ML20076N138
| ML20076N138 | |
| Person / Time | |
|---|---|
| Site: | Shoreham, Barnwell File:Long Island Lighting Company icon.png |
| Issue date: | 03/22/1991 |
| From: | Donaldson C NEW YORK, STATE OF |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20076N122 | List: |
| References | |
| OLA, OLA-2, NUDOCS 9103280117 | |
| Download: ML20076N138 (18) | |
Text
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UNITED STATES OF AMERICA
- M U l' NUCLEAR REGULATORY COMMISSION
- BEFORE Tile COMMISSION
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....................-........ - x In the Matter of long Island Lighting Company Docket No. 50 322 (Shoreham Nuclear Power Station, Unit 1)
I REPLY OF 3
MARIO M. CUOMO, GOVERNOR OF Tile STATE OF NEW YORK,
- AS FRIEND OF Tile COMMISSION IN OPPOSITION TO Tile JOINT MOTION TO STAY OR VACATE LICENSE ISSUANCE AND OTilER MA'ITERS INTRODUCTION Mario M. Cuomo, Governor of the State of New York, by Robert Abrams, Attorney General of the State of New York ("New York"), submits this reply in opposition to the
. Joint Motion to Stay or Vacate License issuance and Other Matters (" Motion") filed on March 8,1991 by Shoreham. Wading River Central School District and Scientists and Engineers for Secure Energy, Inc. (" petitioners").
Petitioners ask the Nuclear Regulatory Commission ("NRC' or " Commission") to (1) stay or, if issued, vacate the issuance of a possession only license for the Shoreham Nuclear Power Station ("Shoreham"), (2) stay further proceedings of the Atomic Safety and Licensing Board concerning Shoreham, and (3) stay further NRC Staff review 9103200117 910322 PDR ADOCK OD000322 o
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i of any pending applications related to Shoreham until the New York State Court of Appeals' (" Court of Appeals") final determination of petitioners' challenges to the Shorchem Settlement. Petitioners allege that such a stay is necessary to protect their interests from irreparable harm. In support of their Motion petitioners allege, in part, (1) that the Court of Appeals is incapable of issuing a preliminary injunction i
or temporary restraining order to protect petitioners' interests from irreparable harm 1
during the pendency of their appeal before that Court, and (2) that petitioners are likely to prevail in their appeal, indeed, petitioners assign a 79.5% to 83.4% probability to their prospects for prevailing in the Court of Appeals.
In this Reply New York will primarily address the issues of New York law that petitioners raise and will show (1) that petitioners have not shown that they are likely to prevail in their New York appeals, (2) that petitioners' proffered statistical evidence has no value, (3) that, rather than being a settled question, the availability of interlocutory relief from the Court of Appeals is, at the least, a substantial possibility that petitioners have not even pursued, and (4) and that the Court of Appeals' overturning the Shoreham Settlement would make no practical difference.
ARGUMENT Point I PEllTIONERS IIAVE NOT SIIOWN TIIAT TIIEY ARE LIKEIN TO PREVAlb IN TIIE COURT OF APPEALS in tlielt Motion (at pp. 4 and 19
- 25) petitioners conduct a statistical exegesis of certain data set out in the Court of Appeals' 1989 Annual Report and submit that the-2-
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d results of their analysis indicate "a truly very high probability of success" for their appeal (at, p. 24). P titioners' argument on this point is fatally flawed in two, fundamental aspects, one related to the process of judicial decision making and the other involving basic statistical principles.
Petitioners misconstrue the process of judicial decision making by assuming that a court's resolution of a matter can be predicted from the court's treatment of other cases irrespective of the subject matter. In other words, petitioners would have the Commission believe that the Court of Appeals' decision concerning their appeals will be a random event the outcome of which can be predicted by an analysis without reference to the facts and law involved, if petitioners are correc: in their assumption, then a great deal of arduous and exacting effort on the part of both the courts and those who appear before them is wasted.
Obviously judicial decisions are not random events. Consequently, the facts and law involved in a proceeding are what influence the likelihood of one side or the other's prevailing. Petitioners have presented the NRC with no substantive analysis whatsoever of the relationship of the facts and law to their chances of prevailing.
The reason for the lack of any substantive analysis of petitioners' likelihood of prevailing in the Court of Appeals is found in petitionels' admission that such an analysis is beyond their counsel's capabilities (Motion at p. 24). Petitioners, however, do not stop with an admission of their own lack of expertise. They also impute this same incapacity to the Commission.
