ML19260C397
| ML19260C397 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 12/03/1979 |
| From: | Mark Flynn, Indyke C NEW YORK, STATE OF |
| To: | |
| References | |
| NUDOCS 7912260282 | |
| Download: ML19260C397 (21) | |
Text
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.t PE01 u v.~it. FAC. (( gG f97 STATE OF NEW YORK J
DEPARTMENT OF PUBLIC SERVICE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT CASE 80008 - 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 MN nuclear or coal fired electric generating units at a site in New Haven, Oswego County or alternatively, Stuyvesant, Columbia County.
(New I!aven Units 1 & 2).
STAFF'S REPLY IN OPPOSITION TO THE APPLICANTS' MOTION FOR REHEARING P
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9 0) s MICHA.EL FLYNN Staff Counsel CRAIG INDYKE Staff Counsel Dated:
Albany, New York December 3, 1979
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e STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT CASE 80008 - 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).
STAFF'S REPLY IN OPPOSITION TO THE APPLICANTS' MOTION FOR REHEARING I.
INTRODUCTION The application of New York State Electric & Gas Corporation (NYTEG) and Long Island Lighting Company (LILCO) to build two 1250 megawatt generating stations at New Haven was dismisced by the siting Board on October 12, 1979.
The applicants moved for rehearing on November 12, 1979, and this brief is submitted by Staff of the Public Service Commission in opposition to that motion.
16!8 050
CASE 80003 -
Much of the applicants' notion reiterates arguments considered and rejected by the Siting Board.
For example, the a pplicants ' contention that uncertain ownership is not a legally or factually sufficient reason to dismiss the app: tcation is the same argument the Siting Board has already found unpersuasive.b!
As to the Siting Board's conclusion that uncertain ownership merits dismissal, the applicants ' motion for rehearing presents no new facts or arguments and, for that reason, should be denied.
The motion does,.however, attack the rationale of the Board's order on certain grounds and contains a request for alternative relief.
These subjects are discussed in this brief.
We first respond to the contention that the Board erred by finding that the applicants have made no credible showing of statewide need.
We believe, after consideration of the Siting Board and Commission decisions, that it is unnececsary for the Board to make any findings on need issues at this time.
We therefore, urge the Siting Board upon reconsideration to abrogate its no-statewide-need finding and reaffirm its conclusion that uncertain ownership is a sufficient ground for dismissal.
Next, this brief refutes the contention that reliance on the Madsen-Rider prefiled Jamesport
-1/ Appl'. cants ' Motion for Fehearing, November 12, 1979 at 7-12, (hereaf ter cited as Applicants ' m otion.)
1618 05i
CASE 80008 testimony was a denial of the applicants' right of due p rocess.
Further, we suggest that the applicants' request for leave to file an affidavit on the question of probabic ownership is, in light of many previous opportunities, merely a delaying tactic.
This brief also addresses the applicants' contention that the Board should be willing to certify lets than the proposed project and explains our position that the cost of hearings was considered properly by the Board.
We conclude with arguments opposing the applicants ' alternative relief of proceeding with hearings on environmental issues.
1618 052
'y.
, CASE 80008 II.
THE DOARD SHOULD ABROGATE ITS FINDINGS ON STATEWIDE NEED AND PLACE SOLE RELIA:!CE FOR DISMISSAL ON UNCERTAI:: Oi.TE RS H IP.
After agreeing with the Public Service Commission that the uncertain ownership requires dismissal of the application, Siting Board wen'_ on to state-
"Furthermore, applicants have made no credible showing of strtewide need for the facilities...."b!
pplicants argue that this statement or finding has no basis The and is in error (Applicants' motion, at 17-22).
The Board dcas not reference what materials or fachu it considered in making this finding.
Of course, there have been no hearings on the need question in this proceeding.
And, as the Commission recognized, "[f]or the purpose of considering a motion to dismiss, applicants' claims drut the public need for the proposed facility must be accepted as true." / So, the Siting Board must have looked beyond the Case 80008 record to make its finding of no statewide need.
Applicants submit that this constitutes error and requires that the Board rescind its dismissal order and allow the proceeding to continue to full hearings (Applicants' motion at 29).
Staff believes that while the Board should carefully reconsider this finding, b/ Case 80008 - Board on Electric Generation Siting And The Environment, Order Dismissing Application, October 12, 1979 at 5 - (hereaf ter cited as the Board order).
