ML20076N161
| ML20076N161 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/25/1991 |
| From: | LONG ISLAND LIGHTING CO. |
| To: | Hull J NRC COMMISSION (OCM), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| CON-#191-11579, CON-#191-11580, CON-#191-11581 OLA, OLA-2, NUDOCS 9103280146 | |
| Download: ML20076N161 (23) | |
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UNITED STA'lES OF AMERICA m
NUCLEAR REGUIATORY COMMISSION
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..A N 4 In the Matter of
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LONO ISLAND LIGHTING COMPANY
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Docket Nos. 50 322
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50 322 OLA (Shoreham Nuclear Power
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50-322 OLA 2 Station, Unit 1)
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NRC STAFF RESPONSE TO PETITIONERS' JOINT MOTION TO STAY
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7 John T. Hull Counsel for NRC Staff
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. March 25,1991
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UNTTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
BEFORE THE COMMISSION d,
In the Matter of
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)
LONG ISLAND LIGHTING COMPANY
)
Docket Nos. 50 322
)
50 322 OLA l
(Shoreham Nuclear Power
)
50 322 OLA-2 Station, Unit 1)
)
NRC STAFF RESPONSE TO PETITIONERS' JOINT MOTION TO STAY John T. Hull Counsel for NRC S:sff March 25,1991
~~
i TABLE OF CONTENTS PAGE
- 1. I NTR O DU CTI ON......................................
1
- 11. DISCUSSION 2
A.
Stay Requests Are Governed By 10 C.F.R. 5 2.788..........
3 1.
Petitioners Fall To Show That They Will Suffer Irreparable Harm Absent A Stay.............
5 2.
Petitioners Fall To Show They Are Likely To Prevail On The Merits..........
4 8
3.
Harm To Other Parties..................
10 4.
The Public Interest 10 B.
Comity Concerns Do Not Justify Granting Petitioners' Stay Request 11 111. CON C LU S I O N......................................
13 b
l l
11 TABLE OF AUTHORmES COURT CASES PAGE Calvert Cliffs' Coordinating Cornmittee
- v. AEC, 449 F.2d 1109 (D.C. Cir.1971).....................
10 Citi: ens for an Orderly Enegov Policy, Inc.
- v. Cuomo. 559 N.Y S. 2d 381
( N.Y. App.Div. 19 90)..................................
6 Edwards v. First Bank of Dundee, 534 F.2d 1242 (7th Cir.1976) 7 Hagans v. Lavine, 415 U.S. 528 (1974)........................ 13 Hamihon li' arch Co. v. Bentus Il' arch Co.,
206 F.2d 738 (2nd Cir. 1953)............................ 10 illinals Commerce Commh. v. ICC.
848 F2d 1246 (D.C. Cir.1988)...,,,........,...........
6 J. Kenneth Dollard v. Long Island Power Authority, 559 N.Y.S. 2d 381 (N.Y. App.Div. 1990).................,................
6 Kaiser Steel Corp. v. II'.S. Ranch Co.,
3 91 U.S. 5 93 ( 1968).................................. 12 Aimsachusetts v. li'att, 716 F.2d 946
( 1 st Ci r. 1983)......................................
7 Nassau Suffolk Contractors' Assh., Inc.
- v. Public Service Comm'n.,
559 N.Y.S. 2d 393 (A.D. 3 Dept.1990).....................
6 Natural Resources Defense Council v. EPA, 822 F. 2d 104 (D.C. Cir. 1987)............................
7 Power Reactor Development Co. v. International Union, 367 U.S. 396 (1961).....................
10 i
i
_ _ _ _ _ _ _ _ _.. _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - ' - ~ ~ - ~ ~ ~ ~ ~ ' ^ ~ ~ ~ - ~ ~ ~ ~ ~ ~ ~
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- Railroad CommH. of Texas v. Pullman Co.,
312 U.S. 4 96 ( 1941).................................. 13 7
?
Union of Concerned Scientists v. N.R.C, 880 F.2d 552 (D.C. Cir. 1989)........................... 10 l'irginia Petroleum Jobbers Assn., v. F.P.C, 259 F.2d 921 (D.C. Cir.1958)
.....................4,10 1Yashington Metropolitan Area Transit Comm'n.
v Holiday 7ours, 559 F.2d 841 (D.C. Cir.1977)
.....................4,10 ADMINISTRATIVE DECISIONS Alabama Power Co. (Joseph M. Parley Nuclear Plant, Units 1 and 2), CL18127, 14 N R C 795 (1981 ).................................
