ML20062H595

Reply of Mm Cuomo,Governor of State of Ny,As Friend of Commission in Opposition to Joint Petition for Reconsideration & to Comments of DOE & Ceq.* Certificate of Svc Encl

ML20062H595
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/21/1990
From:	Cherniak S NEW YORK, STATE OF
To:	NRC COMMISSION (OCM)
References
CON-#490-11092 NUDOCS 9012050142
Download: ML20062H595 (18)

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UNITED STATES OF AMERICA. .

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NUCLEAR REGULATORY COMMISSION-- # l b

BEFORE THE COMMISSION li h. i

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X In the Matter of

' Docket No. 50-322 Long Island Lighting Company.

(Shoreham Nuclear Power Station, t 1

Unit 1)-

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REPLY'OF  !

=MARIO M. CUOMO,_-GOVERNOR OF NEW YORK, '

AS FRIEND OF THE-COMMISSION- M

, IN OPPOSITION TO >

j THE JOINT PETITION FOR' RECONSIDERATION c AND TO THE' COMMENTS-OF THE DEPARTMENT OF R ENERGY AND' THE COUNCIL ON ENVIRONMENTAL QUALITY INTRODUCTION--

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, , - o Pursuant'to the Commissi'on's Order of'NovemberJ15,_1990

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in this proceeding, Mario M.' Cuomo,l Governor of New York, by Robert

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Abrams, Attorney General lof NewL 1 York, submits;;this reply in: M q

opposition to the Joint - Petition" for_ Reconsideration 1(!' Petition") ]

filed on October 29, 1990' by Sh'oreham-Wading-River'. Central ~ School  !

-District and Sc'ientists ' and! EngineersK-'for ' Secure E n e r g y y .'I n c .

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(" petitioners") and to the. comments / filed ='on November 9, ~ 1990:by, j

[ the United States Department' of Energy. . ( DOE"); and, by (the LCouncil-on Environmental' Quality:("CEQ"). .j The ' Order ' that '. the7 Petition ' seeks - to Lhave z reconsidered -

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- held thati the -Commission Staff "need:;not file'_ an- EAl[ Environmental.

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.. Assessment] Dor:an EIS-(Environmental' Impact State' ment)1 reviewing j =j m

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and analyzing ' resumed operation'1 of Shoreham.as a nuclear-power l plant under NEPA. "2 As shown below, petitioners' argument for j reconsideration and' DOE's Comments rest entirely on an erroneous  !

characterization of the federal action at issue here. Moreover,  ;

because petitioners and DOE misconstrue the Long Island Lighting l Company's ("LILCO") obligation not to operate Shoreham as a nuclear j

generating plant pursuant to an agreement ("Settlemont") entered i

into by New York Stato and LILCO , they erroneously claim. that, oneration of Shoreham is a reasonable alternative that , must be .j considered in any Shoreham-related EA or EIS. Finally, DOE-and CEQ erroneously claim-that a proposal to decommission Shoreham would not be covered by the Commission's generic EIS on decommissioning l and that, accordingly, a now and Shoreham-specific EIS is required.

ARGUMENT POINT'I PETITIONERS M10?HARATERIZE'THE~ PRO' POSED FEDERAL ACTION The National Environmental Policy Act ("NEP4") , 42 U.S.C. i l' 4321 el seg. , requires . that _ prior _ to undertakin7 any " major i

Federal actions significantly affecting ~ the quality t.f the human

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environment," the responsible Federal ' agency prepare a detailed j statement on "(1) the' environmental- impact of. the proposed -action j I

" Resumed operation"' is petitioners.' phrase. In f fact, -,

Shoreham has never been-operatedocommercially at full power.

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. The Commission -drew no other conclusions '"regarding the need for:an EIS in decommissioning:situat' ions in general or with g respect to-Shoreham in-particular:or-regarding;what= alternatives

. such an EA or EIS'must consider."

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... (and) (iii) alternatives to the, proposed action." 42 U'S.C. .

5 4332(C).

Petitioners acknowledge that the Commission need only :

consider reasonable alternatives to a proposed federal action and'- +

need not consider alternatives of- " speculative feasibility."

