ML19275A515

Opposes Briefs of Intervenors State of Ny Atty General, Public Svc Commission & Ecology Action of Oswego Submittal in Response to Util Brief in Opposition to Interlocutory Appeal.Certificate of Svc Encl

ML19275A515
Person / Time
Site:	New Haven
Issue date:	08/16/1979
From:	Barrett E, Schutt R HUBER, MAGILL, LAWRENCE & FARRELL, LONG ISLAND LIGHTING CO., NEW YORK STATE ELECTRIC & GAS CORP.
To:
References
NUDOCS 7910040583
Download: ML19275A515 (13)

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PROD. & UTE FAC. U-M/M7 NEW YORK STATE PUBLIC SERVICE DEPAFS'. MENT NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

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In the Matter of the Application of the NEW YORK  :

STATE ELECTRIC & GAS CORPORATION and the LONG  :

ISLAND LIC TING COMPANY pursuant to Article VIII  : CASE NO.

of the Public Service Law for a certificate of  : 80008 environmental compatibility and public 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.  :

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r, y APPLICANTS' RESPONSE TO REPLY BRIEFS OF THE ATTORNEY GENERAL AND THE STAFF OF THE PUBLIC SERVICE COMMISSION

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NEW YORK STATE ELECTRIC & ~

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GAS CORPORATION LONG ISLAND LIGHTmG COMPANY

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August 16, 1979

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• NEW YORK STATE PUBLIC SERVICE DEPARTMENT NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

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In the Matter of the Application of the NEW YORK  :

STATE ELECTRIC & GAS CORPORATION and the LONG  :

ISLAND LIGHTING COMPANY pursuant to Article VIII  : CASE NO.

of the Pub 2.ic Service Law for a certificate of  : 80008 environmental compatibility and public need to  :

construct two 1250-megawatt nuclear generating  :

una.ts in the Town of New Haven, Oswego County,  :

or at an alternate site in the Town of Stuyvesant,:

Columbia County.  :

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x APPLICANTS' RESPONSE TO REPLY BRIEFS OF THE y ATTORNEY GENERAL AND THE STAFF OF THE PUBLIC SERVICE COMMISSION INTRODUCTION By means of this brief Applicants riespond to the briefs submitted by the Attorney General, the Starf of the Public Service Commission (Staff) and Ecology Action of Oswego, Inc. (Ecology Action) in reply to Appu.icants ' Brief in Opposition to Interlocutory Appeal by Ecolsogy Action of Oswego. Applicants examined these three su2mt:issions to identify those portions which appropriately respor.ded to _

Applicants' Brief and those which instead int:roduced new material or new arguments. A further examination of the Brief of Ecology Action revealed to Npplicants that, while much of the material could have been submitted as an initial'

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brief, it was generally in reply to Applicant 3 ' suhmission and Applicants believe no response to it is necessary or

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appropriate. With respect to the Attorney General and

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Staff, Applicants will limit their response to those items which include new material or arguments.

• RESPONSE TO THE STAFF OF THE PUBLIC SERVICE COMIiISSION Applicants have some difficulty in perceiving the rational of the Staff of the Public Service Commission. As indicated at page 4 of the Staff's Reply dated August 6, 1979, it believed, at the time the Ecology Action motion was submitted to the Examiners, that the statements pre-filed in tha Jamesport proceeding (Case 80003) "did not in themselves ccastitute a sufficient showing of a lack of interest to construct and operate the proposed units" and they recom-mended dismissal of the Ecology Action motion without preju-dice to re-submit it at a later time. The Staff, in its reply statement, proceeds to explain that its position has changed because Long Island Lighting Company has not yet responded to certain interrogatories propounded by the Staff.

The Staff has, as have many other parties, not re-lied upon facts of record as to " ownership" or "need" - if there can be a distinction - but upon inferences drawn from inaction by a party. The Staff's assertion concerning the alacrity with which Long Island Lighting Company has

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responded to the interrogatories does not provide any j,

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additional fact upon which a decision can be: made. As with ,

all other asserted bases for dismissal, Appid. cants cannot truly respond with facts beyond referencing the contents of the Application, more specifically Chapter 2. thereof, which is at the moment unchallenged by any facts off record in this proceeding.

