ML19210E755
| ML19210E755 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 11/12/1979 |
| From: | Futter J, Schutt R HUBER, MAGILL, LAWRENCE & FARRELL, LONG ISLAND LIGHTING CO., NEW YORK STATE ELECTRIC & GAS CORP. |
| To: | NEW YORK, STATE OF |
| References | |
| NUDOCS 7912120040 | |
| Download: ML19210E755 (34) | |
Text
Or '.a. t;=fR PRJC . Usik FAC, 60 D h NEW YORK STATE PUBLIC SERVICE DEPARTMENT NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
___________________________________________________X In the Matter of the Application of the NEW YORK :
STATE ELECTRIC & GAS CORPORATION and the LONG :
ISLAND LIGHTING COMPANY pursuant to Article VIII : CASE NO.
of the Public Service Law for a certificate of : 80008 environmental compatibility and public need to :
construct two 1250-megawatt nuclear generating :
units in the Town of New Haven, Oswego County, or :
, at an alternative site in the Town of Stuyvesant, :
Columbia County :
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l19 APPLICANTS' MOTION FOR REHEARING
. WITH RESPECT TO ORDER DISMISSING THE APPLICATION NEW YORK STATE ELECTRIC &
GAS CORPORATION LONG ISLAND LIGHTING COMPANY Dated: November 12, 1979 1534 190 791212o ON
NEW YORK STATE PUBLIC SERVICE DEPARTMENT NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
X In the Matter of the Application of the NEW YORK :
STATE ELECTRIC & GAS CORPORATION and the LONG :
ISLAND LIGHTING COMPANY pursuant to Article VIII : CASE NO.
of the Public Service Law for a certificate of : 80008 environmental compatibility and public need to :
construct two 1250-megawatt nuclear generating :
units in the Town of New Haven, Oswego County, or :
at an alternative site in the Town of Stuyvesant, :
Columbia County :
-_---_---------------------------------------------X APPLICANTS' MOTION FOR REHEARING WITH RESPECT TO ORDER DISMISSING THE APPLICATION STATEMENT OF CASE On November 22, 1978 Applicants (New York State Electric & Gas Corporation and Long Island Lighting Company) filed an Application for a Certificate of Environmental Compatibility and Public Need for a two unit 2500 MW nuclear fueled generating
- station in the Town of New Haven. The application included an alternative site in the Town of Stuyvesant and coal fired alternatives at both the prime and alternate sites. On January 22, 1979 the Chairman of the New York State Board on Electric Generation Siting and the Environment docketed the Application over the objections of Ecology Action of Oswego (Ecology Action) and Concerned Citizens for Safe Energy.
At a pre-hearing conference held on March 27, 1979, Ecology Action submitted a motion to dismiss the Application on the grounds that the proceeding was not 1534 19I
-2 brought by the proper parties, that the Application was premature because the proposed plant was not needed within a 15 year planning period, and that the proposed project was not financially viable for the Applicants. The motion for dismissal consisted of arguments and quotations from isolated portions of briefs, documents and other sources not in the record of this proceeding. No affidavits or other evidence properly admissible in this proceeding.were submit-ted in support of the motion nor was data from the Applica-tion referred to or relied upon by the movants.
The Applicants and the Staf f of the Public Service
. Commission opposed the motion primarily on the grounds that issues of fact remained to be decided. The Department of Environmental Conservation conceded in a letter dated .
April 9, 1979, that there was no record basis for granting the motion. In a single document Concerned Citizens for Safe Energy, Columbia County and the Town of Stuyvesant supported the motion but also did not suomit any supporting affidavits or references to materials in the record of this proceeding which supported the motion.
By an opinion issued April 13, 1979, the Examiners denied the motion of Ecology Action on the grounds that issues of fact remained for trial but indicated the motion could be renewed upon the completion of discovery and the submission of prefiled testimony.
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By means of a document dated April 26, 1979, Ecology Action appealed the Examiners' decision and conceded that issues of fact relating to the need for the facility exist by dropping the allegations and arguments relating to forecasts of various persons. However, Ecology Action argued that the proper Co-Applicant does not exist with the result that the parties cannot conduct appropriate discovery.
Except for a one page document, supporting Ecology Action, submitted by Citizens For Safe Energy, only Applicants responded to the appeal in a brief dated May 7, 1979 indicat-ing that issues of fact still existed. By an order issued July 10, 1979 (Certification of Appeal), the Public Service Commission certified the appeal to the New York State Board on Electric Generation Siting and the Environment for Case 80008 (Siting Board) and recommended the dismissal of the Application.