Petition at.7-8. Petitioners claim,'however, that the Commission is taking too crabbed a' view of the-proposed federal. action ~here.  ?

and, accordingly, is failing to consider all = reasonable alternatives thereto.. Specifically,: petitioners claim thati"the l t

proposed ' action consists. of -all element's of- the .so-called-i including n the' replacement .ofi the : power i

' Settlement Agreement'

. otherwise to be generated from Shoreham by the' construction of.new fossil fuel facilities." - Petition'at: 8 n.2. '"When the proposed <

action is so' defined," petitioners continue, "it is easy'-to see-  ;

that resumed . operation f of ShorehamI is- an alternative: toe 'the -

construction (of) such'new fossil.fuelTfacilities1..'..": ld.-at' 8' .

n.2. Petitioners, - however, . beg- the question by ' improperly defining; ,

q the " proposed. action."-

y L Petitioners'- description .of the-~ " proposed action"

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I incorrectly' attributes ~to the Commission decisions taken byiNew' {

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• State officials and by LILCO,.- ' a :l private Lentity. The'  :

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L; Settlement that was executed by: Governor Cuomo and'.LILCO on ,

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p February 28,- 1989 and that; became effective on-June 128). 1989,.

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i- Lwhen it'was approved lby LILCO's shareholders, provides) in ; brief,:

sthat: (1) LILCo' will not. operate Shoreham ~ ass'a nuclear power: ,

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L . plant; (2) LILCO will' sell the nuclear portion;of=the plant,to the, l '

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Long Island Powe Authority ( ."LI PA" ) , a'public authority of the a

k; and (3) LIPA will contract with' the Power i State of Now i

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l Authority of the State of New York ("PASHY") for assistance in i

decommissioning Shoreham. ,

i The Commission has been asked to approve.the transfer of-Shoroham's license from LILCO to LIPA, and it will'.be asked'to approvo a decommissioning plan that~will be presented by LIPA..

e LILCO's agreement not to operate Shoreham as a nuclear power. plant-does not require NRC approval, and no such - approval has boon

sought. Moreover, contrary to petitioners' '(Petition at 8 n.2 )- <

and DOE's (DOE Comments at 17) arguments, the Settlement provides

, that LILCo's covenant not to operate Shoreham as-a nuclear, facility ,

is independent of the Commission's . action.' with respect to ,

transferring ownership of Shoreham to'LIPA or,to approving aLplan?

to decommission the facility. -Indeed, that- specifically enforceable covenant ;would survive-.even! . termination of: .the; <

agreement pursuant to which LILCO is to sell the nuclear' portion - d of Shoreham to LIPA. S,qn- Asset Transfer Aareement,111 5.l(a), I 9.1, and 10.5. Exhibit A,: attached.' i Accordingly,: Commission action'is neither a legal nor..a-practical prerequisite to .the- non-operationi. of IShoreham . as , a - >

nuclear facility, and-the. decision.not to-operahe"Shoreham cannot I

• i bo attributed to the' Commission. .gf. - Greene ' County ' PIann'ina Bd'.

v. FPC,.455'F.2d-412 (2d Cir. ~ 1972) ,: .q_qrt. den ied ,- ~:4 09 U. S . . 8 4 9 ;

f (1972).- The Commission 1 is J thus :orrect: lin . stating; that'o '.'the- j q

broadest NRC action related: toCShoreh .m decommissioning"iwill be i 4 E

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tr e action the Commission takes when a specific.i ecommissioning d &

plan is presented to it. Order at 9. Because LILCO's binding sgreement not to operate Shoreham - is not a direct: or indirect consequence of any action the Commission has taken-or will take, the operation of Shoreham as a nuclear faci 2.ity is : not an alternative, reasonable or.not, to any planned Commission action.

EQ_q FRDC v. EPA,_822 P.2d 104,. 131 n. 27.(D.C. Cir.L1987).

As DOE notes, "NEPA applies only. to the. actions of EpApral agene.ies'.  ;

and the resultina outcomes." Doe Comments __ati18-(first'emphasisL in original; second, supplied). DOE's comments concerning what itE considers possible indirect ef fects of decommissioning,: L_% the:

, possible need at some . time for some amount cof some form of j

3 Petitioners': characterization of the action'at issue here J

is incorrect- even as a descriptionf of the' Settlementil = Scientists.-

and Engineers for Secure JEnergy - ("SE8 ") one iof the? petitioners' here, argued in the l courts t .of New 1 York ' that c Governor: ' Cuomo's r

execution of the' Settlement and:the:various agency; approvals'of the - 1 Settlement ; violated' the State i Environmental . QualityJ Review l Act' H

("SEQRA") ~ inasmuch as no EIS was L prepared prior:LtohtheTexecution- 1 and approvals. ' SE8 . argued, as'they do here,:that theEsettlement provided for a ~ " swap" -- fossil-~ fuelE energy for c nuclearfenergy.

