ML19276G608

Reaffirms 790611 Comments.Application Is Summary of Util Findings & Conclusions.Nrc & Intervenors Must Develop Record on Which Siting Board Will Make Final Decision

ML19276G608
Person / Time
Site:	New Haven
Issue date:	06/26/1979
From:	Daly H ECOLOGY ACTION OF OSWEGO
To:
References
NUDOCS 7907240235
Download: ML19276G608 (5)

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' REIATED COPJ1ESPONDf2 ICE

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, State of New York Board on Electric Generation Siting g Case 80008 and the Environment g CDQC ggCu3 United States of America Y Nuclear Regulatory Co= mission g cct Dockets 50-596-597 In the Matter of Z )g k2 l9; 3 @ s)g @ #Z1 New York State Electric & Gas e _ ges Dg ycI and Long Island Lighting Co. - q Oh,'g)ea 4 New Haven /Stuyvesant, nuclear /co ) 30* s generating facility application 4' e

"i June 26, 1979 COMMENTS BY ECOLOGY ACTION OF OS'JEGO CN JUNE 11, 1979 COMMENTS BY APPLICANT AND DPS STAFF On June 11, 1979, Ecology Action of Oswego, the Applicant, and DPS staff filed com=ents conc:rning a number of issues. After reading the comments by other parties, Ecology Action stands firmly committed to the positions it took on June 11.

The Applicant's June 11 comments substantiated our worst fears. Their aim is clear: develop procedures which will result in a minimal record upon which the Siting Board will =ake its final decision. Their concern seems to be with narrowing and focusing the issues as early as possible in the State proceeding, ruling out the possibility of using the full time through the entire hearing process for intervenors and Staffs to develop a ecmplete record for the Siting Board to make a decision on. Adopting the Applicant's suggested procedures will' result in a denial of the application or a reopening of the record by the Siting Board to cover issues not raised on the record. 'Je must remember that the application is seraly a smry of the Applicant's findings and conclusion. It 1.s up to the independent Staffs of agencies and intervenors to develop a complete and accurate record for the Siting Board t:, perform its balancing test to make its final decision.

Procedures developed in prior cases filed under the old Article VIII law (the law under which this application was filed, although the Aeolicant was free to wait a few weeks and file under the new Article VIII), allowed for full development of the record through testimony and cross examination of the Applicant's witnesses followed by testi=ony and cross examination of the Staffs and intervenors witnesses.

7 9 0 7 2 4 c> n s

2 The Applicant is attempting to foreclose the development of a complete record by following NRC procedures, which we have never endorsed and which have serious shortcomings: they result in pre =ature identification of contentions, with the burden placed on intervenors :to show reason why contentions should be allowed, and if additional contentions are raised at a later time, intervenor must show reason why they did not bring them up earlier. It is the Applicant who wishes to construct a plant. Section 306(1) of SAPA puts burden of proof on party (Applicant) to prove its case. Applicant's recommended procedures attempt to place the burden of proof on Staffs and intervenors, thus violating Section 306(1) of SAPA.

The Applicant's suggestions =ust not be used, and procedures used in prior Article VIII proceedings, as outlined by Ecology Action in their June 11 coc=ents, must be used in this last application filed under the old Article VIII.

I. Specific Com=ents on Aoplicant's Statements and Incorrect Assumotions A. ISSUE IDENTIFICATION. The Applicant recommends that parties identify issues in the State proceeding by Aug.1,1979 (excluding DPS and DEC on nuclear issues be,cause of their special position as NRC's consultants). To force parties to state issues would substantially change the Article VIII law under which the application was filed, and would prejudice the rights of parties to develop a complete record upon which the Siting Board makes its final decision. Applicants admit that issue identification forces parties to " set forth their position" (Applicant, page 7). Thus Staffs and intervenors are being asked to identify issues and their positions far earlier than in prior Article VIII hearings, which changes the entire nature of the Article VIII law in which Staffs take positions after cross examination of the Applicant's direct case by both themselves and intervenors. A pre =ature position without the evidence raised under cross examination can only lead to an inferior record with important issues not being explored as fully as they should be for the Siting Board to base its decision on. In addition, encourage =ent of governmental entities to specify subject matters (see Applicant, page 3), also changes Article VIII procedure substantially violates the rights of these entities, and sust not be allowed. It is also more restrictive than under NRC procedures.

