ML19208C374

Brief in Opposition to Intervenor Ecology Action of Oswego 790426 Interlocutory Appeal Re 790413 Denial of Motion to Dismiss Application.Applicant Should Have Opportunity to Prove Case.Certificate of Svc Encl

ML19208C374
Person / Time
Site:	New Haven
Issue date:	07/25/1979
From:	Schutt R HUBER, MAGILL, LAWRENCE & FARRELL, NEW YORK STATE ELECTRIC & GAS CORP.
To:
References
NUDOCS 7909260165
Download: ML19208C374 (42)

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NEW YORK STATE BOARD ON ELECTRIC GENERATION 0cn*ICVyROO y SITING AND THE ENVIRONMENT

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X Application of the NEW YORK STATE ELECTRIC  : .

& GAS CORPORATION and the LONG ISLAND  :

LIGHTING COMPANY pursuant to Article VIII  :

of the Public Service Law for a certificate  :

of environmental compatibility and public  : CASE NO. 80008 need to construct two 1250-megawatt nuclear  :

generating units in the Town of New Haven,  :

Oswego County, or at an alternate site in  :

. the Town of Stuyvesant, Columbia County.  :

____________________________________________x e- .

9 A

D b

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sgNs o't.{i APPLICANTS' BRIEF IN OPPOSITION f

1. h*i;I' 5'

b TO INTERLOCUTORY APPEAL BY '

ECOLOGY ACTION OF OSWEGO  %; y ,

NEW YORK STATE ELECTRIC

& GAS CORPORATION LONG ISLAND LIGHTING COMPANY Dated: July 25, 1979 1013 099 7909260 Ib41 00! LI01 G

r TABLE OF CONTENTS Page Statement of Case . . . . . . . . . . . . . . . . . 1 Recommendation of the Public Service Commission . . . . . . . . .. . . . . . . . 5 Point I The Motion is one Relating

. to. the Need for the Facility . . . . . . . . . . 7 Point II There are a Multitude of' Facts which Remain at Issue on the Question of Need . . . . . . . . . . . . . . . . 9 Point III Issues Relating to Statewide Need should be Considered by This Board in this Proceeding . . . . . . . . . . 15 Point IV The Board'does have the Power to Certify less than the Total Relief Requested . . . . . . . . . . . 18 Point V Applicants have been Denied an Opportunity to be Heard . . . . . . . . . . . 19 Point VI The Jamesport Record has been Misinterpreted . . . . . . . . . . . . 23 Point VII The Parties can Meaningfully Conduct Discovery at this Time . . . . . . . . . 26 Point VIII The Expenditure of Funds cannot b;

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lsi, be the Basis of a Dismissal of the Applicatior. . . . . . . . . . . . . . . . . . 31 Conclusion . . . . . . . . . . . . . . . . . . . . .

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NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

____________________________________________x Application of the NEW YORK STATE ELECTRIC  :

& GAS CORPORATION and the LONG ISLAND  :

LIGHTING COMPANY pursuant to Article VIII  : -

of the Public Service Law for a certificate  :

of environmental compatibility and public  : CASF NO. 80008 need to construct two 1250-megawatt nuclear  :

generating units in the Town of New "aven,  :

Oswego County, or at an alternate site in  :

the Town of Stuyvesant, Columbia County.  :

____________________________________________x APPLICANTS' ERIEF IN OPPOSITION TO INTERLOCUTORY APPEAL BY ECOLOGY ACTION OF CSWEGO STATEMENT OF CASE On November 22, 1978 Applicants (New York State Electric & Gas Corporation and Long Island Lighting Company) filed an Application for a Certificate of Environmental Compatibility and Public Need for a 2500 MW nuclear fueled generating station in the Town of New Haven. On January 22, 1979 the Chairman of the New York State Board on Electric Gcneration Siting and the Environment docketed the Applica-

, tion. In the letter dccketing the Application, Chairman Zielinski made reference to motions by Ecology Action of Oswego (Ecology Action) and Concerned Citizens for Safe Energy directed to him to deny decketing of the Application.

In granting docketing, Chairman Zielinski stated:

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Ecology Action claims first that siting a power plant at New Haven will create an " energy park," because a .

. number of plants are already located in that area, the cumulative effect of which will have environmental, safety and reliability implications that are greater than those that will be con-sidered in the Article VIII review process, and requiring, theretofore, generic hearings on the implications of siting multiple facilities in a small geographic area before an Arti-cle VIII raview can occur. It also contends that the applications are premature because they allegedly pro-ject need too far into the future to allow for proper consideration. In addition, it argues that no action should be taken in this case until the Jamesport application is decided.

Finally, it claims that if a need for two 1250 MW units is not shown, the applicant should be directed to file an application for one unit.

Concerned Citizens for Safe Energy essentially argues that the application is premature, claiming specifically that the application should not be considered until the Jamesport application is de-cided; that load growth projections are excessive; and that action on this ap-plication should not begin until the current 149-b hearings are completed.

They also claim that NYSE&G ratepayers should not be required to pay for the

, cost of oil-fired units not serving NYSE&G customers.

. While the issues raised by these parties appear to be germane to the sub-stantive examination of the application in the Article VIII process, they do not show that. the application is insufficient for docketing purposes. The statute and regulations contemplate only a determina-tion en whether the application meets

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minimal requirements sufficient to per-mit consideration of substantive issues in the Article VIII proceeding. This application meets those requirements. .

I as forwarding the motions to the pre-siding examiner in this case for his consideration of the issues they raise in the hearings in the case.

At a pre-hearing conference held on March 27, 1979, Ecology Action submitted a motion to dismiss the Application on the grounds that the proceeding was not brought by the proper parties, that the Application was premature because the proposed plant was not needed within a 15 year planning period, and that the proposed project was not financially viable for the Applicants. The motion for dismissal consisted of arguments and quotations from isolated portions of briefs, documents and other sources not in the record of this proceeding. No affidavits or other evidence properly admissible in this proceeding were submitted in support of the motion nor was data from the Application referred to or relied upon by the movants.

