ML19256A884
| ML19256A884 | |
| Person / Time | |
|---|---|
| Site: | Green County  |
| Issue date: | 12/19/1978 |
| From: | Madison S NEW YORK, STATE OF |
| To: | |
| References | |
| NUDOCS 7901160321 | |
| Download: ML19256A884 (8) | |
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O STATE OF NEW YCRK oa PUBLIC' SERVICE CCMMISSION O'O $ 3
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At a session of the Public Serrice
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Ccraission held in the City of
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Albany en December 14, 1973
\\P CC.vMISSIONERS PRESENT:
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Cha11es A. Zielinski, Chair =an gj$
geh7 Edward P. Larkin C
Carmel Carrington Mar--
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- c5 gh p, Harold A. Jerry, Jr.
Anne F. Mead gs 4f7 g
Karen S. Burstein f
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CASE 8 0006 - PCWER AC"' HOR-'"Y OF THE STATE OF NE T YOPZ -
Greene County Nuclear Generating Facility ORDER DISMISSING APPEALS FRCM RCLINGS ON DE'"23MINATICN OF NEED AND CCNFOPy_ANCE WI'"E LONG-RANGE PLANS, AND GRA.'ITING 3
MCTION TO INCORPORATE 149-b "'ESTIMCNY (Issued December 19, 1973) r
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SUMMARY
L The New York State Oepar* nent of In7ironmental i
Ccnsertation ( " ac. c. ellant" ) ap.eals frem a ruline. bv.
Presiding Examiner Edward C.
Cchen in which he rejected appellant's argn=ent that the Pcwer Authcrity of ne Stata cf New Ycrk ("the Authority") has f ailed to =ake a " deter =ina-i tica sf necessity" with respect to its preposed Greene Count';
nuclear plant;b and frca a ruling in which he rejected l
t appellant's argument that ene Authcrit/ has failed :: nake a I
prina facia shewing that the proposed plant ecnfer=s wi-h j
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~.eAppea. Of Au.ng L:.ssued May 25, 1975 On IEC M :icn for
'a ' = 1:c-f Ru l.ng Ea P AS'i? ' s a-a -- = :.:.c n a f ' e ed,
i, datad June 5, 1973, filed Iune 7, 1973.
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state-wide, long-range electric plans.1!
We are d 3
both appeals.
We also have received a motion, by the staff of the Public Service Commission
(" staff"), seeking permission to incorporate, in the record of this proceeding, the tes**meny that staff will present in the pending proceeding to review long-range plans pursuant to P.S.L. Art. VII S149-b ("the S149-b preceeding").2/ We shall grant the motion.
I. 52 AU*EORI*Y' S DE*ERMINATICN OF NEED 3efore certifying a proposed generating plant under Publir Service Law Article VIII, the Siting Board must find that it will serve the public interest, convenience, and necessity, provided, hcwever, tha: a determination of necessity for a facility made by the pcwer authority of the state of New York pursuant to section ten hundred five of the public authorities law shall be con-clusive on the [ siting] beard.3,/
Appellant seeks a ruling that the exemptica just quoted is unavailable to the Authority in this case and that the Authority therefore must demonstrate "public interest, cen-venience ard necessity" just as if it were an invester-cwned utility.$/
-1/ Appeal of Rulang (assuec crally, June 5, 1978] on DEC Motien for Dismissal of Applicaticn for Failure to Present 8
a Prima Facie Case, dated June 22, 1978, filed Jurra 23, 1978.
-2/ Motion to Incorporate Staff Testincny, dated anc filed August 22, 1973.
3/5 146 (2) (f).
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5 1005 enu= era:es tha Authority's pcwers.
4/ Appellant advanced its arpu=ent crally (Steno. Min. J-15763 en sec., J-16226 et seq., and J-16237 et seq. ), and by a II::er dated April 26, 1973 (App. A cf Appeal filed June 7, 1973).
The =ctica was supper:ed in me=cranda filed by Citizens :c Preserve the Hudsen *7 alley, et al.
(April 24, 1973) and the Ca: skill Center for Ccuserva en and Oevelopmen (April 26, 1973).