The old Article VIII law under which this application was filed sets forth the issues which need to be heard. The law itself puts the Applicant on notice what the issues are which have to be raised. The Applicant =erely needs to read from Part 72 on of the Rules of Procedure (statutory authority: Public Service Law gg 20, 142, 149-b). No one needs to raise these issues. The Applicant can easily understand the issues, and thus there is no reason to threaten parties with hundreds and thousands of requests for admission (see Applicant, page 5), and oral deposition (see Applicant, page 7).

3 Applicant seems to think that because Staffs stress issue identification (see Applicant, page 2), that issue identification is proper under the old Article VIII law. This is just not correct. We should use the procedures developed in prior Article VIII hearings, which does not allow for issue identification.

Applicant also assumes that NRC rules are a convenient source for procedure of issue identification practices (see Applicant, page 4). This just is not true.

NRC :ules have never been shown to be sufficient for the development of a complete and accurate record upon which a balancing test can be performed by the State Siting Board. As we have stated earlier, there is good reason to believe that NRC procedures adapted to the Article VIII proceeding will hamper the development of a complete record.

Applicant assumes that contentions in the NRC hearings, and issues upon which the Siting Board must =ake its final decision based ou the record, are the same.

This is an un true assumption. There are a number of issues which must be developed on the record by either Staffs or intervenors, which have not been raised by intervenors in the NRC proceeding.

B. NARROWING OF ISSUES. Old Article VIII law provides no procedure.4 for narrowing of issues because parties are not required to raise issues, and all issues stated in the law must be covered. Thus, there is no need tc develop procedures for issue identification, narrowing, or focusing in this hearing, because the application was filed ;under the old Article VIII law.

Applicant requests Staffs and intervenors to be forced to not only state issues, but also to provide a basis for the issue (see Applicant, pages 6 and 7), to help

focus and narrow the ulti= ate issues to be litigated in this proceeding" (p. 6).

The suggested procedure is even more restrictive than in NRC proceedings, which requires bases for each contention set forth with " reasonable specificity" g 2. 714 (b) . Applicant proposes further that bases "must provide some factual support" (p. 7), clearly more than what the NRC means by " reasonable specificity."

Since under the law issues are not identified,for Applicant to request an even stricter procedure than required by the NRC is strange.

C. ISSUE IDENTIFICATICN SCHEDULE. Since issues do not need to be raised by parties under the old Article VIII law, no date for issue identification needs to be set. In the event that Hearing Examiners Matias and Schwart: rule that issues must be identified (which we oppose), we oppose the Applicant's suggested timing (Aug. 1, 1979). Should issues need to be identified, we think they should be tied to publication of the SER and DES. Applicant wishes issues to be identified prior to the DES, however, they give no reason for this request. DPS Staff, however, give good reasons why issue identification should be done after issuance of the DES (see DPS, pages 2-3). Applicant realizes that its request leads to preblems, because they then set up rules by which additional issues can be raised af:ar the issuance of the DES (Applicant, page 10). However, once again the Applicant proposes rules which further restrict the rights of intervenors, by saying new issues raised must only be on positions taken by Staff which are more prejudicial to parties than the Applicant's position. Let us remember that the purpose of development of a record is to provide information upon which the Siting Board makes its balancing test. Prejudicing intervenors from developing a complete record because an issue was not raised prior to DES issuance, will result in having the Siting Board reopen the record to develop the issue. Let us remember that all issues under Article VIII must be raised irrespective of their being more or less prejudicial.

4 We have proposed that the DEC should not be issued until after SER publication and SER decision (sc; Ecology Action, page 3). Thus, if issues must be identified in the Article VIII hearing, and the DES is issued after the SER, then clearly issues would be identified after the SER. But, in the event that the DES issuance is not tied to the SER decision, there is the possibility that issues would have to be identified prior to the SER decision. We suggest that if a date for issue identification must be made, that it be af ter an SER decision, for the same reasons DPS Staff states that issues should be identified after the DES.

Applicants appear to base many of their recommendations on scheduling on the assumption of an Oct. 1, 1981 decision (see Applicant, page 4). This date has never been fixed, and is merely a recommendation of DPS staffs. The only fixed date for a decision is Feb. 4, 1980, the decision date for applications filed under the old Article VIII law. Any other date =ust be agreed to by parties. We have argued that a decision date of Oct. 1, 1981 is three-fdve or more years premature (see Ecology Action, page 2), and that for the Siting soard to make a timely final decision on a current record, the Examiners should i=med, r.ly dismiss the case due to premature filing of the application (see Ecology Ac on, pages 3-4).

