ML20073A818
| ML20073A818 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/05/1991 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20073A773 | List: |
| References | |
| OLA, OLA-2, NUDOCS 9104230371 | |
| Download: ML20073A818 (32) | |
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UNITED STATES OF AMERICA Unit NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION '91 APR -8 N0 54 p5n! 9 ,H.M arv 4 ) vatn! t m ; e, 5 i ,w f In the Matter of- ) HMkW
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LONG ISLAND LIGHTING COMPANY ) Docket Hos. 50-322
) 50-3 22-OLA, and (shoreham Nuclear Power Station, ) 50-3 2 2 -O LA-2 Unit 1) ) '
)
, PETITIONERS' JOINT REPLY To OPPOSITIONS 3
! TO THEIR JOINT MOTION TO STAY LICENSE ISSUANCE AND OTHER MATTERS Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
(jointly " Petitioners") hereby reply to the four oppositions 1' 1 filed to.their Joint; Motion urging the Commission to grant the
' stays requested because (a) there are-three independent bases for the granting'of those motions, (b) the opponents of those motions
-have misapprended the law applicable to the three independent bases for stays, (c) those opponents have made no showing of harm or,.at:1 east, cognizable harm that would result from the-granting. ;
H 1/ NRC Staff Responsetto Petitioners' Joint Motion to Stay
(" Staff").(March 25, 1991);. Opposition of the Long. Island Power Authority to Joint' Motion to: Stay ("LIEA") (March 25, 1991);
LILCO's. Opposition to Joint- Motion for Stay ("LILC0") (March.25,
-1991); ReplyLof Mario M. Cuomo, Governor of the State of New !
c l York, as 'riend of the Commission in Opposition to the-Joint !
l Motion stay or Vacate License Issuance and Other-Matters. q j .("Cuomo'i (March.22, 1991). ;;
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of those motions, and (d) comparable relief is not available from the New York Court of Appeals.U I. THE OPPOSITIONS Four entities filed Oppositions to Petitioners' Joint Motion. These Oppositions neglect the fact that Petitioners' Joint Motion was premised on _hree t indeoendent bases (a) the Nuclear Regulatory Commission's ("NRC" or " Commission") duty to refrain from decisions premised on assumptions as to the resolution of crucial state law issues as a matter of comity, (b) its power to provide interim equitable relief, nr (c) its 2/ In their Joint Motion, Petitionerr, argued that the requested stays by the Commission were "all the wore necessary because (interin injunctive relief) is not available from the New York Court of Appeals . . . . " Joint Motio.1 at 2 n.2. Neither of the other parties, Staf f and LILCO, assert that appropriate interin injunctive relief is available in the NEW York Court of Appeals.
Etnif , pa s sim ; LILCO, passim. And it is significant and refreshing that counsel for the Governor of that State concedes that even he cannot find "any reported case in which the Court of Appeals dircusses its authority to issue preliminary injunctions or temporary restraining orders." Cuomo at 9.
While amicus LIPA properly characterites part of Professor Siegel's analysis as being that "such relief should be available" (LIEA at 7 (emphasis added)), the fact that Professor Siegel considers that it would be " wise" for the Court of Appeals to have such power-does not detract from his unmistakable legal conclusion that "[t]he language of CPLR 5518 . . . would seem to apply only when the appeal is pending in the Appellate Division,
. . . . (This) is apparently what the Legislature stated to be its intention." N.Y.Civ.Prac.L.&R. C551881 (McKinney 1978). In short, both ecoosino earties concede Petitioners' allegation that comparable relief is not available in the H.Y. Court of Appeals and the absence of even a single instance of the granting of such relief is powerful evidence of its unavailability.
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l inherent authority to exercise discretionary supervisory authority. Joint Motion at 1.
The Staff concentrates on a discussion of the four factors normally relevant to the Commission's power to provide interim equitable relief as set out in 10 C.F.R. $ 2.78B(e)
(Staff at 2-11), while briefly discussing comity as a basis for the stays (Staff at 11-13) and relegating discussion of the Commission's inherent supervisory authority to a footnote (Eta 11 at 2 n.2).
LILCO also devotes the majority of its opposition to the Commission's ordinary interin equitable relief standards (LILCO at 2-5, 10-18), while superficially opposing petitioners' arguments on the basis of comity (LILCO at B-10), totally omitting any referenco to the Commission's inherent supervisory authority, and waving its arms saying it won't operate Shoreham in ar.y event.I' 1/ The Commission should givo no weight to LILCO's frantic arm waving regarding its intention never to operate Shoreham, because LILCO is currentiv contractually bound to make such assertions under the Settlement Agreement and, more particularly, pursuant to the Asset Transfer Agreement executed pursual.t to that Settlement Agreement. In particular, the Settletent Agreement requires LILCO to " cooperate in obtaining any regulatory approval required to effectuate this agreement _and the trhnsactions that it contemplates, including transfer Shoreham to LIPA, [and) the decommissioning of Shoreham as promptly as possible . . . .
Settlement Agreement at 19. And the Amended and Restated Asset Transfer Agreement also sets out those commitments in greater and more precise detail. However, both of those agreements are currently under review in the highest Court of the State of How York, and may be voided by that court. In particular, the Transfer Agreement provides that its " validity" is " governed by (continued...)
i 4 Amicus LIPA also focuses on the Commission's Section 2.78B(e) standards for interin equitable relief (LIEA at 15-22) and adds some discussion of a stay on the basis of comity (LIEA at 9-12), while totally omitting any discussion of a stay pursuant to the commission's inherent supervisory authority.F LIPA prefers to argue that interim injunctive relief is available from the New York court of Appeals (LIEA at 6-9) without being able to cite a sinals judicial decision in support of that proposition, and tries to assert that the existence of the Settlement Agreement (and, hence, the importance of the question of its validity or invalidity) is irrelevant to the license amendments, exemptions and other approvals sought by LILCO in furtherr.nce of decommissioning.I# LIEA at 12-15.
