ML19209B859
| ML19209B859 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 08/03/1979 |
| From: | Abrams R, Bialik E, James Shea NEW YORK, STATE OF |
| To: | |
| References | |
| NUDOCS 7910110062 | |
| Download: ML19209B859 (18) | |
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NEW YORK STATE 30ARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
_____________________________________________x
.' Application of the NEW YORK STATE ELECTRIC :
& G:S CORPORATION and the LONG ISLAND LIGHTING COMPANY pursuant to Article VIII :
of the Public Service Law for a certificate of environmental compatibility and public : CASE NO. 80008 need to construct two 1250-megawatt nuclear generating units in the Town of New Haven, :
Oswego County, or at an alternate site in the Town of Stuyvesant, Columbia County. :
_____________________________________________:c REPLY 3RIEF OF ATTORNEY GENERAL RCSERT ABRAMS IN SUPPORT OF '
INTERLOCUTORY APPEAL BY ECOLOGY ACTION OF OSWEGO FOR DISMISSAL OF APPLICATICN ROBERT ABRA2!S Attorney General of the State of New York Intervencr 2 World Trade Center New York, New York 100 47 (212) 489-7561 JCHN F. SHEA, III EIRA I. 3IALIK Assistant Attorneys General o_f Ccunsel 11'O 17I 7 910110 () *b-G
t TABLE OF CONTENTS Pace Statement of the Case. . . . . . . . . . . . . . . .. 1 Summary of the Attorney General's '
Position. . . . . . . . . . . . . . . . . . . . . . 3 Argument THE APPLICATION MUST BE DISMISSED BECAUSE, CONTRAR'I TO ITS REPRESEN-TATION, AT LEAST ONE OF THE APPLI-CANTS IS NOT COMMIIED TO THE PROJECT. . . . . . . . . . . . . . . . . . . . 3 Conclusion. . . . . . . . . . . . . . . . . . . . . 12
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NEW YORK STATE SOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
--__-__-------------------------------------X Application of the NEW YORK STATE ELECTRIC :
& GAS CORPORATION and the LONG ISLAND LIGHTING COMPANY pursuant to Article VIII :
of the Public Service Law for a certificate of environmental compatibility and public : CASE NO. 80008 need to construct two 1250-megawatt nuclear generating units in the Town of New Haven, :
Oswego County or at an alternate site in the Town of Stuyvesant, Columbia County. :
X REPLY BRIEF OF ATTORNEY GENERAL .
ROBERT ABRAMS IN SUPPORT OF INTERLCCUTORY APPEAL SY ECOLOGY ACTION OF CSWEGO FOR DISMISSAL OF APPLICATION Statement of the Case This case involves an application by the New York State Electric 5 Gas Corporation ("NYSE&G") and Long Island Lighting Company ("LILCO") for a certificate of environmental compatibility and public need to construct two 1250 megawatt nuclear-fueled electric generating facilities in the Town of New Haven, Oswego County or, alternatively, in the Town of Stuyvesant, Columbia County. The application was filed on November 22, 1978 under the old Article VIII of the Public Service Law, L.1972, c.385, and is based on the representation that NYSE&G and LILCO will share in the cost and output of 11'O 173
the proposed f acility . However, in cesti. mony filed on February 23, 1979 in Cas.e 80003, Aeolication for Jamescort Generatinc Facilit_y, these applicants conceded that --
contrary to their assurance in the application -- they did not know whether LILCO would participate in building or owning the plant. They there testified that they did "not yet know whether it will prove to be desirable for LILCO to join with NYSE&G in building and owning New Haven..."
This basic fact -- that LILCO is not committed to carticipation .
in the project -- is not denied in the acclicants' brief in opposition to the appeal, dated July 25, 1979. .
After that testimony was filed, Ecology Action of Oswego mcved for dismissal of the application. On April 13, 1979 the Presiding Examiners denied the motion without prejudice to reassertion following discovery and the distribution of pre-filed testimony. Ecology Action then filed an interlocutory appeal with the Public Service Cccmissica, pursuant to 16 NYCRR S 70.8.
By order issued on July 10, 1979, the Commission (Chairman *ielinski, abstaining) certified the appeal to this Board, reccamending that the application be dismissed.
