ML19282A668
| ML19282A668 | |
| Person / Time | |
|---|---|
| Site: | 05000516, 05000517 |
| Issue date: | 01/20/1979 |
| From: | Reveley W LONG ISLAND LIGHTING CO. |
| To: | |
| References | |
| NUDOCS 7903050440 | |
| Download: ML19282A668 (10) | |
Text
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NRC Pij 1/20/79 g
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NUCLEAR REGULATORY COMMISSION 6
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-2 Before the Atomic Safety and Licensing Appeal BopN L
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In the Matter of
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ui LONG ISLAND LIGHTING COMPANY
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Docket Nos. 50-516 NEW YORK STATE ELECTRIC &
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50-517 GAS CORPORATION
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(Jamesport Nuclear Power Station,
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Units 1 and 2)
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APPLICANTS' OPPOSITION TO SUFFOLK COUNTY'S STAY REQUEST On January 4, 1979, construction permits were issued for Jamesport Units 1 and 2, pursuant to the ASLB's Partial Initial Decision of May 9, 1978 and Initial Decision of Decem-ber 26, 1978.
The Applicants recently received " County of Suffolk's Application for Stay Pursuant to 10.CFR Section 2.788,"
dated January 8,1979 (SC Stay Request).
We oppose the request.
According to 10 CFR S 2.788(e).
In determining whether to grant or deny
. a stay, the.
. Appeal Board.
will consider:
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2)
Whether the party will be irrepar-ably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (4)
Where the public interest lies.
7003050 '/d
SC has not carried its burden of proof as to any of these criteria.
We consider each in turn.
1.
Likelihood of Movant's Success on the Merits Pages 2-6 of the SC Stay Request deal with this criter-ion.
With one exception, however, these pages simply repeat arguments made in past SC presentations to the ASLB and this Board.
These arguments have been effectively answered by the Applicants and Staff in their presentations.
See generally, e.g, Applicants' Brief Opposing Exceptions (Aug. 14, 1978).
Moreover, the arguments were rejected by,the ASLL in its ames-l port decisions of May and December 1978.
And oral argument before this Board on October 19, 1978 did not indicate that SC's arguments are "likely to prevail" ultimately.
Under the circumstances, SC's bare reiteration of its views does not constitute "a strong showing" of anything, other than a pen-chant for redundancy.
The one new element advanced by SC is the New York Sit-ing Board's decision to reopen its Jamesport proc on certain issues.
A copy of the pertinent Sitinf domm
- der reached this Board via SC's letter of December 27, 197E.
In short form, the reopened matters identified or pag 6-7 of the Siting Board Order are:
(1)
Given revised " forecasts of demand and capac-ity," do LILCO and NYSE&G need both Jamesport in 1988/90 and the so-called New Haven units,
currently proposed by the two companies for upstate New York in 1991/93?
(2)
Focusing only on Jamesport, should the 2300 MWe in question be located on Long Island or upstate "[a]ssuming.
that most of the demand responsible for this addition material-izes in NYSE&G's service territory?"
(3)
"Has the deferral
. of the proposed facilities made feasible alternative means of meeting forecasted demand," either via emerging technologies or purchased power from other utilities?
- And, (4)
"Have the forecast revisions materially altered the relative economics of.
the specific nuclear and coal generating facili-ties proposed in this case?"
The first of these four questions is irrelevant to the Jamesport case, whether in its federal or state phases.
At issue in this proceeding is whether, all factors considered, it makes sense for LILCO and NYSE&G to share an initial 2300 MWe of new capacity in 1988/90.
Whether the two compan-ies should thereaf ter undertake a second joint venture is appro-priately considered -- and can realistically be considered --
only in the context of a proceeding concerning the second joint venture.
Regarding such a second joint venture, it is well to remember that in recent years the projected commercial-operating dates of proposed power plants in New York State have slipped repeatedly, and the ownership of these units has changed as pertinent circumstances have changed.
Question (2) has been considered in this proceeding.
- See, e.g., Applicants' Brief Opposing Exceptions at 48-53 &
nn.50-51 (Aug. 14, 1978); see,also id. at 24, 30-32.