1/ (... continued) the laws of the State of New York" (Article 10.7), and further provides for the termination of that agreement "if any Court of competent jurisdiction has issued a final decision, not subject to appeal, prohibiting consummation of the transactions contemplated by this Agreement" (Article 9.1(c)).
A/ LIPA faults the Motion because " Petitioners have not specifically identified all activities sought to be stayed."
LIPA OeDosition at 1. In addition to the four proceedings currently before the Atomic Safety and Licensing Board, Petitioners seek stays of all NRC and NRC Staff actions on the 14 matters identified by LILCO as pending on December 13, 1990 (attached) and all requests made by LILCO since that date, as well as all requests made by LIPA.
5/ LIPA has no basis for asserting "even if the Settlement Agreement should fail for some reason, Shoreham would remain closed and in need of prompt decommissioning as a result of non-federal initiatives." LIEA at 13-14. That Shoreham would remain closed is a matter of LIPA's desire; if the Settlement Agreement "should fail," it would no longer be a matter that IPA could (continued...)
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- Amicus Cuomo not.only omits any-discussion of whether this situation would be appropriate for the commission's exercise of its inherent supervisory' authority, but also tote 11y fails-to address' Petitioner's arguments on the basis of comity. Further, i
inLdiscussing the normal standards for-interim equitable relief, -
cuomo-confinesJhimself m a discussion of whether Petitioners have shown that theyLare-likely-to prevail on the merits without suggesting thatlthere is any reason'why thay won't. cuomo at.2-8., cuomo prefers:to argue that Petitioners-have not shown that interlocutoryfrelief'is unavailable from the New York 1 Court of. >
- Appeals ~(cuomo at 8-11)Lwhile,-refreshingly,---conceding that REED the Governor's' counsel has net been able to' find'any reported
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cases' asserting such= authority (puomo at 5).- Finally,1Cuomol l-j
-i argues'that LILCO's authority t'oiseek a. POL is "not dependent on l
- the;Shoreham' settlement"-(Cuomo at 11-13), while incensistently
. conceding that ifstheLsettlement-were1 voided-by the court-of2 i J
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lif :(.... continued)- '
Lcontrol.; Further,_the fact that a plant.is " closed"Ldoes no.' _
, dictate that it11s "in.needsprompt' decommissioning"; plants have
" remained closed for-years without:deoommissioning,Las in the-' case
- of Browns Ferry -units. _ M; atL 13-14. If the Agreementa-are ,
4 invalidated, the-question of whether the-shoreham license would
- ever be: transferred?to'LIPA."under'appropriateualternative +
arrangements" is'e matter for.another day. M st 16. - - The- y
-decommissioning. plan submitted:by LIPA in Deesmber 1990.is irrelevantL since LIPA ,isJnot Lthe licensee- and, therefore, has: no. 1 right or obligation'to submit such'a-plan for Shorehad. M .at 16 ; 101 CFRi lt 50. 82 (1990). !
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Appeals, a " modified or renewed" agreement would be required in order to proceed with decommissioning.F Cuomo at 12.
II. COMITY DICTATES THAT THE STAYS SHOULD BE GRANTED.F In-their Joint Motion, Petitioners argued that stays on the basis of comity are demanded here because t'... U.S. Supreme Court's decision in Kaiser Steel Corn. v. W.S. Ranch Co., 391 U.S. 593, 594, 88 S.Ct. 1753, 1754 (1968) fits "the facts of this case like a glove." 2 pint Motion at 12. However, the Staff argues that the circumstances considered in Kaiser are
" inapposite to those here" because the Kaiser decision turned on the fact that the ultimate decision " required interpretation of provisions in New Mexico constitution," impliedly denying that state constitutional law issues exist in the cases in the NY Court of Appeals.F Etaff at 12-13. LILCO also stresses the fact that the stay in Kaiser was "to allow a state court to s/ Cuomo's argument that the Settlerent Agreement and LILCO's decision not to operate Shoreham .re unrelated cannot survive the
" red face" test. Cuomo,at 11-12. The Settlement Agreement is the embodiment of the decision not to operate Shoreham which was forced on LILCO in return for cessessation of the illegal and abusive harassment of LILCO by the Governor and various State agencies (issues currently before the New York Court of Appeals).
EAs n.3 supra.
2/ If stays are warranted on this basis, there is no need to reach the tests relevant to the other independent bases for stays.
R/ This Staff argument is almost inexplicable since the etaff earlier concedes in its opposition that the cases before the NY Court of Appeals da present issues of "New York constitutional" law. Staff at 6 n.6.
interpret the meaning of a term in the state constitution."
LILCO at 9.
The simple fact is, that all three cases pending before the New York Court of Appeals d2 involve state constitutional issues,.that is, whether state statutory law ADA particular acts by the Governor and state governmental entities are in violation of the state constitution.F Therefore, Kaiser Steel is controlling here.E' Further, the NRC has previously recognized that when "a state court litigation (a relevant) issue of New York law" exists it is error if the Commission " fail (s) to base its determination of the issue upon the hiahest state court decision in that litigation." consolidated Edison C.22 (Indian Point Station, Unit 1/ Both Citizens for an Orderly Enerav Policy Inc. v. Cuomo and Dollard v. Lona Island Power Authority, 559 N.Y.S.2d 381, 383 (A.D.3 Dept. 1990) involve issues of whether "the agreements are in excess of the public respondents' statutory and constitutional authority" (emphasis added) and those appellate division opinions also recognize that those two cases present issues of " separation of powers doctrine" under the state-constitution. 559 N.Y S.2d at 387. Likewise, Nassau Suffolk contractor's Associatp Inc.