The Commission reasoned that the Article VIII application was premature so long as ownership and utilization of the proposed facility were uncertain.*
- The Commission also concluded that an interlocutcry appeal was proper, which conclusien is noc challenged in applicants '
brief, i1 'O 174
Summary of the Attorney General's Position It is the position of the Attorney General that the Commission's recommendation is correct and should be adopted by this Board in dismissing the application. Until the applicants are able to inform the Board with certainty who intends to build, own, and utilize the facility, they cannot even provide the information required to complete their application. Moreover, this Board should not pro-ceed unless the applicants truly intend to go ahead with the project if they obtain approval. Neither this 3oard, the Department of Public Service, the Department of En- -
viror.cental Conservation, nor other public entities or citizen groups should be required to expend their funds on.an expensive proceeding when the project is uncertain
.ind there is insufficient information to permit a study of ies impacts.
ARGUMENT THE APPLICATION MUST BE DISMISSED BECAUSE, CONTRARY TO ITS REPRESEN-TATION, AT LEAST ONE OF THE APPLI-CANTS IS NOT CCMMITTED "'O THE PROJECT Applicants mis-state the issue raised by the motion to dismiss, insistinc that the question is whether the facility is needed. In truth, however, the only issue 11~0 175
is whether the Presiding Examiners should spend their time holding lengthy hearincs -- or the parties should spend their time on discovery and the preparation of testimony -- when LILCO is not comm: tted to building the plant even if this Board approves. Put another way, should the Board recui:' that the applicants be ready, able and eager to procem. with the project before sub-jecting itself and the parties to the expense of proceeding with the application? Alternatively, should the case continue althcugh a major premise underlying the application --
LILCO's firm intention to be a joint owner -- appears to be untrue?
Signifi 'ntly, NYSE&G has not said that it is prepared to build, or that it needs, the faci'itie by itself if LILCO is not ready to act as a joint owner. Therefore, LILCO's lack of commitment may signify the demise of this proposal.
Ownership of the facili:y must be known before the application to this Board can even be completed. An application for a certificate of environmental compatibility and public need must contain very detailed informaticn about the prospective owner of, and proposed use for, the facility. So long as the issues of ownership and use are not resolved, this vital information cannot be provided or reviewed.
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Examples of the detailed information about the owner required for the application appear in 15 NYCER S 72.1, which is concerned with a need for the facility. Subdivision (a) requires the applicant to " provide an analysis of the need for the proposed facility, taking into account ex-isting and planned generation and transnission facilities of the applicant..." Similarly, S 72.l(c) demands that the applicant provide information "with respect to its peak day load requirements and generating capacity on a monthly basis for one year prior to, and two years folicwing, the filing of its ac.c.lication." The ac.c.licant is also rec.uired to .
give information about its peak load requirements and capacity on a seasonable basis for a 25-year period, S 72.l(d),
hourly lead tabulations for its peak load day of the preceding summer and winter, S 72. l(e) , and "the impact on the applicant's system" if the proposed facility is not in service by the estimated in-service date, S 72.l(h) . This information :.iust be fully set out on forms A-1 through I.
These sections assume, of course, that the applicant is also the proposed owner, and that the specific information provided would refer to the owner's facilities. There is simply no point in having this information furnished about an entity other than the prospective builder and owner.
If the owner's identity is not certain the information cannot be given, and the appiacation, therefore, cannet be completed.
The information in the existing application is no icnger pertinent, in view of LILCO's uncertain position.
_m_ 11'O 177
It is submitted that neither discovery nor a hearinc should be commenced until there are applicants ready, able and eacer to pro,ceed with construction, and all the necessary information to complete the application is furnished -- information which would then form a basis for discovery, pre-filed testimony, and the hearing. In the present case such information is not available because at least one of the applicants, LILCO, is not ready, able or eager to proceed -- and this f act is not contradicted by applicants. Moreover, NYSE&G has not said it will proceed without LILCO. Therefore, no hearing should be held.
~
In their attempt to show that the issue of owner-ship is really the same ac the issue of need, applicants resort to specious reasoning. They say (brief, 7-8) that any company will be an owner if it has, and can show, need.
What this diccussion leaves cut is that sone com=anies lack the desire or financing to seek Article VIII approval. Indeed, LILCO evidently does not wish to be an owner, and therefore the issue of need does not arise. Its lack of desire to build renders the application invalid.