D. DISCOVERY SCHEDULE. Applicant states that discovery is not limited in Article VIII to controverted issues (Applicant, page 9). They state that prior to Aug.1,1979, this rule applies, but af ter Aug.1,1979, they wish to limit discovery to only those issues which are centested. Since Applicant proposes 45 days to answer discovery, they have in effect set up a schedule whereby they wculd not have to answer any discovery except on issues accepted as contested (if that procedure should be adopted despite Ecology Action's objections); it is now June 26, 1979, less than 45 days to Aug. 1, 1979. Applicant's proposal vilates Article VIII, since all issues raised under Article VIII are issues intervenors may submit discovery on. No process by which parties are denied their rights to discovery is legal. The Applicant's suggestion must be denied.

E. RE?ETITIVE CROSS EIAMINATICN. Applicants apparently fear time consuming repetitive cross examination (see Applicant, page S). Thus, they suggest that despite the f act that consolidation of governmental parties is prohibite under law, that this law can be circumvented by " Examiners' substantial powers f persuasion" (p. 8). Applicant claims this should be done in the interes, avoiding repetitive cross-examination. There is no evidence that the illts pressure of consolidation of governmental parties would result in less repetitive cross examination. There are better, legal ways of avoiding repetitiets cross, without consolidation of parties. Applicant's request must be denied.

F. CONDUCT OF EVIDENTIARY HEARING. Applicant and Staffs apparently agree with each other, and disagree with Ecology Action and Counsel for Columbia County and Concerned Citizens for Safe Energy as to the order of cross examinatien. We repeat our June 11 statement, that Applicant filed under the old Article VIII law, and thus the procedures developed in hearings under the old law should be followed.

Thus, cross examination of the applicants entire case is done first, followed by submission of staffs and intervenors direct case, and its cross examination. Under Staff and Applicant's suggested procedure, only the Applicant has opportunity for rebuttal. Undet Article VIII procedures all parties have a chance for rebuttal. A deviation from this procedure would violate the rights of intervenors to establish a ec=plete record for the Siting Board to make its final decision. Ecology Actien's recommendations, based on previous Article VIII hearing procedures must be adopted.

To attempt to try the case in discovery, and skip important steps in the hearing

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5 would lead to an inferior record. We must remember that discovery is not on the record. We must ensure that all issues are on the record upon which the Siting Board must make its final determination.

II. Ser Schedule is Further Delayed -

In a June 22, 1979 telephone conversation with Mr. Olin Parr of the NRC, Ecology Action of Oswego updated the information on the SER schedule changes due to the 3 Mile Island accident. It was learned that work en the SER is going forward in a very limited manner in the New Haveacase, on only a few of the issues covered la the SER. Mr. Parr's view is that the issuance of the SER will be delayed frem 9 to 12 =onths minimally. Thus, it would not be issue' antil May-Aug 1981, and a final decision would not be made until April-July lo' t. This puts the Hearing Examiners in an awkward position, in that Staff tad Applicant are proposing an Oct. 1, 1981 decision date, a date prior to an SER decision. This is of course an impossible situation, since many of the issues in the SER have direct bearing on the cost / benefit analysis which cust be made in the NRC proceeding, and the balancing test which must be made by the Siting Board in the Article VIII proceeding.

If we want to keep within a two year hearing schedule, Hearing Examiners must i==ediately dismiss the case, and if Applicant wishes, they may file at an appropriate time (see Ecology Action, page 3).

III. Decision to Hold Joint Hearing Most of the issues raised by Applicants and intervenors concern rules which effect the nature of the Article VIII proceeding, not the NRC proceeding. Therefore, we believe that Hearing Examiners Matias and Schwart: should take extreme care in ruling on the points raised. Although we are in favor of the intent of Joint Hearings "t? avoid unnecessary duplication...," if joint hearings result in procedures being adopted which violate the rights given Staffs and intervenors under Article VIII, and which they had in previous Article VIII hearings, then we should not proceed with joint hearings.

Respectfully submitted, l

[1 .A s t Jn ( ,

Helen Daly, Intervencion Coordinator Ecology Action of Oswego June 26, 1979 Copies to all Parties

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