- v. PUblic Service Commission, 559 N.Y.S.2d 393, 394 (A. 3 Dept.
1990) presents issues-of including the issue of whether whe PSC violated appellants " procedural due process rights."
19/. The Staff appears to argue that Petitioners have not shown
. probability of success on the merits in the New York Court of Appeals (" conjecture to suppose that the New York court of Appeals will overrule") and irreparable harm. Staff at 5-6.
However, those considerations are irrelevant to stays based on comitv. Egg,' g.g., Kaiser, EMAIA. '
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No. 2), ALAB-399, 5 NRC 1156, 1168 (1977) (emphasis added).M/ In this case, the importance of awaiting final decision by New York's highest court is emphasized by the Staff's combined concessions (a) that this Commission has premised its decisions thus far on an assumption of the Agreement's " validity" (Staff at
- 7) and (b) that that state law issue is "a matter not even subject to the Commission's jurisdiction." Staff at 10.
Finally, in this very docket, when LILCO filed a motion for summary disposition on August 6, 1984, while the Board did not style its action as a " stay on the basis of comity," it
" deferred its-consideration of the motion," urging "the parties to resolve the issue in (state) court," vaited almost seven months for the issuance of the initial state court decision, and 11/ While the Appeal Board also found that it could not "in good conscience permit the matter to remain in limbo pending final resolution of the appeal in the Court of Appeals," it did not wait because waiting "would be pointless because the Court of
. Appeals could not give the Zoning Board of Appeals any greater powers than those afforded to it by the decision of the Appellate Division and still remain consistent with the federal law." Id.
at 1170. That rationale does not apply in the current NRC proceedings: any NY Court of Appeals decision voiding the agreements on basis of New York statutory and/or constitutional law would not run afoul of federal preemption.
Petitioners recognize that the Board also noted that resolution by the New York Court of Appeals "could easily be the better part of a year coming." While-Petitioners regard that as dicta, time uncertainty does not exist here because oral argument has already been scheduled in the three cases currently pending before the Court of Appeals for September 11, 1991 (see attached letters to counsel). Even LILCO concedes that the stay sought by
-Petitioners would involve a delay of only "some number of months". LILCO at 14. When the Commission has expended over 20 years of its resources issuing the shoreham license, a pause of some months is surely warranted to determine whether the authority for alving up that license is valid under stata law.
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then took another two months to issue its decision denying LILCO's motion. Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818, 22 NRC 651, 659-60 & nn.15-20 (1985); Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) , LPB-85-12, 21 NRC 650 (Acril 17, 1985). Thus, there is even NRC precedent-for stays on the basis of comity in this very docket.
A few other issues raised by the Oppositions with respect to comity may be disposed of briefly. First, the Staff argument that the agreements cannot " fairly be viewed as a
' pendent state law claim' in this proceeding" is more than passing strange, given its prior concession that the claim is.
beyond the Commission's jurisdiction.E' Comoare Staff at 13 Eith Staff at 10. Second, the various arguments that "pending court proceedings do not present a ground to stay Commission action even where the court's decision might. affect the commission's action or proposed actions" is cased on decisions which are analytically irrelevant to the circumstances here. Staff at 12; LILCO at 8-9; LIPA at 12. The authorities cited in those oppositions refer to federal iudicial review of federal ag,engy (HBg') decisions; the circumstances presented here involve state i court review of state statutory and constitutional issues going l , 12/ That is, if a stay should issue on the basis on comity when l .the federal judicial body has jurisdiction, albeit pendant, of the state law claim, comity demands stays when a federal quasi-judicial body totally lacks jurisdiction of relevant state law claims, especially state constitutional law claims.
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to the heart of the predicate (i.e., the Settlement Agreement and its subsidiary agreements) for LILCO's proposals for federal actions in furtherance of the decommissioning of Shoreham UU Third, LILCO mischaracterizes the Petitioners as relying on
" abstention cases [which) seek to adjust the relationship between federal courts and state courts when both have jurisdiction over the same question, so as to avoid unreliable interpretation of state law issues by federal courts." LIPA at 9-10 (emphasis in original). While Petitioners rely on comity rather than abstention, LILCO is correct in saying that the purpose of the comity doctrine is "to avoid unreliable interpretations of state law issues by federal courts." That purpose would be served by stays here.M' However, the federal and state courts need not 12/ Contrary to the characterization in the oppositions, Petitioners do not attack LILCO's " decision not to operate" but the Commission's consideration of ensuina proposals for major federal action on particular license exemptions, amendments and other approvals to implement decommissioning subsequent to that
" decision."
laf LIPA argues that it would be highly inappropriate for this commission to stay its Shoreham-related activities pending the outcome of the appeals (because) the decisions of the Appellate Division in the Shoreham cases are Its iudicata despite the pendency of a further appeal. Egg Restatement (Second) of Judgments 5 13 &
Comment f (1982). Thus, there is no conceivable basis for this Commission to accord less weight to the Appellate Division decisions and due to courts of the State of New York.
LIPA Lt 8. First, Section 13 of the Restatement is addressed to finality for purposes of res iudicata, that is, when (continued...)