The fact that New York State's transmission system is already over-burdened moving power to the New York City-Long Island area from the northern and western parts of the state, the fact that 50% of the demand for power in New York State exists in the NYC-LI area, and the fact that the great bulk of the gen-erating capacity in this area is fired by foreign oil -- these factors combine to dictate the siting of the proposed 2300 MWe on Long Island, rather than upstate.1/
Questions (3) and (4) have also been considered below.
- See, e.g.,
Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), LBP-78-17, 7 NRC 826, 925-29 (1978),
Applicants' Brief Opposing Exceptions at 23-24, 53-59.
No previously unavailable technologies have emerged as viable alternatives to nuclear or coal units for baseload generation on Long Island.
Purchased power -- even hypothesizing the availability of firm, long-term sales to the Applicants --
would not meet the transmission need for Jamesport, and might do little to displace foreign oil.
Nor is there reason to believe 1IThese same factors establish that Jamesport is needed without regard to the vagaries of forecast demand.
Thus, given the unusual, perhaps unique, circumstances at hand, this Board is well qualified to decide whether or not Jamesport is needed, without awaiting an end to the latest attempt in New York State to divine how rapidly demand will grow.
Admittedly, however, this Board may also elect to await the New York Siting Board's views on the need for Jamesport, before expressing its own.
Cf.,
e.g.,
Rochester Gas & Elec. Co. (Sterling Power Project, Nuclear Unit No. 1), slip opinion at 4-8 (Oct. 19, 1978).
the relative economics of nuclear versus coal generation at Jamesport have been " materially altered" by forecast revisions, changes in commercial-operating dates, or any other development of the last few years (except that the Clean Air Act Amend-ments of 1977, as implemented by the Environmental Protection Agency, may well result in severely increased capital, O&M and fuel costs for the coal op' ion).
In sum, SC has not approached the showing required to satisfy the first criterion of 10 CFR S 2.788(e).
2.
Whether the Movant Confronts Irreparable Injury Absent a Stay Pages 6-10 of the SC Stay Request address this aspect of S 2.788 (e).
The argument seems to be twofold:
first, NEPA has been violated below and that violation, per se, constitutes irreparable injury; and, second, the Applicants are continuing to spend money on Jamesport, thus risking " incremental invest-ment [that] will tilt the cost / benefit balance," the possibility "of LILCO being permitted to a total of $1.3 billion for Shore-ham and $3.75 billion for Jamesport, which may be more than it can afford," and " grave hardship for LILCO's ratepayers."
Id.
at 9-10.
Argument one fails because SC's NEPA claims have been shown below to be frivolous,2/ and the facts of the cases cited by SC for its per se theory are readily distinguishable 2/ E.g.,
Long Island Lighting Co.,
supra, 7 NRC at 844-46, 928.
from facts of this case.
Argument two is even more inane.
The funds now being spent on Jamesport are insignificant in the context of the facility's overall costs and benefits; they lack the potential to " tilt" anything.
Further, the matters that are being funded -- certain progress payments to ec,uipment vendors, limited engineering and design work, interest on money already borrowed, and ongoing licensing work -- could be conducted by the Applicants without construction permits;1/ their issuance has not altered the Applicants' right to conduct these precon-struction activities, nor the practical necessity that they continue to do so if the station is to remain a live option.
SC's professed concern over LILCO's solvency is also empty.
The Applicants' financial qualifications were established without challenge before the ASLB.
E.g.,
Long Island Lighting Co.,
supra, 7 NRC at 841-42.
In any event, it is simply non-sense to imply that "3.75 billion" could be spent on the pre-construction activities in question.
It is also pointless for SC to pretend that LILCO is paying for all of Jamesport, as SC does by failing to impute to NYSE&G one-half of the billions alleged to be at stake.
So far as " grave hardship" to ratepayers is concerned, this Board lacks jurisdiction.
The New York Public Service Commission controls the matter, and the PSC plies its jurisdic-tion with acute sensitivity to the short-term cost of electricity.
