ML19253B299
| ML19253B299 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 08/06/1979 |
| From: | Grey R, Indyke C NEW YORK, STATE OF |
| To: | |
| References | |
| NUDOCS 7910100678 | |
| Download: ML19253B299 (22) | |
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STATE OF NEW YORK PUBLIC SERVICE COBLMISSION BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT CASE 80008 - Application of New York State Electric & Gas Corporation and Long Island Lighting Ccmpany for a certificate of environmental compatibility and public need to construct two 1250 MW nuclear or coal fired electric generating unics at a site'in New Haven, Oswego County or alternatively, Stuyvesant, Colu:nbia County. (New Haven Units 1
& 2).
b STAFF'S REPLY TO STATEMENTS h IN RESPCNSE TO COMMISSION jd h T b
CERTIFICATION TO THE SITING SOARD ;
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%j ROBERT GREY Staff Counsel CFAIG INDYKE Staff Counsel Dated: Albany, New York August 6, 1979 1124 282 4
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IN RESPONSE TO CCMMISSICN - s CERTIFICATION TO THE SITING BOARD s; ~' .?-
I. INTRODUCTION.
This brief replies to responses of two parties to the Public Service Commission's certification of Ecology Action of Oswego's motion for dismissal of the application in Case 80008. The Commission certified the motion to the Siting Board with a recommendation that the application be dismissed. (Order of July 10, 1979). We reply primarily to the applicants' (New York State Electric & Gas Corporation and Long Island Lighting Company) submission dated July 25, 1979. We will also respond briefly to comments of the Cepartment of Environmental ~ Conservation (DEC).
II. BACKGROUND.
On January 22, 1979 the application in this case was docketed by Chairman Zielinski. On February 23, 1979 the applicants submitted pre-filed testimony in the renanded Jamesport proceeding (Case 80003). That pre-filed testimony included the following questions and answers:
Q. What is your overall conclusion about the ultimate timing and ownership of the Jamesport and New Haven units?
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Coupled with the likeliheed that ownership of the New Haven units will change, it is very unlikely that LILCC and NYSI&G will add 4700 MWe in the five-year pericd referenced in the Board question.
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LILCO and NYSE&G to brin Jamescor and . -
New Haven On line "in the five-year pericd 1988-1993?" .
A. We have several conclusions. First, we do not believe it is realistic to assume that the stations will cene en line within t.s.a t ::ve-year sc.an, er any : ve- ear sc.an.
Second, we do not yet know whether it will prove te be desirable for LILCO to join with NYSE&G in building and owning New Haven, though it is clearly desirable for them to get on with the facility's planning and licensing in light of the Statewide need for New Haven and thus
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A clear answer to the cuestica of appropriate cwnership arrangements for New Haven may not be available for svme .- 4.e. . h: 2, ..
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and Rider, Case 30003, pp. 5-6).
1124 284
j CASE 30008 On March 27, 1979 Ecology Action submitted a motion to dismiss the application alleging prematurity and legal insufficiency. Ecology Action cited portions of the above-quoted material and argued that since LILCO is not firmly ccmmitted to the proposal in Case 00008 the application should be dismissed. Staff and other parties replied to the motion, and it was denied by the Examiners on April ,13, 1979.
Ecology Action made an interlocutcry appeal to the Commission in a document drad April 26, 1979. The Commission by Order dated July 10, 1979 certified the Ecology Action motion to the Siting Board with a recommendation of dismissal. Parties were permitted to submit comments by July 25, 1979 to the Commission recccmendation.
A. Staff's PositiN.
Staff has taken the position that there is no point in conducting costly and time-consuming hearings on an application where one of the co-applicants is not certsin if it will participate in the actual construcuion and cperation of the generating units. We pointed cut that if, Eccicgy Action suggests, and as may be reascnably inferred frcm the pre-filed Jamesport testimony, LELCO has no interest in building the New Haven facility, there may be no basis for going further in this case than develeping a record on this issue. (Staff 1124 285
e e P00R ORGN1 CASE 30008 Reply, April 6, p. 2). We believed that the question of ownership could ce differentiated from the question of need where an applicant disavows its interest in actual construction and ownership. We have pointed out that without knowing who the likely owners of the proposed facility are, it will be impossible to conducu the statutory balancing of costs and benefits required by Section 146 of the Public Service Law.*
Nhile we recognized that ownership may indeed change because of the dynamic nature of electric needs in this State, we believed that we must be reasonably certain when beginning the complex Article VIII litigation that an applicant believes the proposed facility meets its particular needs or some other definite use for the pcwer and therefore stands ready to construct it. In short, Article VIII is simply not an academic exercise for the purpcse of siting hypothetical power plants.
