ML19276E455
| ML19276E455 | |
| Person / Time | |
|---|---|
| Site: | 05000471 |
| Issue date: | 02/09/1979 |
| From: | Lewald G, Stoodley D BOSTON EDISON CO., ROPES & GRAY |
| To: | |
| References | |
| NUDOCS 7903140183 | |
| Download: ML19276E455 (24) | |
Text
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NRC PUBLIC DOCUMENT R00u UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
BOSTON EDISON COMPANY et al. ) Docket No. 50-471
)
(Pilgrim Nuclear Generating Station, ) Y Unit 2) N
) #f '
TQF 6- 3b FEB 121979 3 :7 E
TJift_ br APPLICANTS - BOSTON EDISON COMPAHi ET AL. b #
ANSWER IN OPPOSITION TO INTERVENORS - m G CLEETON MOTIONS, ETC., DATED JANUARY 25, 1979 By letter under the cate of January 25, 1979, ostensibly to give effect to his wish as counsel for the Cleeton Inter-venors to comment upon the Commission Staff's status report of January 10, 1979 to the Board, Cleeton Intervenors' counsel has advanced certain arguments with respect to each of those matters which he considers to be the remaining issues in this proceeding. In support of his arguments, counsel presents in or with his letter under the respective rubrics of " Alternative Sites", " Financial Cualifications",
"Need for Power" and "NRC Reactor Safety Study (Wash-1400)",
a threat to bring a motion and four separate motions.
780314C/ f(3 c
This answer responds seriatim to counsel's ultimatum and the several motions of January 25, 1979
- 1. Alternative Sites Intervenor Cleeton's counsel contends in his letter that the "particular abbreviated procedure as proposed by the Staff" for bringing its new alternative site evaluation on for hearings falls to meet the legal requirements of NEPA and the Commission's adjudicatory decisions regarding the matter of recirculation of FES supplements. Unless
" normal NEPA procedures [are] followed",the letter declares that a motion will be brought to stay the Board hearing.
It is unclear from counsel's letter whether he is detuanding sua sponte action from this Board on his conten-tion prior to a formal request for relief being presented to this Board or to some other jurisdiction. In any event, counsel's contention is based on a misreading of NEPA,1/
1/ See, Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 320 (1975); New Encland Coalition on Nuclear Pollution v. NRC, 562 F.2d 07, 93-94, (1st Cir. 1970), and Citizens for Safe Power, Inc. v. NRC, 524 F.2d. 1291, 1294 n. 5 (D. C.
Cir. 1975).
. a i 2/
Commission adj udications and its regulations.~ Moreover, prescinding from the fact that it need not do so under NEPA nor pursuant to Commission regulations and decisions, the Staff, nevertheless, proposes a recirculation of its new alternative site evaluation in accordance with Council of Environmental Quality recommendations.3/ There is no merit to counsel's contentions and no Board action is warranted.
2/ See: 10 C.F.R. S 51.52(b)(3); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) CLI-70-1, 7 NRC 1 (1974) 29 n. 43, affirmed sub not; New England Coalition on Nuclear Pollution v. NRC, supra n. 1; Texas Utilities Generating Company et al. (Cctanche Peak Steam electric Station, Units 1 and 2), ALAB-225, 1 NRC 4 (1975);
ALAB-260, 1 NRC 51 (1975), ALAB-266, 1 NRC 377, 378-79 (1975); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2);
ALAB-262, 1 NRC 163 (1975); Allied-General Nuclear Services et al. (Barnwell Nuclear Fuel Plant Separation Facilities) ALAB-296, 2 NRC 671 (1975);
Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station) ALAB-161, 6 AEC 1003, 1013 (1973), reconsideration denied, ALAB-166, 6 AEC 1148 (1973), remanded other grounds CLI-74-2, 7 AEC 2, _ reaffirmed ALAB-175, 7 AEC 62 (1974),
affirmed sub nom. Citizens for Safe Power v.
NRC, supra n. 1, Commonwealth Edison Company (LaSalle County Nuclear Station, Units 1 and 2)
ALAB-153, 6 AEC 821 (1973).
3/ See attachment "A".
. , i
- 2. Financial Qualifications Motion #1. That the Board Hearing on the Financial Qualification Issue be Deferred Until a Final Decision has been Rendered in Massachusetts Department of Public Utilities Proceeding No. 19494.