2 3 Consumers Power Co. (Midland Plant,.
Units 1 and 2),-CLI-7619, 4 N RC 474 (1976)...................................
9 Consumers Power Co (Midland Plant, Units 1 and 2), ALAB 395,
. 5 N RC 772 (1977)...................................
9,12 Kerr.McGee Chemical Corp. (West Chicago
- Rare Earth Facility), ALAB 928, 31 N RC ; 263 (1990)............................. _....
3, 5 -
t I
Long Island-Lighting Co. (Shoreham Nuclear
- Power Station, Unit 1) CLI 91-02,-
33 NRC g(February 22, 1991)....................... passim E
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Long Island Lighting Co. (Shorcham Nuclear Power Station, Unit _1) CLI 90 8,
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32 N R C 201_ (1990)....
............................. 11-D,,
Long Island Lighting Co.I(Shoreham Nuclear Power Station, Unit 1) LBP 9107,'
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33 NRC-(March 6, 1991)...................,........
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iv Pacific Gas & Liectric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI 8612, 24 NRC 1 (1986), rev'd and remanded sub nom., San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir.1986).....................................
2 Portland General Electric Cb. (Trojan Nuclear Plant), ALAB 524, 9 NRC 65 0979)..
3-4 Public Service Co. of New Hampshire (Seabrook Station, Units 1 t.nd 2),
CLI.90 3,31 NRC 219 (1990)...........................
4 Uranium Mill Licensing Requirements, CLI 81-9,13 NRC 460 (1981).........................
9, 1 2 STATUTES AND REGULATIONS ATOMIC ENERGY ACT, 42 U.S.C. 6 2011 et seq..........
5, 6, 7,11 ATOMIC ENERGY ACT, 42 U.S.C. 6 2013(c)..................
5 ATOMIC ENERGY ACT, 42 U.S.C. 6 2013(d)..................
5 NATIONAL ENVIRONMENTAL POLICY ACT, 42 U.S.C. 4321, et seq.............................
6,7,10 10 C.F.R. 6 2.788
..................................3,4,7 10 C.F.R. 6 2.788(a)
...................................3 10 C.F.R, 6 2.788(b)
...................................3 10 C.F.R. 6 2.788(e)................................. passim 10 C.F.R. 6 2.788(e)(1)..................................
9 10 C.F.R. 6 2.788(e)(4)....
............................. 10 10 C. F.R. 6 5 0.109............. '........................ 10 l
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v MISCELLANEOUS 42 Fed. Reg. 22128 (May 2,1977)
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
BEFORE THE COMMISSION
'In the Matter of
)
)
^
LONG ISLAND LIGHTING COMPANY
)
Docket Nos. 50 322
)
50 322 OLA (Shoreham Nuclear Power
)
50 322 OLA 2 3
Station, Unit 1)
)
NRC STAFF RESPONSE TO PETITIONERS' JOINT MOTION TO STAY
- 1. INTRODUCTION On March '8,1991,-Scientists and Engineers for' Secure Energy, Inc. and
- Shoreham Wading River Central School District (referred to collectively as
" Petitioners"), filed a joint motion to stay "or, if issued", vacateu the issuance of a I
possession only license (" POL") for Shoreham; stay the above-captioned Licensing Board proceedings; and " stay further NRC Staff review of pending applications for license amendments, exemptions, and other form? of permission" regarding Shoreham.
- Stay Motion at 12.
1.:
1/ " Petitioners' Joint Motion To Stay Or Vacate License issuance and Other.
Matters" (" Stay Motion"). Since the Staff has not isstied a POL to Shoreham, only the.
Petitioners' stay request is addressed here.
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2-Petitioners base this request on the Commission's inherent authority *to provide interim equitable relief"U and the Commission's " duty to abstain from deciding crucial state law issues as a matter of comity."
Stay Motion at 1.