It was only after the certification of the appeal, with its accompanying recommendation, that the Public Service Commission Staff changed its position with respect to the viability of the application. The Department of Environmental Conservation urged that since the need for the New Haven station was dependent upon decisions in other cases under Public Service Law Article VIII, the New Have,n proceeding should be placed in suspension pending the resolution of other proceedings.
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The Siting Board by order issued October 12, 1979 dismissed the Application. The discussion of the Siting Board essentially makes three points in which they characterize and summarily reject the arguments of Applicants. The Board first holds that there is substantial uncertainty as to ownership of the proposed facility which requires the dismissal of the application stating:
Applicants claim that the Commis-sion's recommendation is based on a misunderstanding of Article VIII and a misinterpretation of the record. They assert that probable ownership can
" evolve" during the course of an Article VIII proceeding, in which issues relevant to need are litigated, and that there is no particular barrier under Article VIII to processing.an application where ownership is not reasonably certain. Similarly, applicants renew ,
their claim, without additional support, that continuing with this application would be desirable because of the statewide need for the New Haven /Stuyvesant units.- In any event, according to NYSE&G and LILCO, the testimony of their system planners in Case 80003, Jamesport, which was relied on by both Ecology Action and the Commission, only reflects the possibility that ownership arrangements may change during the course of an Article VIII proceeding. Thus, contrary to the Commission's conclusion, they contend that the issue of ownership of the New Haven /Stuyvesant facilities is not " permeated with doubt."
We agree with the recommendation of the Public Service Commission. It would be wasteful to proceed with lengthy and costly proceedings on a proposed generating facility whose ownership and use are subject to 1534 194
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substantial uncertainty at the very outset of the hearings. Applicants concede that ownership is relevant but would have us proceed with substantial uncertainty about it from the outset.
We believe this would be unfair to the other parties in the case and inconsistent with the spirit of Article VIII. The statute contemplates a public examination and exploration of significant aspects of an application.
This cannot be accomplished when there is substantial uncertainty about owner-ship at the outset of hearings.
In its second )oint, the Siting Board finds that Applicants have not made a credible showing of statewide need and states:
Furthermore, applicants have made no credible showing of statwide need for the facilities, and have not disputed the Public Service Commission's conclus-ion that ownership of the New Haven /- -
Stuyvesant units will not be known until other pending Article VIII cases are decided. Ownership cannot be inferred from ei(her the current or probable future demand of any particular company or companies in the state. Moreover, no other utility has expressed interest in sharing ownership of the proposed facility even in the face of the Public Service Commission's opinion recommending dismissal because of uncertain ownership.
In the third point the Siting Board finds that Applicants have failed to come forward and dispel any uncertainty as to ownership:
This brings us to applicants' final argument. They contend that no reliable evidence has been introduced in this proceeding calling into question their announced intention to share 1534 195
equally in the construction of the N e v:
Haven /Stuyvesant unit. This argument misses the mark. Tne plain facts are that probable ownersnip has Deen called into question by statements from apoli-cants themselves. In these circumstances, it is the applicants' responsibility to remove the uncertainty by confirming their present commitment to own and operate the proposed facility if it is licensed. The applicants have had many opportunities to do this and, instead, have failed to do so, claiming that the parties must show that the companies do not intend to own the facilities. Their continued failure to respond directly to the Ecology Action motion and the Public Service Commission's recommendation with a clear affirmation of oresent intent simply confirms our conccision that the probable ownership and utalization of the proposed facilities are too uncertain to proceed with the case.
MOTION Applicants move for rehearing on the grounds that
- 1. The Siting Board erred, both legally and factually, in finding that Applicants' Admission that ownership of the proposed generating station constituted sufficient grounds for dismissal.
- 2. The Siting Board denied Applicants due process when it relied upon material outside the record of this proceeding in reaching its determinations as to " ownership" and statewide need.
- 3. It is an error for the Siting Soard to consioer the costs of hearings in its decision as to whether issues of fact exist.
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_7 POINT I APPLICANTS' ADMISSION THAT PAP.TICIPATION MAY CHANGE IS LEGALLY AND FACTUALLY INSUFFICIENT REASON TG DISMISS THE APPLICATION The central issue in the appeal was ostensibly whether Long Island Lighting Company intends to be a party to the construction and operation of the proposed New Haven Station rather than a question as to the need for the facility.
The issue of ownership as a prerequisite to the continuation of a proceeding is not a substantial one.
Public Service Law Article VIII contains no references to, or requirements with respect to, " owners" or " ownership".
