ML20076N129
| ML20076N129 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/25/1991 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#191-11597, CON-#191-11598, CON-#191-11599 OLA, OLA-2, NUDOCS 9103280114 | |
| Download: ML20076N129 (21) | |
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'91 11AR 26 P3 :05 UNITED STATES OF AMERICA 9 ' 'O N ?! D" h' '
NUCLEAR PEGUIATORY COMMISSIOllW [d}j ' # I Before the Commission
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In the Matter of ) >
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OLA
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(Shoreham Nuclear Power Station, i .
Unit 1) )
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LILCO'8 OPPOSITION TO JOINT MOTION FOR SThX On March 8, 1991, Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc., flied a " Joint Motion to Stay or Vacate License Issuance ,
and Other Mattert- (Joint Motion) . Petitioners ask the commis-sion to " exercise its discretionary supervisory authority" to stay various NRC Staff snd Licensing Board actions -- including most particularly the Staff's prospective issuance of a " posses-sion o!byd license (POLj for Shoreham -- pending the outcome of certain appeals now before the New York Court of Appeals regard-ing the Settlement Agreement between LILCO and the State of New i .srk .
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'Long Island Lighting Company.(LILCO or ~5e Company) opposes Petitioners' Joiht Motion. As-shown below, Petitdoners have failed to satisfy the-standar6s for a' stay, s ,
I. Backarqugg A. Annlicable Law I
1
. Under federal court precedent (the so-called "Virainia h Petroleum' Jobbers" test), the following factors are to be as--
Vi) sessed in determining'whether to award the extraordinary relief of a stay: (1) the likelihood that the party secking the stay ,
will' prevail on the merits of the-appeal, (2) the likelihood that the moving party-will be: irreparably harmed absent a stay, (3) i
.the prospect-that others will be harmed if the stay is granted, and;(4) the publse hterest in granting the stay. Egg, 32g,.,
'Cuomo v. NRC, 772 F.2d 972, 974.(D.C. Cir. 1985); Washinaton MetroDolitan Area Transit Comm'n v. Holiday Tours. Inc., 559 F.2d
, _841, . 843 ;(D.C. Cir. .1977) ; Eircinia' Petroleum Jobbers Ass 'n v.
- LEEG,z 259 F.2d 921, 925-(D.C. Cir.-1958)..
While NRC regulations do_not explicitly address stays:of the_ t agency's actions pending--judicial review, theEcommission has said
~
thatLrequests for such staysfwill be considered applying the
~
four-part virainia' Petroleum-Jobbers test.1/ S.gg, g & , Natural l'- NRCEregulations do containEspecific requirements for re--
_ questing, stays of LicensingJBoard'and Appeal Board decisions,-and-Jthis provision incorporates the four-part Virainia Petroleum-
-Jobbers' test. Es.g -10. C. F.R.' 5 2. 7 8 8 (e) (1) -(4 ) . --Under 15 L 2.788 (b) ,-; a: request for stay is not to exceed 10 pages; in. _
contrast, Petitioners' instant-request'is nearly three' times that (continued...)
. . - . . _ . _ . . - _ _ _ _ . _ . . _ _ - _. . ~ _ _ . ..., _ - - - ,_ _ .- - _ - _ . _ _ . _
U7 3
Resources Defense Council, CLI-76-2, 3 NRC 76 (1976); Northern ,
Indiana Public Service Co. (Bailly Generating Station, Nuclear- ,
?e 1) , ALAB-224, - 8 AEC 2 4 4, 272-(1974).- The burden of persuasion as to all four factors is on the movante gas, sigi, 67abama Power GQx (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC.795,1797 (1981).
While, as a general matter, none of-the four prongs of the Viroinia-Petroleum Jobbers test is alone dispositive, the "most significant factor in deciding whether to grant a stay request is
'whether the party request 2ng a stay _has shown that it will be irreparablyJinjured unless a stay is granted.'" Metrooolitan Edison Co x (Three Mile Island Nuclear Station, Unit 1), CLI <
17, 20 NRC 801,_804 (1984), auctina Westinahouse Electric Corp.
-(Exports to the Philippines) , CLI-80-14, 11 NRC 631, 662 (1980);
Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 (1985).
Importantly, mere speculative assertions by_the moving party that it-will suffer. injury almost inevitably fail. gag Cuomo v.