The Applicants and the Staff of the Public Service Commission opposed the motion primarily on the grounds that

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issues of fact remained to be decided. The Department of

. Environmental Conservation conceded, in a letter dated April 9, 1979, that there was no record basis for granting the motion. In a single document Concerned Citizens for Safe Energy, Columbia County and the Town of Stuyvesant supported 1013 103 I:0i tI0f

the motion but also did not submit any supporting affidavits or references to materials in the record of this proceeding

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which supported the motion.

By an opinion issued April 13, 1979, the Examiners denied the motion of Ecology Action on the grounds that is-sues of fact remained for trial but indicated the motion could be renewed upon the completion cf discovery and the submission of pre-filed testimony.

By a document dated April 26, 1979, Ecology Action appealed the Examiners' decision. The document in effect concedes that issues of fact relating to the need for the facility exist by dropping the allegations and arguments re-lating to forecasts of. various persons. However, Ecology Action pressed an argument that the proper Applicants have not been identified with the result that the parties cannot conduct appropriate discovery.

C.ly Applicants responded to the appeal in a brief indicating that issues of fact still existed.

By an order issued July 10, 1979 (Certification of Appeal), the Public Service Commission certified the appeal of Ecology Action th the New York State Board on Electric Generation Siting and the Environment for Case 80008 (Siting Board). The Public Service Commission believes the public interest is great enough to permit an interlocutory appeal and, for the reasons stated therein, recccmended the dis-missal of the Application.

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THE RECOMMENDATION OF THE PUBLIC SERVICE COMMISSION The Examiners characterized Ecolog Action's 4

motion as one asserting that the proposed generating station was not needed by the Applicants (Opinion issued April 13, 1979, p. 2). The Public Service Commission conceded that "Under the rubric of 'need for the facility' alone there are, in this and in all Article VIII cases, dozens of factual issues" (Order Certifying Appeal and Recommending Dismissal

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of the Application, p. 5) but characteri=ed the appeal as one questioning ownership (Id. at p. 5).

In essence, the Public Service Commission cites testimony pre-filed in the Jamesport proceeding (Case 80003) on February 23, 1979, to the effect that Long Island Lighting Company did not.know if it would ultimately participate in the construction of 4700 MW of generating capacity within a five year period. The Public Service Commission quoted the following statement from testimony which was pre-filed but never adopted due to cancellation of the hearing:

"[W]e do not yet know whether it will prove to be desirable for LILCO to join with NYSE&G in building and owning New Haven, though.

it is clearly desirable for them to get on with the facility's planning and licensing in light of the statewide need for New Haven and thus the likelihood that other utilities will purchase shares in that plant. A clear answer to the question of appropriate owner-ship arrangements for New Haven may not be available for some time. 1/"

-1/ Case 80003, testimony of Madsen and Rider, filed February n- j~i e1 s 23, 1979, p. 5.

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Using the above language, the Public Service Commission found that there was sufficient doubt in the ultimate owner-

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ship that the Application should'be dismissed. They found that without certainty as to ownership, the Board would be unable to properly determine the appropriate costs upon which or against which the environmental impacts can be evaluated.

The Public Service Commission rejected the posit-ions taken by Applicants that the Siting Board could certify less than the total amount of capacity which is the subject

':his proceeding and indicated that state-wide needs for s

generating capacity could not be used as the justi-f.4 c a '. . . . for the certification of a given generating station e _1:ation of Appeal, p. 6) . In effect, the Commission ms held that the public interest can only be established by the demands of and the interests of the consumers of the individual Applicant as they are perceived on the day the Application is filed, and that those interests and demands must remain substantially static throughout the pendency of the Application.

After distinguishing the jurisdiction of the Public Service Commission as to rates, rate base and utility financing from the Siting Board's jurisdiction over the questions of need and the environmental impact of generating stations, the Cc= missions certified the appeal of Ecology 1013 106

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action to the Siting Board.

POINT I

• THE MOTION IS ONE RELATING TO THE NEED FOR THE FACILITY Without stating or defining its terms, or the ci-tation of authority, the Public Service Commission has held that " ownership" is prerequisite to making an application under Public Service Law Article VIII and that " ownership" is something distinguished frcm need for the facility *.

Applicants submit that under the circumstances here present ownership and need for the facility cannot be separated.

The criteria which a given utility would use to determine that it should participate in a generating station are, in general, exactly those which would be utilized to determine the need for the facility. To illustrate, if a utility perceives that it will be unable to meet the electrical demands on its system, that it is necessary to replace facilities which produce energy at excessively high costs, that alternatives available to it would result in higher costs for its customers than the facility proposed, or that the proposed facility will add to the reliability of its system (e.g. , displacing oil fire units , for example), it will decide to make, or participate in, an application for a Certificate of Environmental Compatibility and Public Need for a specified generating station. 1013 107 g p1 '7 3*,n; Applicants note there is no language in Article VIII which s i U trequires that an applicant and ultimate owner must be de-signated in the application.

The Siting Board in determining to issue the requisite certificate will consider the same or similar

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questions. If a Company can provide sufficient data to permit the Siting Board to make the findings required by Public Service Law S146, the requisite certificate will be issued, the facility erected and the applicant will in the normal course be the owner of the facility. If the appli-cant fails to make the requisite demonstration, the certifi-cate will not be issued to it and it will not be an owner of the proposed facility. Since the very decisions which lead to the determination to make an application pursuant to Public Service Law Article VIII in order to become an owner of a proposed facility are the same as the decisions neces-sary to determine the need pursuant to Public Service Law Article VIII, the question of need cannot be separated from the question of ownership.

The Public Service Commission has created a di.-

tinction without a difference. The question raised by Ecology Action is one of the need for the facility. The Public Service Commission concedes there are many factual issues under the " rubric of need." As long as factual issues remain, both Public Service Law Article VIII and general principles of administrative law require a hearing and prevent the dismissal of the Application.

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-g-POINT II THERE ARE A MULTITUDE OF

• FACTS WHICH REMAIN AT ISSUE ON THE QUESTION OF NEED As previously indicated, the Public Service Com-mission stated that "under the rubric of need" there are dozens of issues of fact. (Certification Order, p. 5).

Applicants submit that the recommendation of d1smissal on the basis set forth in the opinien has implicitly decided the " dozens" of issues relating to need and concluded that at least one of the Applicants cannot demonstrate its need.