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have " jurisdiction over the same question," rather the federal court's stay is appropriate where the state court decision of a logically prior question (in this case the validity of the agreement) might make federal court (or agency's) consideration of the same Er logically subsequent questions unnecessary.U/
III. INDEPENDENT OF COMITY, STAY TRADITIONAL JUDICI AL TESTS.g, ARE ALSO APPROPRIATE UNDER Petitioners suggest that when the highest court has discretionary jurisdiction (whether by petition for certiorari or 11/ (... continued)
' determination of an issue in a prior adjudication bars its relitigati.1 in a RA22Dd law suit. However, no one is-seeking to litigate t. validity of the settlement Agreement before the NRC .
or in-any c ter "second" legal action. That is much different i from the question whether the New York Courts have finally decided the validity of the agreements in question here. In fact, the very comment relied upon- by LIPA (Comment f) states:
The pendency of . . . an appeal from a zjudgment, is relevant in deciding sr. ether the question of preclusion should be presently decided in the second action. It may be acorooriate to costoone decision of that question until the oroceedinas addressed to
~ tha iudement are concluded. Application of this Comment may give raise to'a. problem of inconsistent judgments when a judgment under L appeal, relied on as a basis for a second L
judgment, is later reversed.
Thus, tne Restatement suggests the contrary of what LIPA represents it to say. The-RestctemeMt recommends stays
- (" postpone decision") in order to avoid the " problem of l inconsistent judgments-when a judgment is under appeal."
l 15/ And the need for t. stay is even stronger here because the NRC lacks the power (jurisdiction) to resolve the state law issues. Saa n.12 ruprc, l, 15/ Sag n.7 suora..
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by motion for leave to appeal), the traditional judicial test for the appropriateness of a stay pending review changes significantly. 333, Public service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 257
.(1990) (" criteria . . . are the same as those the courts apply in granting or denying a stay pending appeal"); compare Washincton Metrocolitan Area Transit Comm'n. v. Holiday Tours, 559 F.2d 841 (1977) (normal situation) with Rostker v. Goldbera, 448 U.S.
1306, 1308 (1980) (Brennan, J., in Chambers) (criteria for a stay pending discretionary review). Petitioners address both sets of criteria below.
Discretionary Review by the Hichest Court. When a party seeks a stay pending petition for certiorari, the most important consideration is whether there is a " reasonable probability" that four justices will consider the issue sufficiently meritorious to grant certiorari. 448 U.S. at 1308.
In the present matters in the NY Court of Appeals, this is not subject to doubt: Discretionary review has already been granted by the New York Court of Appeals.
The second prong of the test is whether there is "a fair' prospect that a majority of the court will conclude that the decision below was' erroneous." Id. The concept of " fair Publishina Corp. v. Schulinakamp, 419 U.S. 1301, 1308-09 (1974),
where Justice Powell granted a stay "(w)ithout anticipating my Iprospect"isdefine -
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views on the merits", noting that the " issues underlying this case are important and difficult." There can be little doubt but that the issues underlying the three cases currently before the
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New York Court of Appeals are both "important and difficult".
The third prong of the test is a " demonstration that irreparable harm is likely to result from the denial of the stay." Petitioners note that, for example, if a possession only license is issued, the harm would be " irreparable" since there is no precedent or established administrative review path for reconversion from-a possession only license to a full power operating license.H/ Additionally, Petitioners suggest that, in Lthis-context, the harm need not be irreparable in the most absolute meaning of that word but only a "significant harm" which is-surely met by the facts of this case. Egg, Harp &Snrinas Dam Task-Force v.'Gribble, 439 'U.S. 1392, 1394, 99 S.Ct. 54, 55 (1978).
L And the fourth prong is'the balance of the equities which it "Egy ha appropriate" to address Sall "in a close case" g in order to "explorc the relative harms to applicant and.
L respondent, as well as the interest of the public at large."
hastker, 448 U.S. at 1308, 101 S.Ct. at 2-3 (emphasie added).
Petitioners submit that, given their showing on the first L ,
JCL/ -LILCO _ appears to concede that issuance of a. POL would be irreversible and irretrievable as alleged by Petitioners (Joint E Motion at.16) saying rather that that is "beside the-point" because LILCo would not -choose to operate Shoreham. LILCO at 12 ;
kMt EgA'n.3 supra.
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elements, this is not a "close case" and, therefore, the balance of the equities need not be reached. However, if the Commission should reach that balance, the interest of Petitioners and of significant federal amici (CEQ and DOE)MY as representatives of the public interest, as well as Petitioners' interest in having a decision made only after the validity of its predicate has been established outweigh the interest of the NRC Staff in expediting the matter and any economic harm alleged by the licensee LILCO.UU 11/ Special deference is due the U.S. Secretary of Energy as an appellant-intervenor before the NY Court of Appeals seeking to vindicate his Department's position that the agreements violate New York law.
12/ LILCO has made only the most conclusory LILCO at 17 ("the more vasteful expense it incurs") allegation of economic harm from delays resulting from the stays. LILCO has submitted Dn affidavit. particularizing such economic harm. Egg 10 C.F.R. 5 2.730(c) (1990). For that reason alone, its assertion of economic harm should be disregarded. Eirs Protection for Ooeratina Nuclear Power Plants (10 C.F.R. 50.48), CLI-81-11, 13 NRC 778, 806 (1981) ("movants have not provided details of cost estimates which can be reviewed and correborated by the. staff.");
Uranium Mill Licensina Recuirements (10 C.F.R. Parts 30, 40, 70 &
150), CLI-81-9, 13 NRC 460, 465 (1981) ("no factual support for their bald allegations (of) heavy expenses"). Moreover, LILCO attachments (attached hereto) to a recent NRC inspection report of Shoreham indicate that if the license approvals being considered by the Commission are approved on the currently anticipated schedule, LILCO's costs would not be diminished during 1991, but rather would be increased by $39.28 million, gr 111 mnIg thAD the cost of maintaining Shoreham-in its current state during 1990. To allow a stay to determine whether LILCO has the authority to expend this additional ^$40 million is actuelly in the it.terest of LILCO and its ratepayers.