Petitioners contend that because the New Yor' Court of Appen4, New York 4 highest court, recently granted the Petitioners and related parties leave to rpocal in state cases challenging the validity of the agreement between the State of New York and the lamg Island Lighting Company ("LILCO"), which prohibits operation of Shoreham as a nuclear power plant ("NY Agreernent"), the Commission should stay all Shoreham licensing actions pending a decision on the merits by the New York Court of Appeals as to the NY Agreement's validity, ld. at 12,1011.
- 11. DISCUSSION Petitioners seek a very broad stay which would bring to a halt all NRC actions affecting Shoreham's operating license. As the moving party, Petitioners have the burden of persuasion to establish that such a stay should be granted. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CL18127,14 NRC 795, U In Pacific Gas & Electric Co. (Diablo Canyon Nur Power Plant, Units 1 and 2), CL18612, 24 NRC 1 (1986), rev'd and remanded on cdwr grounds, San Luis Obispo Mothers For Peace v. NRC, W9 F.2d 1268 (9th Cir.1986), the Commission exercised its inherent supervisory authorny over Staff actions by staying part of a license amendment which allowed a fivefold ir. crease in spent fuel storage capacity at the Diablo Canyon Nuclear Power Plant. Id. at 4 5,1213. The Commission based this exercise of its inherent authority on special circumstances, which were Congress' expressed concerns about the Diablo Canyon spent fuel pool reracking amendments in general and a federal
/d.
court of appeals' entry of a partial stay of those Ikense amendments in particular.
at 4 5, nn.1, 2.
No sucb special circumstances are present here, since Shoreham is defueled, and the Stay Motion should be evaluated using the traditional stay factors of 10 C.F.R. s 2.788(e) notwithstanding the extraordinary nature of Petitioners' stay request.
l
. 797 (1981).
Petitioners' Stay Motion fails to support the extraordinary relief requested, ar.d should be denied for the reasons set forth below.
A.
Slay Requests Are Governed By 10 C.F.R. 6 2.788 Petitioners' Stay Motion fails to comply with the requirements of 10 C.F.R.
i 2.788.F The factors prescribed by 10 C.F.R. 6 2.788(c) to be considered in connection with reviewing a request for stay are:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
A sequest to stay the effectiveness of a " decision or action" may be filed no later than 10 days after service of the decision or action of the presiding officer.
10 C.F.R. 6 2.788(a). At the time the Stay Motion was filed, the only Shoreham licensing actions subject to challenge by a stay request pursuant to 10 C.F.R.
G 2.788(a) were the recent decisions of the Licensing Board (LBP 9107, 33 NRC (Mar. 6,1991)) and Commission (CL19102,33 NRC (Feb. 22, 1991)).V The Commission's regulations do not expressly authorize a stay of the F For example, Petitioners' 29-page Stay Motion fails to comply with the ten-page limitation stated in 10 C.F.R. 6 2.788(b). Thi. limit is adhered to even in cases involving questions of first impression. See Kerr McGee Chemical Corp. (West Chicago Rare Earth Facility), ALAB 928,31 NRC 263,269-70 (1990).
E' The right to seek stay relief under 10 C.F.R. 6 2.788 is conferred only upon those who nave Cled or intend to file a timely appeal from the decision sought to be stayed. Ponland General Electric Co. (Trojan Nuclear Plant), ALAB 524, 9 NRC 65, (continued...)
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Staffs review of pending applications for license amendments and similar such relief requested by Petitioners.u Perhaps in recognition of the questions concerning the timeliness of their request and the absence of any regulation expressly authorizing the very broad relief sought, Petitioners do not cite 10 C.F.R 6 2.788 other than acknowledging that the four stay factors of 10 C.F.R 6 2.788(e) are related to the traditional standards established by the federal judiciary for granting a stay. Stay Motion at 3. The Staff concurs that, absent special circumstances such as those discussed in n.2, supra, Petitioners' stay request, seeking in part to prevent the issuance of a Shoreham POL pending review of the NY Agreement by the New York Court of Appeals, is governed by the four stay factors of 10 C.F.R. f 2.788(e), which incorporate the general legal criteria for granting stay requests. See generally Virginia Petroleum Jobbers Ass'n. v. F.P.C., 259 F.2d 921, 925 (D.C. Cir.1958); H'ashington Metropolitan Area Transit Comm'n. v. Holiday To;;rs,559 F.2d 841,843-44 (D.C. Cir.1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CL190 3,31 NRC 219, 257 (1990).