There has been an increasing informality in the consideration of non-record materials in Article VIII proceedings. With the proliferation of forecast materials and the ever lengthen-ing proceedings under Public Service Law S149-b, there is now a plethora of materials on electric system planning easily available to most people. Without effort to restrict

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oneself to materials actually before the decisional body and to materials which parties have had an opportunity to ex-amine and an opportunity to rebut or reply to on the record, it is difficult to exclude, from the judgmental process, impressions from the plethora of material available.

There have been few if any cases involving planning for electric generating units in which significant factual issues relating to the need for the facility have not been adjudicated (See among others, Examiners Recommended Decis-1013 109 aii t10i

ions in Cases 80002, 80003, and 80006 and Recommendel Decis-ion Case 27319). When one considers the complexity of system planning and the extent to which it is dependent upon ,

assumptions as to future events, the existence of substantial dispute is not surprising and is indeed predictable.

There appears, in the opinion of Applicants, to be an unwise and inappropriate tendency in the State of New York for many persons to believe that planning for electric generating capacity consists of preparing a table on which the available generating capacity is shown over the planning period along with the anticipated demands and an appropriate reserve. Capacity is deemed.needed only when one observes that the total of the demand and reserve is greater than available capacity. If generation planning were this simple, one would only need to consider the validity of the forecast of the demand and the appropriate size of the reserve.

Planning for generating capacity is not so simple. An examination of the contents of Chapters 1 and 9 of the Environmental Report shows that the Applicants considered many factors beyond load and capacity. Among other things, they considered the nature of the capacity (e.g., whether it should be base load, intermediate or pe'. king capacity), types of fuels , possible retirements, substitution of fuels to en-hance reliability, the economics of installation of new units before capacity was needed to meet demands on their respective systems (e.g. , displacement of oil fired capacity),

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the appropriate siza of the units, availability of capacity for purchase as well as other factors which bear on the ,

decision to participate in a new facility. Merely looking at a load and capacity table does not provide all the information needed to determine the need for a specific facility.

At pages 20-21 of the Recommended Decision in Case 27319, the deficiencies implicit in determining the need for facilities based on Tables showing just load and capacity were noted. Mr. Carr, testifying on behalf of the Public Service Commission Staff, and Mr. Harvey, testifying on behalf of the Department of Environmental Conservation did just that. As to Mr. Carr, the Recommended Decision states:

...Mr. Carr testified that he was not attempting to assign optimum on-line dates-for new units but only to show surplus and deficiency years. According to his Exhibit 60 no deficiency would occur before the winter of 1991-2 even without the additions listed in Table XII above. Mr. Carr testified further that he had not considered economics, the availability of fuel or ' generating uncertainties,' a term which may include licensing or construction delays and suboptimum output of generating units."

Id. at 20-21.

As to Mr. Harvey, the Recommended Decision states:

...He admitted that his conclusions were based solely upon an analysis of statewide reliability; economic benefits and fuel availability were evidently not considered, nor did he make choices between base-load ca-pacity and peaking units, i.e. he did not consider load shape." Id.

at p. 21.

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Applicants are highly concerned that the Public Service Commission in recommending dismissal have, in ef-fect, conducted system planning from a load and capacity ,

table. By letter dated June 14, 1979, three attorneys on the Staff of the Publig Service Commission forwarded a docu-ment entitled " Position Paper on Electric Generation Plan-ning by Staff of the Public Service Commission" (Position Paper) to the Siting Board in Cases 80001 and 80003-80007*.

Er.esumptively this Position Paper, which concludes that only a single generating unit is needed between now and 1992 on the basis of 1978 forecasts r was before the Public Service Commission when it made its recommendation.

An examination of this Position Paper will reveal that as a planning document, it relies on a load and capacity table presented *in Case 27319 and does not treat or deal with the myriad of facts which bear upon the need for a given add 1 tion to generating capacity. Applicants greatly fear that the Position Paper has improperly affected the Commission's disposition of the instant motion.

Even using 1978 data, the existence of issues of fact relating to need or ownership is clearly apparent. The Staff of the Public Service Commission, as reflected in its

• The Position Paper apparently was sent directly to the Siting Board in each case. All of the Boards have four members in ecmmon with the Siting Board in 80008. The propriety of sucmission of the Position Paper encompassing data not in the record in all of the croceedines and out-side the briefing schedule is highly huestionable and

!! highly 4 prejudicial. Applicant strongly excepts to the con-tents of the Position Paper but have not as yet been afforded an opportunity to comment thereon.

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Position Paper clearly believes that with a single exception, none of the generating units envisioned in Cases 80003, 80004, 80005, 60006 and 80007 are needed. Extensions of -

their reasoning would seem to include the New Haven units.

However, the plans submitted by the member systems of the New York Power Pool conclude that with one possible excep-tion, all these units are needed. The position of the New York Power Pool while allegedly untenable to the Public Ser-vice Ccmmission Staff is supported by the Recommended Doci-sion in Case 27319 which states that the plan submitted by the New York Power Pool in 1978 was appropriate. Obviously, the existance of these differing opinions establishes the exister.ca of f acts to be litigated.

In addition to issues existing in 1978, events of 1979 will clearly affect the appropriateness of any plan and any forecast. To illustrate, in the New York State Electric

& Gas Corporation forecast contained in Chapter 1 of the Environmental Report, it was assumed oil would be available for new homes choosing to heat with oil and that the real price of oil would rise ac a rate slower than the real price of electricity on the NYSEG System. (Environmental Report,

p. 1.1-25). The effect of this assumption was a reduction in the estimated amount of load growth of New York State Electric & Gas Corporation's system stamming from the installation of electric heat. Long Island Lighting Company's estimated costs of producing electricity in its oil fired b!i LtoI \D\3 \\h

generating station will obviously be revised upward due to OPEC price increases. There is considerable probabilit;'

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that planning on the basis of 1978 experience as reflected in reports filed with the Energy Office pursuant to Energy Law 55-112 is now inappropriate. Similarly, any system planning done prior to 1979 which relied upon estimates of the price and availability of oil must be revised even without reference to the proposal of President Carter in his energy message delivered on July 15, 1979. While it is too soon to predict the impacts of the President's program, if any substantial portion is implemented, electric system planning may be significantly affected. For instance, using data from Volume 2, Exhibit 7 of 1979 Report of the New York Power Pool pursuant to Energy Law S5.112 # it is roughly estimated that to effectuate President Carter's goal to reduce the oil burned to generate electricity in the State of New York by 50%, new generating capacity and/or conver-sions from oil to other fuels would total 6,000 MW. Any new capacity constructed would be in addition to the capacity

. shown as planned in the 1979 SEO filing.