F- (... continued) long. -Petitioners,'who almost appear to1be seeking not so much a-stay as an injunction with respect to certain crosoective NRC actions, claim not to be proceeding under 5 2.788. Rather, Petitioners-seek to invoke the Commission's " inherent authority
- to exercise' its discretionary: supervisory authority" to suspend any further actions by the NRC Staff and the~ Licensing Board
=regarding Shoreham. Joint Motion at'l-2. Apparently, Petitioners do not believe that thel 10-page limit imposed by 6 2.788(b) applies to their instant. motion.- Given Petitioners' approach, LILCO does not restrict its opposition to 10-pages.
' Cit 10 C.F.R. 5 2.788(d). Should the Commission determine that
-the page limitations specified in $ 2.788 apply here, LILCO:
respectfully requests leave to file a response that exceeds the.
10-page limit.
4 4
4 HRC, 772 F.2d at 976 (a " party moving for a stay is required to demonstrate that the injury claimed is 'both certain and '
great'"), auctina Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.1985) ; ggg .also Cleveland Electric Illuminatina Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 747 (1985).. Given this requirement that the harm asserted must be "certain," a harm whose " likelihood of occurrence is too small" will not be'deered to meet the " irreparable harm" stan-dard.. Egg cuomo v. NRC, 772 F.2d at 976.
~
As for the " likelihood of success on the merits" prong, in order to meet this criterion, a'movant must do more than simply list the possible grounds for reversal. Toledo Edison Co.
(Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385,.5 NRC 621 (1977); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units'1 and 2), CLI-81-27, 14 NRC 795 (1981). Moreover, the movant'must put forth more-than mere conclusory assertions that it-will prevail. Sag Philadelohia Electric Co. (Limerick-Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 196 (1985), citing Metrocolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801,~804-805 (1985). Where there has been no adequate showing of irreparable harm, and the other factors do not favor the movant, an " overwhelming" showing that the movant will likely prevail on the merits is required.
Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1186-89 (1977).
5 If a movant for a stay fails to meet its burden with respect to the first two criteria, it is not necessary to give lengthy consideration to balancing the other two factors. Han, g222, Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985), citina Duke Power Co.
(Catawba Nuclear Station, Unite 1 and 2), ALAB-794, 20 NRC 1630, 1635 (1984).
With respect to the " harm to other parties" criterion, the NRC has recognized that, while a licensee's economic interests are not generally within the proper scope of issues to be liti-gated in NRC proceedings, such interests may be considered in determining whether the grantir
- of a stay would harm other parties. Egg Philadelnhia Eles IQ2 (Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595 (1985). In Limerick, the Appeal Board noted that "under the third stay criterion, the Commission has in the past taken into account the economic harm that an applicant might suffer if a stay of its license is granted." 21 NRC at 1603, citina Louisiana Power &
Liuht Co. (Waterford Steam Electric Station, Unit 3), CLI-85-3, 21 NRC 471, 477 (1985) ; Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185, 1188 (1977). The Appeal Board continued that " refusal to consider economic harm would effectively eliminate the third stay criterion insofar as an applicant's interest is concerned," since the harm "most likely to be incurred by a utility . . . is monetary." 21 NRC at 1603.
6 B. Petitioners' Joint Motion Petitioners' Joint Motion, which recognizes generally the applicability of the four-part Vircinia Petroleum' Jobbers test outlined.above, can be briefly summarized. Having failed com-pletely thus far to enlist the rid of either the NRC Staff, the Licensing Board, or the Commission in their two year campaign to force Shoreham's operation, Petitioners now seize upon the New York _ Court of Appeals' recent decision to grant review of three-interrelated cases concerning state law challenges to the Shore-ham Settlement Agreement in ordsr to argue that all proceedings before-the NRC concerning Shoreham should be brought to an immediate and complete halt, until the New York Court of Appeals-has issued _its final decision. Petitioners' theory, while fatclly flawed,-is simple: since-(according to Petitionnrs) all of the regulatory approvals and commission decisions regarding the scaling.down of activities _at Shoreham have been and are
_ predicated on the presumed validity of the Settlement Agreement, if it wereito be-overturned by the New York Court of Appeals, the NRC would no longer be able to authorize LILCO to take. actions directed towards closing the plant.