LIPA recognizes that the cost involved will be passed through to LILCO ratepayers. LIEA at 20. Thus, there is nn hAIE in LILCO; to the extent there may be economic " harm," it is to LILCO rateravers. The Commission should recognize not only that that harm is very diffuse (and therefore insignificant to the individual ratepayer), but also that both the School District and (continued...)
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The Commission's Usual Test. The first prong o' the Commission's usual four part test is whether the moving party has made a strong showing that is likely to prevail on the merits.
10 C.F.R. $ 2.788 (e) (1) (1990). While it is recognized that such a showing is not indispensable to the grant of a stay, the mere
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granting of discretionary review should satisfy this test given the infrequency with which such review is granted since the
" wooden probability" test (1222, better than a 50% chance of L
success) is not favored and the Oppositions concede that the issueo presented are at least " novel" or of "public importance."
E222, LIEA at 17 n.8. Further, applying the rule of multiplication of independent events to the three cases is valid since all oppositions admit that there are some distinct issues involved in angh of the three cases.. Staff at 6 n.6 ("many similar issuos") ; LILCO at 15 n.5 (" interrelated cases") ; LIIA at 5 n.4 (" intimately intertwined"); CM202 at 5 (" interrelated").
It is also worthy of note that if one assumes only ty2 distinct sets.o' ' Jues to be presented, the probability of reversal in at least one of the cases would be 65.2% (1-0.59 2) , thus satisfying 12/ (... continued) the person it represents, as well as the persons that SE2 represents are such ratepayers and ERAR such stays. Therefore, the Commission should give greater weight to the ratepayers' minimization of the importance of such harm, than to LIPA's trying to " protect" them from the alleged " harm".
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J. -- ,1 even-the " wooden probability" test.U' In considering
-Petitioners'iargument that it will prevail,on.the merits, the Commission should also weigh _the fact that none of-the Oppositions even-attempted to argue that the issues presented to the New' York Court'of Appeals are "well settled" or " clear."
As to the existence of-irreparable injury (10 C.F.R.-6 2;788(e)(2)), it is clear that the U.S. Court of Appeals for the District of Columbia-Circuit-based its. favorable ruling for-the
.I.C.C. in-Illinois commerce commission v. I.C.C., 848 F.2d'1246, I
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'1260 (1988) on the Commission's willingness to grant-a stay-without a " showing of irreparab'e injury."- Nonetheless,.for the reasons describedLabove, Petitioners would suffer-irreparable t
-injury if a possessionionly-license issues-before resolution of -
3 the New: York = State cases as well as'the Commission's own decision- -
1 Lon whether anienvironmenta1Lassessment orfan-environmental impact
-statement is appropriate. Id -
12.q/; --Cuomo states;that Petitioners "have-not explained why.they,
'have not used data from.1990.and 1991..-One' assumes-that more -
.recent data is more predictive of the: Court of-Appeals' current- _
-thinking."l -Cuomo-Reniv;at 7.. Passing over:theLfact:that Cuomo-
.does not offer data;from any~ year more recentithan 1989, and in fact relies =on'an earlier,-and bylits-own argument,,less! reliable year;(Cuomo at'8'r. 1),-Petitioners stated =inLtheir= original >
motion,that=they Mara. furnishing data from;the "most recent. year
'available." Joint Motion at 22. .
JCuomo:also asserts that Petitioners have "made no-effort to:
Lprovide"E an explanation of:"why the category under-which the _
-court?gets an: appeal is significant." Cuomo'at 8. The' answer-is obviousLfrom the-datatsupplied-byjboth Petitioners andsby Cuomo:L >
LThere are different-probabilities of-reversal or modification for 1
different categories of cases reviewedt the relevant probability-
.of success iso the probability of success for the_ category!of
-review in which:the appeals lie.
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The third prong (whether the granting of a stay would harm other parties), is addressed above at 14 & n.19. The fourth prong (where the public interest lies) is also addrecsed above at 14 & n.18. Thus, Petitioners also satisfy the commission's usual standards for the grant of stays.
IV. STAYS ARE INDEPENDENTLY APPROPRIATE AS AN EXERCI9E OF THE COMMISSION'S INHERENT SUPERVISORY AUTHORITY.b' The Commission's inherent superviscry authority over adjudicatory proceedings is well established. E2st, Public Service Co. of New Hamnshire (Seabrook Station, Units 1 and 2),
CLI-90-3, 31 NRC 219, 229 (1990). Qnly the NRC Staff opposes issuance of stays on the basis of this inherent supervisory authority, and then only in cursory fashion. Staff at 2 n.2.
Relying on Pacific Gas & Electric Co, (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 4-5 & 12-13 (1986) (subsequent history omitted), the Staff argues that there are no "special circumstances" present in this case to justify stays.
The Staff errs. While the "special circumstances" are different here, they are still "special" _and there are other parallels between the current posture cf this case and the bases for the commission's decision in the EasJfic Gas decision which support the grant of stays her's.
2.1/ S.ga n.7 supra.
In Pacific Gas, the Commission found that Petitioners had not " demonstrated error"; in this case, the Staff has conceded that the Commission is in no position to judge whether there is " error" on the state legal issues. 24 NRC at 12; Staff at 10. In Pacific Gas, the Commission found that Petitioners had not made a strong showing that they were likely to prevail on the merits; that issue is still open in this case and even the Staff concedes that the Commission can make no judgment on the state law issues. Id.