The events of 1979 clearly illustrate the rapidity of change in circumstances affecting generating planning and the proof of need for a given facility. Facts and cir-cumstances change so rapidly that any premature determina-tion of factual issues encompassed wirhin the concepts of

" ownership" or "need" must and should be avoided. There are 1

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real and substantial reasons tdus Application was submitted and no undisputed facts exist under which the Application 4

should or can be dismissed.

POINT III ISSUES RELATING TO STATEWIDE NEED SHOULD BE CONSIDERED BY THIS BOARD IN THIS PROCEEDING Applicants were truly shocked at the concept ex-pressed by the Public Service Commission that statewide needs cannot justify processing this Application. Without conceding that the Applicants cannot justify the licensing of the proposed plant for their own and their customers needs, statewide needs logically must and should have a significant i= pact on a great number of issues in this proceeding. Because of their importance, it is by no means remote that statewide interests might be controlling on virtually all aspects of this case.

Public Service Law S146 recuires the Siting Board to make findings that the proposed facility is needed and that its construction is in the public interest. In both the old and new versions of Article VIII S146 requires the Siting Board to find that:

(e) that the facility is con-sistent with the long-range planning objective for electric power supply in the state, including an economic and reliable electric system, and for protection of the environment.

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As set forth above, Public Service Law S146 re-quires a finding that a proposed generating facility is consistent with long-range planning objectives for electric 4 power supply in the state. Nowhere in Article VIII is the Board limited to the needs and interests of the individual applicants or their customers.

The concepts of public need and public interest are in no way limited solely to the needs and interests of the customers or stockholders 'fo the Applicants. The laws of the State of New York indicate the propriety of statewide planning. Public Service Law S149-b originally provided:

Each electric corporation shall prepare and submit ... its long range plan for future operations. (1972 Laws of New York Chapter 385).

In 1975, 5149-b was amended to provide:

The members of the New York Power Pool shall prepare and submit annually a single comprehensive long range plan for future operations.

In 1978 the Energy Law was amended and 5149-b of the Public Service Law was repealed. Energy Law 55-112 provides:

"On or after ... the members of the New York Power Pool ... shall prepare and submit annually a single comprehensive long-range plan for future operations."

Even the Public Service Commission itself has criticized electric utilities for planning for generation facilities on an individual system basis rather than on a statewide basis. In opinion 74-1 issued January 7, 1974 in

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Case 26368, the Commission stated at page 13:

"The schedules of future generating facilities in the plan do not appear to be the result of

• a statewide, systematic approaca to the iden-tification and selection of the best possible sites. The sites selected indicate that the companies have proceeded on a franchise-by-franchise basis, each utility specifying sites for new generation within its own franchise area to meet its own loads, with but limited regard to the need for a broad, statewise system perspective. This is a fundamental deficiency of great concern to us and it is imperative that remedial acticn be implemented promptly."

The law of the State of New York clearly mandates integrated statewide long-range planning on the part of electric utilities in the State of New York. If statewide planning is to be conducted, there are circumstances where the interests of individual utilities and their customers will be rightfully subverted to the wider interests of the State as a whole. Many issues such as the size cf units, location and possibly even fuel will be mandated by broad state interests rather than the more limited interests of the individual utility. To illustrate, the selection of the size of unit. to achieve maximen economy and reliability is more a function of the size of the other units in the state and total statewide loads than functions of individual system requirements. Considering the clear mandate to conduct planning on a statewide basis, it is surprising for the Public Service Commission to denigrate statewide planning and assert that questions of need and questions of 1013 117 arr >I w >r 1

economy can only be decided on a company by company basis *.

The Siting Board clearly should not let itself be the victim of the now narrow visions of the Public Service Commission.

POINT IV THE BOARD DOES HAVE THE POWER TO CERTIFY LESS THAN

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THE TOTAL RELIEF REQUESTED Applicants are astounded that the Recommendation of the Public Service Commission states that Applicants casually suggested that the Siting Board may certify less total capacity than that amount requested. They are outraged at the suggestion that the Applicants have not given careful and thorough consideration to the proposals contained in the Application. Unfortunately, the prceess of selecting a sit 5 after a statewide survey, as i _ged by the United States Nuclear Regulatory Commission Regulatory Guide, Revision 2, Chapter 9, the Joint Working Paper for the Preparation of Environmental Reports for Generating Facilities in New York State and the Opinion in Case 26829 -

Long-Range Plans, page 23 et. seq. (Public Service Commis-

. sion Opinion 75-34): conducting the extensive monitoring under 16 NYCRR, Parts 73-80; and finally preparation of an application is a lengthy one. Because it is, a company cannot react to passing fads and a great number of unfore-seen events can occur. Experience in the past has indicated easy pathway to licensing a generating station. is yet

, ,available and that almost inevitably the Applicants will be

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accused of misfeasance, if not malfeasance, or even plain lack of intelligence. In an effort to assure licensing, no step is casually'taken. However, realistically, no matter how confident one is of the correctness of his decisions when made, and when adjudicated, there is always the possi-bility that the triers of the fact will reach a different conclusion. Thus, should Applicants fail to carry their burden of persuasion on any issue, the Siting Board may ultimately grant a certificate which differs from the proposal. No matter how strongly one feels, there is always a possibility that one will lose. The recognition of the power of the Board to certify a generating station different than the one described in the Application is only the recog-nition that alternatives do exist should the Board ultimately determine the Applicants are in error. Thus, should the Board determine that the proofs do not establish the need for two units, the certification of a single unit for a single owner or multiple owners is a possible alternative.

The Application cannot be dismissed on the basis that Applicants recognize the possibility that the Board can grant less than all the relief requested.