F(... continued) 68 69 (1979). Petitioncrs have not filed or indicated they will file the requisite timely appeals, and their extraordinary request for stay relief may therefore be denied on this ground alone.
u While the Commission has indicated that the scope of 10 C.F.R. f 2.788 is broad by declining to define or limit the phrase " decision or netion" as used in the rule, 42 Fed. Reg. 22128,22129 (May 2,1977), the title of that regulation indicates that the provision pertains only to actions of NRC adjudicatory Boards.
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Petitioners Fail To Show That They Will Suffer Irreparable Harm Absent A Stay Of the four stay factors governing the granting of a stay request, the need to show irreparable harm is the most crucial one. Seabrook, supra, 31 NRC at 258.
If no irreparable harm is established, "a strong showing would need to be made on the remaining stay factors in order for any stay to be granted." H. at 260. Cf. li'est Chicago, supra, 31 NRC at 269 ("[a]bsent a finding of irreparable injury, one seeking a stay must show that a reversal of the decision under attack is not merely likely, but a virtual certainty") (footnote omitted). First, Petitioners argue they will suffer irreparable harm under the Atomic Energy Act, 42 U.S.C. $ 2011 et seq. ('AEA*),
if the NY Agreement "is ultimately declared void by the New York Court of Appeals.* Stay Motion at 1516. This argument is based on the assertion that should the New York Court of Appeals declare the NY Agreement void, Petitioners would be deprived of their AEA right to nuclear generated electricity from Shoreham, because Shoreham's reconversion to an operational nuclear power plant would not then be practical or legally posible. Id. While the AEA does establish policies to " encourage widespread participation in the development and utilization of atomic energy" (42 U.S.C. ! 2013(d), se.: also 42 s 2013(c)), it hardly gives a right to electricity generated from a particular nuclear plant.
Petitioners' argument fails for several other reasons as well.
First, it is conjecture to suppose that the New. York Court of Appeals will overrule the
6-intermediate appellate courts and declare the NY Agreement void.U Second, it is conjecture to assume that the New York courts will find any defects that the parties to the NY Agreement would not be able or willing to correct. See CLi 9102, supra, slip op. at 10. Third, it is conjecture to assume what IJLCO's decision will be concerning plant operations if the NY Agreement is voided. Fourth, the asserted problems with the hypothetical Shoreham reconversion envisioned by I'etitioners are conjecture based on no more than vague fears of what regulatory actions may or may not be taken in the future, in short, Petitioners' argument that they will suffer irreparable harm under the AEA absent the requested stay is based on conjecture and provides no basis for granting the Stay Motion.
Petitioners also argue that they will suffer irreparable harm under the National Environmental Policy Act,42 U.S.C. 6 4321, et seq. ("NEPA), absent the requested i
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stay. Stay Motion at 1619.F Contrary to Petitioners' arguments (Stay Motion at u in addition to affirming the lower court decisions, the New York Court of Appeals may take any number of actions, including remanding some or all of the cases for further proceedings. Since there are separate cases being reviewed (albeit with many similar issues), each of which may be ruled on differently, the number of potential outcomes is quite large. Petitioners in the state cases generally allege that the NY Agreement violated New York constitutional and statutory laws, including the State Environmental Quality Review Act, and that it involved abuse of the state's rate making powers. See Citi: ens For An Orderly Energy Po!!cy, Inc v. Cuomo, 559 N.Y.S. 2d 381 (A.D. 3 Dept.1990); J. &nneth Dollard v. Long Island Power Authority, 559 N.Y.S. 2d 381 (A.D. 3 Dept.1990); and Nassau Suffolk Com? actor' Ass'n., Inc. v. Public Service s
Comm'n., 559 N.Y.S. 2d 393 (A.D. 3 Dep;.1%0).
v Petitioners cite Illinois Commeke Comm'n. v. l.C.C., 848 F.2d 1246 (D.C. Cir.
1988), as a basis for questioning the need to show irreparable harm when a stay request is based on an alleged NEPA violation. Stay Motion at 16. The cited opinion merely (continued...)
