 164, § 69I)."

Both PCNIC and Robinson filed appeals under G.L. c. 25, § 5, as permitted by G.L. c. 164, § 69P. Edison moved to dismiss each appeal on the ground that neither was commenced seasonably. The parties agreed on a record, and a single justice of this court reserved and reported the consolidated appeals for decision on the issues raised by the petitions for appeal and by Edison's motion to dismiss the appeals.

1. The council was correct in ruling that the definition of "construction" in G.L. c. 164, § 69G, applies to St.1975, c. 617, § 15, and that it should be used to determine whether Pilgrim 2 is exempt from the review and approval requirements of §§ 69I and 69J. We start with a consideration of language within § 69I itself which indicates that the Legislature did not intend that the review and approval requirements of § 69I apply to facilities whose development had progressed as far as had Pilgrim 2's prior to May 1, 1976. The fourth paragraph of G.L. c. 164, § 69I, which is set forth in the margin, ² states that after an electric company has filed its initial long-range forecast and the council has acted on it, the company "shall not commence construction of a facility at a site unless the facility is consistent with the most recently approved long-range forecast." The implication of this prohibition is that an electric company may proceed with constructing and using any facility whose construction was commenced at least before the filing of the company's long-range forecast. There is no doubt that the definition of "construction" in § 69G applies to the word "construction" in § 69I. Section 69G says so explicitly. Thus, even if the word "construction" in St.1975, c. 617, § 15, did not have the meaning given it by § 69G, Pilgrim 2 would not be subject to review and approval by the council.

This significant exemption within § 69I goes far in support of a reading of St.1975, c. 617, § 15, to exempt from §§ 69I and 69J all facilities under construction prior to May 1, 1976, in the sense in which "construction" is defined in § 69G. It would be a peculiar reading of the exemption from §§ 69I and 69J appearing in St.1975, c. 617, § 15, to construe "construction" any less broadly than the exemption for facilities under construction which § 69I itself grants. Moreover, in the absence of a plain contrary indication, a word used in one part of a statute in a definite sense should be given the same meaning in another part of the same statute. Arnold v. Commissioner of Corps. & Taxation, 327 Mass. 694, 700, 100 N.E.2d 851 (1951), and cases cited. The word "construction" is used in the general exemption, or "grandfather clause," appearing in § 15 of St.1975, c. 617, and the definition of "construction" in G.L. c. 164, § 69G, appears in § 1 of St.1975, c. 617. Similar provisions appeared in the comparable earlier legislation. See St.1973, c. 1232, §§ 1, 4. We believe that the Legislature as a matter of policy has chosen not to subject facilities in Pilgrim 2's position to the requirements of §§ 69I and 69J, and it is not for us to substitute our own judgment for that of the Legislature. ³

2. We turn then to the question whether the construction of Pilgrim 2 was so insubstantial prior to May 1, 1976, as to permit the council to disregard it in determining whether Pilgrim 2 was "under construction" (St.1975, c. 617, § 15) before that date. PCNIC argues that Edison's contractual obligations to purchase facilities and equipment ($34,727,563) are less than 2.5% Of the projected cost of the facility, and that a sum representing so small a percentage should be disregarded as inconsequential. Even if a de minimis principle may be read into the statutory pattern, as the council appears willing to do and did in an earlier proceeding, we do not view $34,727,563 as an amount so inconsequential that it should be disregarded. The de minimis concept applies where a subject is trifling (see Albre Marble & Tile Co. v. Goverman, 353 Mass. 546, 550, 233 N.E.2d 533 (1968)) and has been held inapplicable to sums as small as $500 and $1,000 in cases challenging their inclusion in determining local real estate tax rates. See Jenney v. Assessors of Mattapoisett, 322 Mass. 76, 80-81, 76 N.E.2d 126 (1947), and cases cited. There is nothing in the applicable statute to suggest that the Legislature intended a de minimis principle to be effective in these circumstances. We would be trifling with the de minimis principle if we were to declare that more than $34,000,000 of construction costs is inconsequential. The council was plainly correct in ruling that construction of Pilgrim 2 had commenced prior to May 1, 1976.

3. PCNIC argues that the council's decision failed to set forth adequate reasons for its finding regarding the definition of "construction." The council's determination that construction had commenced on Pilgrim 2 before May 1, 1976, was based (1) on a ruling of law that it should use the definition of "construction" in § 69G and (2) on certain factual conclusions concerning Edison's obligations incurred before that date. The first aspect involved a question of law and required no more than a recitation of the ruling to satisfy the council's duty to disclose its reasoning. The second aspect involved questions of fact and was discussed adequately in the council's decision. PCNIC and Robinson do not seriously challenge those findings. A statement of reasons for agency action in adjudicatory proceedings is required in part to facilitate adequate judicial review. See Trustees of Clark Univ. v. Department of Pub. Utils., --- Mass. ---, --- - --- ^a, 361...