POINT V APPLICANTS HAVE BEEN DENIED AN OPPOR" UNITY TO BE HEARD While Administrative bodies are'not bound to adopt U$I b[Of 1013 119

any specified hearing processes and are not bound by techni-cal rules of evidence, they must afford the participants a fair opportunity to be heard. As stated in the Matter of Simpson v. Wolansky, 38 N.Y.2d' 391 - (1975) :

...True, the hearing conducted by the administrative official acting in a judicial or quasi-judicial capacity may be more or less informal and even technical legal rules of evidence and procedure may be disregarded (cf.

Matter of Brown v. Ristich, 36 NY2d 183), but included in the fundamental requirement of a fair trial, absent the waiver, is the entitlement of the party whose rights are being determined to be fully apprised of the proof to be considered, with the concomitant opportunity to cross-examine witnesses, inspect documents and offer evidence in rebuttal or explanation (Matter of Hecht v. Monaghan, 307 NY 461, 470; Matter of Friedel v. Board of Regents or Univ. or State or N.Y.,

296 NY 347, 352; Matter of Heanev

v. McGoldrick, 286 NY 38, 45).

Respondent, in rendering an account of his decision in this disciplinary matter, affirmed in a statement that: "As Director it is my duty to consider every aspect of such a case even if it does not appear in a hearing transcript. I have continually been supported by our Board of Visitors and parent associations in my attempt to elimi-nate resident abuse." The majority at the Appellate Division was correct, therefore, in finding that respondent acknowledged his reliance on matters not appearing in the record in making the determination under scrutiny. This was in violation of the salutary gen-eral proposition, to which there is no relevant exception here, that it is not proper for an administrative

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agency to base a decision of an ad-judicatory nature, where there is a right to a hearing, upon evidence or information outside the record (Mat- .

ter of Newbrand v. City of Yonkers, 285 NY 164, 179; Matter of New York Water Serv. Corp. v. Water Power &

Control Comm., 283 NY 23, 31-32; Matter of Greenbaum v. Bingham, sucra, pp. 347-348; Matter or Wignall

v. Fletcher, 278 App. Div. 28, aff'd 303 NY 435; Matter of Revere Assoc.

v. Finkelstein, 274 App. Div. 440; Matter of Smith v. Rosoff Tunnel, 259 App. Div. 617, 619-620; 1 NY Jur, Administrative Law, S 133; see 18 ALR 2d 552, 555)."...

In this instance, Applicants have been denied a fair hearing by the adoption of excessively informal procedures, and by making findings of fact on materials not in the record of this proceeding.

Without specific designation of materials to be incorporated in a proceeding, a party cannot anticipate issues, may be prevented from responding and generally is left without a knowledge of the record within which he must present his case. If large amounts of materials from other proceedings are to be utilized without specific identifi-cation, an applicant cannot know in advance of a decision what portions of extensive records will be deemed relevant by his opponents or by the Siting Board itself.

Chairman Charles Zielinski examined the Applica-tion and pursuant to Public Service Law S143 determined that the Application was ccmplete and could proceed to hearings.

Presumably, he examined Chapter 1 of the Environmental Re-c- ) 10 1 1013 121

port in which the need for the proposed generating station is discussed and Chapter 9 in which alternatives to the o

station are discussed. The docketing letter explicitly re-jected arguments relating to the need for the facility and that the Application was premature. In papers supporting this motion, there has been no reference to any uncontro-verted fact establishing that the proposed facility is not needed or in the public interest. There has been no cita-tion to any markedly changed circumstance which would lead to the conclusion that the Application is presently insuf-ficient. There is merely an allegation that a single para-graph from another proceeding casts such grievous doubt in this proceeding as to require its dismissal.

The order of the Public Service Ccmmission makes explicit its use of material frc. everal sources other than the record in this proceeding. Besides referencing material filed of the Jamesport proceeding, the Commission references the 1979 Report of the New York Power Pool, Vol. 2, p. 16 for expenditures incurred pending the resolution of this proceeding, alleged claims of difficulty in financing con-struction projects (presumably from testimony in rate cases filed by Applicants), claims of statewide need allegedly made in Cases 80002, 80003, 80006, 80007, and presumably in Cases 80004 and 80005 brought by the Power Authority of the State of New York which are also referenced.

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There is great danger in referencing materials in other proceedings without formal incorporation because the material incorporated may not be relevant, may be out of date and the parties in the existing proceeding, while possibly disagreeing with the accuracy of the claim asserted or fact referenced, are not given the opportunity to rebutt the testimony or material referenced. The danger is exacerbated when the decision making body itself searches unspecified records for supporting materials not utilized by the movants.

In this case, without carefully referenced affi-davits or material in the record, Applicants can not care-fully and meaningfully respond to those vague assertions with meaningful arguments. Applicants submit that the prevailing informality has denied it an appropriato ability to respond to the motion and to the recommendation.

POINT VI THE JAMESPORT RECORD HAS BEEN MISINTERPRETED The danger of relying on small portions of records in other cases is well illustrated by the Public Service Commission's reliance on the quctation from the testimony of Madsen and Rider in Case 80003. When viewed in context, the comment that LILCO did not know if it would ultimately participate does not by itself establish an inappropriate resolve on the part of Long Island Lighting Company with re-spect to the New Haven facility. First, the statement was AEi t10l 1013 123~

made in response to the following question posed by the Jamesport Siting Board:

"In light of the revised forecasts of demand and capacity in Case 27319, is there an economic justification for LILCO and NYSEG to implement a facili-ties expansion plan that would add ap-proximately 4700 negawatts of capacity in the five year period 1988 - 1993?"

(Case 80003 Order Directing Remand Issued December 22, 1978, p. 6) .

In response, the Applicants stated that regulatory, construc-tion and voluntary delays would make it unlikely that the two facilities would be in service within a five year period.