7 17), the Commission's decision not to require NEPA consideration of the environmental impacts of Shoreham replacement plants at this time was not only based on the NY Agreement's validity, but was also based on federal case law that private, non federal actions, even though they may later lead to federal actions subject to NEPA, do not of themselves trigger NEPA requirements. Sec CLI.91-02, supra, slip op. at 7 9 and Natural Resources Defense Council v. EPA, 822 F.2d 104, 127131 (D.C. Cir.1987) and Edwards v. First Butk of Dundec,534 F.2d 1242 (7th Cir.1976), cited in CU 9102, supra, slip op. at 9.
Even if the New York Court of Appeals voids the NY Agreement, such a decision would not change the private, non federal nature of LILCO's determination not to operate Shoreham.
The conclusion Petitioners reach, "that they would suffer irreparable harm to their interests under the AEA and NEPA, each independently, if the requested stays are not granted, Stay Motion at 19, is not supported by their arguments or by the F(... continued) refers to statements made by 1.C.C. counsel as to what the I.C.C.'s practice is regarding the issuance of stays pending 1.C.C. resolution of environmental concerns raised by intervenors. 1.CC, supra, 848 F.2d at 1260.
The opinion provides no support for Petitioners' argument that irreparable harm need not be shown here.
Petitioners also argue that the Commission should presume irreparable harm "and proceed to a balancing of the equities under the judicial test." Stay Motion at 1617.
Massachusetts v. It'att,716 F.2d 946 (1st Cir.1983), is cited in support of this argument.
The cited opinion reflects that bott. the appellate court and the federal district court whose decision was affirmed specifically found that irreparable harm would occur absent issuance of a preliminary injunction and, that other criteria comparable to the stay factors of 10 C.F.R. 6 2.788(e) also supported issuance of a preliminary injunction. II'att, su;,ra, 716 F.2d at 95153. Petitioners provide no additional argument supporting their.cosition, and the Commission should accordingly adhere to 10 C.F.R. f 2.788 and its decisions applying the rule.
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8-facts of this case. Accordingly, the Commission should find that this stay factor is not met.
Petitioners F.all To Sig3 They Are Likelv To Prevail On The Merits 2.
t The only argument Petitioners make to show they are likely to prevail on the merits, which is not addressed above, is a discussion of mathematical probabilities associated with appeals in New York.
Stay Motion at 22 25.
There is no substantive discussion of the merits of the New York appeals, and it is admitted that an evaluation of the substantive likelihood of the New Lk Court of Appeals reversing the lower appellate court decisions, which uphold the NY Agreement to close Shoreham, is "beyond the ken" of Petitioners' counsel. Id. at 24
- Instead, Petitioners rely on probability calculations based on general case statistics contained in the 1989 report of the New York Court of Appeals' Clerk, but fall to explain what relevance these statistics have to the substantive merit of the cases in New York,U let alone what relevance these statistics have to this proceeding, it can safely be said that the New York Court of Appeals considers each case on its own merits without any regard to how many reversals it has handed down in any given year. Plainly, without having some knowledge of the merits of the state appeals, Petitioners' statistics are meaningless. The strained argument, based not on the
-merits of the state appeals, but on questionable statistical extrapolations (Stay U These interconnected cases share many of the same questions of law. It is thus not sorprising that the New York Court of Appeals, once it decided to review one of the cases, would decide to review all of them. See n.6, supra.
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9 Motion at 22 25), does not demonstrate any likelihood of success on the merits of the cases before the New York Court of Appeals.
Tne Commission has determined that pending court proceedings do not present a ground to stay Commission action even where the court's decision might affect the Commission's actions or proposed actions. Thus, in Consumers Power Co. (Midland Plant, Units 1 and 2), CL176-19, 4 NRC 474, 475 n.1 (1976), the Commission refused to instruct the Licensing Board to stay its consideration of issues pending Supreme Court consideration of petitions for certiorari (which could affect the proposed licensing action).
In Uranium Mill Licensing Requirements, CL1819, 13 NRC 460,461 n.4 (1981), a party's stay request was denied even though petitions to review the NRCs licensing requirements under the Uranium Mill Tailings Radiation Control Act of 1978 wcre pending before a federal court of appeals. In Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB 395, 5 NRC 772, 780 81 (1977), the Appeal Board emphasized that the grant of certiorari petitions by the Supreme Court provides no basis in itself to stay agency action, as it would not alone provide a sufficient basis to stay a lower court ruling.