While knowledge of the owner's identity is necessary to complete portions of the application dealing with need, it 11'O 178
is critical as well on other issues. The Board must also consider the proposed cwner's technical and financial strength, its integrity, reliability and management competence before deciding whether "the f acility is in the public interest, considering the environmental impact of the facility. "
Public Service Law, S 146(g). For example, if a proposed owner has a history of poor facility construction, poor maintenance, technical weakness, inadequate precedures, or poor management, those factors would all increase the risk of a nuclear incident at the facility which could cause great harm to the public and contaminate the e'nvironment 9
for many years to come. Unless the ownership of the pro-posed facility is kncwn, those risks cannot be assessed.
Nor can it be determined if applicant has the resources necessary to complete the building of the plant, or to assure safe management of nuclear waste as well as safe decontamination and deccmmissioning of the plant.
The importance of scrutinizing the qualifications of a nuclear plant owner is reflected as well in the Atomic Energy Act, which requires the applicant to provide information with respect to "the technical and financial qualifications of the applicant, the character of the applicant, the citizenship of the applicant, or any other qualifications of the applicant as the (Nuclear Regulatory Ccenission) may deem appropriate for the license.' 42 U.S.C. 5 2232(a).
These requirements are re flected in the N. R.C. regulations,
_,_ 11'n 179
10 CFR S 50.33, calling fcr information about the applicant's identity, business and status. One of the considerations in crantina approval under these regulations is whether the applicant "is technically and financially qualified to engage in che proposed activities in accordance with the regulations in this chapter." Id. S 50.40 (b) . Again, these issues cannot be considered -- and indeed the applicatien cannot even be completed -- until the identity of tne proposed owner is known.
Applicants talk at length about Chairman :ielinski's decision, in January 197 9, to dccket their application.
However, that occurred a month before the testimony was filed in .
Jamescott to indicate LILCO's indecision en whether "to j oin with NYSE&G" en this project. Thus, the decision to docket ccamented en the issue of need but not the issue of LILCO's ownership -- as applicants had not yet conceded publicly that ownership was in doubt.
Applicants argue that ownership of certain cther power plants has changed from time to time, and that such change is to be expected. Therefore, they say, LILCO's lack of commitment to this project is not significant. However, we submit that throughout the 2ntire proceeding this 3 card must have before it proposed owners who are then ready, able and eager to build the plant if approval is obtained.
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Otherwise the Board is wasting its time. While it is recognized that the intentions of these parties may change in the future, the applicants must at least have a current intention and commitment to build the plant while their application is pending.
Hare, the application irdicates such a current intention, but applicants since then have said that LILCO is not committed to the project. Indeed, their testimony filed in the Jamescort proceeding in February 1979 sheds doubt on the accuracy of the application when filed in November 1978, because it said: "we do not yet know whether it will prove to be desirable for LILCO to join with NYSE5G in building and owning New Haven"* -- suggesting that as of the later date LILCO had never made a firm decision to participate in this project. While applicants say that the "Jamesport record has been misinterpreted" (brief, p. 23),
they do not deny the truth of the cuoted material or assert that LILCC is firmly committed at this time to building the plant. Nor do they say that NYSE&G is prepared to build the plant without LILCO.
Because of the testimony in Jamesport, the application pending before this Board is no longer meaningful and must be dismissed. If another company has a present commitmen t to build this plant instead of LILCO, that company
- Emphases added.
4 should join now in a new application, so that the Board will have be fore it applicants ready, able and eager to build the plant if approval is obtained. To proceed in the absence of such applicants would waste the Board's valuable time. And to require the parties to go ahead with discovery of applicants, despite the lack of commitment to the project, would also be very wasteful.
Applicants' are really asking the Board to proceed on this application with LILCO as a dummy party, in the hope th'at another company will take its place, during the prcceeding. However, it cannot be assumed that another -
company will come forward, or that it could be substituted during the proceeding. To the contrary, the proceeding would have to be suspended to allow any new prospective owner to file all the necessary information about itself required by the regulations, such as in S 72.1, and that =aterial would then have to be scrutinized through discovery and at the hearing.
Significantly, licenses to build nuclear power plants are not transferable except with approval by the Board, public Service Law S 141(2), and the N.R.C., 42 U.S.C. 5 2234.
This demonstrates once again the importance of knowing from the beginning who the prospective owners are.
Applicants propose, however, that although they cannot demonstrate their need for the plant, hearings should 1' 0 182
nonetheless be held to consider Statewide need. This is untenable, however. Statewide need for power becomes relevant only if the proposed builders and owners themselves need the power to service their customers. Unless (i) the owners need the pcwer, and (ii) cannot obtain it from other sources inside or outside the State, approval cannot be given. It is quite evident from 16 NYCRR S 72.1, for example, that evidence of the owners' own need is critical.