In Epcific Gas, the Commission held that having made the foregoing two negative findings, those findings do "not necessarily end our inquiry. We will still balance the harms that might result to the parties or to the public should a stay be granted or denied." Id. The Commission then determined that the licensee had no Dagd for the increased capacity authorized by the amendtont "for another five years" and, therefore, a stay "will restit in no harm to PG&E or the public interest." Id. In this case, there is "no need" under the Atomic Energy Act or the National Environmental Policy Act for Commission review and approval of pending applications for amendments, exemptions and other approvals in any definite time frame. And LILCO has not even attempted to make such a showing. Therefore, the Commission should issue the stays because the grant of stays in this case "will result in no harm to (LILCO) or the public interest." Id.
In Pacific Gas, the Commission then proceeded to a balancing of "the asserted harm to petitioners (itg2, the denial of their right to a prior hearing)." Id. The Commission found:
"Notwithstanding our views on the petitioners' likelihood of success on the merits, a balancing of these equities argues in
. favor of staying the second portion of the amendment . . . .
and it issued the stay. Id. In this case, petitioners also seek a right to a prior hearing, as well as other rights pursuant to NEPA. The same balancing of equities favor the issuance of stays in these circumstances.
And, as to the second stay sought in Pacific Gas, the Commission found that issuance of the stay would lead to a shutdown of the facility costing up to si million a day and Hattendant radiological risks to the workers."U' 24 NRC at 13.
On the basis of these facts, the Commission denied that portion of the stay. In the current circumstances, maintaining the status gM2 would not interfere with operation of facility since LILCO has already said that it eschews that option. The costs during the stays would not be borne by LILCO but its ratepayers and such costs would be lama than the costs if stays were denied 22/ The NRC Staff states cryptically that "this question of validity is not relevant to the Comminsion's duty under AEA to ensure that Shoreham, in whatever mode it is in, remains radiologically safe for its workers and the currounding public."
Staff at 11. However, the NRC Staff does not suggest ADX way in which stays pending decision in the N.Y. Court of Appeals would or could be Jrr:onsistent with the radiological health and safety of workers arc the surrounding public.
during 1991 (Agg n.19 supra) and there is no allegation of any increase in radiological risks from maintaining the facility in its current state. Therefore, all parts of the stays requested should be granted.
There are also other "special circumstances" supporting the stays as discussed at greater length above, including allowing a Federal Cabinet Officer to pursue vindication of his claims in state court.
2.22!C.ldlill.911 .
WHEREFORE, for all the reasons stated above, Petitioners urge the Commission to grant the requested stays.
Respectfully submitted,-
-April 5, 1991 hwA.s
< - - ~ /.
/ '
i J yles P. McGranery, g(ff DdW, Lohnes-& Albertson Suite 500 1255-Twenty-Third Street, N.W.
Washington, D.C. 20037 202-857-2929 Counsel lor Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
l', S. N L ('l .FA . H'.t.L't.Ylt)RY ('O\l\ll % H W '
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P. O.Ihn til8 North ('ouniry Riuil f W ulmp Rner, New York I I ?'d,'
!!A('ll.lTY NAhll!: Shoreham Nuclear l'ower St ituin l)ATliS: August 2h .1)ecemlier 29, IWI I N N1'l .( *l'OK S : S. firijw n, Proiect hian.iper. NR H l' flarris, Heactor 1.ngmeer,141
- 16. Norris, l'riyeet insivetor (Ninitehamp J . R,iler '- l'reyeet l.ngineer, NRR INNl'1it *l'OR : / ./,
- _,.).._.._....__._. . , _
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~ ARiiAS INSPli(*l' lit):
Routine, onsite insivetion liy memliers of the Region I ottice and NRR staff consisting ot facility todrs, 6tness for duty propr,un, system layup renew, houwkeeping, niaintenance observations, nuxliGeation of ventilation system, physical plani security, and rqview of licenwe reports.
0 i
410? t(sOO 11 9 t OMil l PDR ADOCK O'sOOO 3 ?
O l' Ult ,
1990 BUDGET
~
i PROJECTED YEAR END (EXCLUDING CARRYING COSTS) '
$ Million ($ X MIL - 1990) U 180-100 -- --" - 14 8:7 8" " -" " " ~ " " " ~" """" "" " " ~ " " ~ ~ " " " ~ """ ~ " " " " " " ~ " ~, i
....................................................................................... , 1 )
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11-19 ----
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T'AX f3 oft;es Wuz C o n t' oTneg 1
(
I E TAXE8 E OFFICE OF NUCLEAR E TOTAL BUDGET M CORP.SUPP. M OTHER I
g P801090Ft 1
e
W M M LJU m
- )
p-
. i 1991 BUDGET .
ESTIMATED (EXCLUDING CARRYING COSTS)
$ Mlbion ($ X MIL - 1990) 260 gno .............y;e;og.............................................................................................. ,
............................................<,...........................h .......a m .
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........................................................................e..............
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10.93 0 Tscs on ave ecy om y N TOTAL BUDGET M TAXES E OFFICE OF NUCLEAR E OORP.BUPP. IE OTHER i
.{
P901000F8 4
t h . M s>, 1990 suuus LL7 & ^
PDOING S2KNE2DM mu .
. 1. LIIID's Rcqtests to tie NPC to Irp1 ment the Shorehim Settiment Date of Filing _ Status Purpore of Pequest Description of Request
- 1. DGAR Submitta_I_ t Perriing 1/5/90
?) LIIID's Applicatim for an % rvrtne LIIID's authorization to -
operate Shoreham and to allow LIIID tverAa.t to Facility operating to inpitynent a rmrised set of License NPF-82 (SNIC-1664). technical specifications for fuel Amdling operations and create a Possession Only License.
8/30/90 Pending
% resolve NBC ctrments doceented b) Revise Set of IEAR T.S. Based on in NFC Ictter 6/27/90 and NBC 8/2/90 NRC Meeting (SNIC-1752).
~ Meeting on 8/2/90.