Intervenor Motion #1 is predicated upon the assertion that the final Massachusetts Department of Public Utilities
("MDPU") decision in MDPU No. 19494 will directly and con-clusively determine whether the Applicant Boston Edison Company will be able to finance the construction of Pil-grim 2. h'hile it would be idle to contend that a regulated public utility is not dependent for its financial well-being and indeed for its continued existence upon its regu-lator, it cannot be assumed that the utility's regulator will not act reasonably and rationally nor that it will act contrary to law. Accordingly, a closer look at MDPU No. 19494 is warranted in light of the Cleeton Intervenors' allegations.
MDPU No. 19k94, to begin with, is neither a rate nor a financing proceeding as Intervenors' motion would imply.
MDPU No. 19494 was commenced following the completion of MDPU No. 19300, a now closed rate case, by the predecessor of the current MDPU and is an " Investigation by the De-partment upon Its Own Motion as to the Capacity Needs of 4-
the Boston Edison Company and the Construction Program Required to Meet Such Needs." MDFU No. 19494 was initiated in March, 1978. The proceeding vias to enconpass two phases - Phase I dealing with the Company's long-range forecast was to be conducted jointly with the Massachusetts Energy Facilities Siting Council, an agency empowered and required to hold hearings on all Massachusetts utility long-range forecasts, Phase II was to concern itself with the Company's construction progran, the Company's New England Power Pool ("NEPCOL") affiliation and various and sundry NEPOOL planning and operational functions, and alternative sources of energy which might be looked to to meet the Company's electric power loads. While evi-dentiary hearinEs in Phase I are complete, no MDPU decision 4/
has been rendered.-
It appears certain that the hearings in Phase II of MDPU No. 19h94 will continue over an extended period of several months. No schedule has been established for the conpletion of hearings nor for the issuance of any rulings 4/ Appended hereto as " Attachment B" is the MDPU's most recent MDPU decision in that proceeding.
with respect to the reasonableness of the construction program by the MDPU. In the interim, the MDPU has not issued, nor by its own admission could it issue, any order or decision which explicitly or implicitly might bar the Company from proceeding with its construction program.-
5/
Commission policy requires that licensing pro-ceedings be conducted in an expeditious manner and without unnecessary delays. 10 CFR Part 2, App. A. As the Commission has held in Wisconsin Electric Power Company et al. (Koshkonong Nuclear Plant, Units 1 and 2)
CLI-74 45, 8 AEC, 928 at 930 (1974):
"As a general rule it is the practice of the Commission to pursue its administrative procedures while other state and local proceedings are under-way. Such a practice is hardly a waste of time on the contrary, it is
~5/ Compare, Southern California Edison Co.
[ San Onofre Nuclear Generating Station, Units 2 and 3), ALAB 171, 7 AEC 37 (1974) cited by Intervenors, in which proceeding the Atomic Safety and Licensing Appeal Board deferred consideration of exceptions to an initial decision pending further de-velopments with respect to a decision by the California Coastal Zone disapproving the construction of the San Onofre facility.
the efficient economical and expedi-tious course....A ponderous and indeed arbitrary ' protocol' for licensing processes among local, state and federal authorities would be irrespon-sible in view of the enormous economic and social costs necessarily entailed."
Nothing in MDPU No. 19494 compels a departure from the Commission's general rule in these proceedings.
Contrary to Intervenor Cleetons' assertion, proceeding now with hearings on financial qualifications would not of necessity require reopening of the hearing record at some late date. Nothing in the proceedings before the MDPU in No. 19494 now suggests that a result may be reached in that proceeding which will require a reopening of the record on financial qualifications before the Board.
In its decision in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB 189, 7 AEC 410, at 412 (1974), the Appeal Board clearly earmarked the case which called for a departure from the general rule. In distinguishing its prior holding in the same case (ALAB-171), the Appeal Board declared:
"Moreover, in this very case, we have cautioned against charting the course of licensing proceedings with an eye on what might or might not be done in the future by some other federal or state agency. As we stressed in ALAB-171 . . . we would not have sus-pended our consideration of the case on the strength of nothing more than
_7_
, t a potentiality of action adverse to the facility being taken by another agency . . . . What led us to hold the appeal in abeyance was the fact that we were not operating 'in the realm of theoretical possibilities' but rather were confronted with a then outstanding California order which without qualification disap-proved the construction of the facility."