-2/ Case 80008 - Commission Order Certifying Appeal and Recommending Dismissal of Application, July 12, 1979 at 5 (hereafter cited as the Commission certification).
1618 053
CASE 80008 a reversal of the Board's order is not necessary.
Section 22 of the Public Service Law, which applies to the Siting Board through Section 148, authorizes the Board to " abrogate or change" its original order if it is "of the opinion that the original order or any part thereof is in any respect unjust or unwarranted, or should be changed...."
Steff strongly recommends that the Siting Board, upon reconsideration, " abrogate" its finding of no statewide need.
By retracting explicitly this finding,the Board will remove any ta nt which exists in the Board's order.
Any attempt to explain this finding at this time would in all likelihood run afoul of the procedural rights of the parties.
The Board, however, should also reaffinn that the substantial uncertainty over ownership is the basis for its decision to dismiss the application.
So long as the Siting Board acrees with the Commission order that uncertainty of ownership is a good and sufficient reason for dismissal, it is unnecessary to make any finding on statewide need.
Staff also suggests that the Board incorporate into its opinion on rehearing language similar to that used by the Commission:
We do not find the public need questions material to the ownership issue the motion raises....The Ecology Action motion is not a need motion, it is an ownership motion.
(Commission certification at 5-6.)
1618 054
CASE 80008 III.
APPLICANTS WERE NOT DENIED DUE PROCESS BY USE OF MATERIAL FROM OUTSIDE Ti!E RECORD OF CASE 80008 SINCE TIIEY WERE APPRISED OF IT AND AFFORDED AN OPPORTUNITY TO RESPOND.
The applicants claim that they have been denied due process by the Siting Board's reliance upon materials and facts outside the record of Case 80008.
Essentially,.they argue that since "there was no motion to request the Examiners or the Siting Board to take official notice of the quoted prefiled testimony...or records in other proceedings nor were any supplemental or supporting affidavits submitted by any party"
.they were not apprised of the facts to be considered (Applicants' motion at 13).
The applicants then argue that this omission violates the standards for taking official notice set down in United States v. Pierce Auto Line, 327 U.S. 515 (1946); Sinoson v. Wolansky, 38 N.Y.2d 391 (1975);j and Section 306 of the New York State Administrative Procedure Act.
A review of the documents in this proceeding and the legal requirements for taking of ficial notice reveals that the applicants '
claim is without merit.
The crucial question involved in the use of facts outside the record is not whether there has been a technical or formal statement of official notice, but whether the party has an adequate 1618 055
CASE 80008 opportunity "to meet in an appropriate fashion all the facts that influence the disposition of the case."b[ Pierce Auto Line, Wolansky and Section 30G of the State Administrative Procedure Act require nothing more.
In Pierce Auto Line, the Supreme Court stated:
[T]he mere fact that the determining body hne, looked beyond the record does not invalidate its action unless substantial prejudice is shown to result. 327 U.S.
at 530.
The New York Court of Appeals held in Wolansky that a party has a right to be " apprised of the proof to be considered, with concomitant opportunity to cross-examine witnesses, inspect documents and offer evidence in rebuttal or explanation."
38 N.Y.2d at 392.
The recently enacted State Administrative Procedure Act adds that official notice of facts not in the record may be taken provided "every party shall be given notice thereof and shall on timely request be afforded an opportunity prior to decision to dispute the fact or its materiality." (New York State Administrative Procedure Act, S 306(4) McKinney 1979.)
Thus, a party must be apprised of the facts to be con-sidered and thereafter be given an appropriate opportunity to show the contrary before a final decision is made.
1I 4 K.C. Davis, Administrative Law Treatise 548 (Supp. 1970).
1618 056
CASE 80008 In this proceeding, long before thc Siting Board acted, the applicants were fully aware that the prefiled testimony of their own representatives was being considered as ground for possible dismissal.
In fact, Ecology Action's initial motion to dismiss the application filed on March 27, 1979 contained specific quotations and references to the MadsenJMder prefiled testimony which was later relied upon by the Commission.and the Siting Board.
Furthermore, in our reply to the applicant /. response to the Commission's certification order, we noted specifically three instances in which the applicants were opportunity to retract their prefiled Jamesport testimony.1'/
gi3mn focal Since then, the applicants have had two more opportunities ! to state whether the Madsen-Rider testimony continues to reflect their expectations and intent.