But the possible provision of alternative sources ofielectric power proposed in the Memorandum of, Understanding-between,LILCOf and~ PASNY

-is contingent, and,'indeed, even at-this time.. speculative. [It is- 4 complet31y unknown:whetheryany construction ofcfossiltfuel~ plants. ,

will-be cocessary and,..~if,so, how much. Under,the1 guidance of:the l New York Public Service Commission,'.LILCO is currently, implementing _ '

large-scale projects'to: increase.theTefficiency.ofLits customers _s use of electricity',f as wellias to shift the. demand for electricity

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from peak to off-peak times. . 1As4the' Appellate Division ofnthe'Newu

-York State Supreme Court i held -in. rejecting . SE8 'si claims, "thei memorandum of. ' understanding. .concerning- PASNY's. possible construction.of ~ alternative generating facilities contains 'so many.

significantlindependent . conditions > [ including;. _at eneed, forL such

. facilities]' thatLPASNY's~ cundertaking; -in ? this regard Cis Lat most 1 contingent.and provisional'. "' Citizens for -an orderly Enerav ' Policy,a gLal. v. Cuomo, 559, N.Y.S. L 2d '381', 3921( App. Div. 1990,)? motioniqI

, ly to apo._ denied, -A.D.2di ' (Oct. 10~,11990)'.

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of additional power in LILCO's service area * , (DOE Comment _ at, =i L_gt, 3, 5-6, 11-12 17), are simply ' irrelevant because,_ as LIPA has ]

correctly argued, any such noodi could not result - from- an NRC-approved decornmissioning of Shoreham but only' from the irrevocable  !

i decision by non-federal parties that the plant not operate.4

.I POINT II OPERATION OF SHOREHAM AS A 1 NUCLEAR FACILITY.IS NOT  ;

A REASONABLE ALTERNATIVE FOR' Li PURPOSES OF THE NATIONAL.

ENVIRONMENTAL POLICY ~ACT; When implomonting.NEPA. procedures,_an agency need

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j ovaluate only reasonable alternatives to its proposed action.

40 CFR 5 1502.14 (a) . Even 'if there were a ' federal action such that ~

operation of Shoreham as a nuclear facility were an alternative to-l such that action, operation.,would- not- be- a, " reasonable- 1

, alternative." Accordingly, .the Commission would notl,need to l i

consider it in any EA or'EIS. The purpose of>NEPA's-requirement-i that prior to undertaking - major _ actions,- agencies Lanalyze .the {

likely environmental consequences- 'o'f ' ' those " actions and of l

reasonable alternatives -is :"not. to generate paperwork 1. . . but ,to .

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4 DOE cites Limerick Eco10cv Action. Inc. v.;NRC, 869 F;2dl 719 . (3d Ciri _'1989) ,: for the proposition thath. compliance >withithe '

l' Atomic Energy Act does"not exempt theJCommissionifrom compliance-with the procedural requirements of.NEPA. DOE-Comments at 14-151  ;

Nothing.in'the! Commission's~ Order is;to_the: contrary. The=. basis )

-of' the. Commission's ' decision that'- operation ' of1 'ShorehamE as - a ..

j nuclear facility'not be' considered:in any.EA or EISiis thatisuchL .i

, , operation'is inot an alternative'to anyT federal action, not'that the.- 1 Cc: emission' lacks -power' to ; order!.such operation. Eg.g-OrderLat 8. i The Commission's discussion-of its/ lack of power to' order operation :

is meralyipart of theccommission'.s Jexplanation!of why the decision.

not'to-operste wasinot affederal. action.

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i foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences." 10 CFR 1500.1(c). The point is not to prepare abstract scenarios but to aid in substantive decisions, Citizens for a Better Henderson v. Hodel, 768-F.2d 1051, 1056-(9th  !