Clearly MDPU No. 19494,cn which the Cleeton Intervenor motion is based, falls well short of the mark. Accordingly, Motion #1 should be denied.
Motion #2. Boston Edison be Ordered to Make Available to the Cleetons Certain Information Re. Financial Qualifications.
Boston Edison Company, while not conceding the truth of the grounds stated in support of the motion, nor that the Cleeton Intervenors have a discernible interest in the resolution of the particular matter within the holding of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-244, 8 AEC 857, 868 (1974), reconsideration denied ALAB-252, 8 AEC 1175 (1975) affirmed, CLI 75-1, 1 NRC 1 (1975);
nevertheless will undertake to furnish copies of the materials enumerated in Motion #2 forthwith, to counsel for the Cleeton Intervencrs.
3 Need for Power Motion #3 That the Board Order that the Hearing Record be Re-opened on the Issue of Need for Power and that Updated Testimony be Filed.
Intervenor Cleetons' motion is based upon (1) Boston Edison Company's (Company) most recent long-range forecast of electrical power needs dated December 31, 1977; and (2) a decision by the Massachusetts Energy Siting Council (Council) dated October 24, 1978 relating to the adequacy of the methodology employed in this forecast. The Cleetons contend that the Company's December, 1977 forecast "should be the subject of critical NRC Staff analysis and testimony" in this proceeding.
For the reasons discussed below, Applicants urge the Board to deny the motion.
It is settled that the proponent of a motion to 6/
re-open a record bears a maj or burden.- There must be a showing that information brought forward is addressed to 7/
a significant safety or environmental issue- and that 6/ Duke Power Company (Catawha Nuclear Station, Units 1 and 2), ALAB 359, 4 NRC 619, 620 (1976).
7/ Vermont Nuclear Power Generating Company (Vermont Yankee Power Station) ALAB-130, 6 AEC 520, 522 (1973); Georgia Power Co. (Vogtle Nuclear Plant, Units 1 and 2), ALAB 219, 2 NRC 404 (1975).
such information could affect the outcome of the pro-ceeding.8 / The Intervenor Cleetons have failed to meet their burden with respect to the instant motion.
The Company's December 31, 1977 forecast was the subject of the Commonwealth's motion to supplement the record filed in this proceeding in April, 1978. Both the Applicants and the NRC Staff filed responses to the Commonwealth's motion and opposed the relief sought by the motion.9/ The Intervenor Cleetons' motion contains no additional grounds warrantinE re-opening the need for power record from those set forth and responded to last
~8/
Public Service Company of New Hanpshire (Seabrook Station, Units 1 and 2), ALAB 422, 6 NRC 33, 63 n. 35 (1977) aff'd., 2 Nuclear Reg. Rep. (CCH) 30,264 (1978). Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1) ALAB 227, 8 AEC 416, 418 (1974). See also, Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 2)
ALAB 486, 8 NRC 9, 21 (1976); Kansas Gas and Electric and Kansas City Power and Light Company (Wolf Creek Generating Station Unit 1)
ALAB 462, 7 NRC 320, 339 (March 5, 1978).
-9/
The Cleetons offer no explanation as to why they did not respond to the Commonwealth's motion, nor why they filed their motion some nine months after the 1977 forecast was served by the Commonwealth on the Board and the parties. See, Vermont Yankee, supra, 6 AEC 520, 523, n. 12.
spring. In particular, the Cleetons' statement that the 1977 forecast presents an " appreciable and material change in the factual situation regarding the issue of need for power . . ." raises no new ground for re-opening the record in this proceeding and is nothing more than a conclusory statement with no basis to support it. The motion neither analyzes the evidentiary record in this proceeding on the need for power issue, nor compares that record with the 1977 forecast in order to establish a basis for determining significance or materiality in the context of applicable NRC precedent.
Moreover, the Cleetons' reliance upon a portion of the October 18, 197E decision of the Council regarding the 10/ 11/
Company's forecast-- is misplaced.-- In citing part of the Commission's decision, Intervenor Cleetons fail to 10/ The Council reviews and approves electric utility long-range forecasts of power needs filed with the agency pursuant to Mass. G.L. c. 164, 55 69G-69s.
11/ Again, Intervenor Cleetons offer no ex-planation of why their motion was filed some three months after the Council's decision was rendered on October 18, 1978.