Springboarding off this theory, Petitioners proceed to argue
.that they.will-suffer an " irreparable injury" to their interests under both the-Atomic Energy Act and the National Environmental Policy Act (NEPA) should a stay not be granted, and if (1) the NRC issues to LILCO a POL for Shoreham and the plant irreversibly l
4 i
7 degrades tcta point that precludes future operation, (2) the New York Court of Appeals reverses the New York Supreme Court Appel-late Division and declares void the Settlement Agreement, and-if (3) at that point, someone wishes to operate Shoreham.
Petitioners further argue that they are "likely to succeed on the marits" before the New York Court of Appeals. In so doing, however, Petitioners do not actually engage the merits of the cases before the court at all. Instead, Petitioners advance an argument that is based solely on the court's aggregate record of one year in granting review and disposing of cases on appeal.
According to Petitioners, given the court's history of granting motions for leave to appeal and its subsequent disposition of those appeals, there is a 79.5% probability that the court will reverse the: Appellate Division in at least one of the three pending cases. Joint Motion at 24.
As for LILCO and the NRC, Petitioners suggest that neither
.will suffer any injury if a stay were granted. Monetary loss and
--regulatoryfdelay,' Petitioners contend, are not " cognizable considerations" in this circumstance. Joint Motion at 26.
Finally,: Petitioners argue that a stay is in the "public l interest."- The=" granting of all three motions for leave to l'
appeal-by the New York Court of Appeals," Petitioners state, in conclusory fashion, " surely shows that Petitioners here have satisfied that standard of the public interest." Joint Motion at-28..
l.
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._g 8
II. Arcument
'A. .The NRC Need Not Wait for the
-i-
-New York court of_ADDeals'-Decision As a_ threshold matter, Petitioners assert trat "all of the traditional considerations" of " comity" and "th', desirability of having a reliable and final determination of the state claim by state courts," argue in favor of the Commission's issuing a stay.
Joint Motion at 12. Citing Kaiser Steel Corn. v. W.S. Ranch Co.,
391 U.S. 593 (1968), as guidance, if not explicit authority, Petitioners suggest, "a fortiori," that a federal agency should
" stay federal proceedings pending the state court decisions."
Joint Motion-at 12. The fnctors cited by the Court in Kaiser Steel, Petitioners maintain, " fit the facts of this case like a glove. " Isb.
Petitioners are. wrong. Under the doctrine of judicial comity, the courts of one_ jurisdiction give effect to the laws
- and judicial decisions of another jurisdiction. Enn 16 Am. Jur.
2d. - Conflict of Laws 5 10 (1979).- Comity is practiced as a matter of deference and respect and is not a matter of obliga-tion. -Id. Judicial comity, moreover, is a practice traditional-ly restricted to courts and, as far as LILCO can determine, hac never been extended to situations involving courts and adminis-
- trative bodies. Thus, contrary to Petitioners' assertions, it does not follow Ha fortiori" that comity should be available between judicial forums and administrative 4 bodies. For instance, it is not the NRC's practice to suspend its proceedings or regulatory process during the pendency of either federal judicial
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or administrative appeals. E22, e.a., Lona Island Liahtina Co.
(Shoreham Nuclear Power Station, Unit 1) , ALAB-810, 21 NRC 1616 (1984); Mranium Mill Licensina Recuirements, CLI-81-9, 13 NRC 460 (1981); Public Service Co. of New Hampshir.2 (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10 (1976). petitioners suggest no reason why the Commission should alter that approach now with I respect to pending state proceedings.
Further, Kaiser Steel is simply inapposite here. In Kaiser l Steel, a federal Jourt stayed a federal diversity action to allow a state court to interpret the meaning of a term in the state constitution, an issue that would have not been before the federal court at all except as a matter of pendent jurisdiction.
This interpretation was directly relevant to and would likely determine the ultimate outcome of the federal diversity action.
Thus, out of deference and respect, the U.S, Supreme Court declared that the state court should-interpret the state consti-tution prior _to deciding a federal case which depended on that very interpretation.
Kaisqr_ Steal is clearly distinguishable from the present situation, where the NRC is being asked to defer to a state ,
judicial forum having before it certain appeals of issues not before the agency and of only tangential relevance to those which ar2 before it. As explained in part II.B. (1), below, the validi-ty of the.NRC's actions in authorizing LILCO to take steps directed toward the scaling down of licensed activities at Shoreham is D2; dependent on the decision by the New York Court
10 of Appeals regarding the Settlement Agreement. No matter what the outcome of the appeals now pending before the Court of Appeals, LILCo has no intention of ever operating Shoreham as a nuclear facility. Thus, the decision of the New York Court of Appeals and the actions taken by the NRC are not connected.