If such need cannot be seriously alleged, because the identity of the proposed owners is unkncwn, the application aust be dismissed, and the issue of Statewide need would not be '
relevan t .
11'O 183 CONCLUSION Because of the uncontrac'.icted fact that LI;CC is not comitted to building the plant even though its participation was a critical assumption underlying the application, and since NYSE&G has declined to make a comr.titment to build the plant without a partner, this arglication must be dismissed.
Dated: New York, New York August 3, 1979 Respectfully submitted, ROBE RT AB ?JJ4S Attornei. General of t.2 State of New York Intervenor 2 World Trade Center New York, New York 10047
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NEW YORK STATE BOARD ON ELECTRIC GENEP, TION SITING AND THE ENVIRONMENT
__________..___________________________________x Application of the NEW YORK STATE ELECTRIC :
& GAS CORPORATION and the LONG ISLAND LIGHTING COMFANY cursuant to Article VIII :
~
I' of the Public Service Law for a certificate /
of environmental compatibility and public : X@ ( S need to construct two 1250-megawatt nuclear gyy?
generating units in the Town of New Haven, : //
Oswego County, or at an alternate site in g\Sl3773__
the Town of Stuyvesant, Columbia County. :
N06 7
______________________________________________x 's C7eQ.h D D/ g CERTIFICATION OF SERVICE STATE OF NEW YORK )
- SS.:
COUNTY OF NEW YORK )
This is to certify that a true copy of the Reply Brief of Attorney General Robert Abrams, in support of Interlocutory Appeal by Ecology Action of Oswego for Dis _
missal of Application was served upon the persons appearing on the attached list by depositing in a post of fice box regularly maintained by the government of the United States in the County of New York, State of New York, on August 3, 1979.
/ 7'T 00ROROM J
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JOHN F.
iM u SHEA, sl III c
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)DDR OR GR Seymour Wenner, Esq., Chairman Ms. Linda Clark Atomic Safety and Licensing Board Safe Incrgy for New Haven U.S. Nuclear Regulatory Commission Box 422 - RD 41 Washington, D.C. 20555 Mexico, New _crk 13114 Dr. Oscar H. Paris, Member Ecology Action Atomic Safety and Licensing Board c/o Helen Daly U.S. Nuclear Regulatory Ccemission W. River Road, RD #5 Washington, D.C. 20555 Oswego, New York 13126 Dr. Walter H. Jordan, Member Mrs. Nancy K. Weber Atomic Safety and Licensing Board Oswego County Farm Bureau 381 West Outer Drive RD #3 -
Oak Ridge, Tennessee 37830 Mexico, New York 13114 Thomas R. Matias Robert J. Kafin, Esq.
Administrative Law Judge Attorney for Columbia County, New York S tate Department Town of Stuyvesant & Concerned ot Public Service Citizens for Safe Energy, Inc.
Empire State Plaza Agency 3tilding No. 3 Miller, Mannix, Lemery & Kafin Albany, New York 12223 11 Chester Street P.O. Bon 765 Glens Falls, New York 12301 Dr. Sidney A. Schwart:
New York State Department of Mr. William Keeping Environmental Conservation Supervisor 50 Wolf Road Town of Gardiner Albany, New York 12233 Gardiner, New York 12525 Robert Grey, :Ecaael Flynn Dr. Stephen J. Egemeier and Craig Indyke, Staff Counsel Chairman New York State Department of Ulster County Envircnmental Public Service Management Council Empire State Plaza Albany, New York 12223 300 Flatbush Avenue Kingston, New York 12401 Stephen H. Lewis, Esq.
Peter D.G. Brown Marcia E. Mulkey, Esq. Chairman of the Board Office of Executive Legal Director Mid-Hudson Nuclear opponents United States Nuclear Re3alatory P.O. Box 666 Commission New Paltz, New York MNV3 - 9604 12561 Washington, D.C. 20555 Mr. Alman J . Hawkins County Planning Director Roderick Schutt, Esq. Oswego County Planning Department Huber, Magill, Lawrence & Farrell 46 East 3 ridge Street 99 Park Avenue Oswego, New Ycrk 13126 New York, New York 10016 Stanley 3. Klimberg, Acting Ccunsel Ms. Barbara J. Campbell Village Clerk New York State Energy Office Village of Mexico 2 Rockefeller Plaza P.O. Box 26 Albany, New York 12223 Mexico, New York 13114 David A. Engel, Esq.