Cir. 1985), and to permit intelligent choice, N.R.D.C. v. City of N.Y., 672 F.2d 292, 297 (2nd Cir.1982) , cert. dismissed, 456_U.S. f 920 (1982).

Petitioners' suggestion that an EIS.that considered;the' operation of Shoreham as an: alternative "could . persuade Congress ,

of the -need 'to take L a single.-' discrete action -(a ' declaration - of national emergency or other legislation -to preserve Shoreham),"

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Petition at 9, shows how completely tinreasonable such consideration  !

would be. On petitionerst reasoning,. any party could require:an-agency to consider tha party's- pet; project: as _ an alternative. to a

, ja planned ' agency action' on; the ground that ' Congress might on_- the j

basis of an EIS prepared :by the agency! enact legislation' dir'ecting q

operation of that' project. It is nothing short of. incredible-that' i

DOE subscribes to this argument ~ of- petitioners,- apparently suggesting that " Congress . (might); determinei that. ' an . emergency-

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exists,.by reasonnof the Middle Eastisituation or otherwise," in. ,

part on- the basis of an:EIS concerning the disposition of Shoreham, j DOE Comments at 20. '

l In support of. its argument, DOE cites NRDC'v. ' Morton,' 458 -i

, F.2d- 827' (D.C. . -Cir. 1972) , t .a: case in3 whi hc, in' responseito a- _

i directive in a ' Presidential: . Message, the' U.S. - Department ~of

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i Interior proposed a large-scale sale of offshore-acreage leases. l The EIS prepared by the Department did not discuss the alternative of eliminating oil import quotas because such a decision was '

outside the Department's power. The court noted-that the proposed.

project was far broader than most federal actions discusava in-impact statements and that it was ." an- integral part of a I '

coordinated plan to deal with a broad (national) problem." NRDC ]

1 YA JiRrt2D, 458 F.2d at 834-835. The- court also noted that the l President's Message had acknowledged the - severe environmental damages that attended drilling in the outor= Continental Shelf._ In.

that context, the court held, the Department should have considered I i

, the alternative of eliminating oil import; quotas for the guidance ,

of Congress and the President. The reaso'ning ofLMorton is' plainly inapplicable here, where the broadest-federal: action will be the 1

-Commission's decision on a decommissioning; plan for 'one generating. a facility.6 l Petitioners next suggest thatca " proper EIS' would also 1

inform the New York State Legislature of the need> tio change' . . . two-  !

i discrete sections" of the LIPA Act, Public Authorities Law, 5-1020- 1 at steg. (" PAL") ,> the legislation that created lLIPA.; The i " discrete sections",- 5 5 '1020-h(9) and 1020 (t) , : respectively require LIPA J to ' -(

" forthwith close and decommission the Shoreham; plant" -"as soon as

. practicable" once LIPA .is in control of Shoreham "and' prohibit LIPA '

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, In:the alternative, DOE may:be arguing that" I Congress may:  ;

declare a national emergency independently'of what the Commission

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l does here and that1the Commission should maintain.the status auo  !

pending . such speculative - Congressional action.

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1Nothing in NEPA. *

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. from " construct (ing) or operating a nuclear powerLfacility in the .

service area." As the Appellate Division statediin: sustaining the i

Settlement against the challenges brought by the parties who are 1 petitioners here (and by DOE, which intervened.in the= state court case), "[t]he legislative debates concerning the (LIPA) Act.

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manifest the inalterable oppositionito the. operation of Shoreham by the Act's proponents." citizens for-an-orderly Enerav Policy et al. v. cuomQ ("COEPH ) , 559 N. Y. S . 2d 3 81, 388 (App. Div. 1990),.

t motion for lv to anp. denied, A.D.2d (Oct.10,.

1990) The LIPA Act. manifests: the implacable ... . . legislative opposition 'to the placing of Shoreham in full operation." COEP, 559.N.Y.S.2d at 390. 1 Moreover, - the -. legislatureJ excluded 1 -both LIPA's-and :LIPA's acquisition of Shoreham subsequent closing and 7 decommissioning of the plant - from SEQRA . : Sag - PAL' $ ~ .102 0-h ( 9) . 4 (imposing-ministerial duty-to close.Shoreham;'m'inisterial' actions J exempt from SEQRA)'; 5 1020-S(2) . A'sjthe' Appellate ' Division; stated, ' l S

I in rejecting petitioners' claim that the Settlement violated SEQRA,.