See, Vermont Yankee, supra n. 9
. , t note the Council's re-emphasis of the Massachusetts Legis-lature's exemption of Pilgrim Unit 2 from its jurisdiction:
"Before turning to the condition of approval, the Council must address a potential source of confusion with its decision not to accept BECo's forecasted growth rates as a basis for justifying proposed facilities.
It must be clear from the outset that this can have no effect on the Company's proposal to build the nuclear power plant known as Pilgrim II. Any Council action on this facility is preceded by an earlier Council decision which ex-empted or ' grandfathered' that facility from Council revie'.. . 1 DOMSC 134 (March 10, 1977). This decision was upheld by the Supreme Judicial Court in Plymouth Ccunty Nuclear Information Committee, Inc. v. Enerry Facilities Siting Council, 197d Mass. Adv. Sh. 139 The Council, by its ruling today, cannot and is not prohibiting construc-tion of Pilgrim II. 2 DOMSC 112, 117 (October 11, 19 7 8 )" ( Emphe sis original. )
The Council's explicit recognition of its lack of juris-diction over P11 grin Unit 2 leaves no doubt that the Council's decision lends no support to Intervenor Cleetons' notion.
Finally , Applicants submit that the Cleetons' motion, which is confined solely to the Company's forecast, eschews the overriding significance of the record in the proceeding as it pertains to Pilgrim Unit 2 as a NEPOOL planned unit. The need for Pilgrim Unit 2 in the context of NEPOOL requirements has been detailed on both occasions when the issue of need for power was before the Board.12/
By addressing only the Company's forecast, the Cleetons have sidestepped the central feature of this issue.
For the foregoing reasons, Intervenor Clectons' Motion #3 should be denied.
Motion #4 That the Board Order the NRC Staff to Provide a Detailed Evaluation of the Effect of the Corm.ission's Action Re-specting WASH-1400 on this Proceeding.
Intervenors' motion asks this Board to order the Staff to provide to the parties a detailed evaluation of the effect on this proceeding of the Commission's recent announcenent regarding the WASE-1400 Reactor Safety 12/ See, e.g. (1975) Applicants' witnesses Bourcier pp. 33-35; Weiner, pp. 105-108; Sten pp. 108-110, following Tr. 2647 Final Environmental Impact Statement -
Pilgrim Nuclear Power Station, September 1974, S 8. Staff Witness Nash, pp. 2-28 following Tr. 3110. See also (1977)
Applicants' witnesses Bigelow pp. 7-21; Daley pp. 30-36; following Tr. 7927 Staff witnesses Feld and Nash, followine Tr. 8150.
13/
StudyT- While it does not appear from the record of this proceeding that reliance has been placed on WASH-1400 Applicants submit that the Intervenors' motion of January 25, 1979 has 'oeen mooted by a Cctrissicn Memorandum of Janu-Th/
ary 18, 1979 to the NRC Staff 7- In the Memorandum, the Staff is directed to
"[R]eview the extent to which past and pending licensing or other regulatory actions, including Commission, ACRS and licensing board actions and state-ments, have relied on the risk assess-ment models and risk estimates of the RSS. The Commission will examine the results of this review to determine whether the degree of reliance identi-fled was and continues to be j ustified and to decide whether regulatory modi-fications are j ustified. "
13/ NRC Statement on Risk Assessment and The Reactor Safety Study Report (WASH-1400) in Light of the Risk Assessment Review Group Report, January 18, 1979
~~14/ In issuing the draft WASH-1400 for review in 1974, the Commission stated:
". . .[I]t is the interim position of the Commission that, pending completion and detailed evaluation of the final study, including public comment thereon, (1) no changes in the Commission's safety or en-vironmental regulations pertaining tc nuclear power plants are now warranted, (2) the Commission's existing requirements should not be relaxed, and (3) the contents of the draft study are not an appropriate basis for licensing decisions." (Id.)
= I From the foregoing, Applicants submit that the relief sought by Intervenors' notion is unnecessary.
By its attorneys,
<lb .j Ewd{
G e o rge ,, ' . Lewald Repes a Gray 225 Franklin Street Boston, Massachusetts 02110 r 0
- / .AbL/
Dale G. Stoodley Boston Edison Company [
800 Boylston Street Boston, Massachusetts 02199 Attorneys for Boston Edison Company Dated: February 9, 1979 t
1-
ATTACH 2HT "A" EXECUTIVE OFFIC E OF TH E PR ESIDENT COUNCIL ON ENVIRONM ENT AL QU ALITY 722 JACKSON PL ACC. N W.
