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

372 N.E.2d 229, 374 Mass. 236, 1978 Mass. LEXIS 838
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 12, 1978
StatusPublished
Cited by23 cases

This text of 372 N.E.2d 229 (Plymouth County Nuclear Information Committee, Inc. v. Energy Facilities Siting Council) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plymouth County Nuclear Information Committee, Inc. v. Energy Facilities Siting Council, 372 N.E.2d 229, 374 Mass. 236, 1978 Mass. LEXIS 838 (Mass. 1978).

Opinion

Wilkins, J.

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, § 691, 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, §§ 691 and 69J. We agree with the council’s determination that Pilgrim 2 is exempt. [238]*238We 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 §§ 691 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, §§ 691 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 §§ 691 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 [239]*239in §§ 691 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 §§ 691 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, § 691].”

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 §§ 691 and 69J. We start with a consideration of language within § 691 itself which indicates that the Legislature did not intend that the review and approval requirements of § 691 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, § 691, which is set forth in the margin,2 states that after an electric com[240]*240pany 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 § 691. 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 § 691 goes far in support of a reading of St. 1975, c. 617, § 15, to exempt from §§ 691 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 §§ 691 and 69J appearing in St. 1975, c. 617, § 15, to construe “construction” any less broadly than the exemption for facilities under construction which § 691 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 (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 [241]*241comparable earlier legislation. See St. 1973, c. 1232, §§ 1, 4. We believe that the Legislature as matter of policy has chosen not to subject facilities in Pilgrim 2’s position to the requirements of §§ 691 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.

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Bluebook (online)
372 N.E.2d 229, 374 Mass. 236, 1978 Mass. LEXIS 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plymouth-county-nuclear-information-committee-inc-v-energy-facilities-mass-1978.