Because we believed that the pre-filed Jamesport statements did not in themselves constitute a sufficient showing of lack of interest to construct and operate the proposed units, we recommended dismisvai of the Ecology
- For example, Section 146 (g) of Article VIII provides that the Siting 3 card must determine that the proposed facility is in the public interest considering "the total cost to society as a whole."
Total cost includes the specific cost of constructing this facility.
Costs of capital and benefits derived from early installaticns,
_.e., fuel substitution, depend upcn who the owner (s) will be.
i 1124 286
P00RORGEL CASI 30003 Action motion without prejudice to reschmit it at a later time. However, we have pursued the question of LILCO's seeming disavowal of its interest in the proposed New Haven plant with interrogatories submitted to LILCO on May 23, 1979.
We specifically asked LILCO whether it intended to construct the proposed facilities in view of the pre-filed 80003 testimony and in view of its own assertions regarding transmission benefits associated with adding downstate rather than upstate capacity.*
To date, no response to the interrogatories has been provided.
We asked:
(5) In view of Mr. Madsen's statements in the pre-filed testimony on remand in 80003, "that building this facility at Jamesport, in this particular time period, is clearly superior to all the other planned facilities in New York State regardless of Jamesport's ownership or which area of New York State (NYS) is forecasted to be grow.:.ng faster at the cresent time",
does LIICO at the present time intend to construct the units pt 7osed in Case 80008?
(6) If not, is LILCO's participation in the application based solely on anti-cipated statewide needs for capacity and possible statewide oil displacement rather than LILCO's own capacity needs, possible economic or oil displacement benefits?
Staff's First Interrogatories Of LILCO, May 21, 1979.
1124 287
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P00R OR M A CASE 30008 B. The Commission Decision.
The Commission, in recommending dismissal of tha application, deemed the application premature and legally insufficient (Order, at 4) because the required balancing under S 146 could not be carried out without specific reference to a utility which intends to construct the facility. It differentiated rhe various factual questions which must be resolved to determine need for the facilicy from those relating to ownership. It also stated that prima dacie allegations regarding statewide need are simply not enough to allcw hearings to proceed where the ownership questien remains so clouded.
C. The Applicant's Reply.
In essence, the applicants have responded with a reiteration of the argument that the concepts of ownership and n-'d cannot be separated under the present circumstances (p. 7). This is so, they claim, because utilities submit applications only if they perceive some kind of need for the additional capacity - whether it be on capacity, reliability, or econcaic grounds. When a utilicy recogni:es this need, it submits an app'.ication which then must be judged against all applicable need criteria to determine whether there is justification for certifying all or some of the proposed 1124 288
~~
P00R ORG K CASE 80008 capacity. Englicitly, then, submission of an appl; cation, the applicants argue, constitutes a genuine interest to construct the facility, although that commitment may not'be binding in view of the changing nature of electric needs in New York. The applicants also suggest that allegations of statewide need are sufficient to sustain continued processing of the application because of the need for coordinated state-wide planning for additional generation. They argue that the pre-filed testimony in Case 80003 has been misinterpreted and that the continued presenca of LILCO in the hearings proces; and their contractual agreement with LILCO "are clearly evidence of their intent to participate in the New Haven units" (Applicants' Respense, p. 26). The applicants also believe that additional discovery and litigation can be carried out if there should be new utility participants in the application and that thi s -- rather than dismissal -- is the proper reply to uncertainties regarding future ownership.
III. STATEMENT OF THE ISSUE.
Staff believes the issue which the Comm_ssion directed parties to address is whether or not the applicants are firmly cc=mitted to the construction, financing, and ownership of the proposed 2500 MW of capacity for their i124 289
~~
P00R~0RGM CASE 30008 own needs or for some other reasonably definite and legitimate purpose, such as the sale of excess capacity to another utility to meet its long-term needs. If the a)plicants have no such firm plans in mind there is no reason to litigate this appl -
cation. In this instance the application rests on assumed commitments and speculation and it is legally insufficient and subject to dismissal.