~
2.1DI Diertrency Diesel Generatorst 3/16/90 Pending W allow LI100 to defer performing _
c) LIIID's Request for Interim the one-time five year 251 sartple Relief frun the de-Tine Five Year inspection of the emergency diesel Inspection Requirment of Paragraph generators and to suspend certain A, Attachrent 2 to NPF-82 and Technical Specification Surveillance mergency la ces, withdiesel generator resulting costs surveil-savings.
Herpirments 4.8.1.1.2.e2, 3, 4, 5,
~
6, 7, 8 and 10 perx11sxJ Disposition of January 5,1990 Liceruve l
Amendnent Application (SNHC-1694).
10/23/90 Perriing i - % allow LIIID to defer performing l b) Revision to Interim Relief Dequest the one-t.ime five year 251 sanple (SNBC-1694) on TDI IDGs cne-tire insrection of the mergency diesel 5 Year Inspection Requirerrent and Technical Specification Surveillance gerwirators, with resulting cost savings.
Requirements tg deleting %ch Spec
. portion (90C-1766).
s rm I of 8 j
- - - - ~ - - ,
t m .*e.r 13, 1990 SIxtus UST OF ,
IDOING SORE 2pH mum:,r>
- 1. IJIID's Ibquests to the NPC to Inplcrrent the Shorehan Sett1 ment -
nate of Filing _ Status IMrpow of Pequest Descriptim of Ibquest .
- 3. Ibnding Ibr Decurcsissioning 6/11/90 Pending To allow LIICO to use the Site Corpor-a) LIIID's Request for Destptim ation Aptwc-t in lieu of filing a tv. Staffieri letter). Ibnding b;mrt necessarf for decun-missioning. 'Ihe Ibnding neport requir-ed by 10 CFR 50.33(K)(2) and 50.75(b)
~ would result in undue hartiship and costs to LIIID and its ratepalv.rs.
- 4. Operators' Licenses acquirments Ming
'Ib docturent the inability to corply 6/5/90
- IJIID's Request for an Dcerption Frun the Operators Licenses with 10 CTR 55. Alleviate LI100's poquirarents of 10 CFR 55 (SNIC-1719). additional msts associated with the otrpletion of tic certification
, of a plant referenced simulator.
8/31/90 IYnding
- 1) Eliminate the use of the sipulator
- As Attended to Devise SNPS in its cr.tirety.
Cperator Licenses Program (SNBC-1749) . 2) Ibrvarded LIIID's gw4 revisien to LIICO's NIC-approved operator riqualification training program.
- 5. License Transfer naquest 6/28/90 Pending LilfD's and LIPA's Joint App 11 -tion 'Ib arend Shoreham's license to designate LIPA as the Plant's
- for a License A.ca.ait to Authorize licenre .
the Transfer of Shoreham (SNIC-1734).
'a . .
~ ~ ~ -
'w _
+ Page 2 of B
Decemeer ., 1990 -
STutrus usf or .
PE5 SING SIEIEEpM PEUESTS ,;
~
I. MIID's Requests to the ISC to Irplanent the Shorehm Settlement i :
' Date of i Purpose of Request Filing _ Status
[ Description of aer- M
- 6. Annual Licen_. S %, .
Has the potential of saving LIIID 9/7/90 Perwiing l l UICD's request th*t.the Annual .
nc letter dtd 10/2/90 License Fee for FT 711 for SNPS be $719,000 annually until a IOI, is' granted. stated UIID need not-held in abeyance pending dispwition send noney pendig of LI14D's 1/5/90 license are hent ctrpletion of PUC
< application (SNRC-1154).
~ review.
I 7. Security Plan 1b redefine protected area, 10/9/90 Pending MIKD.'s request to rerise Security Plan' for 14mg Term Defueled Condition establish a " Security Area," ,
j relccate access cxmtrol, reduce (SNIC-1762) .
extent of Plan in 2 phases.
i To re&xe costs.
9 !
- 8. Deletian of ISEG ,
f.TitT)'s request to anend HPF-82 lb provide a significant reduction 8/21/90 lending in MIID's costs ($600,000 annually) by deleting ISDG and 'its j t associated a&nin. controls associated with ISEE.
- (95C-1745) .
, N i !
,_ -[
- I i.
a, i e Page 3 of 8 ;
i
December 13, 1990 "
- - E, FENDING SE0509WE MQUESTS l
II. other 1.Irm Dequest to the NTC '
Not Delated to the Shoreham Settlerrnt Date of PurTese of Nquest - Filirq Status Descriptim of Dequest
- 1. Fire F.Mdon _
2 confom with GL 86-10 and 7/20/90 Pending c) Iwnoval of' Fire Protection Progran rR Notice & Fa g
< from Tech Specs. Devisions per Generic 88-12 to replace current license .
conditions with a new standard Finiing of Pb Signifi- ;
Lettiers 86-10 and 68-12 (SNIC-1737) . mndition and remwe unneassary cant Hazards Consider- ;
fire protection technical ation 9/5/90 specifications.
W eliminate unnecessary reident- 9/24/90 Pending b) Meised Atted-.t. 2 (license ification/rerubering of license. -
conditicms) based on 9/12 discussions w/S. Brown (NIC)
(SNfC-1761) .
A substantial reduction in costs 6/5/90 Pendirvy c) LIIID's Dequests for Interim Delief from: a) establishing associated with fire watches. l
'N continuous fire watches per TS and b) estJ611shing hourly Itre watch ,
! ' . , patrol- per TS (SNIC- 1721) .
~
I i
' Page 4 of 8 '
. ~
MON 1 1 1 1O L E W 2 E. C. GREER, P.C. p,og 4 Fs C 7 1-91
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Attn J. Scott Greer, Esq. Counsel, PSC 11 Raymond Avenue Attnt Lawrence G. Malone. Enq.