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According to petitioners, the NRC is incapable of ut,ing any standard other than petitioners' statistical analysis to judge hether they are likely to prevail in the Court of Appeals (hl). Needless to say, New York does not share petitioners' opinion of the Commission's capacity to perform legal analyses.' To the contrary, New York urges both that the Commission is perfectly capable of making such a judgement and that the lack of any substantive analysis of petitioners' likelihood of prevailing in the Court of Appeals is fatal to petitioners' Motion.
While petitioners' assertion of the Commission' incapacity may earn them high marks for boldness,it should not divert attention from the fact that petitioners have the burden of proof on the question of whether they are likely to prevail in the Court of Appeals. This they have not even attempted to meet, other than through their superficial and fundamentally defective statistical analysis of the Court of Appeals' actions during a mingle year (1989).
Point II PFrlTIONERS' STATISTICAL ANALYSIS IS MATIIEMATICALLY INVALID In addition-to their fundamental conceptual flaw of treating judicial decisions as random events, petitioners have committed bad mathematics that would invalidate their conclusions as to the likelihood of their prevailing in the Court of Appeals even if the Court's decisions were random.
The most serious of petitioners' mathematical mistakes is their assumption that each of their appeals is independent of the other two. This is obviously not-the fact. By petitioners' own admission, their appeals involve common issues. For example, two 4
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.s of petitioners' appeals, Citizens and Dollard, differ in the isn,es only in that Dollard contains an additional count under the State Environmental Quality Review Act
("SEORA") (Motion at pp.10 11). Petitioners' third appeal, Contractor's Association.
involves the New York State Public Service Commission, which is also a party respondent in both Citizens and Dollard, and makes due process and SEORA claims essentially synonymous with those in the other two cases. On a more fundamentallevel the three appeals are interrelated because all three grow out of the events that produced the Shoreham Settlement. Consequently, the three appeals are not independent events, but are instead dependent because they all involve the same factual basis and most of the same legal claims.
The mathematical significance of the interdependence of petitioners' three appeals is that the proper method of determining the likelihcod of all three cases being accepted by the Court of Appeals is the Rule of Multiplication of Dependent Events (" Dependent Rule"), rather than the Rule of Multiplication of Independent Events (" Independent Rule")
employed in petitioners' analysis. The use of the wrong rule completely invalidates petitioners' analysis.
Petitioners apply the Independent Rule by assuming that the chance of each of their appeals being accepted was the same as the rate of acceptance of motions for leave to appeal civil cases during the Court of Appeals' 1989 sess!on, LL 11.5%. Petitioners then calculated the " joint probability" that all three appeals would be allowed by multiplying the 5
i probability of the allowance of the first by the probability of allowance for each of the other two, b, P(A+B+C) = P(A) X P(B) X P(C),
to yield a prediction that the probability of all three appeals being aUnwed is only 0.15E From this petitu ars argue that the granting of all three of their motions for leave to appeal was highly unusual and therefore predicts that u.a Court of Appeals will overturn the Milement (Motion at pp. 22 23).
Applic@n of the correct method, the Dependent Rule, returns the significance of petitioners' appeal (singular intentional) to r ective. Under the Dependent Rule, the joint prabability of events is con yt.. a by multiplying the probability of the first event by the ";onditional probability" of each subsequent event, k, P(A+B+C) = P(A) X P(B/A) X P(C/(A+B)),
We do not know the conditional probabilities, k, the likelihood that the second appeal would be allowed after the first or that the third would be allowed after the first two.
1lowever, given that all three cases are based in the same facts and have inany legal issues and parties respondent in common, it is reasonable to assume that the canditional probabilities that Dollard and Contractor's Association would also be accepted for appeal are very close to 1001 If so, then the fact that the Court of Appeals accepted all three cases is not materially more significant than the fact that the Court accepted Citi7 ens.
In other words, petitioners are undertaking a single appeal with three different labels.
Given that their efforts in the Court of Appeals should be considered a ringle appeal, petitioners' attempt to bootstrap the fact that three nominally different cases were accepted
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d into support for the assertion that their probability of overturning the Shoreham Settlement exceeds 79% fails (gx Motion at p. 24). At best, petitioners have the some statistical chance as any other single appeal.