Accordingly, no purpose would be served by the NRC suspending its consideration of licensing actions at Shoreham pending the court's decision.
B. Petitioners Have Not Demonstrated that They Are Entitled to a Stav When the four-prong virainda Petroleum Jobbers test is applied to Petitioners' request, it is clear that they have failed completely to demonstrate that they are entitled to a stay. Each criterion is addressed in turn below.
(1) Petitioners-Will suffer No Irrecarable Harm When the theory underlying Petitioners' claim that-they will suffer Hirreparable harm" is properly characterized, it becomes clear that Petitioners have not satisfied and, indeed, cannot hope to satisfy, this crucial requirement. Petitioners cannot suffer irreparable harm in the absence of a stay because they have no hope whatsoever of ever obtaining the. relief they truly seek before the NRC, i.e.,_the operation of Shoreham as a nuclear facility. Put another way, Petitioners cannot assert, as the basis for a stay request, an injury to an interest in which they
.have.no legitimate or rational. expectation.
I L
9 11 As already noted, Petitioners' assertion of " irreparable harm" is predicated on the occurrence of a sequence of contingent acts: the injury that they truly fear is that, if the NRC issues a POL and the plant is then allowed to irreversibly degrade, and if the New York Court of Appeals overturns the Settlement Agreement, and if some competent entity at that point desires to see Shoreham operate as a nuclear facility, then it will be too late to convert the POL back into an operating license and physically restore the plant to an operable condition. Fatal to Petitioners' position, however, is that this last contingent development upon which their theory hinges -- tnat operation of Shoreham would become an option if the Settlement Agreement were overturned -- has no basis in reality. Such conjecture does not satisfy the standard for a stay. qft Cuomo v. NRC, 772 F.2d at 976 ("(w]hile it is true that these potential harms, should they occur, cannot be repaired by mere money, their likelihood of occurrence is too small to meet an irreparable harm standard").
The fact is, despite Petitioners' representations to the contrary, neither LILCO's decision not to operate Shoreham, nor the NRC's licensing actions allowing LILCO to scale down activi-ties at-the plant, are necessarily dependent on the continued legal validly of the Settlement Agreement. As for LILCO, even if the New York Court of Appeal were to overturn the Settlement Agreement, the court's action would ngt have the effect of compelling LILCO to operate Shoreham. Even if the Settlement Agreement's legal bar to LILCO's running the plant were to be
_ .~ .. . _ _ . . _ . _ _. _ _ . _ . _ . __ . _ __
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12 removed, this la not tantamount to saying -- as Petitioners t
. implicitly assume -- that the Company would then-choose to operate Shereham. - To -the- contrary, LILCO has no intentj on of 7,gygr_gperatina Shoreham as a nuclear facility, no matter what the Eptcome of the acoeals before the New York Court of Aeoeals.
Accordingly, all of Petitioners' concerns that the NRC's issuance of a POL "would have more than a substantial probability-of proving irreversible and irretrievable," and that "at no time in the history of the NRC . . . has a possession only license for a: power reactor ever been recouverted into a full power operating
' license," Joint Motion at 16, are beside the point. LILCO will not choose to' operate Shoreham no matter the outcome of the appeals now pending before the New York Court of Appeals.
Therefore, the issue whether,_as a matter of law or fact, a POL
. can be " reconverted" into an operating license will never come
- up.
With respect to-the NRC,_ Petitioners simply mischaracterita the agency's most-recent Shoreham-decisions-when they assert that-1 the Commission has consistently recognized that the validity of_the Settlement Agreement is the essential hasis'for LILCO's proposals, and the Commis-sion's approval, of license amendments, ex-emptions.and other formstof_ permission lead-ing to:tha decommissioning of Shoreham.
Joint Motion at 10 (emphasis in original). Elsewhero,.
petitioners wrongly ~ contend that the1" Commission.has recognized
. - . .-that the existence of the Settlement Agreemont with_no-
- reasonable prospect of it being undone has been the sine aua non
D 13 for the.various forms of permission given LILCO and for its decisions in CLI-90-08, CLI-91-01, and CLI-91-02." Joint-Motion at 19.