The fact that interrogatories have not yet been answered is not at all mysterious. First, ome can note there are no discovery rules yet in place. "2hus, there is no prescribed period within which one must amswer. To date it has not been unusual for Applicants to takre approximately 45 days to answer interrogatories. Forty-fime days from May 23, 1979 expired on July 7, 1979. The Co=misision.'s Certifi-cation of the appeal to the Siting Board was cdated July 10, 1979. In light of the pendency of the Appea3. of Ecology Action, the leisurely schedule for this procszeding proposed by the Staff at the Pre-Hearing Conference of May 23, 1979, the probable slowing of the NRC proceeding resferred to at the same conference and the bri fing schedules in the James-port Article VIII proceeding, n significances can be attached to the fact that responses to the interrogatcaries have not been forwarded as yet. Certainly logic would1 dictate that the Staff position continue in opposition to the motion of Ecology Action, at least until its interrogatories are answered.

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The attempt to create fact out of the absence of

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fact is the hallmark of this proceeding. The Staff, as well as others, seems to feel that the signing and sithmission of the Application, and the~ continued participation of Long Island Lighting Company do not establish its intent. They apparently want some other assurance in the form of an affi-davit or further submission as if the expression of intent becomes more persuasive by repitition. Applicants are unaware that precepts of advertiring with respect to repeti-tion have begome applicable before fact finding bodies.

THE ATOMIC ENERGY ACT DOES NOT PRODUCE ANY BASIS FOR DISMISSAL OF THE APPLICATION The Attorney General argues for the first time that " ownership" is critical to determine the proposed owner's technical and financial strength, its integrity, reliability and management competence before deciding

• whether 'the facility is in the public interesf.. ' Public Service Law S146(g)." While this argument has some surface appeal, neither Public Service Law Article 7.III or the rules implementing such statute contain any requirement that an applicant or applicants file any material from which findings relating to technical and financial strengths, integrity ,

reliability or management competence can be determined.

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Clearly, if these subjects were contemplated as appropriate

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issues, Public Service Law S142 would have required submis-sion of data relevant to these subjects.

The citation of the Atomic Energy Act and its i=plementing regulations does not provide any support for the Attorney, General's argument. The referenced law and rules specifically require the submission of information upor, which specific findings of competency to operate a nuclear generating station can be made. The Atomic Energy Act is primapily a safety related act and establishes the primacy of the Federal government over the safety of the proposed pla.t. Issues of management operat.ing capability and financia.: respor sivility do relate to the safety func-tions of the Nuclear Regulatory Commission. Questions relating to Latters similar to those addressed under Public Service Law Article VIII, as to environmental impact and -

public need, arise on the Federal leven. Unde:r the National Environmental Policy Act. Any analogy scught to be made by the Attorney General between the Atomic Energy Act and Public Service Law Article VIII fails.

CONCLUSION The briefs of the Attorney General and the Staff of the Public Service Commission basically repeat the same j fk, 1101 033

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arguments previously advanced by others and fail to recog-ni:e that litigation can only deal with the facts. In this case, the Applicants have consistently stated that they will, as stated in the Application, construct the facility proposed while recognizing th'at uncertainties as to future events may affect a change in Applicants for a certificate

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of Environmental Compatibility and even the cwnership after the issuance of 'l certificate. Nothing presented by the Staff, the Attorney General or other parties has established that the expressed intent of the Applicants is untrue or

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that there is not an issue of fact as to Applicants' need for the facility. Under all the circunstances, the f acts of the proceeding as contained in this record do not justify the dismissal of this proceeding.

Respect. 117sS *tt ,

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E MAGIII. LA . ICE & FARRELL Attorneys fcr New York State Electric & Gas Corporation Office & P.O. Address 99 Park Avezrne New York, New York 10016 Telephone: (212) 682-6200 Edward M. Barrett Edward J. Walsh, Jr.

