ML19253C193

Motion for Indefinite Delay in Proceeding.Case 80008 Before Ny State Board on Electric Generation Siting & Environ Dismissed on 791012.Urges Deferral Until Applicants' Motion for Case 80008 Rehearing Decided.Ny State Order Encl

ML19253C193
Person / Time
Site:	New Haven
Issue date:	10/29/1979
From:	Schutt R, Zebrak I HUBER, MAGILL, LAWRENCE & FARRELL, LONG ISLAND LIGHTING CO., NEW YORK STATE ELECTRIC & GAS CORP.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911300132
Download: ML19253C193 (8)

Text

\ MI la NRC PUBLIC DOCISIENT ROOM U j$

UNITED STATES OF AMERICA (( N # @

NUCLEAR REGULATORY COMMISSION ~

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eg Before the Atomic Safety and Licensing Board y .a cp In the Matter of )

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NEW YORK STATE ELECTRIC & GAS )

CORPORATION and LONG ISLAND )

LIGHTING COMPANY ) Docket Nos. 50-596

) 50-597 (New Elven Nuclear Power Station, )

Units 1 and 2) )

MOTION FOR INDEFINITE DELAY IN THIS PROCEEDING DUE TO THE DISMISSAL BY THE STATE SITING BOAPS OF CASE 80008 On October 12, 1979, the New York State Board on Electric Generation Siting and the Environment (Siting Board) issued an order dismissing Case 80008. The Applicants will move for rehearing before the Siting Board pursuant to Public Ser/ ice Law S148 which is a prerequisite to appealing the order of dismissal.

In light of the present uncertainty of the extent of state agency participation and the status of the agencies participating in this joint NRC-New York State proceeding, the present uncertainty of the role of agencies of the state act-ing as censultants to the NRC Staff on environmental matters, and the uncertainty of the outcome of the motion for rehearing or any appeal, the Applicants submit that it is unnecessarf and inadvisable to proceed with the resolution of substantive -

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or prccedural matters before this Board. Hence, the Appli-cants respectfully move that this Licensing Board indefinitely postpone the litigation of proposed contentions as well as the litigation of other procedural or substantive matters in-volved in the application before the Nuclear Regulatory Commission until the motion for rehearing and any related appeals are finally decided.

Respectfully submitted, NEW YORK STATE ELECTRIC

& GAS CORPORATION and LONG ISLAND LIGHTING COMPANY

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W Roderick Schutt Ira Lee Zebrak Attorneys for Applicants Roderick Schutt, Esq.

Ira Lee Zebrak, Esq.

Huber Magill Lawrence & Farrell 99 Park Avenue New York, New York 10016 Dated: Cc:cber 29, 1979 l d [t) '03 -

STATE OF NEW YORK

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BOARD ON ELECTRIC GENERATION SITING AND TEE INVIRONMENT At a session of the New York State Scard en Electric Generation Siting and the Environment for the New Haven /Stuyvesant Generating -

Facility held in the City of Albany on Octcher 12, 1979.

BOARD MEMBERS PRESENT:

Charles A. Zielinski, Chai:: tan, Public Service Cc= mission Peter Lanahan, Alternate for Robert F.

Flacke, Commissioner, Department of Environmental Conservation James L. Larocca, Commissioner, State Energy Office Dr. William E. Seymour, Alternate for William D. Eassett, Cc=missioner, Department of Cetmerce Fred Bartla, Ad Hoc Member CASE 80008 - Application of the New Ycrk State Electric & Gas Corpcration and the Long Island Lighting Company for a certificate of envircamental compatibility and public need - New Haven /Stuyvesant.

ORDER DISMISSING APPLICATICN (Issued Oc:cher 12, 1979)

BACKGROUND On Ncvember 22, 1973, New York State Electric &

Gas Corporation (NYSE&G) and Long Island Lighting Ccepany (LILCO) filed an applicatica for a certificate of environmental cc=patibility and public need to construct two 1250 megawatt ,

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m CASE 80008 nuclear fueled electric generating facilities in New Haven, Oswego County, or, alternatively, in Stuyvesant, Columbia County. The application was decketed by the Chairman of the Public Service Cecmission and hearing procedures prescribed by Article VIII were cccmenced.1/ At a prehearing conference -

held on March 27, 1979, Ecciogy Action of Oswego moved to

, dismiss the application en the grounds that it was premature and legally 17 sufficient. The =otion was denied by the hearing examiners en April 13, 1979. Ecology Action then filed an interlocutory appeal of that ruling to the Public Service Commissioni'/ and, en July 10, 1979, the Ccmmission certified the appeal to us with a reccamendatien5! tnat Ecology Action's motion to dismiss be granted.

NYSE&G and LILCO have filed several briefs opposing Ecology Action's motion and the Public Service Cc= mission's reccmmendation. The Department of Environmental Conservation has also. submitted a letter suggesting that the proceeding on NYSE&G's and LILCO's application be " suspended" pending Siting Board acticn on other Article VIII applications.

Responses to applicants' arguments were submitted by the staff of the Depart =ent of Public Service, the Attorney General, Ecology Action, and Safe Energy for New Haven.

Statements supporting the Ccmmission's recommendation were received frem the Village of Mexico, the Town of Kinderhcck, the Columbia Ccunty Farm Bureau, Columbia County, the Town of Stuyvesant, and Concerned Citizens for Safe Energy, Inc.

