ML19260A426

Order by State of Ny Board on Electric Generation Siting & Environ Dismissing Ny State Electric & Gas Corp & Lilco Application for Environ Capability Certificate & for Public Need to Construct Facility

ML19260A426
Person / Time
Site:	New Haven, 05000576
Issue date:	10/12/1979
From:	Lanahan P, Larocca J, Zielinski C NEW YORK, STATE OF
To:
References
8008, NUDOCS 7911210095
Download: ML19260A426 (5)

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.c w a d' STA"'I OF NEW YORE

,W~ ~20ARD ON

'P' ELECTRIC Gud.ACION SITING AND THE ENVIRONMENT At a session of the New York State Board on Electric Generation Siting and the Environment for the New Haven /Stuyvesant Generating Facility held in the City of Albany on October 12, 1979.

BOARD ."MBERS PRESEr:

Charles A. Zielinski, Ch=4 an, Public Service C i ssi:n Peter Lanahan, Alternate for Rchert F. gN /

Flacke, Cc=missi::er, Department of /

Environmental Conservation g James L. Larocca, CWssioner, State

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Energv Office [F g -5 3 QN Dr. William E. Sey: cur, Alternate for D

g *I' s William D. Hasset:, com:issioner, Department of Cocterce g 4 Fred Bartle, Ad Hoc Member CASE 80008 - Application of the New York State Electric 5 Gas Corporation and the .ong Island Lighting Company for a certificate of envir:=.= ental compatibility and _cublic need - New Haven /Stuyvesant.

OR ER DISCSSING AIPLICATICN (Issued Cctober 12, 1979) 3ACKGROUND On Nova-ker 22, 1373, New York State Electric &

Gas Corporatica (NYSE&G) and Long Island Lighting Company (LI*.CO ) filed an app 2catien for a certificate ef environmental cc patibility and puil.ic need to cons, ruct two 1250 =egawatt

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CASE 80008 nuclear fueled electric generating facilities in New Eaven, Oswego Cocnty, c:, alternatively, in Stuyvesant, Colu=bia County. The application was docketed by the Chairman of the

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Public Service Cc-'ission and hearing procedures prescribed by Article VIII were ccmmenced.1/ At a prehearing conference held en March 27, 1979, Ecology Action of Oswego moved to dismiss the application on the grounds that it was pre =ature and legally insufficient. The motion was denied by the hearing examiners on April 13, 1979. Ecology Action then filed an interlocutory appeal of that ruling to the ?chlic Service Cc= mission 2/ and, on July 10, 1979, the Cc= mission certified the appeal to us with a recommendation 3/ that Icology Action's motion to dismiss be granted.

NYSE&G and LILCO have filed several briefs opposing Ecology Action's =otion and the Public Service Cer=tission's recc=mendation. The Department of Envirormantal Conservation has also schmitted a letter suggesting that the proceeding cn NYSI&G's and LILCO 's application be " suspended" pending Siting Board action on other Article VIII applications.

Responses to applicants' arguments were submitted by the staff cf the Department of Public Service, the Attorney General, Ecology Action, and Safe Energy for New Eaven.

Statements suppcrting the Cc= mission's recc==endation were received frcs the Village a: Mexico, the Tcwn of Kinderhcok, the Colu=bia County Farm 3creau, Col"+ia County, the Town of Stuyvesant, and Concerned Citizens for Safe Energy, Inc.

1/1972 Sessacn Laws, Chap. 385.

2/ Interlocutory appeals are governed by Section 70.8 of the Rules of Procedure. 15 NYCRR S 70.8.

3/ Case S0008 - Application of the New York State Electric &

Gas Corporacic: and the Long Island Lighting Ccmpany for a certificate of enviren= ental ce=patibility and public need - New Haven /Stuyvesant, Order C=--' 'ving Acceal and Recc==endine Dis =issal cf A:clication , issued Juiy 1;, 1979.

