Massachusetts Electric Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-153-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11526 SJC-11527 SJC-11528 MASSACHUSETTS ELECTRIC COMPANY[1] & another[2]  vs.  DEPARTMENT OF PUBLIC UTILITIES. NSTAR ELECTRIC COMPANY  vs.  DEPARTMENT OF PUBLIC UTILITIES. WESTERN MASSACHUSETTS ELECTRIC COMPANY  vs.  DEPARTMENT OF PUBLIC UTILITIES.       Suffolk.     April 7, 2014. – September 4, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3]     Electric Company.  Public Utilities, Electric company.  Department of Public Utilities.  Penalty.  Administrative Law, Substantial evidence, Findings.       Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2012.   The cases were reported by Spina, J.     Robert J. Keegan (Cheryl M. Kimball with him) for NSTAR Electric Company & another. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Massachusetts Electric Company & another. Christopher K. Barry-Smith, Assistant Attorney General, for Department of Public Utilities.     GANTS, J.  Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to “restore service to [their] customers in a safe and reasonably prompt manner,” in violation of 220 Code Mass. Regs. § 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm).  The utilities — Massachusetts Electric Company and Nantucket Electric Company, each doing business as National Grid (collectively, National Grid); NSTAR Electric Company (NSTAR); and Western Massachusetts Electric Company (WMEC) — claim on appeal that (1) the department made an error of law in failing to apply the prudence standard when assessing the utilities’ storm performances; (2) the department’s findings were not supported by substantial evidence; and (3) the department’s penalty calculations lacked the necessary subsidiary findings and constituted an abuse of discretion. We affirm in part and reverse in part.  We conclude that the department applied the appropriate reasonableness standard in finding that the utilities violated their duty to restore service in a safe and reasonably prompt manner.  We also conclude that the department’s over-all findings regarding National Grid and WMEC were supported by substantial evidence, as were its findings regarding the deficiencies of NSTAR’s communication with municipal officials and the general public, but that its finding that NSTAR failed timely to respond to priority two and three wires-down calls was not supported by […]

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