IV. RESPONSE TO APPLICMTS '- ARGUMENT.
The applicants' brief has done nothing te overccme the Commission's objections to continued processing of the application. The argument that need and ownership are synonymous just does not overceme the doubt raised by the pre-filed statem'ents in 80003 which show a lack of interest on LILCO's par *.. The continued participation of NYSE&G alene is not in itself e sufficient basis for concluding that it alone intends to ccnstruct the entire facility. In light of the pre-filed statements in Case S0003, the recuested assurances of ownership are not simply " cosmetic" as the applicants suggest, they are crucial.
This was specifically spelled out by the Conmission in its Order (p. 3) which invices a reaffirmation of ownership by LILCO. The Commission stated:
The application is premature and legally insufficient and will remain so until its proponents are able to present evidence that relates to the probable owners of the proposed facilities and their ultimate use.
1124 290
P00R ORBNa CASE 80008 Instead of complying with the Commission's demand for " evidence" of their intent to participate, the applicants have merely referred to LILCO's continued presence in the hearings. This does not indicate an intent to own and operate the facilities, however. It merely indicates that LILCO continues to abide by its obligation to NYSE&G to submit a joint application for an upstate plant.
Since the Commission's invitation co the applicants regarding their intentions could hardly have been .isunderstood, we assume the applicants were unable to provide the kind of assurances necessary to enaulo us to go forward convinced that we will not be wasting cur time and resourcas. One obvious remedy would have been an affidavit, under oath, from LILCO management indicating its present intent in unambiguous terms to finance, construct, and cvn the facilities in the '
manner stated in the application for its own use or for some other definite statewide purpose. This could have been easily done and would have satisfied in substantial part the Com-mission's concern. LILCO's continued silence, therefore, can only be construed as an admission that the Commission is correct in its assessment and that the pre-filed statemencs should be taken at face value. Since the pre-filed statemencs indicate LILCO's uncercain commitment to construct and operate 1124 291
P00R ORGINAL CASI 80008 the plants, the Siting Soard is left with no alternative other than dismissal.
Further, the applicants' statement that they are " shocked" at "the concept expressed by the Public Service Commission that statewide needs cannot justify processing this application" misses .he point of the Commission's order. The Ccamission, as we have repeatedly stressed, did not address the issue of need; it reviewed the question of ownership. Without applicants who stand ready and,willing to construct a proposed facility, looking at the question of whether there is a statewide need is a purely academic exercise.*
As part of its response to the Commission's July 10 Order, the applicants also assert that they have been denied an opportunity to be heard. They believe they have been unable to meaningfully respond to the Commission because " vague assertions" have been drawn frem unincorpcrated or referenced documents outside the record of this case.
The Commission stated:
We do not share the belief that, in spite of the cwnership uncertainties, the alleged " statewide need for New '
Haven" makes it desirable to continue the planning and licensing process because there is a "likelihced" that other utilities will purchase shares in the plant. (Order at p. 6).
j j g4 }(;g There is merely a reiteration of the Ccmmission's legal analysis concluding that mere speculation that other utilities will replace LILCO as an applicant and owner is not sufficient to continue present processing of the application. Statewide need is, of course, a relevant consideration in need determinations uncer Section 146 of the Public Service Law.
~
P00R ORGEL CASE 30003 The implication the applicants raise is that they have been unfairly prejudiced or deprived of basic rights Staff believes this position is both incorrect and misleading.
We believe an examination of the facts indicates that the applicants have been on notice for some time that the question of intent to build and own the proposed units would be considered in this proceeding. The facts also indicate chat they have had several opportu*ities to be heard on this issue.
Following the submi.tal of the pre-filed-Jamesport testimony, Ecology Action filed its motion of dismissal.*
The motion drew upon the applicants' pre-filed Jamesport testimony that raised foubts concerning LILCO's ownership and intent to bu'ild. Since that time the questions raised by the applicants' pre-filed testimony have been repeated in Ecology Action's interlecutory appeal to the Ccamission. They have also been raised by the Commission's July 10 Order Certifying Appeal and Recommending Dismissal of Application. Thus, up to this time the applicants have been asked three times to explain and clarify the Jamesport pre-filed statements.