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CASE 80008

SUMMARY

CF MOTION TO DISMISS AND COMMISSICN'S RECOMMENDATICN Ecology Action's motion is based on the theory that an Article VIII application is pram ture and legally insufficient unless the ownership and ultimate use of a proposed ganerating facility are reasonably certain. Ecology Action claims that despite NYSE&G's and LILCO's announced intentien in the application to share the cost and output of the proposed facilities, the statements of applicants '

1 planners in Case 80003, Janescort / de=cnstrate that cwner-ship has not been determined.

' The Public Service Ccmmission agreed with Ecology Action that an Article VIII application shculd be dismissed wnen probable ownership has not been demonstrated. With respect to that question, the Comnission found. that even the applicants themselves were uncertain about who would cwn the facilities, and whether other utilities would purchase shares in the plants. The Commission further found unper-suasive applicants' claim that statewide need would result in other u*4'4" es ccming forward to participate in New Haven /Stuyvesant since 6000 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 Pool, 2.ncluding NYSE&G and IILCO, believe that capacity should be built before the capacity proposed in this ::ase. >

DISCUSSION Applicants claim that the Cen.nissien's recc==en-dation is based on a nisunderstanding of Article VIII and a misinterpretation of the record. They assert that probable 1/ 1979, Case 30003,

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nes:.meny of Madsen and Rider, filed February 23, 1381 M

CASE 80008 cwnership can " evolve" during the course of an Article VIII proceeding, in which issues relevant to need are litigated, and that there is no par.icular barrier unde: Article VIII to processing an application where cwnership is not reasonably certain. Similarly, applicants renew their claim, without additional support, that 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, Jamesport, which was relied on by both Ecology Action and the Ccmmission, only reflects the possibility that ownership arrangenents =ay change during the course of an Article VIII proceeding. Thus, contrary'to the Commission's conclusion, they contend that the issue of ownership of the New Eaven/Stuyvesant facilities is not " permeated with doubt."

We agree with the recommendation of the Public Service Commission. It would be wasteful to proceed with lengthy and cestly proceedings on a proposed generating facility whose ownership and use are subject to substantial ,

uncertainty at the very cutset of the hearings. Applicants concede that ownership is relevant but would have us proceed with substantial uncertainty ecut it frc= the outset. We believe this would be unfair to the other parties in the case and inconsistent wi.h the spirit of Article VIII. The statute centemplates a public exa-i nation and exploration of rignificant aspects of an application. This cannot be acccmplished when there is substantial uncertainty about cwnership at the cutset of hearings.

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Turther= ore , appl. cants have made no credible showing Of statewide need for _he f acilities, and have not di.sputaf the Pt.blic Service C~--4 ssion's cenclusion that

e_.ers hi cf -le New Eaven/S tuyvesant units will not be

• m cn_il other pending Article VIII cases are decided.

Ow_.ershi_: can:ct be inferred from either the current or

. robable future demand of any . e articular company or companies in the state. Moreover o no other utility. has expressed

'--=~=st in sharing ownership of the proposed facility even in de fue of the Public Service Cc= mission's opinion re c - endi:g dismissal because of uncertain ownership.

' his brings us to applicants' final argument. They

cstend that no reliable evidence has been intreduced in

.his proceeding calling into question their anne.sunced

i. entic: to share equally in the construction of the New Ia- en/S:cyvesan: unit. This argument =isses the mark. The plain facts are that probable cwnership has been called into questics by statements from applicants themselves. In

.hese circumsta=ces, it is the applicants ' responsibility

c remove the u= certainty by ccafirming their present

~i tman: to cwn and operate the proposed facility if it is licensed. Tne applicants have had many cpportunities to dc this and, instead, have f ailed to do so , claiming that he par _i.es =ust shcw that the ec=panies do not inten". te cw: the facilities. Their continued failure to respond directly Oc the Ecologf Action notion and the Public Ser rice Cc-i ssicn's recc==endation with a clear af firmation of present intent sinply confir=.s cur cc:clusion that the pr bable enership and utili=ation of the preposed facilities are too ==cer n to proceed with the case.

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