Nevertheless, even if one applies the rigid test of the applicants which presunzbly requires a " motion" or statement of official notice, the applicants effectively received such notice in the Commission's certification order.
In the Commission's order, the prefiled testimony of the Applicatns was explicitly cited and quoted at length (Commission certification at 6).
References to other Article VIII applications and to 149-b Reports were also specifically given (Commission certification at 37).
-1/ Staff's Reply to Statements in Response to Commission Certification to the Siting Board, August 6,1976 at 9-13.
-2/ Applicants were permitted to file a follow up response to the Commission's certifyinc order which they did on August 16, 1979) they also had an opportunity in their Motion for Rehearing to submit additional evidence.
1618 057
~ "
CASE 80008 These explicit references informed the applicants that relevant materials in other proceedings vere being considered by the Commission and would a'so be before the Siting Board.
The Commission certifying order also gave the applicants an opportunity to respond to these materials.
This procedure is consistent with the requirements of official notice and due process.
Thus, the record reveals that applicants were on notice through the Commission's Certifying Order that certain other proceedings and the Madsen-Rider testimony were being revieued by the Commission and would also be before the Siting Board when it rendered a final decision.
The Commission and the Siting Board cannot be expected to review applications in a vaccum.
And in this instance, where the referenced testimony is that of the applicants from another Article VIII proceeding,the use of the material is not only proper but com-pelling.b/
We do not believe that the Commission certifying order mislead the applicants or failed to apprise them of what sources would be considered in making a determination.
Their argument to the Siting Board demonstrates this at numerous points.
Consequently, the 1/
See e.g.,
Market Street R.
Co. v. Interstate Commerce Commission, 324 U.S.
548, 562 (1944).
1618 058
~ ~.
CASE 80008 applicants' allegation of ignorance and lack of notice is baseless.
Applicants' state that they strongly believed that the mere signing of the application was sufficient to establish their respective intent and that further indications of intent such as an affidavit would be redundant and ' cumulative (Applicants motion at 11).
Yet, even after the Commission recommended dismissal the F.pplicants failed to come forward with any additional evidence regarding probable ownership.
Applicants latest request to file an affidavit still does not shed any light on their plans.
After many opportunities to adduce evidence on their intent or plans, including their Motion for Rehearing, we believe their latest request is a delaying tactic which continues to reflect the applicants ' lack of intent to proceed with the application as they initially filed.
1618 059
CASE 80008 IV.
THE SITING EOARD SHOULD NOT CONSIDER REOPENING THIS PROCEEDING FOR PURPOSES OF CERTIFYING LESS THAN THE REQUESTdD RELIEF UNLESS THE APPLICANTS FIRST AMEND THEIR APPLICATICN.
By ordering dismissal, the applicants state that the Siting Board foreclosed the Board's opportunity to certify a smaller generating station than proposed.
They also argue, in that where several alternative options exist in an application,
- effect, the Siting Board should relate these options to the individual needs of the individual sponsoring utilit".
In short, applicants would have the Siting Board preserve that part of the application for which NYSE&G individually alleges a necd.
The notion that the Siting Board s!)ould unilaterally act to preservc part of the application of NYSE&G is improper and unfair to the parties.
The Commission correctly characterized this issue as a responsilgility of the applicants.
The Commission stated:
A utility applying for an Article VIII certificate is under an affirmative obligation to do its best to tailor its proposal to fulfill perceived service requirements economically and in compliance with environmental, health and safety standards.
(' Commission certification at 8.)
Equity and economy require that the burden of amending an application to suit the individual needs of an applicant rest primarily on that applicant and not on the parties or the Siting Board.
The Siting Board should, there' fore, adopt the Commission's position.
1618 060
~
~~'
CASE 80008 V.
COST OF HEARINGS WAS PROPERLY CONSIDERED BY THE SITING BOARD.
Without much explanation, the applicants contend that "it is an error for the Siting Beard to consider the cost of hearings in.its decision as to whether issues of fact exist" (Applicants' motion at 27).
But the Siting Board did not consider cost of the Article VIII hearings in deciding, as the applicants suggest, "whether issues of fact exist."
The Board did not say that the application should be dismissed'for the reason that the necessary hearings would be costly.
The Board only said that, in view of substantial uncertainty over ownership at this early stage of the proceeding, it would be unfair (as well as inconsistent. with the spirit of Article VIII) to burden other parties with the cost of extended hearings of speculative value.