"the legislature preempted the policy decision making.and balancing of ecological / social / economic / costs- and : Ibenefits .of the ' SEQRA - }

process as to o the fundamentaledecisions to ' acquire andL close 1 559, N.Y S.2d'at "

'Shoreham." COEP, 3 9 2 ~. -- In'-view._ of ;the legislature's exemption o'f the' acquisition and closing of Shoreham -

from the SEQRA process, .it_ i's patently. unreasonable to suggest that an EIS that included operation:of'Shoreham'as an alternative would 1 lead the legislature to abandon ' .its:" implacable opposition to such -

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I operation. Indeed, to say that operation of Shoreh'am as a nuclear facility "would require significant changes in' governmental policy ,

or legislation, HRDC v. Callaway, (524 F.2d 79,--92 (2d Cir.1975) )"

prder at 10, is an understatement.6 POINT III THE COMMISSIONeS ORDER DOES I NOT VIOLATE THE COMMISSION'S SCOPING REGULATIONS. j The Commission has not yet determined w'hether and, if so,_

when it-will'need to prepare an EIS in connection with a Shoreham-;

related proposed action. Accordingly, the' Commission-has not filed

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a notice of intent . pursuant to 10 - CFR 5' > 51. 26 - and the scoping- ,

.t process provided for in 10 CFR 55: 51.28 a'nd: 51.29 has / not- begun...

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Petitioners, however,-in advance of anylsuch process requested:

(a]n order finding that-there exists a proposal?  !

for the decommissioning of Shoreham, ' which is; aL major l federal action.... and, therefore, ordering the licensee to propose an EnvironmentaltReport on the scopecof.that  ;

proposal (including, interi. glia, the- ' alternatives ,

relating to full power operation.

l Scientists and Encineers for Secure Enerav; - Inc. 's ' Petition'~ for Leave to Intervene and-Request'for'Hearina at'L42. The Commiss'on 4

denied. this specific request. or relief $- : Petitioners -cannot be i

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I heard now to object . that for the l Commission to.. haven actedion a

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DOE may'be. correct intstating that in some circumstances- ]

the , opposition - of non-federal > parties l ."do'es ' not constitute a

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i limitation on- the Commission's- ability .to lact,"j DOE' Comments at: 18, i

-but it isJabsurd to suggest,'as: DOE does that, opposition to the -4

, ' operation of- u nuclear facility both byf aTstate: and by. the . licensee >  ;

coupled,with.a1 binding. obligation on-the:licenseeEnot to operate = -i

, the. facility, does not make such operation" ani unreasonable alternative for. purposes of NEPA~'

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. petitioners' specific request Eford relief violates Commission  ;

regulations that only come into play when the Commission determines ,

4 to prepare an EIS, a determination the' Commission has not mado.-

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-POINT IV i

THE COMMISSION NEED NOT' PREPARE A SHOREHAM-RELATED 4

. ENVIRONMENTAL IMPACT: STATEMENT .,

-t In 1988 the Commissio.. developed'a-generic'EIS ("GEIS"); q to cover each of the three available methods'of decommissioningfa.

nuclear facility. The Commission stated,T h owever, that it retained! l discretion to require a- new EIS- if .a ' licensee l proposed "significantly different" methods.of decommissioning.150 FR15600, , .

5610.- As DOE acknowledges, it was "the ~ clear intent (of. , the; .

commission) ... to reduce the NEPA requirement for? decommissioning- (

from an EIS to an EA in virtuallyi all - foreseableEcases," DQE i commenta at 7, 1.e., those decommissionings whichLpropose-to-use  !

, one of the methods covered:by the GEIS.' .

DOE now argues that in the c'ase of Shoreham anb EIS is required even if the licensee-proposes /toidecommission the plantt i by one of the methods. . covered in - the GEIS.7 DOE = claims ' thatL '

Shoreham " differs fundamentally" from> the f typical; plant to be: 1 decommissioned in that the latter is at the'.end of;its luseful, life,;

whereas Shoreham is a new, unused plant. .This ispa distinction.

without' a difference. In the case of;Shoreham,. as.in the " typical"i case,; .w hat ,is required is a means to . reduce .thef residual ,

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CEQ'sf Comments take no . cognizance of! the .GEIS' but -simply -.

assume that'an;EIS will be: required. prior.to decommissioning.