Public Service Law Section 140 does not define " owners" or
" ownership" and person is not defined in terms of owner or ownership; Section 141 prohibits person from beginning construction of a generating facility; Section 142 requires an explanation of the need for the facility, including the rasons it'is necessary or desirable for the public welfare; i
and Section 146 provides that the Board, prior to issuance of a certificate under Article VIII, find and determine the public need for the facility. Thus, nowhere in Article VIII is the word " owners" or " ownership" used but rather the demonstrations which must be made are those relating to the public welfare and need. Should Applicants fail to demonstrate
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that the proposed generating station is needed by the oublic, a certificate will not be issued and neither they nor anyone else will be owners of the croposed facility.
As the Siting Scard knows, there have been a number cf changes in ownership or entitlement which have occurred during the pendency of other Article VIII proceedings (See Cases 80003, 80004 Pre-filed testimony of Madsen-Rider, pages 2-5). Obviously, in each of these cases events have established that " ownership" was subject to change and yet they proceeded.through licensing. Here, the Siting Board ceizes on the admission in pre-filed testimony, in another proceeding, of possible changes which recognize the inherent indefiniteness of long range planning and the Siting Board erroneously dismissed the application - apparently mandating that future events be positively proved in the present.
The Siting Boa: J alleges that Applicants were deficient because they fc_ied to dispute the Public Service Commissions. conclusion that the ultimate ownership of New Haven is unlikely to be known until other Article VIII cases are decided. Since the specifics of such a conclusion were not the subject of affidavits or references to materials in the record, Applicants had nothing to which to respond.
Ultimately the statement may merely be a truism if the history of units such as Nine Mile 2, Jamesport and Sterling provide any guide to reality. A variety of future events
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may affect participation in a variety of units. Certainly changes in participation are not an impossibility and clearly the cenial or dismissal of any pending Article VIII proceeding may effect the desire of various entities to participate in a given unit. Under these circumstances, there is nothing to which to reply. If, on the other hand, the statement constitutes a finding that if undesignated certificates under Public Service Law Article VIII are issued, there are no circumstances under which New Haven would be constructed, there are a 1&rge number of factual decisions implicit in such a finding about which there was no argument in the appeal papers. Assuming the statement is based on tables in the Application showing projected loads and capacity available to meet those loads, there is an impli, cit decision that factors such a fuel diversity, substitution of cheaper capacity for oil fired or other older and more inefficient facilities are not sufficient to influence the decision as to the need for a specific facility.
Another implicit assumption is that certificates sought in other Article VIII proceedings will be granted. For instance, on page 1-1.2 of the Application, NYSEC is shown to have a dn'iciency in generating capacity in the amount of 458 MW in the winter of 1994/9). If the Jamesport Nuclear units are not certified, the NYSEG deficiency alone climbs by 1,150 MW under 'its forecast. En a NYPP basis, the absence of the 1534 199
Jamesport units results in inability to meet summer peaks plus reserves in the summer of 1993 'See Table 1.1-22, 30,120 MW Peak x 22% Feserve = 36,899 MW. Total Controlled Sources 38,649 MW - 2,300 MW.= 36,549 MW). Tne calculations on a NYPP basis include the addition of all units presently in licensing except the Lake Erie units. The Siting Board can take notice of the fact that Greene County will not be constructed with the result that the controlled sources are overstated by 1200 MW. The needs shown above are primarily obtained from a load and capacity table and do not encompass other considerations such as the need for fuel diversity, substitutions for expensive fuels or older less efficient plants, national policies with respect to energy sources or other factors which bear upon the question of need for and even desire to participate in a given facility. Thus, implicit in the statement that the need for, or participation in a given facility is dependent upon the licensing of other facilities is a decision on a great number of facts which Applicants , submit must have been acquired outside of the record in this proceeding and were su'bjects not argued or briefed by any party. The Siting Board has erred in conclud-ing on this record that licensing of other facilities will affect the ownership or need for the New Haven generating units.