1! ee, S
e.g., 10 CFR S 50.10.
_7 In short, SC has failed to satisfy the second criterion of 5 2.788(c).
3.
Whether the Stay "Would Harm Other Parties" Page 10 of the SC Stay Request devotes part of a sentence to this consideration.
SC's sentence fragment deals only with the Applicants, ignoring the IBEW and NRC Regulatory Staff, although these parties also supported Jamesport.
SC argues that "a halt to all Jamesport-related activities will do minimal harm to the Applicants," given " reduced statewide demand" and the Applicants' " voluntary deferral of the plants' commercial operating dates."
But again:
First, the "Jamesport-related activities" in question are permissible whether or not construc-tion permits are in effect.
Second, " reduced statewide demand" does not obviate the need to bring Jamesport on line as rapiniy as is feasible for transmission and oil-substitution reasons.
And, third, rather than " voluntarily" delaying the station, the Applicants rescheduled it to reflect licensing realities --
realities which apparently, even now, will prevent final Siting Board action for another year.
The Applicants and others would, in fact, be significantly harmed by the requested stay.
LILCO and NYSE&G are responsible to provide their customers with electricity that is as reliable, inexpensive and environmentally-benign as is feasible.
They are also concerned to accomplish that complex task in a fashion that advances, rather than inhibits, larger state and national
energy interests.
And it takes many years to plan, have approved and build generating capacity.
Thus, if such capacity is in the public interest, regulators must so indicate in a timely fashion.
Concomitantly, if regulators conclude that such capac-ity should not be built, or should be modified in some fashion, they must also so indicate in a timely fashion.
Otherwise, utilities cannot coherently plan for the future.
Their custom-ers risk having less reliabic, less inexpensive and less envi-ronmentally-benign electricity than might otherwise be the case.
Further, if the administrative process proves incapable of making such timely decisions, then it inexorably wastes public and private resources, thwarts the development of national energy policy (whatever that policy may be), and generally diminishes public confidence in the competence of government.
The Applicants' Jamesport proposal lay before the NRC for more than ~ four years before an initial regulatory decision was forthcoming.
Although New York State's companion proceed-ing remains mired in indecision, at least initial federal guidance has now been provided to the Applicants, an initial attempt has been made by federal regulators to appraise James-port in light of local, state and national energy realities, and one administrative process has shown itself capable of producing an initial decision on the merits of this case.
Under the circumstances, only the most compelling reasons could justify staying that decision.
No such reasons exist, f
.; 4.
The Public Interest Page 10 of the SC Stay Request claims that the public would " clearly" benefit from the requested action.
As noted above, the public clearly would not.
SC's Stay Request should be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY hA J/
f/ M W. Taylor'PhveTey, III John B. Vinson Hunton & Williams 707 East Main Street P. O.
Box 1535 Richmond, Virginia 23212 DATED:
January 20, 1979 CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS' OPPOSITION TO SUFFOLK COUNTY'S STAY REQUEST were served upon the follow-ing by first-class mail, postage prepaid, on January 20, 1979:
Jerome E.
Sharfman, Chairman Dr. W. Reed Johnson Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Richard S. Salzman, Esq.
Atomic Safety and Licensing Sheldon J. Wolfe, Esq.
Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
_lo_
Mr. Ralph S. Decker Irving Like, Esq.
Route 1, Box 190D Reilly, Like & Schneider Camoridge, Maryland 21613 200 West Main Street Babylon, New York 11702 Dr. E. Leonard Cheatum Route #3, Box 350A Joseph C. Gramer, Esq.
Watkinsville, Georgia 30677 425 Broadhollow Road Melville, New York 11746 U.S. Nuclear Regulatory Corcaission Office of the Secretary Mrs. Jean H. Tiedke Washington, D.C.
20555 Mrs. Shirley Bachrach Box 1103 Bernard M.
Bordenick, Esquire Southold, New York 11971 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 100 W Qlu W. Taylhr Reveley, III' Huntdn & Williams 707 East Main Street P.
O.
Box 1535 Richmond, Virginia 23212 DATED:
January 20, 1979 9