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. radioactivity so that the property can be safely released for' )

general use. S22 NUREG 0586 p. viii. Indeed, given the fact that, I

as DOE acknowledges, "there'is'relatively minor contamination of  ;

the Shoreham facility," DOE Commenta at 23, the direct f i environmental impacts of decommissioning Shoreham will be far less' ,

than in the " typical" situation foreseen in the GEIS.

DOE 's . main point, however, bears on what DOE asserts l would be the " indirect impacts" of decommissioning shoreham,.la.,

the purported need for alternative sources of power. DOE's. argument l

is vitiated by the fact that, as,shown in Point I above, any such h need for power will result not from 'any federal = action but from the  ;

non-federal decision- that Shoreham not operate as a nuclear.

facility. Thus the putative need . for " alternative" sources of >

l power to replace Shoreham's does not belong in a Shoreham-related:

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l EIS. Acccrdingly, if LIPA proposes to decommission Shoreham'by a ,

method that is not "significantly . dif ferent" from' one of -the - -

methods covered by the GEIS, LIPA's;' proposal will-beicovered1by the GEIS and no EIS will be required. ,

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. CONCLUSION For the foregoing reasons, the-Commission should deny the Petition and reject DOE's and CEQ's advice regarding a Shoreham-  ;

i related EIS.

Dated: New York, New York  ;(

November 21, 1990

Respectfullyasubmitted, ROBERT ABRAMS. 1 Attorney General 1of.the  !

Statn of New Y  !

By:- -

o4 Samuel A.,Cherniak / si 1 Assistant Attorney GeneA l'

. Attorney for Mario M. Cuomo, Governor?of New York i 120' Broadway- l New' York, New York -.10271_

,  :(212) 341-2350-JOHN W. CORWIN '

Assistant Attorney General In Charge i Bureau of Consumer Frauds'  ;

And Protection' CHARLIE DONALDSON =i

'. Assistant Attorney General .

In Charge- '. l Energy and Utilities Section '

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( ARTICLE V q AGREEMENTS OF LILCO AND LIPA

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5.1 Conduct of Business by LILCO. (a) Prior to April 15, L t

3939, LILCO will (1) maintain Shoreham-in compliance with all <

f regulatory requirements and (ii) not operate shoreham above 5%

1 power. On and after April 15, 1989i if all approvals required by j 4

g, g,: Settlement Agreement, except shareholder approval, have been received, -LILCO will not operate Shoreham pursuant to any. autho-  !

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+ e rization to operate Shoreham that may or has been granted by the w NRC, unless the Settlement _ is disapproved by LILCO's share-b holders. After the Settlement Effective Dat'e, LILCO will not

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operate Shoreham pursuant to any authorization-to operate it that  ;

may be or has been granted by.thi NRC.

'n h St (b) Promptly after the Settlement Effective Date, LILCO will (1), unless previously accomplished, remove the fuel 2{}; from Shoreham's reactor and deposit:the fuel in the,Shoreham- 3 d$ spent fuel pool, (11) withdraw LILCO's pendingfapp1'ications to the NRC.for 25% and 100%. power operating licenses and cease all, h steps to prosecute these applications, .(iii) apply to the-NRC for P

8 l t a " possession only" license and/or other. license amendments as jj are necessary to facilitate the Lice.nse Transfer, (iv) cooperate w a l o with representatives of the Power Authorities on transition ~and

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"$j  : personnel planning and report matters of' significance' concerning j 2

the status:of Shoreham, and (v) notify the Power Authoritles of s t

-any emergency or other change in~the. normal status'of-Shoreham' L .s

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ARTICLE IX

. k TERMINATION ,

9,1 Termination.