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The Siting Board has concluded that somehow Applicants have been remiss in demonstrating "ownershio" because they failed to respond to the allegation that LILCC did not really want to be party of this proceeding. The signing of the applications to the Nuclear Regulatory Commission under oath and the applications to the Siting Board apparently does not sufficiently signify an intent to participate. Neither apparently is the expenditure of millions of dollars in the preparation and advancement of the application an indication o f intent to participate in the construction of the proposed generating station. The briefs have repeated at increasing length that, given the length of licensing proceedings, and the time it takes to construct a .
major generating station, and the di f ficulty o f forecasting ten and fifteen years into the future, the suggestion that a utility's participation in a given generat-ing station might change is not equivalent to a rejection of previously stated intentions to participate.* Because Applicants have strongly believed that the signing of the application establishes their respective intent, the submis-sion of additional a f fidavits reiterating their present Brief on Behalf of Applicants in Opposition to Motion of Ecology Action dated April 5/1979 at page 6; Answering Brief to Interlocutory Appeal of Denial of Motion to Dismiss, dated May 7, 1979 at page 7; Applicants Brief in Opposition pages 23-26.to Interlocutory Appeal, dated July 25, 1979, 1534 201
intent to construct and operate the proposed station was considered to be merely redundant and cumulative. If the submission of an affidavit as to the current intent of the parties will result in a restoration of Case 80008 to active status, Applicants request permission to submit such an affidavit and the entry of an order conditioning the right to proceed on the receipt of such an affidavit. The Siting Board has erred both factually and legally in their conclusion that the Application should be dismissed because of the absence of sufficient certainty as to the " ownership" of the proposed generating station.
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POINT II THE SITING BOARD DENIED APPLICANTS DUE PROCESS WHEN IT RELIED ON MATERIAL OUTSIDE THE RECORD ON ITS DETERMINATIONS AS TO "0WNERSHIP" AND STATEWIDE NEED A PARTY MUST BE APPRISED OF THE EVIDENCE TO BE RELIED UPON A review of the record in this proceeding reveals that the materials relevant to this Ecology Action motion consist of the Application, primarily Chapters 1 and 9, the motion itself and the briefs submitted by the parties.
The appeal taken to the Public Service Commission was on the very narrow ground that one of the parties was not " viable" and the only support of significance cited by the movant -
was a quote from testimony pre-field in Jamesport (Case 80003) to the effect that the extent of LILCO's ultimate participation in New Haven was not known. There were no motions to request the Examiners or the Siting Board to take official notice o f quoted pre-filed testimony, other documents, facts or records in other proceedings nor were any supplemental or supporting affidavits submitted by any party.
In the case Simpson v. Wolansky, 38 NY2d 391 (1975), the Court after recognizing that technical rules of procedure and evidence may be disregarded described a parties rights in adjudicatory proceedings as follows:
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...True, the hearing conductec by the administrative official acting in a judicial or quasi-judicial capacity may be more or less informal and even technical legal rules of evidence and procedure may be disregarded (cf. Matter of Brown v Ristich. 36 NY 2d 163), out included in the fundamental require-ment of a fair trial, absent the waiver, is the entitlement of the party whose rights are being determined to be fully apprised of the proof to be considered, with the concomitant opportunity to cross-examine witnesses, inspect documents and offer evidence in rebuttal or explanation (Matter of Hecht v Monachan. 307 NY 461, 470; Matter of Fredel v Board of Recents of Univ. of State of N.Y., 296 NY 347, 352; Matter of Heanev v McColdrick, 286 NY 38, 45).
...The majority at the Appellate Division was correct, therefore, in finding that respondent acknowledged his reliance on matters not appearing in the record in making the determina-tion under scrutiny. This was in violation of the salutary general proposition, to which there is no relevant exception here, that it is not proper for an administrative agency to base a decision of an adjudicatory nature, where there is a right to a hearing, upon evidence or information outside the record (Matter of Newbrand v City of Yonkers, 285 NY 164, 179; Matter of New York Water Serv. Coro. v Water Power & Control Comm., 283 NY 23, 31-32; Matter of Greenebaum v Binonam, suora, pp. 3c7-346; Matter of W1onall v fletcher. 278 App Div 28, affd 303 NY 435; Matter of Revere Assoc. v Finkelstein.
274 App Div 440; Matter of Smith v Rosoff Tunnel. 259 App Div 617, 619-620; 1 NY Jur, Administrative Law, Section 133; see 18 ALR 2d 552, 555)....
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The right for a party to know the facts with which it must deal in an adjudicatory hearing in the State of New York is clearly established by State Administrative Procedure Act Section 306 which provides:
- 1. Irrelevant or unduly repetitious evidence or cross-examination may be exluded. Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding.
No decision, determination or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence.
Unless otherwise provided by any statute, agencies need not observe the rules of evidence observed by courts, but shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be cade and shall be noted in the record. Subject to these requirements, an agency may, for the purpose of expediting hearings, and when the interests of parties will not be substantially prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.
- 2. All evidence, including records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of the record and all such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. In case of incorporation by reference, the materials so incorpo-rated shall be available for examination by the parties before being received in evidence.
- 3. A party shall have the right of cross-examination.
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- 4. Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the agency.