P.O. Box 2990 Three Empire State Plaza Poughkeepsie, New York 12603 Albany, Now York 12223 Victor A. Staffieri, Esq. Hon. Robert Abrams LILCO Attorney General Counsel Attnt R [chardRapp,Jr.,Esq.Attnt Samuel Cherniak, En ,
175 East Old Country Road 120 Broadway, 3rd Floor Hicksville, New York 11801 New York, New York 10271 "harlos M. Pratt, Esq. Stanley B. Klimberg, Esq.
counsel, Power Authority Counsel, LI Power AuthoT it y Attni Arthur Camboris, Esq. 200 Garden City Plaza 1633 Broadway Suite 201 New York, New York 10019 Garden City, New York 3 Wiu i
Skadden Arps Slate Meagher
& T1om Attnt George Zimmerman, Esq.
919 Third Avenue
.New-York, New York 10022 Rot M/O Citizens for an Orderly Energy Policy, Inc. v. Cuomo Dear Counselorst This appeal has-been calendared for argiment on Wednesday, September 11,-1991 at 2:00 p.m.
1-Questions rnay be directed to Martin F. strnad at t%18) 455-??02.
Very truly yours,
&J u. fe - e J Donald M. Sheraw mec
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Atla'ntio L6fal'75un5ation United States Attorney Attnr Martin Kaufman, Esq.
205 East 42nd Street Attn Jacob Lewis, Esq.
9th Floor D'tpartment of Justice, Pa-3617 New York, New York 10017 Appellate Staff, civil Div.
Washington, D.C. 20530-0001 Lewis & Greer, P.C. William J. Cowan, Esq, 1.ttna J. Scott Greer, Esq. Counsel, PSC 11 Raymond Avenue Attn: Lawrence G. Malone, Esq.
P.O. Box 2990 Three Empire State Plata Poughkeepsie, New York 12603 Albany, New York 12223 Victor A. Staffieri, Esq. Hon. Robert Abrams Counsel, LILCO Attorney General Attn Richard Rapp, Jr., Esq. Attn: ~ Samuel Cherniak, Esq.
120 Broadway, 3rd Floor 175 East Old Country Road Hicksville, New York 11801 New York, New York 10271 Charles M. Pratt, Esq. Stanley B. Klimberg, Esq.
Counsel, Power Authority Counsel, LI Power Authority Attn: Arthur Camboris, Esq. 200 Garden City Plaza, 1633 Broadway Suite 201 Garden City, New York 11530 New York, New York 10019 Re: M/0 Dollard and United States of America v. '
Long Island Power Authority
Dear Counselors:
This appeal has been calendared for argument on Wednesday, September 11, 1991 at 2: 00 p.m.
-Questions may be directed to Martin F. Strnad at (518) 455-7702.
Very truly yours, hM W . bs Donald M. Sheraw
.moc i cet Skadden Arps Slate Meagher r, Flom '
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William J. Cowan. Esq.
Attnt Michael Englert, Esq. Counsel, PSC 11 Raymond Avenue Attn Lawrence G. Malone. Esq.
Three Empire State Plaza P.O. Box 2990 12223 Foughkeepsie, Now York 12603 Albany, New York Victor A. Staffier!, Esq.
Counsel, LILCO Attn: Richaid A. Rapp, Jr., Esq.
175 East old Country Road Hicksville, New York 11801 Ret M/0 Nassau Suffolk Contractor's Assn. v. PSC Doer Counselors:
This appeal has been calendared for argument on Wodnesday, September 11, 1991 at 2:00 p.m.
t .18 )
Questions may be directed to Martin F. Strnad at 455-7702.
Very truly yours, bM M.
Donald M. Sheraw mec h
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(EVM b l
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UNITED STATES OF AMERICA
""*p at NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY
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In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket Nos. 50-322
) 54322 OLA, and (Shoreham Nuclear Power Station, i 50 322-OLA 2 Unit 1) j i
CERTIFICATE OF SERVICE I hereby certify that one copy of the Petitioners' Joint Motion for Leave to File Joint Reply (with the attached Joint Reply to Oppositions to Their Joint Motion to Stay License Issuance and Other Matters) is being served upon the following by first class mail, postage prepaid on this 5th day of April,1991:
Atomic Safety and Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Morton B. Margulies, Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Jerry R. Kline Atomic Safety and Licensing Board Administrative Judge l U.S. Nuclear Regulatory Commission George A. Ferguson l Washington, D.C. 20555 ASLBP l 5307 Al Jones Drive l Edwin J. Reis, Esq. Columbia Beach, Maryland 20764 l Deputy Assistant General Counsel l- for Reactor Licensing Michael R. Deland, Chairman Mitzi A. Young, Esq. Council on Environmental Quality Senior Supervisory Trial Attorney Executive Office of the President Office of the General Counsel Washing'on, D.C. 20500 l U.S. Nuclear Regulatcry Commission Washington, D.C. 20555 Samuel A. Cherniak, Esq.
NYS Department of Law Carl R. Schenker, Jr., Esq. Bureau of Consumer Frauds Counsel, Long Island Power Authority and Protection O'Melveny & Myers 120 Broadway 55513th Street, N.W. New York, New York 10271 Washington, D.C. 20004
. ti t i r 1
2-Stephen A. Wakefield, Esq. Donald P. Irwin, Esq.
General Counsel Hunton & Williams U.S. Department of Energy P.O. Box 1535 Washington, D.C. 20585 Richmond, Virginia 23212 Jgynes P. McGranery, Jr. //// '
Counsel for Petitioners /"
Shoreham Wading River Central School District and Scientists and Engineers for Secure Energy,Inc.
l l
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