The commission's mere references, in the " background" portions of its decisions, to the_ existence of the Settlemen Agreement-do not constitute a determination by the Commission that the settlement Agreement forms the legal linchpin of its NEPA decisions. Rather, the Commission's determination in Lona Island Lichtina Co. (shoreham Nuclear Pok Station, Unit 1),
CLI-90-08, 32 NRC 201 (1990), that the " alternative" of resumed operation need not be considered in any environmental review of Shoreham's decommissioning hinged on the commission's finding that LILCo's decision never to operate the plant was a " private" choice that-did not constitute " federal action" for purposes of NE PA~. The only part of CLI-90-08 where the Commission appears to place any_particular significance on the Settlement Agreement is its ruling, in the' alternative, that "even if ' resumed operation' were-an alternative to decommissioning, we'would not be required to consider'it-under;the NEPA ' rule of reason.'" 32 NRC at 208.
As for the Commission's reconsideration of CLI-90-08, Lona Isl'and Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-91-02, 33 NRC __ (Feb. 22, 1991), there, too,-the Commission makes clear'that-it is LILCO's decision not to operate Shoreham, and not the Settlement Agreement par _gg, that-J .ne basis for
14 its NEPA ruling.1' For instance, the Commission states that it "may be true that 'but for' the decision not to operate Shoreham, LILCO would not be able to seek permission to decommission the facility." CLI-91-02, slip op at 9 (emphasis added). Further, even during the Commission's discussion of its alternative finding regarding the NEPA " rule of reason," the Commission emphasizes that its decision on that poih*. was predicated on all of the " facts and circumstances surrounding and leading to LILCO's decision. " Ist at 10 (emphasis added). Significantly, the Commission continues that, "[ijf we thought that the parties might repudiate their agreement and favor a return to oneratiQn, we might not have made such a finding." Id2 (emphasis added).
Petitioners ignore that, even if the Settlement Agreement were to be overturned, the parties here assuredly do ngt " favor a return to operation."F The upshot is, what Petitioners are asking thr Commission to do is suspend, for some number of months, all Shoreham-related actions before both the NRC Staff and the Licensing Board, 2/ Indeed, in CLI-91-02, the Commission indicated that it was aware that the New York Court of Appeals had taken review of the state court challenges to the Settlement Agreement. Egg CLI 02, slip op. at 10 n.2.
2/ Purthermore, even the U.S. Department of Energy (DOE), which for some months criticized Shoreham's shutdown, now appears to have publicly abandoned its efforts to forestall the plant's decommissioning. For instance, in CLI-91-02, the Commission indicated that, if DOE intended to take ste rs ei'her to (1) petition the Commission to order operation of Shoreham or (2) seize the plant by eminent domain, DOE should take concrete steps do so_by March 6, 1991. CLI-91-02, slip op. at 13 n.5. DOE
! declined to so dc l
t l
15 pending the outcome of certain appeals before the New York Court of Appeals, even though the outcome of those appeals will have no effect on Shoreham's ultimate disposition. The plant will remained closed and, upon the NRC's approval of a decommissioning plan,F will be decommissioned. Petitioners' effort to trans-mogrify their own wishful thinking into a shewing of " irreparable harm" should be rejected.
(2) . Petitioners Have Not Demonstrated
~
that They Will Succeed on the Merits Petitioners take a novel approach in seeking to demonstrate-that there is a " likelihood" that they will " succeed on the merits." Petitioners do not engage the merits of the appeals now pending before the New York Court of Appeals. Instead, they rely solely on a " statistical" analysis of one year of aggregate court records in granting motions for leave to appeal. According to Petitioners, there is a 79.5% probability that at least one of ,
'the three cases upholding the Settlement Agreement will be reversed. Joint Motion at 24.
Whatever one makes of Petitioners' use of statistics and the laws of probability,F .their " showing" does_not demonstrate F
On December 29, 1990, the Long Island Power Authority (LIPA), the entity: responsible under the Settlement Agreement for decommissioning Shoreham, submitted to the NRC,-~ pursuant to 10 C.F.R. 5 50.82, a proposed decommissioning plan.for the plant.
'The NRC's review of that plan continues.