Consequently, Staff does not believe that the applicants can correctly claim they received inadequate notice or opportunities to respond.
Ecology Action Motion of March 20, 1979.
1124 293
P00R CHINAL CASE 30008 Applicants' reliance upon Matter of Simpson v.
Wolansky* is also of no help to their positi:n. (Applicants' Brief at p. 20). Apparently, they are atto.? ting to assert that __acements made outside the record of this proceeding cannot be used by the Commission or the Siting Board to reach a decision upon the issue of ownership or intent to build.
We believe that a fair reading of Simpson v. Wolansky does not support this position. Reference to and use of materials outside the recor'; of administrative proceedings h'as long been upheld as proper practice.**
In the absence of unfair surprise, inadequate notice, insufficient reference to the source or opportunity to respond or cross-examine", there is nothing prejudicial or improper in the use of extra-record facts. The test to determine if the applicants have been denied a right to be heard is whether or not the applicants have been substantially prejudiced by reference to and use of material not formally introduced into the record of this proceeding.***
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- 38 N.Y.2d 391, 343 N.E.2d 274, 380 N.Y.S.2d 630 (1975). In Simpson, the Court of Appeals was d uling with the rights of an employee of the State who was fat possible dismissal. There-fore, the Court was dealing with an djudicatory proceeding which involved dissimilar issues and procctures than those involved in Article VIII certification proceedings. Thus, whether Simpson applies to this proceeding is open to question. Regardless of this question, we believe the applicants' assertions concerning the use of unincorporated materials are invalid in this proceeding.
- Market Street R. Co. v. Commission, 324 U.S. 548, 562 (1944);
United States v. Pierce Auto Lines, 327 U.S. 515, 529-331 (1946).
- Chited States v. Pierce Auto Lines, 327 U.S. 515 (1946) . See also, People ex rel Fordham Manor ?afcrec Chum: v. Walsh, 244 N.Y. 280,155 N.I. 575 (1926);
P00R ORGINAL .
CASE 30008 An examination of the Commission's Order shows that the applicants have not been unfairly prejudiced by reference to or reliance upon the joint pre-filed testimony of NYSE&G and LILCO in the Jamesport proceeding.* In fact, the applicants have not pointed to any specific inst.cace in which they allege unfair prejudice has occurred. Instead, they merely assert in a conclusory style that without specific reference to or incorporation of materic2s, and presumably hearings on need, they are being denied a fair opportenity to present their case. This position is incorrect.
We submit that the applicants are now and have been fully apprised that the statements of their own representatives calling into que'stion LILCO's plans to finance, construct or own tne New Haven units could be used as c basis for dismissing this application unless clarified. In addition, the applicants cannot claim that they have been denied an opportunity to explain, rebut or withdraw their statements. In fact, the Commission Order invited the applicants in no uncertain terms to clarify the ambiguities engendered by the joint pre-filed testincny of NYSE&G and LILCO witnesses Madsen md Rider. **
1174 295 (FOOTNOTE CONTINUZD FRCM PREVIOUS PAGE]
(1936); Matter of Beers v. Wickham, 25 App. Div.2d 165, 268 N.Y.S.2d 57 (1966); and N.Y. State Administrative Procedure Act, 5 302, 306(4)
(McKinney 1979).
- Similarly, the Commission's reference to the 1979 New York Power Pool Report, and other pending Article VIII cases is not improper. These records and documents Wre available to the applican:s for their use in preparing their application and their response to the Commission Order.
CASE 30009 Finally, we note that the applicants make much of the importance of docketing of this applicatien on January 22, 1979, by Chairman Zielinski (Applicants' 3rief at p. 22). Since the pre-filed statements calling the applicants' intentions into question vere not filed until late February, we see no relevance in the docketing procedure to our consideration now.
V. RESPONSE TO DEPARTMENT OF ENVIRONMENTAL CONSERVATION'S PROPOSAL TO SUS?END '
THE APPLICATION.