Jeffrey L. Putter Long Island Lighting Company 250 old Count.f Road Mineola, New York 11501 Telephone: (516) 228-2038

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Roderick Schutt Jeffrey L. Futter of Counsel Dated: August 16, 1979

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P00ROR8NAL "oi

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ND7 YORK STATE PUBLIC SERVICE DEPARTMCIT NEW YORK STATE BOARD ON ELECTRIC GENERATICN SITING AND THE ENVIRONMENT

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In the Matter of the Application of the NEW YORK  :

STATE ELECTRIC & GAS CORPORATION and the LONG  :

ISLAND LIGHTING COMPANY pursuant to Article VIII  : CASE NO.

of the Public Service Law for a certificate of  : 80008 anvironmental compatibility and public need to a ec tstruct two 1250-megawatt nuclear genera +

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units in the Town of hew Haven, Oswego County, e or at an alternate site in the Town of Stuyvesant,: .

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a o gq2.0 QM CEATIFICATION OF SERVICE -

c-STATE OF NE;7 YORK )

) ss.: 1 7 COUNTY OF NEW YORK ) tw g This is to certify @at a true copy of Applicants' Response to Reply Briefs of cne Attornty General and the Staff of the Public Service Cortmission was served upon the persons a;,pearing on the attached list by depositing in the post office box regularly maintained by -the government of the United States in the County of New Yc=k$ State of New York on August 16, 1979.

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Seymour Wenner, Esq., Chairman Robert Grey, Michael Flynn and Atcmic Safety and Licensing Board Craig Indyke, Staff Counsel United States Nuclear RerTulatory New York State Depa.m.ent of Commission Public Service Washington, D.C. 20555 The Governor Nelson A. Rockefelle E=pire State Plaza Albany, New York 12223

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Dr. Oscar H. Paris, Member David A. Engel, Esq.

Atomic Safety and Licensing Board Senior Attorney for Energy

• United States Nuclear Regulatory New York State Dept.rtment of Commission Environmental Conservation Washington, D.C. 20555 50 Wolf Road Albany, New York 12233

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Dr. Walter H. Jordan, Member Stephen E. Lewis, Esq.

Atcmic Gafety and Licensing Board Marcia E. Mulkey, Esq.

881 West Outer Drive Of fice of Ixecutive Legal Direct:

Oak Ridge, TN 37830 United States Nuclea:- Regulatory Ocecission MNVB - 9604 Washington, D.C. 20555 Thomas R. Matias, Administrative Edward M. Barrett, General Counse Law Judge Long Island Lighting Cc=pany New York State Department of 250 Old Country Road.

Public Service Mineola, New York 11501 The Governor Nelson A. Rockefeller Empire State Plaza Agency Building No. 3 Albany, New York 12223 Dr. Sidney A. Schwartz Mr. Michael J. Ray New York State Department of New York State Electric & Gas Cc:

Environmental Conservation 4500 Vestal Parkway East 50 Wolf Road Singhamton, New York 13902 Albany, New York 12233

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Henry G. Williams, Director of Will i am Tyson, Execu*dve Direct State Planning Sr. Lawrence - Eastern Ontario New York State Department of State C W asion 162 Washington Av nue 317 Washington Street

. Albany, New York .2231 Watertown, New York 13601

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Samuel J. Abate, Executive Director Thomas E. Brewer, Director Hudson River Valley Commission Rensselaer Co. Dept. of Health The Governor Ne.lson A. Rockefeller Troy, New York 1218 0 Empire State Plaza Agency Building No. 1 Albany, New York 12238 -

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Cermissioner Mark R. Gi.bbs, Superviser New York State Dept. of Health Town of Me cico Attn: Director - Office of Public S. Jefferson Street Health Mexico, New Ycrk 13114 Tower Building - 14th Floor The Governer Nelson A. Rockefeller Empire State Plaza Albany, New York 12237