Accordingly, the Commission should find that Petitioners have failed to establish any likelihood of success under 10 C.F.R. 5 2.788(e)(1), and that this stay factor has not been satisfied.
O
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. 3.
Harm To Other Parties Petitioners argue that the requested stay, if granted, would not result in cognizable harm to the other parties.F However, the stay, if granted, would bring to a halt all Shoreham licensing actions currently before the Commission and its Staff, pending a decision on the merits in the New York courts of the NY Agreement's validity -- a matter not even subject to the Commission's jurisdiction.
A stay of indeterminate length such as requested by Petitioners would further add an undesirable degree of uncertainty to NRC decisionmaking. To that extent, such a stay harms the NRC regulatory process.
4.
The Public Interest Regarding the public interest stay factor,10 C.F.R. I 2.788(e)(4), Petitioners' arguments (Stay Motion at 27 28)W recognize the delay inherent in granting their F Petitioners argue the harm to other parties issue at pp. 45,2527 of their Stay Motion.
The cases there cited, owner than l'7tginia Petroleum.lobbers, supra, and Washington Metropolitan Area Transit Commission v. Holiday Tours, supra, do not even involve stay requests. Power Reactor Development Co. v. International Union, 367 U.S.
396, 414-15 (1961), discusses tl.e well established rule that the amount of licensee investment in a nuclear plant.is not a proper consideration in deciding whether to issue an operating license. Calven Cliffs' Coordinating Committee v. A.E.C., 449 F.2d 1109, 1111112 (D.C. Cir.1971), involved the remand of a rulemaking implementing NEPA.
Union of Concemed Scientists v. N.R.C., 880 F.2d 552, 554 (D.C. Cir.1989), deals with the application of the "backfit rule",10 C.F.R. E 50.109.
W The cases there cited do not support Petitioners' arguments in this regard. For example, in the case that is quoted from (Stay Motion at 28), Hamilton li' arch Co. v.
Benms li'atch Co., 2% F.2d 738 (2nd Cir.1953) ("Benrus"), affidavits and hearing testimony supported the movant's contention that it would be irreparably harmed absent issuance of a preliminary injunction, and the balancing of hardships there was limited to considert, tion of the harm the other party would sustain under the requested preliminary injunction. Id. at 739, 743. The public interest issue is not discussed there.
(continued...)
. broad stay request, but urge the Commission to "have confidence" that the New York Court of Appeals will soon reach a decision on the merits. Id. at 28. Any number of delays, including remands and decisions not reaching the question of the NY Agreement's validity, could occar before New York's highest court settle.c the question of the NY Agreement's validity. Moreover, this question of validity is not relevant to the Commission's duty under the AEA to ensure that Shoreham, in whatever mode it is in, remains radiologically safe for its workers and the surrounding public.
Accordingly, because none of the four 10 C.F.R. 5 2.788(e) factors discussed above favors granting the stay requested, the Commission should deny Petitioners' Stay Motion.
B.
Comity Concerns Do Not Justify Granting Petitioners' Stav Reauest Petitioners argue that, as a matter of comity, the Commission should stay further administrative proceedings pending state court review of the NY Agreement's valic"t,. day Motion at 12-13. But the Shoreham licensing actions and Commission decisions in these proceedings are not predicated on a question of state law; they are predicated on LILCO's decision not to operate Shoreham.
See CLI 90-8, 32 NRC 201, 207 08 (1990) and CLI 91-02, supra, slip op, at 7 9.
While the NY Agreement may have provided a motivation for LILCO not to operate Shoreham,
- (... continued)
Moreover, Benms is cited by Holiday Tours, supra, in the context of the court's explanation regarding its move away from the use of a stay standard " incorporating a wooden ' probability' [of success on the merits] requirement" (559 F.2d at 844), the type of stay standard Petitioners rely so heavily on. Stay Motion at 22 25.