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- CASE 80006 We agree with the Authority's claim 1/ that this appeal fails to ccmply with the Article VIII Rules of Procedure, which specify that (ala interlocutory appeal. frca a ruling of the presiding examiner should be taken only p @l j j ((~ ' g-D in an extraordinary circumstance where prcmpt i
t decision is necessary to prevent detriment to Jd k the public interest.
In any other situation, g'}b a party adversely affected by a :nling of the o(
y2}i pL!dULJ(-U 'in a brief en exceptiens to th'e Scard.2/
3 cresiding examiner shculd excect to that ruling 1.s ;i Avoidance of " detriment to the public interest" dces not icgically require decision of the appeal at this stage, because, at any time during this proceeding, the Authcrity could cure the defect of which appellant complains.
Appellant says that in different years, the Authority has given two different reasons why the plant is needed; and that this change nullifies any " determination of necessity" that the Authority might have made en the basis cf its earliest stated "need" rationale.
In 1974, the Authority's trustees adopted a resolutien directing their staff to prosecute an application for permissicn to build a plant in Greene County, citing a need to serve various specified custcmers in southeastern New York.
But in a subsequent proceeding before the Nuclear Regulatory Cc= mission, acccrding to appellant, the Authcrity has attempted to justify the plant primarily by reference to statewide interests such as reliability, savings, and replacement of fossil-fueled plants.
The appeal and ';.e Authcrity's respense basically recapitulate argn=ents that the Ixaminer st
=-i:ed and cen-sidered :.n nis ruling.
First, appellant is arguing in effect 1/ Appl;.can 's.v.amcrancum.
.Cencerning Applicant's Determinati:n cf Need, dated June 23, 1973, filed June 26, 1973.
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that the Siting Board cannot accept the Authority's determina-tion of necessity unless the Board ascertains that the Authority's determination is intri.nsically lawful and rational.
But appellant incorrectly claims to be insisting
=erely that the Board have an adequate evidentiary basis for finding that the Authority,really has made a determinatien of necessity.
Appellant, description ~ of its cwn positien is incorrect because it is irreconcilable with appellant's specific arguments.
In reality, appellant says that the statutory exemption should be withheld frcm the Authority in this case because any cther result would be an extension of " blind cemity" frc= the Beard tcward the Authcrity; that the Authcrity's acticns in this case have dispelled the presumption cf regularity; that in a hypothetical case involving blatant intrinsic irregularity (an attempt by the Authority's staff to build a fossil plant in one county after being directed by the Authority to build a nuclear plant in another county), the exemption would be withheld; and that the exemption must be withheld so that the Board members are not made oblivicus to changes in the Authority's "need" projections.
Despite appellant's disclaimers, each of these arguments is fundamentally a challenge to the lawfulness er rationality of the Authority's decisionmaking, a challenge directly prchibited by the stature.
II. CCNFOTOtANCE WI"*E LCNG-RANGE PLANS The other a/ peal, also opposed by the Authority,b!
challenges a ruling in which the Examiner denied appellant's
=ction to dismiss the Authority's application for failure to present a pri=a facie case that the prcycsed facility ccnfor=s with icag-range planning cbjectives.
The Public Service Cc=missien staff
(" staff") supper:s appellan
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_1/Appiacant's Me=ccances in Cppositica 00.
. Appeal Of.
Ruling en Metien der Cis=issal, fated July 7, 1373, filed u--?
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CASE 80006 the Authority has failed to make a prima facie case, but suggests that the proper relief would be a remand for reconsideration of long-range planning issues.1/
Section 146 (2) (e) requires that before certifying a proposed plant under Article VIII, the Siting Scard must determine that the plant would be D fl fl, li
> 'J J consistent with icng-range clanning objectives for electric pow'r supply [
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in the state, including an ecencmic 23 and reliable electric system.
In denying the motien, the Examiner asked:
what are the long-range planning cbjectives?
He went to the ?cwer ?cci's 1978 Sectica 149-b filing which he stated provides the answer to that inquiry "unless and until scme change in these objectives is required by the Public Service Cc= mission."
He concluded that the ?cwer Authority's " admittedly skimpy testi=ony is fleshed out by the detail set forth in the Section 149-b filing."2/ Frcm the Secticn 149-b material he extracted the folicwing planning objectives:
(1) to reduce dependence en fo~eign energy scurces; (2) to develop the expansien pregram th t results in lowest cest; and (3) to develop =cre nuclear generating capacity.