This Agreement may be terminated, and the

gsset Transfer abandoned, at any time prior to the Closing Date

/ (a) by the mutual consent of the Board of Directors of e

s tg',ILCO and the Board of Trustees of LIPA; L . 1 r

(b) by either LILCO or LIPA if, without fault of the A

fterminatingparty,theAssetTransferhasno'tbeenconsummatedon '

3 or before December 31, 1990; '

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i . (c) by either LILCO or LIPA if any court of competent P $

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m. I' jurisdiction has issued a final decision, not subject to appeal ,

Sh prohibiting the consummation of the transections contemplated by g;; this Agreement; or '

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(d) by either LILCO or LIPA if the PSC does not

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i  ?( approve, without modification, the Settlement Agreement..and- this L y )g, Agreement; or 4

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(e) by either LILCO'or~LIPA if-LILCO's shareholders i i c disapprove the Settlement. Agreement or th'is Agreement.-

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.e ffk Notwithstanding the tisrminatlon.of this-Agreement,,ifi the

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g f Settlement Effective'Date~has' occurred, (a)-the provisions of-

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Article VIII of this Agreement 1willscontir.de in full' force and

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.j , .; effect and (b) the convenants contained in

Section 5.1 of.- this Agreement will survive and continue to beifully enforceable,

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[- wi"a( y such other address as is furnished in writing.by such party, 4 'nd any such notice or communication' will be deemed to have ~ been A j 'gyen as of the date so mailed. -

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h 10.5 Specific Performancer Remedies Not Exclusive. LIPA-  !

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nd LILc0 acknowledge that the other will.not have an adequate

. remedy at law for money damages in the event that the terms and i Jprovisions of this Agreement are not performed and therefore

.. agree that the Parties will be entitled to specific' enforcement

. j.in addition to any other remedy to which they may be entitled..

i j 3 Q-f^j- 10.6 Counterparts _. This Agreement may be executed in-two' -

w ' or more counterparts all of which will be considered one and the-(

%,! same agreement and each of which will be deemed an original 1

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i 3.t C 10.7 Governino Law. ,

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This-~ Agreement will be governed by'the.  ;

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77 w laws of the-State of New York (regardless of-the*1aws that might

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be applicable under principlesL of conflicts' of law); as. to alll q matters,includingbutnotlimitedtomattersof[ validity,,' con- I g struction, effect and performance. .

10.8 Severability.

Ifcany: aspect:of this Agreement is held

.by a court ofLeompeten* jurisdiction or other? authority to'be -;

2 A invalid, void, unenforceable or against:it's regulatory policy,..

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% the rast of the' Agreement will. remain 'in. full force end effect. i 9 and will in no way be adversely;affactedi  ;

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CERTIFICATE OF SERVICE- 1 I hereby cortify that one copy of the foregoing Reply. in Opposition to Joint Petition for Reconsideration was.= served by d first-class mail, postage prepaid upon-the following-on this 21st day of November 1990. '

t

-i Lawrence J. Chandler,.Esq. 1 Office of the GeneralLCounsel d U.S. Nuclear Regulatory-Commission ( j Washington, D.C. 20555- 1 S 4 j

James - McGranery,. Jr. , Esq. ,a Dow, Lohnes & Albertson tv L.

Suite 500

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s 1255 Twenty Third Street, N.W. . Is '

Washington, D.C. :20037_ "

• vd> 1 Donald P. Irwin,1Esq. 1

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Jb  ;

Hunton &-Williams c;; l, '

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. 707 East Main Street  ;

P.O. Box 1535 Richmond, Virginia 23212 ,

Carl R. Schenker, Jr. , Esq. i O'Melveny1& Meyers= .

}

Counsel 1for.Long: Island' Power Authority _

555 13th Street, N .16 k i5 -

Washington,.D.C. -20004, p

S Michael R. Deland,: Chairman J

Council on Environmental' Quality; ni Dgg" a -  !.

Executive. Office:of the President-' '

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Washington,1D.C. 20500- ~ .)\DY Io ]l-i Honorable James D. Watkins-  !

D Secretary of Energy Washington, D.C.- 20585

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1 Steven A.'Wakefield,;Esq. 3 DepartmentLof' Energy: ,

e Office of General 1 Counsel = d Room 2000 ..

i 825 North Capitol-Street Washington, D.C.- 20426:

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i Atomic Safety and' Licensing Board' Panel U.S. Nuclear Regulatory' Commission

, Washington, D.C.. 20555 w , f Samuel A. Cherniak f.

Assistant Attorney' General' ' ] '

Attorney for.

Mario M. Cuomo, c.overnor of New York si q

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