Stating that petitioners have the same chance as any other appeal does not provide any guidance as to whet that probability is (assuming, as New York does not, that calculation of such figures based on past Court of Appeals actions is predictive d the outcome in petitioners' cases). Petitioners have presented certain figures for civil cases from a single Court of Appeals annual report, but have provided no reason for accepting these figures as the basis for computing probabilities that have any validity. Petitioners' data is for 1989, yet they 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. Petitioners have also failed to explain why data from the single year they chose to analyze is representative. Moreover, if petitioners' statistical methods are at all useful, then incorporation of data from several years should increase the reliability of any predictions, Finally, petitioners have failed to explain why the procedure for a cate's coming before the Court of Appeals is predictive of an appellant's chances.
True, during 1989 those reaching the Court of Appeals by permission of that Court had the highest rate of revers r among civil cases, llowever convenient this fact may be for petitioners' argument, that in and of itself has no significance. In other years appeals reaching the Court through one or another of the other procedures have had a higher 7
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1 percentage of reversals than those granted permission by the Court of Appealst. If so, that fact would also not necessarily be significant. What is needed is an explanation for why the category under which the Court gets an appeal is significant. Ilere petitioners have made no effort to provide such an explanation, in sum, petitioners' attempt to enlist statistics to shown that their appeal is likely to prevail fails utterly.
Point III PETITIONERS IIAVE NOT SIIOWN TilAT INTERLOCUTORY RELIEF IS UNAVAllAllLE FROM TIIE COURT OF APPEALS Petitioners assert that the Court of Appeals is incapable of providing them interlocutory relief in the form of a preliminary injunction or temporary restraining crder prohibiting respondents from undertaking acts petitionen, eve would irrevocably harm petitioners' interests, and urge this alleged unavailability as one of the grounds for staying the Commission's proceeding (Motion at 2, fn. 2). New York denies that petitioners will suffer the alleged irrevocable harm but will not address this point beyond noting petitioners' difficulty in describing just what that harm might be (g.g Motion at pp.
3 - 4 and 14 - 19). Instead, New York will rely upon other respondents' presentations on For example, in 1988 civil cases reaching the Court of Appeals by permission of the 8
Appellate Division had a higher rate of reversal (31%) than did those granted permission by the Court of Appeals (26%). A copy of the relevant page of the Court of Appeal's 1988 Annual Report is attached to this Reply as Appendix A. This information is not-offered a proof that a case's reaching the Court of Appeals by permission of the Appellate Division is more predictive of success for un appellant, but rather that there is no credible evidence that the procedure through which a case reaches the Court of Appeals is predictive of the outcome.
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this point, and will here address the authority of the Court of Appeals to issue interlocutory relief.
Petitioners state flatly that in New York only trial courts and intermediate appellate courts may grant temporary restraining orders and preliminary injunctions, and point to the lack of any specific mention of this authority for New York's highest court in the Court of Appeals Rules or the Civil Practice Laiw and Rules ("CPLR") and to the Practice Commentaries for CPLR 5 5518 (explicitly granting the Appellate Division, the intermediate appellate court, such authority) in McKinney's compilation of the laws of New York as support for their proposition. Petitioners further assert that they have not been able to find a reported decision of the Court of Appeals in which this issue is addressed.
Petitioners are correct that the authority of the Court of Appeals to issue preliminary injunctions and temporary restraining orders is not mentioned in either the Court's Rules or the CPLR. Counsel for New York also has not found any reported case in which the Court of Appeals discusses its authority to issue preliminary injunctions or temporary restraining orders. However, the proper inference from these facts and from examination of the full text of the Practice Commentaries in McKinney's is either that the Court of Appeals does have the requisite authority or that such relief is still available from the Appellate Division or the trial court even after an appeal has been accepted by the Court of Appeals. The relevant portion of the McKinney's Practice Commentaries reads as follows:
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The omission of [ mention of] the Court of Appeals [in CPLR 5 5518) suggests that the power to affect preliminary injunctions is to apply only when the appeal is at the Appellate Division level. This would in turn suggest that once the case
.is'on appeal to the Court of Appeals, neither the Appellate Division nor the Court of Appeals can affect the injunction during the pendency of the appeal, and it would also seem that the trial court cannot do so at this stcge either. See Ahern v.
McNab,18 Misc.2d 899,189 N.Y.S.2d 816 (Sup. Ct. Oucens County 1959).