Included in the testimony is a table showing the originally scheduled in-service dates and the delayed dates for sixteen generating units included in the 1978 Report of the Member Systems of the New York Power Pool Pursuant to Public Service Law S149-b (1978 149-b Report) * (Case 80003, Testimony of Madsen and Rider filed February 23, 1979, p. 2-3). Simi-larly the testimony included a table showing changes in ownership of seven proposed generating units occurring be-tween the initial proposal and the 1978 149-b Report. Units which have changed ownership include units proposed in Case 80003 (Jamesport) and 80006 (S terling) in which ownership changed during the pendency of the proceeding. These two

• It can be noted that in the 1979 Report of the Member Systems of the New York Power Pool pursuant to Section 5-112, the two Lake Erie Units are shown without an estimated in-service date. The MTA Fossil Plant CArthur Kill) is shown as a 700 MW fossil plant with-out a site and the Greene County Unit (Cementon) pro-ceeding is in a state of suspension and probably .

t i ; abandonment.

ciu 1013 124

tables clearly demonstrate the likelihood of delays and that changes in ownership of generating units are common. Unless

/

one ascribes some deliberate intent to deceive, or behavior amounting to fraud, one can only conclude that there is a possibility that ownership or participation in any given

, facility will change between the date of the initial proposal to construct a given facility and its construction. In light of the cited data, only the most undiscerning would be so brashly confident of his estimate of future events not to be cognizant that such events could effect ownership of units for which certification is sought. Indeed, Public Service Law 5141 even contemplates the transfer of Certifi-cates of Environmental Compatibility and Public Need and thus recognizes the pcssibility if not the probability of a change in ownership of a licensed facility.

Having in mind the number of changes in ownership of proposed generating units which have occurred over the years and the adaptations to those changes in Cases 8003 and 80006, possible changes in ownership clearly do not require the termination of a project or dismissal of a proceeding.

Applicants submit that the Public Service Ccmmission has implicitly decided that the facts establish that the applicants do not neet the proposed generating stations and thereby have decided the very need issue which it conceded included many unresolved issues of fact. To insist on a cosmetic assurance of " ownership" when history indicates that indeed changes 013 125 8si t101

have been made during the pendency of proceedings indicates a pre-disposition as to the need for the facility. In any event, the Public Service Commission has failed to indicate ,

any undisputed fact which establishes that LILCO will not participate in this proceeding.

The Public Service Commission has incorrectly in-terpreted the recognition of the realities involved in the determination of ultimate ownership as a lack of resolve.

The continuation of Long Island Lighting Company in this proceeding and their entry into a contract with New York State Electric & Gas Corporation to participate are clearly evidence of their intent to participate in the New Haven units.

. POINT VII THE PARTIES CAN MEANINGFULLY CONDUCT DISCOVERY AT THIS TIME The Public Service Commission in its certification to the Siting Board reasoned that the Siting Board must have certainty of ownership in order to address certain issues they believe relevant to the proceeding and that the parties must have some certainty as to ownership in order to conduct discovery and address a variety of issues in the proceeding.

In its Order Certifying Appeal and Recommending Dismissal of Application, the Public Service Commission states at p. 5-6:

"Even if there is a public need for the proposed facilities, as ap-plicants allege, the probable owner-q+

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__ _ __1 ship and utilization of the proposed facility must be reasonably certain from the outset of the proceeding so the parties, and ultimately the Siting ,

Board, can determine whether its public benefits will outweigh the costs and impacts of its construction and operation or whether some alterna-tive may be superior. The Ecology Action motion is not a need motion, it is an ownership motion. Because the ownership question is fundamental to so many of the public need, siting, and cost issues that are raised in the Article VIII cartification pro-cess, a finding that the ownership of the plant is uncertain is dispositive and requires dismissal."*

The position of the Public Service Commission is inherently unsound for a variety of reasons. First, New York State Electric & Gas Corporation and Long Island Lighting Company are the Applicants and the effort of disproving or challenging the contents of~ Chapter 1 of the Environmental Report can obviously be undertaken at once. As in the Sterling and Jamesport proceedings, should the interests in ownership change, all parties will be afforded the opportunity to litigate the effect of that change. The appropriateness of a given company's participation can only be examined with reference to the contents of the Application as it stands it any given juncture of the proceeding. The parties are not inhibited from making any argument, or dise very they deem appropriate. The Siting Board will ultimate y decide the

~

1013 127 It is interesting to note that while attempting to dis-tinguish need from ownership, the two concepts are in-extricably tied together by the phrase "Because the ownership question is fundamental to so many of the v('Q j sr,p'ubilic need ... issue (s) .

issues on the record as it exists at the end of the proceeding.

What the Public Service Commission really objects to is the dynamic nature of events influencing Article VIII proceedings. Electric system planning is difficult under the best of circumstances but forecasting electric demands is one of the most difficult elements. It is possible that the only certainty in forecasting is that circumstances will invariably change the day after a forecast is made and the accuracy of the forecast adversely affected. Administrative Law Judge Harold Colbeth, in his recommended decision in Case 27319, the 1978 149.b Proceeding, state.d:

. " Electric system planning is the continuous search for a balance point among conflicting objectives. Con-siderations of first cost and econcmical operation clash with demands for zero environmental impact. Reliability of service is hostage to the availability of fuel. And governmental authorities are nurturing what Schumpeter called

'a tropical growth of new legal struc-tures' to complicate the rules of the game.

The American public has little understanding of the ccmplexities of system planning. In fact, the public has not even arrived at a consensus on the relative importance of low cost, high reliability and minimum environ-mental impact. Such uncertainty denies to the system planner the very specifi-cation of goals with which he should ccmmence. Selecting his own goals, the planner begins his work only to encounter gfurther obstacles. Forecasts of the

. ll' cads he must meet fifteen years from now will almost inevitably turn out to 1013 129

be wrong. Even if a reliable confi-dence interval can be assumed, say plus or minus 10%, the planner must take aim at some one figure within the range of

• values, each of which is almost equally likely but only one of which can come true.

Thereafter, reserve margins must be specified. Based upon statistical probabilities as they are, they ety turn out to be either excessive or inadequate. The probable cost and availability of different fuels must be assessed alcng with the accessi-bility of capital. Construction schedulec must be outlined but their success remains speculative, dependent as always upon the performance of. good management, suppliers, the output of labor, and the timely granting of permits by regulatory authorities."

(Recammended Decision, Case 27319, Issued July 11, 1979.)