When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could not be taken, every party shall be given notice thereof and shall on timely request be afforded an occortunity orior to decision to discute the fact or its materialitv.
(Emphasis added.)
Applicants recognize that administrative bodies are not necessarily limited entirely to the four squares of the record. As is indicated by Section 306 and United States v. Pierce Auto Freicht Lines, 327 US 515 (1946) the determining body may look beyond the record in a proceeding, however a substantial prejudice to a party must not result.
It is clear from State Administrative Procedure Law Section 306, and the Wolanskv and Pierce Auto Freicht Lines cases that $ party to the proceeding must be apprised of the facts and materials to.be relied upon by the fact finding body before the decision is made.
THE F AILURE' TO IDENTIFY FACTS TO BE RELIED UPON PRIOR TO THE DECISION WAS PRE 3UDICIAL TO APPLICANTS The sole basis advanced for dismissal at the appellate level by any party on the appeal herein was the quotation of testimony pre-filed in the Jamesport proceeding.
There were no references to the record in this proceeding or to the facts supported by affidavits. The use of additional 1534 206
information not made available to Applicants prior to the decision denied them an opportunity to respond either factually or argumentative 1y to the assertions made.
The order of the Public Service Commission certify-ing the appeal to the Siting Board makes explicit its use of material from several sources other than the record in this proceeding. Besides referencing material filed in the Jamesport proceeding, the Commission references material from several sources outside the record in this proceeding.
(See PSC Order Certifying Appeal, pages 6-7.) Applicants were not informed that these materials would be used prior to the recommendation and were prevented from commenting on their reliability, accuracy or applicability to the present proceeding.
The Siting Board continued the practice of making findings o'n facts and issues not before the Board.
The Siting Board in its opini.on makes, among other findings, the following factual statements:
"Furthermore, Applicants have made no credible showing of statewide need for the facilities, and have not disputed the Public Service Commission's conclusion that ownership of the New Haven /Stuyvesant units will not be known until other pending Article VIII cases are decided. Ownership cannot be inferred from either the current or probable future demand of any particular company or companies in the state. Moreover, no other utility has M4 707
expressed interest in sharing ownership of the proposed facility even in the face of the Public Service Commission's opinion recommending dismissal because of uncertain ownership."
A decisional body to which an appeal is taken generally decides the case on the basis of the record and arguments presented to it. To do otherwise prevents the parties from dealing with the issues involved. Each phrase in the above quotation requires either a conclusion based on data not in the record, or one as to a matter not argued before the Public Service Commission or the Siting Board.
'First, the Siting Board concludes that Applicants have made no " credible showing of statewide need for the facility."
Such a conclusion is one of fact which would have been controverted if it had been an issue be fore the Hearing Examiners, the Public Service Commission or the Siting Board.
Statewide need as an issue was first mentioned by the Public Service Commission in its order certifying the appeal to the Siting Board (PSC Order Certifying the Appeal, page 6). Applicants believed that the Public Service Commis-sion statement concluded that statewide need cannot be the justification for the commencement of a proceeding to license an electric generating station. Applicants' Brief to the Siting Board merely argued that statewide planning and thus, statewide need, was one of many facts which should 1534 208
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properly be considered on the issue of need and no attempt was made to establish statwide need for the New Haven Station. Suddenly, the Siting Board without prior factual support in the record or specific reference to any facts concludes that Applicants have not made a credible showing of statewide need. Applicants submit that conclusions as to statewide need are implicitly based on materials not a part of this record.
The need case for Applicants is based largely on their forecasts as encompassed in the 1979 Report of Member.
Electric Systems of the New York Power Pool pursuant to Article III, Section 5-112 of the Energy Law of New York State (1979 NYPP SEO Report). The. Application contains many references to facts which establish that the proposed New Haven station is a fully integrated part of the New York Power Pool plan as set forth in the 1979 NYPP SEO Report and to the savings which would occur if the facility is construc-ted as scheduled. (See Application, pages 1.1-3, 1.1-19 to 1.1-21, 1.1'-61 to 1.1-69 and 1.3-1 to 1.3-2.) Had Applicants been aware that Chapter 1 of the Application was seriously challenged by reference to specific facts they would, in all likelihood, have adduced the additional facts and figures contained in the 1979 NYPP SEO Report. In addition they would have sought and obtained affidavits from many people 1534 209
who have testified in the recently completed State Energy Board hearings. The existence of issues of fact on statewide need clearly could, if necessary, have been established by reference to the ongoing hearings before the State Energy Board wherein the New York State Power Pool Plan including Ne. Haven is being advanced as superior to that contained in the Draft State Energy Plan which does not include such facility. Issues such as load forecast, substitution of fuels and the economics of generation expansion plans are current and important subjects treated in both Chapters 1 and 9 o f the Application, the proceedings before the Energy Planning Board and in other proceedings. These subjects are not being discussed or litigated for some remote philosophical purpose. To conclude in a single phrase that there is no credible showing denies any real opportunity for Applicants to be heard on this current and complex subject. These important issues should not and cannot be decided without adequate opportunity for hearing on the record.