1/1972 Session Laws, Chap. 385.

2/Interlocutcry appeals are governed by Sectica 70.3 cf the Rules of Procedure. 16 NYORR S 70.8.

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3/ Case 30008 -nA:clication cf the New Ycrk State Electric &

Gas Corporatic and the Lcng Island Lighting Ccmpany for a '

certificate of environmental c0mpatibility and public need - New Haven /Stuyvest.n , Order Certifvine Appeal and Recccmending Dismissal of A :1 ca:10n, issued July 10, 1979.

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CASE 80008

SUMMARY

OF MCTICN TO DISMISS AND CCMMISSION'S RECCMMENDATION Ecology Action's motion is based on the theory that an Article VIII application is premature and legally insufficient unless the ownership and ultimate use of a "

proposed generating facility are reasonably certain. Ecology Action claims that despite NYSE&G's and LILCO's announced intention in the application to share the cost and output of the proposed facilities, the statements of applicants' planners in Case 80003, Jamescort1/ demonstrate that owner-ship has not been determined.

The Public Service Ccamission agreed with Ecology Action that an Article VIII application should be dismissed when probable ownership has not been demonstrated. With respect to that question, the Ccmmission found that even the applicants themselves were uncertain about who would cwn the f acilities, and whether other utilities would purchase shares in the plants. The Ccmmission further found unper-suasive applicants' clatn'that statewide need would result in other utilities ccming forward to participate in New Haven /Stuyvesant since 5000 megawatts of generating capacity to serve statewide needs are currently under consideration in the Article VIII process and the members of the New York Pcwer Pcol, including NYSE&G and LILCO, believe that capacity should be built befcre the capacity proposed in this case.

DISCUSSICN Applicants claim thac the Ccamission's reccmmen-dation is based on a misunderstanding'of Article VIII and a misinterpretation of the record. They assert that pr bable 1,' Case 30002, : esc 3

- 19, e. -.- eny of Madsen and Rider, filed February 22, -

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s CASE 30008 cwnership 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 cwnership is not reasenably certain. Similarly, oplicants renew their claim, without _

additional support, u.:at centinuing 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 testi=cny of their system planners in Case 80003, Jamescort, 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, centrary to the Commission's conclusion, they contend that the issue of cwnership of the New Haven /Stuyvesant facilities is not " permeated with doub t . "

We agree with the recetmendation of the Public Service Commission. It would be wasteful to proceed with lengthy and costly proceedings on a proposed generating facility whose cwnership and use are subject to substantial uncertainty at the very cucset of the hearings. Applicants concede that cwnership is relevant but would have us prcceed with substantial uncertainty about it from the cutset. We believe this would be unfair to the other parties in the case and incensistent with the spirit of Article VIII. The statute centemplates a public examination and exploration of significant aspects of an application. This cannot be accc=plished.when there is substantial uncertainty abcut' cwnership at the cutset of hearings.

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, ,- CASE 80008 Furthermore, applicants have made no credible showing ,of statewide need for the facilities, and have not disputed the Public Service Ccenission's conclusion that ownership of the New Haven /Stuyvesant units will not be -

kncwn un.il o'ther pending Article VIII cases are decided.

Ownership cannot be inferred frcm either the current or.

probable future demand of any particular ccmpany or companies in the state. Moreover, no other utility has expressed interest in sharing cwnership rf the proposed facility even in che face of the Public 59:vice Cccmission's opinion reccmmending dismissal becausa of uncertain cwnership.

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 equally in the construction of the New Haven /Stuyvesant unit. This argument misses the mark. The plain facts are that probable cwnership has been called into question by statements from applicants themselves. In these circumstances, it is the applicants' responsibility to remove the uncertainty by confirming their present ccmmitment to own and operate the proposed facility if it is licensed. The applicants have had many cpportunities to do this and, instead, have failed to do so, claiming that the parties must shcw that the cc=panies do not intend to cwn the facilities. Their continued failure to respond directly to the Ecolcgy Action motion and the Public Service Cc= mission's racccmendation with a clear affir~ation of present intent simply confi_ s cur cenclusion that the probable cwnership and utilization of the preposed facilities are tco uncertain to preceed wich the case.

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' CASE 80008 Finally, we believe the application should be dismissed, rather than suspended. Suspension, especially en the ccndition that the acclication would subsecuently be considered newly filea, as advocated by DEC staff, assumes that all data in the application would continue to be _

representative of current conditions. We cannet accept this assumption. Conversely, dismissal of the application does not preclude future use of so much of its data as remains timely in a new application. Under regulations implementing Article VIII, an applicant =ay use material filed im a prior Article VIII application in a subsecuent ene upon a showing that the data remain " representative of conditions at and in the vicinity of the site despite the passage of time."1/

The Scard on Electric Generation Siting and the Environment for Case 80008 orders:

The application of the New York State Electric &

Gas Corporation and the Long Island Lighting Ccmpany for a certificate of environmental compatibility and public need to construct two 1250 megawatt nuclear generating units at a site in the Tcwn of New Haven, Oswego County, or an alternative site in the Tcwn of Stuyvesant, Columbia County, is dismissed.

By The New York State Scard On Electric Generation Siting And The Environment - Case 80008, (SIGNED) SAMUEL R. MADISCN Secretary to the Scard

-1/15 NYCR.. 5 70.27. SOCI 6 m