As the difficulties inherent in planning are multiplied, the probability of shifting facts and opinions multiplies. In previous Article VIII proceedings, means of accommodating to changes in ownership have been adopted. In Case 80006, (Sterling), Niagara Mohawk Power Corporation was added as a participant subsequent to docketing, and in Case 80003, New York State Electric & Gas Corporttion became a participant in the Jamesport case after hearings had commenced. It is equally as significant that in every Article VIII proceeding the basic facts used to both support and attack the need for a given facility have changed during the course of the pro-ceeding. Annual reports filed pursuant to the former Public Service Law S149-b invariably resulted in the submission of 1013 129 al! LT0I

new data and in most instances resulted in additional testi-many. Change in facts affecting planning of electric systems is inherent in any proceeding v.Mich is pending over an -

extended period.

It is not only changes in matters relating to the need for the facility which have significantly affected Article VIII proceedings, but changes in basic laws relating to the environment have required new data and additional hearings. To illustrate, basic changes or new rules relating to air quality, water quality and solid waste disposal occurred during the pendency of Case 80002 - Somerset Sta-tion. Each successive change required the submission of new data by means of exhibits, new testimony and an opportunity for discovery. Ideally, many of the frustrations of dealing with an Article VIII proceeding would be alleviated if all the facts and governing laws would remain the same through-out the proceeding. Such is not the case. The parties must proceed on the basis of the condition of record as it exists and be prepared to acccmmodate to those changes which in-evitably follow in the course of these proceedings.

Under the circumstancec in this proceeding, the parties must and certainly can proceed with discovery and to hearings on the facts as they exist at the present time. No one can assure them that there will be an~ absence of change.

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1013 130

POINT VIII_

THE EXPENDITURE OF FUNDS CANNOT BE THE BASIS OF A ,

DISMISSAL OF THE APPLICATION The Public Service Commission's recommendation is based in part upon the fact that this proceeding will be expensive. Applicants first note that the extent of this expense was not included within the moving papers or within the Application. Nonetheless, they are aware that the licensing of a generating station" under Article VIII and the applicable Federal laws and regulations is expensive.

However, one must note that the cost of licensing is largely controlled by persons other than Applicants. The Applicants did not adopt the rules nor are they in control of the issues to be tried or time which will be expended on trying the issues. However, if one is to build a plant, the ex-penditure of large amounts of time and money is currently unavoidable.

To the extent that expenses of a proceeding are considered in adjudging the motion in question, they must be weighed against the costs both to the Applicants and to society. When one just considers that the ultimate costs of the facility is estimated at S3,336,627,000 (Environmental Report Table 8.2-1) and the savings in oil were projected to be some $5,000,000,000 (Environmental Report p. 1.1-66) the expenditures of 15 to 17 million dollars per year to achieve licensing is clearly not overwhelming. The cost to society

.s, 1013 1, sti tt01

of not building a needed plant may be overwhelming but no one has apparently considered that cost.

Applicants know of no instance in which a party ,

was denied a hearing because parties could not afford the

. cost. Applicants submit that the judgment that the cost of the proceeding is such that any uncertainty in the identity of the ultimate owners requires dismissal is implicitly based upon the unexpre'ssed preconception that the Applicants will be unable to carry their burden of persuasion. Appli-cants submit that as long,as issues of fact on the question of need remain, they must be allowed a hearing on the issues presented regardless of any cost which may be involved.

CONCLUSION The existence of substantial issues of fact mandate the affirmance of the decision of the Examiners. To do otherwise will deny the Applicants the opportunity to prove their case. The simplistic approach Applicants believe was utilized by the Public Service Commission belies the reality of electric system planning. Applicants strongly believe that the public interest will not be served by a dismissal of this Application.

Respec'" lly submitted

< /?

,3 o HUBER MAGILL LAWRENCE & FARRELL Attorneys for New York State Electric & Gas Corporation Office & P.O. Address 99 Park Avenue New York, New York 10016

[j()i Telephone: (212) 682-6200

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1013 132

Edward M. Barrett Edward J. Walsh, Jr.

Jeffrey L. Futter Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Telephone: (516) 288-2038 Roderick Schutt Jeffrey L. Futter Of Counsel Dated: July 25, 1979 1013 133 is ? ! i'. I O i

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT /

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_____________________________________ ______g ,

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Application of the NEW YORK STATE ELECTRIC  : $,

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& GAS CORPORATION and the LONG ISLAND  : (E s LIGHTING COMPANY pursuant to Article VIII  : - ^S) j $

of the Public Service Law for a certificate  :

of environmental compatibility and public  : D 1g />*/[ d need to construct two 1250-megawatt nuclear  :

generating units in the Town of New Haven,  :

co Oswego County, or at an alternate site in  :

the Town of Stuyvesant, Columbia County.  :

,----------------------------X CERTIFICATION OF SERVICE STATE OF NEW YORK )

) ss.:

COUNTY OF NEW YORK )

This is to certify that a true copy of Applicant's 3rief in Opposition to Interlocutory Appeal by Ecology Action of Oswego was served upon the persons appearing on the attached list by depositing in the post, office box regulary maintained by the government of the United States in the County of New York, State of New York.

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1013 134

CASE 80008 & DCCKET NOS. STN 50-596 and STN 50-597 (NEW EAVEN 1 & 2) SERVICE LIST Seymour Wenner, Esq. , Chairman Robert Grey, Michael Flynn and Atcmic Safety and Licensing Board Craig Indyke, Staff Counsel United States Nuclear Regulatory New Ycrk State Department of Commission Public Service Washington, D.C. 20555 The Governor Nelson A. Rockefeller~

Empire State Plaza e Albany, New York 12223 Dr. Oscar E. Paris, Member David A. Engel, Esq.

Atemic Safety and Licensing Board Senior Attorney for Energy -

United States Nuclear Regulatory New York State Department of Commission Environmental Conservation Washington, D.C. 20555 50 Wolf Road Albany, New York 12233 Dr . Walter R. Jordan, Member Stephen E. Lewis, Esq.

Atemic Safety and Licensing Scard Marcia E. Mulkey, Esq.

881 West Outer Drive office of Executive Legal Director Cak Ridge, TN 37830 United States Nuclear Regulatcry Cc= mission

, MNVB - 9604 Washington, D.C. 20555 Themas R. Matias, Administrative Edward M. Barrett, General Counsel Law Judge Long Island Lighting Ccmpany New York State Department of 250 Old Ccuntry acad Public Service Mineola, New York 11501 The Governcr Nelson A. Rockefeller Empire State Plaza Agency Building No. 3 Albany, New York 12223 Dr. Sidney A. Schwart: Mr . Mic ha el J . Ray New York State Department of New Ycrk State Electric & Gas Corp.

