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01/12/78 PLYMOUTH COUNTY NUCLEAR INFORMATION

January 12, 1978

PLYMOUTH COUNTY NUCLEAR INFORMATION COMMITTEE, INC.
v.
ENERGY FACILITIES SITING COUNCIL; BOSTON EDISON COMPANY, INTERVENOR (AND A COMPANION CASE *FN1



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 14, 1977. The case was reserved and reported by Abrams, J.

Hennessey, C.j., Braucher, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Statute, Construction. Public Utilities. Electric Company. Jurisdiction, Review of administrative action. Words, "Construction."

The opinion of the court was delivered by: Wilkins

The definition of "construction" in G. L. c. 164, § 69G, applies to St. 1975, c. 617, § 15. [239-241]

Contractual commitments of $34,727,563 made by an electric company to purchase facilities and equipment for the construction of a nuclear energy plant could not be disregarded as inconsequential in determining whether construction of the facility had begun before May 1, 1976, even though the amount constituted less than 2.5% of the projected cost of the facility. [241]

A decision of the Energy Facilities Siting Council that the definition of "construction" contained in G. L. c. 164, § 69G, applied to St. 1975, c. 617, § 15, and that an electric company had undertaken substantial contractual commitments in the construction of a nuclear energy facility prior to May 1, 1976, so that the facility was exempted from the review and approval provisions of G. L. c. 164, §§ 69I and 69J, sufficiently disclosed the reasons for the council's decision. [241-242]

Where the regulations of the Energy Facilities Siting Council acknowledged the right of a party in an administrative proceeding to file a petition for rehearing within seven days of a notice of a final decision and purported to delay commencement of the appeal period as set out in G. L. c. 25, § 5, until the council had acted on the petition for rehearing, an appeal which was not filed within twenty days of the notice of decision but was filed within twenty days of the council's denial of a petition for rehearing was timely. [242-245]

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 "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 "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, *fn2 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 ...


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