The next factual matter involving an alleged deficiency on the part of Applicents is the alleged failure to dispute the conclusion that the ultimate ownership of New Haven is unlikely to be known until other Article VIII cases are decided. Such a statement clearly requires a host of factual conclusions on matters ranging from load forecasts 1534 210
to economic generation mix to the likelihood of timely licensing and construction as to which Applicants have been denied a hearing. (See also infra, pages 8 -
10)
The source o f the allegation by the Siting Board as to expressions of interest by other utilities is at best unclear (Order of October 12, 1979, page 5). Per-haps better questions relate to whether it is desireable for the Applicants to sell portions of the units, or whether the cost of Article VIII proceedings has not so unnecessarily swollen the cost of a facility that partners would be unwise to commit such substantial sums to purchase portions of a facility unitl licensing is substantially secured and whether any interest in New Haven would be wisely conveyed on the presumption that other licenses would be granted.
The speciousness of the argument based on the lack of expressed interest as it affects statewide need is self-evi-dent and again its statement, presumes facts not presented in this proceeding.
Applicants submit that there are substantial issues of fact as to Applicants need for the proposed facility and Applicants have been denied a hearing on these facts. In an effort to sustain its position, the Siting Board has engaged in generalities which have obscured the central issue which is whether there are issues of fact to be tried. A response to these generalities, would require a
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re-submission of Chapter 1 of the Application and possibly substnatial supplemental material. In addition the arguments of Applicants and any facts submitted would have to be responsive to and anticipate all of the counter arguments which conceivably could be made by those supporting dismissal of the Application because no party or the Siting Board has specificially delineated the facts upon which they relied.
The burden on a motion such as this cannot be to defend the totality of the application in the absence of sufficient specifity to permit a logical presentation.
The Siting Board has clearly considered facts and arguments which are not on the record of this proceeding.
The dismissal of the Application, while siting conclusions based on materials not in the record of this proceeding, establishes that Applicants have been prejudiced. The Siting Board has erred in its decision.
THE SITING BOARD HAS ERRED BY IMPLICITLY FINDING FACTS ON MATERIALS OFF THE RECORD WHICH PREVENT THE GRANTING OF LESS THAN ALL THE RELIEF REQUESTED
.The primary argument advanced for dismissal by any party to this appeal was the quote of pre-filed testimony in the Jamesport proceeding to the effect that Long Island Lighting Company did not know the extent of its ultimate participation in the proposed New Haven Station. There has never been any question raised as to New York State Electric
& Gas Corporation's intent to proceed with or fully partici-pate in the New Haven units. Nor has.there been any evidence i534 212
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adduced by affidavit or reference to facts on this record which would establish that New York State Electric & Gas Corporation does not need generating capacity to meet projected loads in the late 1980's and early 1990's. In dismissing the Application, the Siting Board is in effect denying its right to certify less than the total relief requested. In a situation where two nuclear units or in the _
alternative three coal units at either of two sites are the subject of the hearing, it is clear that certification of less than the total relief is an appropriate alternative -
.available to the Siting Board. The rejection of the alterna-tive of certifying less than all of the relief requested implicitly embodies a finding that neither Applicant and especially New York State Electric & Gas Corporation has n'o need for the proposed facility. Such a finding denies a hearing on all those facts relating to the individual company's needs and in effect inhibits rational planning for generation expansion.
T,he New York Power Pool estimates that eleven years will elapse between the time a company decides to build a coal fired generating station and the date it is placed in service and that 15 years will elapse before a nuclear plant is in service (NYPP 1979 SEO Report, Volume 2, page 8, Figure 4). Thus, if a company perceives a possible need for a generating facility in 1990, it will be 1534 213
forced to commence its site selection for a coal facility this year. It is already too late for a nuclear facility.
When faced with a situation where a facility in licensing would enable a company to meet demands in 1990, a very difficult decision must be made as to whether to rely on the licensing of a given facility or to apply for a license for a second plant in the event of an adverse decision on the initial application. In a State where only a single facility has been licensed under Article VIII, the presumption that licensing of a given facility will eventually occur or occur at an appropriate time would be at best naive. Yet, this is precisely the dilemna in which the Siting Board would place New York State Electric & Gas Corporation if one assumes the accuracy of the statement that the need for New Haven is dependent upon the outcome of other licensing proceedings.