Neither appellant ner staff argues with the Examiner's list of objectives, but they find it incccplete.
Appellant wculd also list load forecasting methedcicgy, energy management, ccmparative ecencmics, environmental ccmpatibility, and inter-utility transactions.
Staff would add optimum mix of base lead, intermediate and peaking units to =i 4 4:e cost; cptimally sized additions; cptimum fuel mix; and cptimum locaticns.
_1/PSC Staff F.espense 00 DEC's Appeal en the Cenicrmance Issue, dated and filed July 5, 1973.
1/Stenc. M.in. C-13315.
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_ I N _a Without mentiening the requirements of Section 14 6 (2) (e), the Authority states, in its response to the motion, that the relevant part of Article VIII is Section 146 (2) (f) which provides that a determination of necessity for a facility made by the pcwer authority of the state of New York pursuant to section ten hundred five of the public authorities law shall be cen-clusive en the board (.]
Impliczt in the Authority's line of argument is the assumptien that part (f) excuses it frcm any determination under part (e).
The issues of confermance to long-range plans and public need clearly are interrelated, but they definitely are nce identical.
The Authority's assumption, with no supporting prcof, that part (f) autcmatically excuses it from a demonstra-tien under part (e) obviously is incorrect.
But this is not to say that the Authority must =ake the same showing as a private utility.
The pertinent question thus beccmes:
what must the Authcrity do to demonstrate that the facility conforms to long-range planning objectives, and has it made the prima facie demonstration?
The Chairman decketed the Authcrity's Article VIII application using the most current Section 149-b report to supplement the deficiency in the application en the questien of conformance with the long-range planning cbjectives.
Preciding Examiner Ccwan, who presided over the early stages of this case, ruled in Cctober, 1976, that PASNY would be required to furnish a witness ccmpetent to demcnstrate conformance with long-range planning ocjectives.
He fcund that use of the Section 149-b =aterial by notice wculd not afford parties a reascnable opportunity to crcss-ex' 'ne en the question.
Presiding r.xaminer Cohen new says that Examiner Ccwan's requirement was satisfied when the Authericy produced a panel of witnesses to testify en the issues of confer =ance wich long-range planning Objectives.
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CASE 80006 We can find no reason to review the Examiner's ruling at this point.
There has been no allegation of
" extraordinary circumstance" that would support the granting of appellant's motion.
In fact, it is clear that appellant-k will not be prejudiced by a. dismissal of its motion at this time because it will have an opportunity to raise the same concerns in both the briefs to the Exambers and, if necessary, in briefs en exceptions.
Mereover, any present deficiencies in the recorti on this matter may well be cured by the time the Board makes its determinations.
III. INCORPCRATION OF S149-b "'ESTIMCNY On Augusu 22, 1973 staff moved to incorpcrate by reference testiscny it will present in the Section 149-b proceeding.
Section 70.16 of the PSC Rules of Precedure provides for such incorporation, and other Article VIII cases have incorporated material frem the Section 149-b proceedings.
To provide all parties with the opportunity to cross-examine its witnesses, staff has stated that it would not object to presenting its witnesses for l' 4 ted cross-examination where a party can demonstrate why it could not reasonably conduct its cross-examination in the Section 149-b proceeding.
No party has filed any cbjecticn to this motion.
We grant the motien suhject to staff's own limitation.
The Cc ission orders:
1.
The appeal by the staff of the Department of Environ = ental Conservation
(" appellant") frem the :uling of the Presiding Examiner with regard to the determina icn of necessity by the New York State ?cwer Authority ("the Authcrity"),
issued in this proceeding en May 25, 1973, is dismissed.
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CASE 80006 2.
The appeal by appellant from the ruling of the Presiding Examiner with regard to appellant's : notion to dismiss the Authority's application to build a pcwer plant, issued in this proceeding on June 5, 1978A is dismissed.
3.
The motion by the staff of the Public Service ccmmissien, for pa mission to incorporate in the record of th.ia proceeding its testimony in the pending proceeding conducted pursuant tc P.S.L. Art. VII S149-b, is granted.
4.
This proceeding is continued.
By the Cc=missicn, (SEAL)
(SIGNED)
SAMUEL R.
MADISCN Secretary D*
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