New York State Department of Richard P . Feirstein, Esq.
New York State Department of En /ironmental Ccnservation Agriculture and Marke s 50 Wolf Road State Campus Albany , New York 12233 Albany, New York 12235 1 0 186
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Ms. Susan Link 300RORGWilL Thomas E. Brewer, Director R.D. 1, Dewey Road Rensselaer County Decartment Mexico, New York 13114 o e .::.oal- h Troy, New York 12180 rdward M. Barrett, General Counsel Long Island Lighting Company Mark R. Gibbs, Supervisor 250 Old Country Road Town of Mexico Mineola, New York 11501 S. Jefferson Street
. Mexico, New York 13114 Mr. Michael J. Ray New York State Electric Thomas G. Griffen, Esq.
and Gas Corp. Town of Kinderhook 4500 Vestal Parkway East 542 Warren Street Bingnamton, New York 13902 Hudson, New York 12534 Henry G. Williams, Director of G. Jeffrey Haber, Sucervisor State Planning Ne%* York State Department 1777 Columbia Turncike Castleton, New Yori'. 12033 or State 162 Washington Avenue Ralph Schimr.el, Recresentative Al any, New York 12231 '
Town of Cceymans Samuel J. Abate, Executive Director Russel Avenue Ravena, New Yofk 12143 Hudson River Valley Commission The Governor Nelson A. Rockefeller James P. McGrath, Esc.
2.n.pire otate Plaza ~
Agency Su11 ding No. 1 City of Oswego Albany, New York 12238 38 East Utica Strca.t
- Oswego, New York 13126 ommissioner John D. Hotaling, President New for.k State Department Columbia C3
- o. Hea_.h Fruic Growers R.D. 1 Tower 3uilding - 14th Floor Hudson, New York
- .mpire state Plaza 12534 Albany, New York 12237 Attn: Vivian Rosenberg Director - Office of Box 274 Public Health Walker Mill Road Germantown, New York 12526 Commissioner New York State Department Ms. Jeanne F. Fudala o f Co"""e- e :.cology Action - Tompkins Co.
99 ,dashington Avenue A_bany, New Icrk 12245 140 West State Street Ithaca, New York 14350
- p. Robert Fickies Ms. Anne F. Curtin c ne rgy - Environmental Geology Concerned Citizens for Safe New York srate Geological Survey Enerev, Inc.
Educa:1cn Building Annex p,c, jox gg Albany, New York 12234 Stuyvesant, New York 12173 William Tyscn - Executive Director at. w n e - Eastern Ontario Ccemissicner Orin Lehman New Ycrk State Departmenc cf 3.[c?a 7 J s
- n." r-" Street ington Parks and Recreacien
,datertown, New York 13601 The Governor Nelsen A. Rock'"~ea-Empire State Plaza Agency 3uilding No. 1 Albany, New York 12238 11'O 187
H. Lee Davis, President Margaret A. Sprague, President Citizens to Preserve the Mexico Academy and Central School Hudson Valley, Inc. Mexico, New York 13114 P.O. Box 412 Catskill, New York 12414 Doris Brown League of Women voters of Mrs. Jeffrey 3raley, President Tompkins County Columbit County Farm Bureau 86 Oak Crest Road Star Route Sox 22 Ithaca, New Yor.k 14850 Chatham, New York 12037 Samuel R. Madison, Secretary Clara Glenister, Town Clerk New York State Department of Town of New Haven Public Service P.O. Box 115 The Governor Nelson A. Rockefeller New Haven, New York 13121 Empire State Plaza Agency Building No. 3 Mr. Doug Buske Albany, New York 12223 Plumbers & Steamfitters Local No. 27 Atomic Safety and Licensing R.D. #1 Board Panel Oswego, New York 13126 U.S. Nuclear Regulatory Commission Washington, D.C. '20555 Reilly and Like, Isgs.
200 West Main Street Atomic Safety and Licensing Babylon, New York 11702 Appeal Board Panel U.S. Nuclear Regulatory Commission John M. Mowry, Esq. Washington, D.C. 20555 Mowry, Mowry & Seiter Main Street Docketing and Service Section Mexico, New York. 13114 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 NIR ORIGIML 11'O 188