It is doubtful that CPLR 5518 was intended to bring on such irrational results. Should it become appropriate, for some pressing reason, to modify a preliminary injunction during the Court of Appeals phase of the case, are we to conclude that the modification is precluded because no court can entertain it? A sounder argument, though not clearly the law, is that as soon as an appellate court's jurisdiction is invoked any appellate court's that court should be deemed to stand in the position of the court of original instance in respect of the provisional remedies, including the injunction and restraining order of Article 63. If that is the rule, then CPLR 5518 is superfluous. Certainly civil practice would be better off without it. When one juxtaposes CPLR 5518 with its avowed model, Civil Practice Act 5 880,it is difficult to perceive how the one could give rise to the other. If, during the appellate stage of a case, the appellate court is without power to affect the provisional remedies, then the trial court should be deemed to retain such power during the appellate process. Alternatively, the Appellate DMslon, as an arm of the Supreme Court, should be deemed to have the power while the case is ca appeal to it or to the Court of Appeals. Rejecting all of these alternatives would be to hold the judiciary impotent to supervise the often drastic provisional rev.edles during the possibly prolonged pendency of an appeal.
These conclusions are the more compelling when one considers that the preliminary injunction of Article 63 is a status quo retainer, and that any construction of CPLR 5518 which would frustrate judicial power to retain the status quo during all of the appellate stages of the case would frustrate the purpose of Article 63 altogether. CPLR 5518 obviously does not intend that.
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While, as the author of the Practice Commentaries points out,it is not clear what the law is, it is certainly far from precluded that one of the three alternatives which would provide interlocutory relief for parties before the Court is the law. Accordingly, petitioners rnay not rely on their stated position that such relief is not available to them in the New York courts.
Petitioners have not asked the Court of Appeals for either a temporary restraining order or a preliminary injunction. Thus petitioners ';e asking the Commission for relief that they have a sound basis to seek from the Court of Appeals. Since the Court of Appeals is the approprime forum in which to seek relief, the Commission should send the petitioners back to that court.
Point IV TIIE LONG ISIAND POWER COMPANY'S AUTIIORITY TO SEEK A POSSESSION ONLY LICENSE IS NOT DEPENDENT ON TIIE SIIOREllAM SE'1TLEMENT Petitioners assert the proposition that, if the Court of Appeals sets aside the Shoreham Settlement, the Commission might find that the Long Island Lighting Company
("LILCO") does not have the authority to seek modification of its license for Shoreham (Motion at pp.18 19). Petitioners' state that the Commission might determine "that 'but for' a legally valid [Shoreham) Settlement Agreement LILCO would not be able to seek permission to decommission the facility'" (emphasis in the original), citing NRC Memorandum Opinion and Order No. CLI 9102 at 9 (February 22,1991) (Motion at 11-
- p. 19),
llowever, what the Commission actually said at the cited page is that "'but for' the decision not to operate Shoreig, LILCO would not be able to seek permission to decommissien the facility" (empheds supplied).
What the Cemmission actually said in Order No. CLI 9102 thus differs in a very significant way from petitioners' characterization of the Commission's position. As the Commission recognized, the dispositive fact is LILCO's decision not to operate Shoreham.
Unless the company changes its mind about operating the plant, it is free to pursue decommissioning and any intermediate actions toward that end.
Consequently, it is LILCO's decision, rather than the Settlement, that is the ElDR RM HM, and the company may maintain its request for a possession only license even if the Court of Appeals' finds that the Settlement is invalid.
Without a doubt, overturning the Settlement would cause considerable inconvenience for LILCO and the other parties to the Settlement. Among other things, the Public Service Commission might have to undertake another rate proceeding for the company.
13ut it does not necessarily follow from the invalidation of the Settlement that LILCO will attempt to operate Shoreham. Indeed, the record in this proceeding is devoid of any evidence indicating that LILCO intends to try to operate Shoreham if the Court of Appeals finds for petitioners. Nor has New York or any other party respondent indicated that setting uide the Settlement would produce a change of position in favor of operating the plant. Thus if the Court of Appeals overturns the Settlement, the result would almost certainly be a modified or renewed Shoreham Settlement providing for the plant's decommissioning.
In sum, petitioners have little chance of prevalling in the Court of Appeals, and it will make no practical difference in this proceeding even if they do, 4
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I CONCLUSION For the reasons set oi.it above, the Commission should deny petitioner's Joint Motion to Stay or Vacate License issuance and Other Matters.