WASH:NGlON. o C. 20006 January 25, 1979 Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation Nuclear Regulatory Commission Washington, D.C. 20555
Dear Mr. Denton:
In your letter to Edward Strohbchn, Jr. of January 3,1979, you request the Council's views on procedures for supplementing the final environ-mental impact statement on the Pilgrim Nuclear Generating Station, Unit II. The EIS is being supplemented as required by the Atomic Safety and Licensing Appeal Board which concluded that the analysis of alternativ,e sites for the generating station was inadequate under NEPA. 7 NRC 774 (1978) Your letter states that the Commission's staff is now consider-ing the procedures it will follow in supplementing the Final EIS with the expanded analysis of alternatives that has been prepared.
Since we received your letter we have spoken with you and others on your staff regarding the best means to comply with the Appeal Board's ruling.
Based on these conversations, we believe the Commission's staff should proceed as follows in supplementing the final EIS for Pilgrim II: (1)
The supplemental analysis of alternative sites should be published as a draft supplement to the Final EIS and circulated in the same manner as a draft EIS; (2) a minimum period of 30 days should be established for public review and comment upon the draft supplement; and (3) a response to comments on the draft supplement should be prepared and circulated in the same manner as a final EIS, except that the response to comments may be published as a separate document and need not be integrated into the supplement. Hearings before the Atomic Safety and Licensing Board could s resume immediately following circulation of the response to comments.
In its ruling on the adequacy of the final EIS for Pilgrim II, the Atomic Safety and Licensing Appeal Board sta,ted that "an inadequate environmental analysis by the staf f may not always be remediable si= ply by taking more evidence into account at a subsequent licensing board hearing ....
While, to be sure, interstices in an FES may in some cases be filled by evidence introduced before them, it is no t a licensing board's function to backstop the staff's respon-sibility for conducting NEPA analyses Rather, the board serves as an independent check on whether those responsi-bilities have been satisfied.," (7 NRC at 793).
- l
,~. . .
We believe that circulation of a draft supplement is oore consistent with this aspect of the Appeal Board's opinion than would be other alternative procedures under consideration by the Commission's staff.
Wc recognize that this matter has been before the Commission for a considerable period of time and share your concern that the environ-mental review process be concluded without unncessary delay. While the procedures we recommend dif fer f rom those proposed in your letter of January 3, 1979, we understand from your staff that they could be completed within the same approximate time frame.
We appreciate your consultation with the Council on this matter. Picase do not hesitate to contact us if we can be of further assistance.
Yours truly, N
^
,y F0?
NICHOLAS C. 103T General Counsel 0
- e. F ,
- * * !' '" ' " *'d
. ATTACHMENT "B"
. A ti[f i c Gonunoufucalill of plassacIjuscits E %
DEPARTMENT OF PUBLIC TJTILITIES
$..h q
V January 4,1979 jfg ktM D. P. U. 19494 Investigation by the Department upon its own motion as to the capacity needs of the Boston Edison Company and the construction program required to meet such needs.
A PPEARANCES: John J. Desmond, III, Esq.
Gaynelle Griffin Jones, Esq.
Dale G. Stoodley, Esq.
800 Boylston Street Boston, hiassachusetts 02199 FOR: Boston Edison Company George Lewald, Esq.
R. K. Gad, III, Esq.
P.os coe id mmier, Jr. , Esq.
Ropes and Gray v 225 Franklin Street Boston, MA 02110 FOR: Boston Edison Company Michael B. Meyer, Esq.
Assistant .ittorney General One A shbu s ton Plac,e Boston, M?x 02108 FOR: The Attorney General Robert J. Keegan, Esq.
John L. Talvacchia, Esq.
Alycia K. Lyons , Esq.
Department of Public Utilities Staff 100 Cambridge Street Boston, MA 02202 FOR: The Department of Public Utilities Staff Alan S. Johnson, Esq.
Nancy K. Juren, Esq.
73 Tremont Street - Room 849 Boston, MA 02108
' FOR: Massachusetts Energy Office
ut r. U ' 17 s y*t Charles Harak, Esq.