To illustrate, utilizing the NYSEG forecast, it will have generating capacity deficiency in 1986 which increases each year thereafter in the absence of the addition of new capacity or. purchases (Application Table 1.1-15). The forecast peak load growth of 3% contained in the Draft State Energy Plan, page 104 results in deficiencies commencing in 1989 in the absence of additions of generating capacity.
The continuance of deficiencies will force NYSEG to become dependent upon purchases of oil fired capacity. (Rider 1534 214
Testimony, in 1979 Energy Planning Board Hearings, page 4).
Assuming the SEO forecast is correct, should NYSEG rely en participation in an unspecified downstate alternative, the availability of Canadian Hydro, or the construction of low head hydro it believes is uneconomic? Should it assume the construction of Jamesport or some other facility? In the absence of predictability as to licensing it is clearly impossible to evaluate or limit possible alternatives which may be considered within the State of New York. For instance, will Jamesport be certified as a nuclear station with one or two units; will it be dismissed; will a coal alternative be certified; will Arthur Kill be certified, if so, when; will Sterling be certified; if any or all facilities other than Jamesport are certified will any portion thereof be available for purchase or will existing parties choose to retain the proposed f acility *and of fer to sell existing oil fired capacity; will the location of any unit certified affect the economic viability of the facility for NYSEG customers and so on nearly infinitely. The delays in Article VIII proceed-ings coupled with the actions of other entities has created a situation where generation planning on any rational basis has become unmanageable and utility companies may well be forced to participate in uneconomic facilities simply because their alternatives will be unduly limited.
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Applicants submit that an examination of the Application in its entirety will reveal that the prime tite and the alternative site are environmentally appropriate for either a coal or nuclear facility. They were selected as the result of extensive site studies and the environ-mental data is voluminous, meticulously acquired and analyzed carefully and completely. To summarily dismiss the applica-tion on the grounds that actions in other cases may obviate the need for the New Haven facility will unnecessarily reduce the options of the Applicants and the State of New York should the other applications under Article VIII be denied.
In the absence of prompt and rational disposition of pending cases on the records developed therein, good planning should not be frustrated or penalized and alterna-tives unnecessarily limited by a rejection of the New Haven Application. The parties should not be prevented from fully presenting their case and having explicit knowledge of all the facts agrued before the Board or utilized by it in rendering its decision.
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POINT III IT IS AN ERROR FOR THE SITING BOARD TO CONSIDER THE COST OF HEARINGS IN ITS DECISION AS TO WHETHER ISSUES OF FACT EXIST The Siting Board and the Public Service Commission expressed concern over the cost and difficulty of hearings which may be unnecessary. Several major points have been glossed over by the Siting Board and the Public Service Commission. First no estimate of those costs or difficulties have been submitted in support of the motion. Thus, the balancing of those costs against possible benefits cannot have occurred. Secondly, despite the passage of almost a year since the filing, no mechanism for the identification of issues has ever been established. Without identification of issues there can be no realistic assessment of whether the hearings would be difficult or expensive. Premature motions given undue credence and attention, the failure to identify issues and exclude unsubstantiated claims, and continuing repetitive motions of parties will make the proceeding long, difficult and expensive. Since most of these elements are beyond the control of Applicants, they should not be penalized by denying them a hearing on substan-tial issues.
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No party has cited any autnority which supports the denial of a trial on issues of fact because the opposing party will be required to defend unless the proceeding is frivolous. The substantial hearings before the State Energy Board clearly indicates that the Applicants are not asserting their need for the New Haven plant on a frivolous basis or for a frivolous purpose.
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POINT IV SHOULD THE SITING BOARD AFFIRM ITS DISMISSAL, APPLICANTS MOVE FOR PERMISSION TO PROCEED WITH THE ENVIRONMENTAL ISSUES Applicants submit that the errors cited herein require that the Siting Board rescind its order of dismissal and allow the proceeding to continue. However, should the Siting Board affirm its dismissal, Applicants move for permission to proceed with the environmental issues.
Applicants, as indicated in the foregoing portions of this brief, firmly believe that the Application in this proceeding is a viable one and should for the reasons cited proceed. In the event that the Siting Board concludes that the Application should be dismissed, Applicants request that the Board direct the continuation of the proceeding and reach a decision on the environmental issues subject to a later submission of proof of the need for the facility by the present applicants or additional parties.