F On this score, Petitioners' assignment of independent sig-nificance to the fact that the court has " issued . . . orders (continued...)
l
r 16 satisfaction of this particular prong of the virainia Petroleum dpbbers test. Petitioners' whole approach proceeds from the false premise that the more granting of the motions by the New York Court of Appeals shows that the court is inclined to rule as Petitioners favor. But this does not follow at all. The granting of review is not an indication, in even a small way, that the reviewing court perceives error on the part of the courts below. Indeed, under New York law, the standard for review used by the Court of Appaals ir.vclves " novel (ty)" and "public importance," and not alleged crror by the court below.
Egg McKinney's 1991 New York Rules of Court 5 500.11(d) (1) (v) .1/
In sum, while Petitioners gussy up their argument with meaningless statistics and asserted probabilities, the argument amounts to a bald assertion -- lacking a reasoned assessment of F (... continued) granting leave to appeal in not simply one of the cases question-ing the validity of the Settlement Agreement . . ., but all three actions attacking the legality of that agreement," Joint Motion at 20 (emphasis in original), is misplaced. Of course, the New York Court of Appeals, facing separate motions in interrelated cases raising essentially identical issues, granted all three motions once it had determined to review the matter. In this respect, then, the numbers Petitioners calculate under their
" probability" argument are misleading to the extent they reflect
" triple counting."
l' In thia respect, there are any number of plausible explana-tions, having nothing to do with error below, why the New York Court of Appeals took review of the cases. For instance, it may simply wish to put the imprimatur of the state's highest court on a settlement involving significant issues of public policy in the ,
State of New York. In addition, it may have granted the motions l for leave to appeal out of deference to DOE, which intervened in one of the cases some months ago, when it was pending before the trial court.
l l
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17 tha. underlying merits of the case -- that the court-will rule as Petitioners prefer. This, alone, is insufficient. Egg, e.c., e Philadelphia Electric Co.-(Limerick Generating Station,_ Units 1 and 2), ALAB-814, 22 NRC 191, 196 (1985).- It is all the more-inadequate given, as shown above, Petitioners' complete failure to satisfy the critical " irreparable harm" standard. Egg Florida ,
Power & Licht Co. (St. Lucie Nuclear Power Plant, _ Unit 2) , ALAB-404, 5 NRC 1185, 1186-89 (1977).
(3) LILCO Will Be Harmed if a Stav Is Granted '
As shown, Petitioners have failed to carry their burden on either of the first two criteria for granting of a stay. Accord-
-ingly, it is not necessary to address at length the remaining two factors.. Egg Lona Island Lichtina Co. (Shoreham Huclear Power Station, Unit ~1) , ALAB-810, 21 NRC 1616, 1620 (1985) ;- Duke Power Cat (Catawba-Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1635 (1984)(if the movant fails to satisfy the first two >
factors,Jit is unnecessary to " dwell,long on whether a stay would cause serious injury to the applicant" or to " delve deeply into public interest; considerations").
Nevertheless, LILCO clearly would_be injured if the stay-is granted, since the longer the Company is required to meet the requirements-a _ satisfy the' regulatory obligations of a full power license, the more wasteful expense it incurs. Petitioners suggest that such financial injury is not a " cognizable harm."
JJoint Motion at 27. But, again, in the context of a request for-
18 a stay, this is incorrect. Egg PhiladelDhia Electric Co. (Limer-ick Generating Station, Units 1 and 2), ALAB-8 08, 21 NRC 1595 (1985).
(4) A Stav Would Not Bo in the Public Interest The public interest here lies in allowing the NRC's regula-tory process to continue uninterrupted by Petitioners, who fail to recognize a lost cause when confronted with one. The public interest is also advanced by allowing LILCO to take all appropri-ate steps, consistent with the protection of public health and safety from radiological hazards, to minimize its Shoreham-related costs.
Petitioners argue that the "public interest" lies in waiting for the New York Court of Appeals to decide the appeals before it, so as to "give the Commission confidence that that decision (whether the Court of Appeals finds the Settlement Agreement valid cnr void) will be the ' correct' decision on which the Commission may base its findings." Joint Motion at 27 (emphasis in original). But this assertion relies on the false predicate that the NRC's decisions on Shoreham are somehow contingent on the agency's expectation that the Settlement Agreement is, and will continue to be, of-legal effect. As explained above, the NRC's decisions on Shoreham remain valid whether or not the Settlement Agreement is overturned.
s.
4
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19 III. Conclusion '
For the' reasons given above, Petitioners' request for a-stay should be-denied.