Ma s s. P. I. R. G.
' 120 Boylston Street Boston, MA 02116 FOR: Ma s s . P. I. R. G.
Bonnie Davis, Esq.
Allan Rodgers, Esq.
Massachusetts Law Reform Institute Two Park Square Boston, MA 02116 .
FOR: Massachusetts Fair Sharc Harvey Salgo, Esq.
22 Clive Street Jamaica Plain, MA 02130 FOR: Boston Clamshell William B. Piper, Esq.
Downs, Rachlin & Martin 9 Prospect Street St. Johnsbury, VT 05819 FOR: Vermont Electric Cooperative, Inc.
Centrol Vermont Public Service Corporation City of Burlington Elcetric Department Robert V. Cauchon, Esq.
Sullivan & Worcester 100 Federal Street Boston, MA 02110 FOR: Montaup Electric Company Laurence M. Johnson, Esq.
Palmer & Dodge One Beacon Street Boston, MA 02108 FOR: General Motors Corporation Charles P. Norman 311 Village Street - Box 62 Medway, MA 02053 Pro s e_
Scott Lewis, Esq.
Palmer & Dodge One Beacon Street Boston, MA 02108 FOR: The Town of Dover 1J. F. U.19494 Franklin M. Hundicy, Esq.
v Rich, May, Bilodcau & Flaherty 294 Washington Street Boston, MA 02108 FOR: New Bedford Gas and Electric Light Company Maurice L. Zilber, Esq.
Peabody, Brown, Rowley & Storey One Boston Place Boston, MA 02108 .
FOR: Central Maine Power Company Duncan S. Payne, Esq.
Peabody, Brown, Rowley & Storey One Boston Place Boston, MA 02108 FOR: Public Service Company of New Hampshire Begley, Ferriter, Brady & Lavelle Maurice J. Ferriter, Esq.
John W. Welch, Esq.
,* Kenneth M. Barna, Esq.
6 Beacon Street - Suite 718 Boston, MA 02108 FOR: Massachusetts Municipal Wholesale Electric Company Richard L. Brickley, Esq.
, Brickley, Sears and Cole 75 Federal Street Boston, MA 02110 FOR: Fitchburg Gas and Electric Light
- Company Stanley U. Robinson, III 9 Wheelock Road Wayland, MA 01778 Pro s e William S. Abbott, Esq.
50 Congress Street Boston, MA 02109 FOR: Plymouth County Nuclear Information Committee
' D. P. U.19494 I
Dennis LaCroix Energy Facilities Siting Council One Ashburton Place - 14th Floor McCormack Building Boston, MA 02108 Torgier K. Kvale 218 Beethoven Avenue Newton, MA Pro se Harrison A. Fitch, Esq.
New England Legal Foundation 110 Tremont Street Boston, MA 02108 FOR: Ma s s . Voice of Energy RULING ON MOTIONS FOR JUDGMENT AND MOTION THAT THE DEPARTMENT OF 'UBLIC UTILITIES MAKE A SEPARATE DECISION IN PHASE I OF D. P. U.19494 v
On October 20, 1978, the Department of Public Utilities Staff (" Staff")
filed a motion for judgment in D. P. U.19494. On the same day, the Attorney General filed a motion requesting the Commission to make a separate decision in Phase I of this proceeding. On October 23, 1978, Boston Clamshell also filed a motion for judgment in this case. '
Oral argument on the motions was heard by the Commission on October 31, 1978. At this hearing, the Commission granted an additional seven days to file arguments in writing.
After consideration of the arguments advanced by the parties, the Commission issued an Interim Ruling on Motions for Judgment on November 27, 1978. This interim ruling reaffirmed the Commission's incention to entertain the motions v
_4
D. P. U. 194 94 -
and granted the Company seven days to submit arguments in writing on the merits of the motions.
Subsequently, the Company requested i.. writing an extension of time until December 11, 1978, for responding to the merits of the motions. A hearing on this request was held on December 1,1978. After oral argument, the Commis-sion granted the Company an extension of time until December 11, 1978. The Commission also permitted each party a similar opportunity to file any addi-tional arguments in writing by that date.
We turn now to a consideration of the merits of the three motions. In our view, each of the three motions sets forth two alternative claims for relief.
The primary claim is for final judgment in the proceeding. In the alternative, the motions request the Commission to issue a separate interim decision on Phase I of the case.