Environmental Conservation 4500 Vestal Parkway East 30 Wolf Road Binghanton, New York 13902 Albany, New York 12233 tsti t(01 1013 135

CASE 80008 & Docket Nos. STN 50-596.& STN 50-597 (NEW HAVEN 1 & 2) SERVICE LIS P. 2 Henry G. Williams, Director of William Tyson, Executive Director State Planning New York State Department of State St. Lawrence - Eastern Ontario 162 Washington Avenue Ccm=ission Albany, New York 12231 317 Washington Street Watertown, New York 13601 .

Samuel J. Abate, Executive Director Thomas E. Brewer, Director Hudson River Valley Ccmmission Rensselaer Co. Dept. of Health

~The Governor Nelson A. Rockefeller Troy, New York 12180 Empire State Plaza Agency Building No. 1 Albany, New York 12238 Commissioner Mark R. Gibbs, Supervisor New York State Dept. of Health Town of Mexico Attn: Director - Office of Public S. Jeff erson Street Health Mexico, New York 13114 Tower Building - 14th Floor The Governor Nelson A. Rockefeller Empire State Plaza -

Albany, New York 12237 Commissioner Barbara J. Campbell, Clerk New York State Dept. of Ccmmerce Village of Mexico 99 Washington Avenue P.O. Box 26 Albany, New York 12245 Mexico, New York 13114 Robert Fickies Mrs. Nancy K. Weber Energy - Environmental Geology Oswego County Farm Bureau New York State Geological Survey R.D. 3 Education Building Annex Mexico, New York 13114 Albany, New York 12234 ai:

c. n i ,- 1013 136

CASE 80008 & Decket Nos. STN 50-596 and STN 50-597 (NEW HAVEN 1 & 2) SERVICE LIST -P.2 Linda Clark John D. Hotaling, President Safe Energy for New Haven Columbia Cc. Fruit Growers Box 22, R.D. 1 R.D. 1 Mexico, New York 13114 Hudson, New York 12534 Themas G. Griffen, Esq. Vivian Rosenberg Town of Kinderhook Box 274 542 Warren Street Walker Mill Road Hudscn, New York 12534 Germantown, New York 12526 Mr. Alman J. Hawkins G. Jeffrey Haber, Supervisor County Planning Director 1777 Columbia Turnpike Oswego County Planning Beard Castleton, New York 12033 46 East Bridge Street Oswego, New York 13126 Columbia County Ralph Schi:::lel, Representative Town of Stuyvesant Town of Cceymans Concerned Citi:: ens for Saf e Russell Avenue Energy, Inc.

Ravena, New Ycrk 12143 c/o Robert J. Kafin, Esq.

Miller, Mannix, Lemery & Kafin P.

P.O. Scx 765 Glens Falls, New York 12801 James P. MCGrath, Esq. Ms. Jeanne F. Fudala City of Oswego Ecolcgy Acticn - Tempkins Cc.

38 East Utica Street 140 West State Street Oswego, New Ycrk 13126 Ithaca, New Ycrk 14850 a

n. r 1013 137

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CASE 80008 & Docket Nos. STN 50-596 & STN 50-597 (New Haven 1 & 2) Service Lis P. 4 Ms. Anne F. Curtin Clara Glenister, Town Clerk Concerned Citizens for Safe Energy, Town of New Haven Inc. P.O. Box 115 P.O. Box 88 New Haven, New York 13121 Stuyvesant, New York 12173 Commissioner Orin Lehman John F. Shea, Esq.

New York State Dept. of Parks & Assistant Attorney General Recreation Department of Law The Governor Nelson A. Rockefeller Two World Trade Center Empire State Plaza New York, New York 10047 Agency Building No. 1 -

Albany, New York 12238 E. Lee Davis, President Douge Buske Citi:: ens to Preserve the Hudson Plumbers & Steamfitters Valley, Inc. Local No. 2~

P.O. Box 412 R.D. 41 Catskill, New York 12414 Oswego, New York 13126 Ecology Action Reilly and Like, Esgs.

c/o Helen Daly 200 West Main Street W. River Rd., RD 5 Babylon, New York 11702 Oswego, New York 13126 Mrs. Jeffrey Braley, President Richard P. Feirstein, Esq.

Columbia County Farm Bureau New York State Dept. of Star Route Sox 22 Agriculture & Markets Chatham, New York 12037 State Campus Albany, New York 12235 t r .

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dASE NO. 80008 & Cocket Nos. STN 50-596 & STN 50-597 (NEW EAVEN 1 & 2) SERVIC L2 John M. Mcwry, Esq. Dr. Stephen J. Egemeier Mowry, Mcwry & Seiter Main Street Chairman Mexico, New York 13114 Ulster County Environ = ental Management Council 300 Flatbush Avenue -

Kingston, New York 12401 Margaret A. Sprague, President Docketing and Service Section

- Mexico Academy and Central School Office of the Secretary Mexico, New York 13114 U.S. Nuclear Regulatory Ccmmission Washington, D.C. 20555 Doris Brown League of Wcmen Voters of Tcmpkins Samuel R. Madison, Secretary County New York State Department of 86 Cak Crest Road Public Service Ithaca, New York 14850 - The Governcr Nelson A. Rockefelle:

Empire State Plaza Agency Building No. 3 Albany, New York 12223 Stanley 3. Klimberg, Acting Counsel Peter D. G. Brown New York State Energy Office Chairman of the Scard 2 Rockefeller Plaza Mid-Hudson Nuclear Cpponents Albany, New York 12223 P.O. Sex 666 New Palt.~, New York 12561 William Keeping, Supervisor Atomic Safety and Licensing Town of Gardiner Scard Panel Gardiner, New Ycrk 12525 U.S. Nuclear Regula cry Cenmission Washington, D.C. 20555 U h <I :~

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1013 139

Ms. Susan Link R.D. 1, Dewey Road Mexico, New York 13114 -

Atcmic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Ccm-mission Washington, D.C. 20555 O

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