Thus, as we interpret the Board's order, cost of hearings was not used as a ground for dismissal, but rather was one reason why uncertain ownership requires dismissal.
1618 061
CASE 80008 VI.
APPLICANTS' MOTION IN THE ALTERNATIVE FOR CONTINUED HEARINGS ON ONLY ENVIRONI1 ENTAL ISSUES SHOULD BE DENIED.
In the alternative, if the Siting Board reaffirms its decision on the ownership question, the applicants move to proceed with hearings on the environmental issues (Applicants' Motion at 29-32).
Need for the facilities and ability to finance would be subjects of later hearings and presumably a second Board decision.
There is no precedent in other Article VIII cases for such a procedure, as the applications contend (Applicants' Motion at 31).
While the passage of time has caused relitigation of the need issue in some Article VIII cases, in no case has the need and environmental issues been totally separated at the outset of hearings.
No case has proceeded with two tracks of hearings, nor has any case resulted in a certification opinion in which both need and environmental issues were not discussed.
The procedure suggested by the applicants appears similar to that used by the Nuclear Regulatory Commission for an early partial decision on site suitability issues;/
l' But Article VIII of the Public Service Law makes no provision for early partial decisions, and there is reason to question whether the Siting Board has the authority to issue a partial certificate in an Article VIII proceeding.
1/
See, 10 CFR 52.101(a-1) and SS 2.600 et seg.
1618 062
s CASE 50008 Article VIII requires an integrated decision in which need and environ-mental issues are balanced together.
The applicants proposal would short circuit this process and be inconsistent with Section 146(2) of Article VIII which requires a weighing of considerations.
Furthermore, it should be realized that the applicants' motion to proceed with environmental issues would entail many of the same difficulties the Siting Board has already identified.
Parties would be required to engage in long, costly hearings for what would remain a hypothetical proceeding, that is, a proceeding without owners committed to build and use the proposed facilities.
Nor will data gathered in the New Haven application be lost, as the applicants fear (Applicants Motion at 31).
The Commission's regulations provide that data may be used in a future application as long as it remains representative of conditions at and near the site (16 NYCRR S70.57).
If " preservation of the New Haven site and its alternate" is the applicants goal (Applicants motion at 31), the proper procedure is not the institution of a hypothetical Article VIII proceeding leading to a legally questionable partial certificate.
If it is expediency and efficiency that the applicants seek, a new application, filed under the amended Article VIII statute, which requires a decision in two years, would satisfy these criteria.
This process would allow the applicants to rethink, revise and resubmit their proposal at their own expense and time and not that of the parties.
1618 063-
CASE 80008 Conclusion The motion of the applicants basically repeats arguments which the Commiss. ion and,.thereafter,the Siting Board found unpersuasive and insufficient to justify denial of the motion for dismissal.
Accordingly, Staff believes that rehearing would not serve any beneficial purpose and that Applicants motion should be denied in all respects.
Respectfully submitted, n.
V$
f CRA M.
INDYK Staff Counsel h/5.7 $t 6;! hN~
MICHAEL FLYNN Staff Counsel Dated:
Albany, New York December 3, 197.9 1618 064
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BOARD ON DJ%.
ELECTRIC GENERATION SITING AND THE ENVIRONMENT g MD f/
'A CASE 80008 - 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 FM nuclear or coal filed 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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SS.:
COUNTY OF ALBANY
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This is to certify that a true copy of the Department of Public Service Staff's Reply in Opposition to the Applicants Motion for Rehearing to the Siting Board, was served upon the persons appearing on the attached list by deposi ting in a post office box regularly maintained by the government of the United States in the County of Albany, State of New York, or in the case of New York State agencies by interagency mail of New York State, on December 3, 1979.
/. a4 6 CRAIG W.
INDYKE
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DCCYET ::GS. ST:: 50-596 and STN 50-597 CASE 80008 Mr. Alman J. Hawkins C0unty Planninc Director Oswego County Planning'Soard 46 East Bridge Street Oswego, New York 13126 Peter D.
G.
Brown Chairman of the Board Mid-Hudson Nuclear Opponents 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 York 13114 Atomic ~L.-fety and Licensing Appeal Board Panel jflg U.S.
Nuclear Regulatory Com-Mission Washington, D.C.
20555
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