~
FINA L JUDGMENT Our first task is to determine the standard by which the intervenors' motions should be judged. Neither the Administrative Procedure Act nor the Department's own procedural rules includes a specific provision for the relief sought by the intervenors. As we have stated on previous occasions, however, that by itself hardly constitutes an absolute bar to consideration of the relief requested. In this case, we think that the appropriate standard is that which would be imposed on analagous motions filed pursuant to the Massa-chusetts Rules of Civil Procedure.
V
~
D. P. U. 19494 As a preliminary matter, we are not entirely sure into what procedural category the intervenors would seek to place these motions. On the one hand, a Motion for Judgment would seem, on its face, to be most similar to a Motion l/
for Summary Judgment. On the other hand, Staff, at least, analogizes its 2/
motion to a Motion for Directed Verdict.
If the present motions are considered as Motions for Summary Judgment,
.then they must certainly fail. Rule 56 states in part that Summary Judgment will be rendered only if the record shows that ,"there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " Clearly, this is not the case in Phase I. The record in the case and the briefs submitted by the parties to the Energy Facilities Siting Council y (" Council") reveal a significant number of disputed issues concerning the Com-pany's projection of future demand. The record contains conflicting evidence about issues such as long run elasticity, fertility trends, migration rates, pene-tration and saturation of electrical appliances, appliance efficiency, regional and national economic activity and the effects of time of day pricing and load 3/
management.
Should the motions be considered Motions for Directed Verdict, we would also deny them but for a different reason. Rule 50 provides that "a party may move for a directed verdict at the close of the evidence offered by an opponent. "
1/ Mat;sachusetts Rules of Civil Procedure and Appellate Procedure, Rule 56, 2 / Id. , Rule 50.
y J/ In fact, our review of the record in Phase I has convinced us that we will need substantial additional information to resolve the numerous outstanding issues.
Accordingly the Commission will issue shortly a set of questions for responses from various designated parties.
-6
, . t D. P. U. 19494 This is certainly not the case in this proceeding. In its second memorandum in opposition to the intervenors' motions, the Company declared its intention to seek leave to file additional testimony in Phase II. Pending disposition of this request, a motion for directed verdict is clearly premature.
Two additional issues raised by the intervenors should also be discussed:
the Siting Council order in EFSC No. 78-12 and certain statements made by Company counsel during oral argument on these motions.
The order of the Siting Council on the Company's forecast dated October 24, 1978, expressly declines to accept the Company's demand forecast for purposes of justifying the construction of generation facilities. Certainly, we do not consider ourselves to be bound by the Council's order, nor do the intervenors suggest that this is the case. Moreover, we think that the Council's order is of doubtful relevance in the context of these motions. For example, the Council's order would not dissuade us froni the conclusion that there are genuine issues of fact in Phase I. On the contrary, the order catalogs the disputed issues and expressly declines to resolve them despite specific requests from the inter-venors to do so.
The second issue concerns certain statements made by Company counsel
_4 /
during oral argument on the motions for judgment. The Attorney General maintains that these statements constitute an admission by the Company that it had failed to prove its case in Phase I. If the thrust of this argument is that 1/ The crucial statements are reproduced in the Attorney General's Memorandum on page 8. The entire oral argument is attached to the Memorandum.
v D. P. U. 19494 Company Counsel's statements constitute a binding admission on the Company, v
we disagree. While the statements would seem to reveal some dissatisfaction with its own case, they cannot be constreed as an admission that the inter-venors are entitled to judgment as a matter of law.
SEPARATE DECISION ON PHASE I At the outset of these proceedings, the Department announced a clear 11 intention to refrain from making a separate decision on Phase I of the case.
Accordingly, we think that our disposition of these motions is entirely a matter of discretion. We have weighed the value of a determination of the Phase I issues against the further delay in the proceeding which would inevitably re-sult. We have decided not to grant the motions, particularly in view of the v
substantial additional evidence which we think is necessary for a Commission decision.
A c cordingly, after consideration, it is ORDERED: That the intervenors' Motions for Judgment or Separate Decision are denied.
By Order of the Department,
/ f Paul F. Levy Chairman y 5/ We note that there is a clear distinction between entertaining a motion for judgment in the entire proceeding and rendering a separate decision solely on Phase I of the case.