ML19209D063

Order Dismissing Application by Ny State Electric & Gas Corp & Lilco for Certificate of Environ Compability & Public Need to Construct Plant.Applicants Have Not Demonstrated Statewide Need for Facility

ML19209D063
Person / Time
Site:	New Haven
Issue date:	10/12/1979
From:	Madison S NEW YORK, STATE OF
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ML19209D064	List: ML19209D063
References
80008, NUDOCS 7910190345
Download: ML19209D063 (6)

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STATE OF NEW YORK BOARD ON ELECTRIC GENERATION 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 MEMBERS PRESENT:

Charles A. Zielinski, Chairman, Public Service Commission Peter Lanahan, Alternate for Robert F.

Flacke, Commissioner, Department of Environmental Conservation James L. Larocca, Commissioner, State Energy Office Dr. William E. Seymour, Alternate for William D. Hassett, Commissioner, Department of Commerce Fred Bartle, Ad Hoc Member CASE 80008 - Application of the New York State Electric & Gas Corporation and the Long Island Lighting Company for a certificate of environmental compatibility and public need - New Haven /Stuyvesant.

ORDER DISMISSING APPLICATION (Issued October 12, 1979)

BACKGROUND On November 22, 1978, New York State Electric &

Gas Corporation (NYSE&G) and Long Island Lighting Company (LILCO) filed an application for a certificate of environmental compatibility and public need to construct two 1250 megawatt 6 4h 7 9101 g o 3 y5 14 1173 7

CASE 80008 nuclear fueled electric generating facilities in New Haven, Oswego County, or, alternatively, in Stuyvesant, Columbia County. The application was docketed by the Chairman of the Public Service Commission and hearing procedures prescribed by Article VIII were commenced.1! At a prehearing conference held on March 27, 1979, Ecology Action of Oswego moved to dismiss the application on the grounds that it was' premature 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 Public 2

Service Commission / and, on July 10, 1979, the Commission certified the appeal to us with a recommendation 3 / that Neology Action's motion to dismiss be granted.

NYSE&G and LILCO have filed several briefs opposing Ecology Action's motion and the Public Service Commission's recommendation. The Department of Environmental Conservation has also submitted a letter suggesting that the proceeding on NYSE&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 of the Department of Public Service, the Attorney General, Ecology Action, and Safe Energy for New Haven.

Statements supporting the Commission's recommendation were received from the Village of Mexico, the Town of Kinderhook, the Columbia County Farm Bureau, Columbia County, the Town of Stuyvesant, and Concerned Citizens for Safe Energy, Inc.

1/1972 Session Laws, Chap. 385.

2/ Interlocutory appeals are governed by Section 70.8 of the Rules of Procedure. 16 NYCER S 70.8.

~3/ Case 80008 - Application of the New York State Electric &

Gas Corporation and the Long Island Lighting Company tar a certificate of environmental compatibility and public need - New Haven /Stuyvesant, Order Certifving Appeal and Recommending Dismissal of Application, issued July 10, 1979.

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CASE 80008

SUMMARY

OF MOTION TO DISMISS AND COMMISSION'S RECOMMENDATION Ecology Action's motion is based on the theory that an Article VIII application is premature and legally insufficient unless the ownership and ultimate use of a proposed generating facility are reasonably certain. Ecology Action claims that despite NYSE&G's and LILCO's announced intention in the applicati to share the cost and output of the proposed facilities, the. statements of applicants' planners in Case 80003, Jamesport1/ demonstrate that owner-ship has not been determined.

The Public Service Commission agreed with Ecology Action that an' Article VIII application should be dfsmissed when probable ownership has not been demonstrated. dith respect to that question, the Commission found that even the applicants themselves were uncertain about who would own the facilities, and wheti. r other utilities would purchase shares in the plants. rhe Commission further found unper -

suasive applicants' claim that statewide need would result in other utilities coming 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 Power Pool, including NYSE&G and LILCO, believe that capacity should be built before the capacity proposed in this case.

DISCUSSION Applicants claim that the Commission's recommen-dation is based on a misunderstanding of Article VIII and a misinterpretation of the record. They assert that probable 1/ 1979, Case p.80003, 5.

testimony of Madsen and Rider, filed February 23, 1175 i76 CASE 80008 ownership can " evolve" during the course of an Article VIII proceeding, in which issues relevant to need are litigated, and that there is no particular barrier under Article VIII to processing an application where ownership is not reasonably certain. Similarly, applicants renew their claim, without additional support, that continuing 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 testimony of their system planners in Case 80003, Jamesport, which was relied on by both Ecology Action and the Commission, only reflects the possibility that ownership arrangements may 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 Haven /Stuyvedant 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 costly proceedings on a proposed generating facility whose ownership and use are subject to substantial uncertainty at the very outset of the hearings. Applicants concede that ownership is relevant but would have us proceed with substantial uncertainty about it from the outset, We believe this would be unfair to the other partiet .a une case and inconsistent with the spirit of Article VIII. The statute contemplates a public examination and exploration of significant aspects of an application. This cannot be accomplished when there is substantial uncertainty about ownership at the outset of hearings.

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CASE 80008 Furthermore, applicants have made no credible showing of statewide need for the facilities, and have not disputed the Public Service Commission's conclusion that ownership of the New Haven /Stuyvesant units will not be known until other pending Article VIII cases are decided.

Ownership cannot be inferred from either the current or probable future demand of any particular company or companies in the state. Moreover, no other utility has expressed interest in sharing ownership of the proposed facility even in the face of the Public Service Commission's opinion recommending dismissal because of uncertain ownership.

Thi's brings us to applicants' final argument. They contend that no reliable evidence has been introduced in this proceeding calling into question their announced intention to share equally in the construction of the New Haven /Stuyvesant unit. This argument misses the mark. The plain facts are that probable ownership has been called into question by statements from applicants themselves. In these circumstances, it is the applicants' responsibility to remove the uncertainty by confirming their present commitment to own and operate the proposed facility if it is licensed. The applicants have had many opportunities to do this and, instead, have failed to do so, claiming that the parties must show that the companies do not intend to own the facilities. Their continued failure to respond directly to the Ecology Action motion and the Public Service Commission's recommendation with a clear affirmation of present intent simply confirms our conclusion that the probable ownership and utilization of the proposed facilities are too uncertain to proceed with the case.

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CASE 80008 Finally, we believe the application should be dismissed, rather than suspended.- Suspension, especially on the condition that the application would subsequently be considered newly filed, as advocated by DEC staff, assumes that all data in the application would continue to be representative of current conditions. We cannot accept this assumption. Conversely, dismissal of the application does not preclude future use of so much of its data as remains timely in a new application. Under regulations implementing Article VIII, an applicant may use material filed in a prior Article VIII application in a subsequent one upon a showing that the data remain " representative of conditions at and in the vicinity of the site despite the passage of time."1!

The Board on Electric Generation Siting and the Environment for Case 80008 orders:

The application of the New York State Electric &

Gas Corporation and the Long Island Lighting Company for a certificate of environmental compatibility and public need to construct two 1250 megawatt nuclear generating units at a site in the Town of New Haven, Oswego County, or an alternative site in the Town of Stuyvesant, Col'mbia County, is dismissed.

By The New York State B)ard On Electric Generation Siting And The Environment - Case 80008, (SIGNED) SAMUEL R. MADISON Secretary to the Board 1/16 NYCRR S 70.27.

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