The Department of Environmental Conservation (DEC) has responded to the Commission's Order with a statement that it agree "in part" with the Commission's recommendation. It suggests, however, that the proper remedy is not dismissal but " suspension" until prior pending Article VIII applications are resolved, after which time the application could be " rejuvenated." DEC conditions this proposal upon agreement by the applicants that the application be considered newly-filed "for all purposes." DEC rests its recommendation upon an assu=ptien that the viability of this application (e.g., need for the facility) could increase if current Article VIII applications are denied and also on the
" quality and quantity" of the " effort reflected in the application.~
1124 296
4
'00ROR0NAl .
CASE 30008 DEC's proposed suspension would be a conceivable remedy if the Commission's order was premised on a finding ,
that there is no need for this facility at present. The order is not so premised. The Commission has deter.nined that there is sufficient evidence to conclude that LILCO is uncertain whether it will construct and own New Haven Units 1 and 2.
Therefore, should the siting Scard find that LILCO is not a serious applicant, there is no reas,on to suspend considera. ion cf this application in the hope that some other utility will assume LILGO's role. Article VIII was intended by the Legislature to achieve expeditious con-sideration of applications by serious proponents. Here there is serious doubt as to the intention of the applicants.
Finally, we do not believe the substantial amounts of acney that have been spent justify a continuation or thi.s application. The efforts of these applicants in developing their proposal will not necessarily be wasted if the application is dismissed.* Mere suspension of the application will not preserve the timeliness of the data as DEC appears to suggest.
We note -hat 16 NYCRR 70.27 provides that data from prior Article VIII applications may be used to satisfy the environmental data requirements of the applicable Article VIII regulations not-withstanding'the environmental monitoring data currency requirements of the regulations. Thus, an applicant could refila reiving heavily on the data already assembled for this application.
1124 297
P00R ORINAL CASE 30008 It will, however, continue the state of uncertainty for the applicants and parties. We believe this is unwarranted.
VI. CONCLUSIONS AND RECOMMENDATIONS.
In summary, the issue before the Siting Soard is not whether changes in the New Haven-Stuyvesant applicants can or should take place. Instead the issue is: censidering the responses of the applicants together with their pre-filed statements in the Jamesport reopening, is there a reasonable basis to conclude that an applicant or group of applicants is no longer firmly committed to build the entire facility? We believe the answer at this time is yes. The applicants were given full cpportunity by the Commission's Order of July 10 to ccme forward. In our, estimation, they have not done so. Without definite proponents of the application, we believe fair and efficient litigation of the application is not possible and that the proper balancing under Section 146 of the Public Service Law cannot be carried out. We therefore recccmend that the application be dismirmed.
Respectfully submitted, r.
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ROBERT GREY '
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CRAIG'INDYKZ Staff Counsel 1124 298 Dated: Albany, New York August 6, 1979
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UUEl Ull U, iflL STATE OF NEW YORK PU3LIC SERVICE CCMMISSICN BOARD ON EI.ZCTRIC GENERATICN SITING AND THE ETIIRCNMENT CASE 30008 - Application of New York State Electric & Gas Corporation and Long Island Lighting Company for a certificate of environmental compatibility and public need to construct two 1250 MW nuclear or coal fired electric generating units at a site in New Haven, Oswego County or alternatively, Stuyvesant, Columbia County. (New Haven Units 1
&2).
CERTIFICATION OF SERVICE STATE OF NEW YORK )
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COUNTY OF ALBANY )
This is to certify that a true copy of the Reply Brief of Staff of the Public Service Commission, 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 office box regularly maintained by the government of the United States in the County of Albany , State of New York, and inter-agency mail of New York State, on August 6, 1979 4
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i CCCKET NCS. STN 50-596 and STN 50-597 CASE 80008 Mr. Alman J. Hawkins County Planning Director Oswego County Planning Board 46 East Bridge Street Oswego , New Yo rk 13126 Peter D. G. Brcwn Chairman of the Board Mid-Hudson Nuclear Cpponents P.O. Box 666 New Paltz, New York 12561 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ms. Susan Link R.D. 1, Dewey" Road Mexico , New Yo rk 13114 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Com-Mission Washington, D.C. 20555 1124 503