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Cc=missioner Barbara J. Campbell, Clerk New York State Dept. of Cc=merce Village of ~ Mexico 99 Washington Avenue P.O. Box 26 Albany, New York 12245 Mexico, New York 13114 Robert Fickies Mrs. Na:ncy 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

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Linda Clark John D. Hotaling, President Safe Energy fcr New Haven Columbia Co. Fruit Growers Box 22, R.D. 1 R.D. 1 Mexico, New York 13114 Hudson, New York 12534

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Thomas G. Griffen, Esq. Vivian Rosenberg Town of Kinderhook Box 27'.

542 Warren Street Walker Mill Road Hudson, New York 12534 Germantown, New York 12526

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Mr. Alman J. Hawkins G. Jeffrey Haber, Supervisor County Planning Director 1777 Columbia Turnpike Oswego County Planning Scard Castleton, New York 12033 46 East Bridge S*.reet Oswego, New York 13126

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Columbia C.ounty Ralph Schir=tel, Representative Town of Stuyvesant Town of Coeymans Concerned Citi= ens for Safe Russell, Avenue Energy, 10 .

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

Miller, Mannix, Lemery & Kafin P.O. Box 765 Glens Falls, New York 12801 James P. MCGrath, Esq. Ms. Jeanne F. Ndala Ciry of Oswego Ecology Action - Tempkins Co.

38 Eas: Utica Street 140 West State Street Oswego, New York 13126 Ithaca, New York 148 50

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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 Recrem: ion Department of Law The Governor Nelson A. Rockefeller Two World Trade Center Empire Stata Plaza New York, New York 10047 Agency Building No. 1 Albany, New York 12238

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H. Lee Davis, President Douge Bt=ske Citi:: ens to Preserve the Hudson Plumbers & Steamfitters valley, Inc. Local No. 27 P.O. Box 412 R.D. #1 Catskill, New York 12414 Oswego, :New York 13126 Ecology Action Reilly and.,Like, Esgs.

c/o Eelen 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.

Oclumbia County Farm Bureau New York State Dept. of Star Route Box 22 Agriculture & Markets Chatham, New York 12037 State Cartpus Albany, 21ew York 12235

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• John M. Mowry, Esq. Dr. Stephen J. Egemeier Mowry, Mowry & Seiter Chairman, Main Street Ulster County Environmental Mexico, New York 13114 Management Council .

300 Flatbush Avenue Aingston, New York 12401

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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 '

Commission Washington, D.C. 20555

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Doris T3rown 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 Governer Nelson A. Rockefel Empire State Plara Agency Building No. 3 Albany, New York 12223 Stanley 3. Kli= berg, Acting Counsel Pe ter D . G .' Brown New York State Energy Office 2 Rockefeller Pla::a Chairman of the Board Albany, New York 12223 Mid-Hudson Nuclear Opponents P.O. Box 666 New Paltz, New York 12561 William Keaping, Supervisor Atemic Safety and Licensing Town of Gardiner Board Panel Gardiner, New York 12525 U.S. Nuclear Regulatcry Cc=miss Washington, D.C. 20555

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Ms. Susan Link R.D. 1, Dewey Road Mr. James L. LaRocca Mexico, New York 13114 Cc:::missioner New York State Energy Office Albany, New York 12223 Atcmic Safety and Licensing Appeal Board Panel brr. William D. Hassett U.S. Nuclear Regulatory Com- C m issioner mission New Ycrk State Department of Washington, D.C. 20555 99 h g Avenue Albany, New York 12245

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Jeffrey L. Futter, Esq. Mr. Fred Bartle Long Island Lighting Company R.D. 5 250 Old Country Road Box 324 Mineola, New York 11501 oswego, New Ycrk 13126

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Mr. Charles A. Zielinski .-

Chairman New York State Public Service Ccmmission E=pire State Plaza Albany, New York 12223 y_ . M. Peter Lanahan Department of Environmental Conservation

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