At present the utilities in the State of New York are grappling with having to plan for generating facilities ten and fifteen years in the future when in fact it is extremely diff'icult to forecast events impacting the need for facilities beyond the very short term. To illustrate, the price increases for oil within the last year have clearly given great impetus to the construction and operation 1534 219
of generating stations utilizing fuels other than oil. The extent and timing o f additional increases in the price of oil, or even its availability, cannot be forecast with any reasonable certainty and are not within the control of the United States, let alone individual utilities. Yet they will clearly affect demands for electricity and the need for new generating capacity. Somewhat similarly, while Applicants are certain that nuclear energy is a viable, safe and important source o f energy , the ultimate affect of the accident at Three Mile Island on the location and licensing of specific plants cannot be precisely predicted For instance, the New York Times of November 6, 1979,.on page 1, column 5 carried a report that older plants close to major cities might be closed and that issuance of new permits would be delayed from six months to two years. Both the impacts of Three Mile Island and the oil price increases could not have been predicted one year ago. Yet in the face of almost monumental near term uncer-tainty long term plans must be made and very substantial funds committed to those plans. In view of these many uncertainties, for the Siting Board to create an initial requirement of certainty of need and participation in a generating station at the outset of a proceeding is unrealistic and places an almost insurmountable burden on Applicants.
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. i The loss involved in not making use of the expendi-ture of millions of dollars to submit an application should not be caused by an inability to proceed or that expenditure reduced in its value by allowing the data to become stale.
The history of Article VIII has been replete with illustra-tions of cases where the need for a facility is ultimately heard and re-heard long after a decision could have been rendered on the environmental issues. Both the Sterling and Jamesport cases were re-opened on need questions after the proceeding was or could have been fully submitted on the environmental issues. The Lake Erie proceeding is in a position where the environmental questions could be decided but the need for the facility is clearly questionable as is indicated by its inclusion in the NYPP plan as being available in the event that load growth or other unanticipated circum-stances require a generating plant on short notice. A precedent for concluding environmental hearings before requiring the determination of need has been clearly estab-lished in the context of Article VIII proceedings.
Under the view of NYPP and Mr. Davis of SEO, with respect to Lake Erie, Sterling and Jamesport (Transcript 1979 SEO Hearings, page 861 et seq.), the pending proceedings provide a source of sites which can be quickly licensed in the event existing proposed plans prove unduly conservative.
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Applicants believe that there is no justification for not treating New Haven in the same manner that Lake Erie, Sterling and Jamesport have been treated.
It is the Applicants' belief that nuclear energy is the best way to meet demands for electricity in the State of New York. The economics of a coal fired station are more greatly affected by location than nuclear stations because of the cost of delivery and handling of coal and the disposal of associated wastes. Preliminary studies indicate that the difficulty of delivering coal and the difficulty of ash disposal in southeastern New York make a coal plant in southeastern New York uneconomical for upstate customers.
However, it may be necessary for New York State Electric &
Gas Corporation to participate in such a plant to meet its customers requirements. Similarly transmission penalties associated with plants in the extreme western areas make sites in those areas unattractive unless there is some offsetting cost saving which may not exist. Should final studies can' firm that the burdens on customers of upstate utilities siting in extreme westerly areas of the state or in the southeasterly areas, the preferred alternates would obviously include New Haven .. M its alternate site in the Town of Stuyvesant. The preservation of the New Haven site and its alternate are clearly in the interests of the State of New' York. If the Boards' conclusion that Applicants 1534 222
cannot justify the continuation of the entire proceeding, the most efficient way to preserve the New Haven and its siternate sites is to proceed with the hearings on environ-mental issues and postpone any precipitous determination of the need fer, and financing of, the New Haven facility.
Therefore, Applicants move for permission to proceed wAth the environmental issues in this proceeding subject to a later preser.tation on the issues of need. ,'
CONCLUSION THE DISMISSAL SY THE SITING BOARD SHOULD BE REVERSED OR IF REVERSAL IS DENIED THE MOTION TO PROCEED SHOULD BE GRANTED Res . fully ubmi t , , , _
o HUBER MAGILL LAWRENCE & FARRELL Attorneys for New York State Electric & Gas Corporation Office & P.O. Address 99 Park Avenue New York, New York 10016 Telephone: (212) 682-6200 Edward M. Barrett Edward J. Walsh, Jr.
Jeffrey L. Futter Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Telephone: (516) 288-2038 Roderick Schutt -
Jeff*ey L. Futter Of Counsel Dated: November 12, 1979 1534 223