Respectfully submitted, W.-Taylor Reveley, III Donald P. I1nvin David S.-Harlow counsel for Iong Island Lighting company Hunton &. Williams 707 East Main Street P. . O. Box 1535 Richmond, Virginia 23212 DATED : -March.25,-1991 4F
L i LILCO, March 2'5, 1991 !
4
- . --s-4 UNITED STATES OF AMERICA $dYc
-NUCLEAR REGULATORY COMMISSION-
'91 MR 26 P3 :06 Bfore the Commn.ision-Mort M 51. tin 1AU 00cht im A 'n ,:Vid In the Matter of ) BRAtica .
)
' LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 OLA -
)
-(Shoreham Nuclear Power Station,- ')
Unit 1) <
)
CERTIFICATE OF SERVICE 4 I hereby certify that copies'of LILCO's OPPOSITION TO JOINT MOTION FOR STAY '
-were served this date upon the following by Federal Express, as indicated by an asterisk, or by ;
- first-class mail,' postage prepaid.
Commissioner Kenneth M. Carr, Chairman *- - The Honorable Samuel J. Chilk
-Nuclear Regulatory _ Commission- The Secretary of the Commission One' White Flint North Building- . Office of the Secretary l 11555 Rockville Ptke .
~ U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 Washington, D.C. 20555 LCommissioner Kenneth C. Rogers * - Administrative Judge *
- Nuclear Regulatory Commission Morton B. Margulies, Chairman
- One White Flint North Building " Atomic Safety and Licensing Board -
11555 Rockville Pike U.S. Nuclear Regulatory Commission" ,
Rockville,. Maryland '20852i East-West Towers, Fourth Floori 4350 East-West Highway,
- Commissioner James R. Curtiss* Bethesda, MD 20814 - :I 4 Nuclear Regulatory Commission
- One White Flint North-Building - ' Administrative Judge * "
. I1555 Rockville Pike - Jerry R.' Kline-Rockville, Maryland 220852 Atomic Safety and Licensing' Board .
U.S. Nuclear. Regulatory Commission JCommissioner Forrest J. Remick* East-West Towers, Fourth Floor Nuclear Regulatory Commission 4350 East-West Highway 4 One. White Flint North Building -.Bethesda, MD. 20814
!11555 Rockville Pike ;
L Rockville, Maryland - 20852
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LW 3 ~:y;
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g < - ,
u- a LAdininistrative Judge
- Charles M; Pratt, Esq.
6 George A. Fergusoni _
Senior Vice President and General Counsel 4
M
'e' ~
'ic:r.ic Safety and Licensing Board
. 22nd Floor
' ; _ =5307 Al Jones Drive _
Power Authority of State of New York Columbia' Beach, Maryland;20764 1633 Broadway -
h New York', New York 10019 W James P. McGranery,'Jr., Esq.*
. Dow, Lohnes & Albertson Carl R_.- Schenker, Jr., Esq.;
y^ .
l1255 23rd Street, N.W.',' Suite 500 Counsel, Long Island Power Authority.
Washington, D C. c20037 O'Melveny & Myers
~
'< . 55513th Street, N.W.
R '
Mitzi A. Young, Esq.*- _ .
Washington, D.C. 20004 Office of the General Counsel
, U.S,; Nuclear Regulatory Commission Gerald C. Goldstein, Esq.
One White Flint North Office of General Counsel- !
N N' fil555 Rockville Pike- New York Power Authority Rockville, Maryland ' 20852 -1(i33 Broadway -
New-York, New York ~10019 Nicholas S. Reynolds,i Esq. -
gc ; David _ A. .Repka, Esq. ! :Sawici A. Cherniak, Esq.
' Winston & Strawn1 . New York State Department of Law
' ' 1400 L Street, N.W.'
Bureau'of Consumer Frauds and Protection -
, 1 Washington, D.C. - 20005 - 120 Broadway -!
1 Stanley B. Klimberg, Esq.' ,
Executive Director and General < _ Stephen A. Wakefield, Esquire Counsel General Counsel
- Long Island Power Authority U. S.--Department of Energy 4 . 200 Garden City Plaza,. Suite 201- 1000 Independence Avenue, S.W.
Garden City,.New York ;11530- -. Washington,-D.C. 20585 1
- Hunton & Williams -
-E ,707 East Main Street - ,.
P.O. Box 1535; ' . V L Richmond, Virginia - 23212 L
' David S. Harlow ,
4 _ DATED: ; March'25,1991 L
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