Dated:
March 22,1991 Respectfully submitted, New York, New York ROBERT ABRAMS, Attorney General of the State of New York by: _
} / <%d/Av Charlie Donaldson Assistant Attorney General Attorney for MMo M. Cuomo Governor of the State of New York Room 3120 t
120 Broadway New York, New York 10271 (212) 341 2350 I
John W. Corwin
- Assistant Attorney General-in Charge Bureau of Consumer Frauds -
and Protection Samuel A. Cherniak Assistant Attorney General of Counsel 9
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SUMMARY
OF DISPOSITIONS BY JURISDICTIONAL PREDICATE
} h (showing percentage of type of disposition within each (mtegory of jurisdictional predicate) c.
January 1,1288 thmuch December 31, 1998
-$d CIVIL APPEALS Type of Disposition Jurisdictional Predicate:
Affirmance Reversal Modification Dismissal Other I
2 Dissents in Appellate Division G2%
21%
10%
71k (24 of 39)
(8 of 39)
(4 of 39)
(3 of 39) lT Permission of Court of Appeals 68%
25%
G1h l
or Judge thereof (88 of 129)
(33 cf 129)
(8 of 129) l:f Permission of Appellate Division 62%
31%
5%
2%
5.
or Justice thereof (26 of 42)
(13 of 42)
(2 of 42)
(I of 42) 7 a
y 0
Constitutional question 844 8%
8%
3 (11 of 13)
(1 of 13)
(1 of 13) 2 Stipulation for Judgment 100%
(1 of 1)
Absolute 35%
18%
61 41%
.3 (e.g. anomalies, Judiciary Law (6 of 17)
(3 of 17)
(1 of 17)
(7 of 17)
Other
'i 5 4417), Remand from U.S.
,7 Supreme Court)
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UNITED STATES OF AMERICA
%1-NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION
'91 MAR 2:5 P4 :18
__________________x in the Matter of
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Long Island Lighting Company Docket No. 50-322 (Shoreham Nuclear Power Station Unit 1)
- _ _ _ _ _ _ _ _ _ _ _ _ _ _x NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter. In accordance with 10 C.F.R. 5 2.713 (1989), the following information is provided:
Name:
Charlie Donaldson Address:
Energy and Utilities Unit Bureau of Consumer Frauds and Protection NYS Department of Law 120 Broadway New York, New York 10271 Telephone Number:
(212) 341 2334 Admission:
New York State Court of Appeals Name of Party:
Mario M. Cuomo Governor of the State of New 'ork
\\
[Y c t) m.f W Charlie Donaldson New York, New York March 22,1991
E
,r L iiN hrL CEBTIFICATE OF SERVICE g.g I hereby certify that copies of the foregoing Motion to Fila a Reply in f
Opposition to Joint Motion to Stay or Vacate License issuance and Other hiatters, Reply and Notice of Appearance were served by first class rnail, postage prepaid, upon the following on this 22nd day of March 1991.
Atomic Safety and Licensing Appeal Board Hon. Morton B. Margulies U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1lon. Jerry R. Kline lion. George A. Ferguson Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 5307 Al Jones Drive Washington, D.C. 20555 Columbia Beach, Maryland 20764 Edwin J. Reis, Esq.
Deputy Assistant General Counsel Hon. Michael R. Deland, for Reactor Licensing Chairman Mitzi A. Young. Esq.
Council on Environmental Quality Senior Supervisory Trial Attorney Executive Office of the President Office of the General Counsel Washington, D.C. 20500 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stanley B. Klimberg, Esq.
Gerald C. Goldstein, Esq.
Executive Director and General Counsel Office of General Counsel Long Island Power Authority New York Power Authority Suite 201 1633 Broadway 200 Garden City Plaza New York, New York 10019 Garden City, New York 11530 Nicholas S. Reynolds, Esq.
Regulatory Publication Branch David A. Repka, Esq.
Division of Freedom of
-Winston & Strawn Information & Publication Services 1400 L Street, N.W.
Office of Administration Washington, D.C. 20005 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
James McGranery, Jr., Esq.
Donald P. Irwin, Esq.
Dow, Lohnes
- Ahrtson Carl R. Schenker, Esq.
Suite 500 O'Melveny & Meyers 1255 23d Strect, N.W.
Counsel for Long Island Washington, D.C. 20037 Power Authority 55513th Street, N.W.
Washington, D.C. 20004 Hon. James D. Watkins Steven A. Wakefield, Esq.
S:cretary of Energy Office of General Counsel Washington, D.C. 20585 U.S. Department of Energy Room 2000 825 North Capitol Street Washington, D.C. 20426 i %/An Charlie Donaldson Assistant Attorney General Attorney for Mario M. Cuomo, Governor of the State of New York
.