I 1
12 that agreement was not subject to Commission review, just as the administrative proceedings Petitioners seek to stay are not subject to review by the New York Court of Appeals. Even in situations involving review by federal appellate courts of Commission or NRC Staff decisions, requests to stay the administrative actions pending appellate review have been denied. Afidlaruf, ALAB 395, 5 NRC at 781, sets out the United States Supreme Court doctrine that the mere grant of a petition for certiorari does not act to stay the effect of lower court decisions, and on that basis denies a request to suspend licensing board proceedings pending Supreme Court teview of related fuel cycie matters. Uranium Afill Licensing Requirements, CLI 819,13 NRC 460, 461 n.4 (1981), denied a stay request predicated on the
- round that review of the NRCs licensing requirements under the Uranium Mill Tailings Radiation Control Act of 1978 was pending before a federal court of appeals. Here, even though the Commission was aware of the New York state court's having granted leave to appeal from the lower state court decisions at the time it issued its most recent Shoreham licensing decision, the Commission saw no need to discuss any comity concerns. CLI 9102, supra, slip op. at 10 n.2.
The decisions Petitioners cite do not support their comity argument, and were I
j based on circumstances inapposite to those here. Kaiser Steel Corp. v. II'.S. Ranch l
l Co., 391 U.S. 593, 593 94 (1968), was a case involving water rights filed in federal court under diversity of citizenship jurisdiction, and its resolution required the interpretation of provisions in New Mexico's state constitution. The Court reversed i
the federal appellate court's refusal to stay the federal case pending resolution by l
the New Mexico courts of-the state law issues, as those issues formed the crux of I
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the entire case.1d. Similarly, Railroad Commh. of Texas v. Pullmtut Co.,312 U.S.
496, 497 99 (1941), involved an interpretation of a Texas statute upon which the
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state railroad commission based its discriminatory order affecting passenger trains in Tex.'s. To avoid prematurely deciding federal constitutional questions, the Court ruled that the Texas state courts must first be given the opportunity of interpreting i
the state statute before federa! interpretation of that statute would be proper. Id.
A statement in flagans v. Em'ine, 415 U.S. 528, 548 (1974),W explaining the rationale of the above illustrated rule governing pendent state law claims, is cited by Petitioners in support of their comity argument, Stay Mo..on at 13, but Petitioners fail to explain how the NY Agreement's validity can fairly be viewed as a " pendent state law claim" in this proceeding.
Petitioners fail to establish that comity concerns justify granting their requested stay, and the Stay Motion should accordingly be denied.
Ill. CONCLUSION Having failed to establish (a) that any of the four stay factors of 10 C.F.R. 6 2.788(e) welgh in favor of ganting the requested stay and (b) that comity concerns L
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w The case involved a New York State regulation affecting the distribution of I
federal funds under the Aid To Families With Dependent Children welfare program.
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Hagans, supra, 415 U.S. at $30 31.
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justify granting the requested stay, the Commission should deny Petitioners' Stay
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Motion.
Respectfully submitted, J m T. Hull Counsel for NRC Staff Dated in Rockville, Maryland this 25th day of March,1991 l
l 1
UNITED STATES OP AMERICA M@'D NUCLEAR REGULATORY COMMISSION
'91 MTR 25 P3 3B EEFORE THE COMMISSLQN In the Matter of
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LONG 1 AND LIGHTING COMPANY
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Docket Nos. 50 322
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50-322 OLA (Shoreham Nuclear Powel
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50 322 OLA 2 Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFP RESPONSE TO PETITIONERS' I
JOINT MOTION TO STAY" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by double asterisks, by express mail, this 25th day of March,1991:
Morton B. Margulies, Chairman
- James P. McGranery, Jr., Esq."
Administrative Judge Dow, IAhnes & Albertson Atomic Safety and Licensing Board Panel 1255 23rd Street, NW, Suite 500 U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555 Stephen A. Wakefield, Esq.
General Counsel Jerry R. Kline*
U.S. Department of Energy Administrative Judge Atomic Safety and Licensing Board Panel 1000 Independence Ave., SW i
U.S. Nuclear Regulatory Commission Room 6A245 Washington, DC 20555 Washington, DC 20585 W. Taylor Reveley, Ill, Esq.'
George A. Ferguson Donald P. Irwin, Esq.
Administrative Judge 5307 Al Jones Drive Hunton & Williams Columbia Beach, MD 20764 707 East Main Street P.O. Box 1535 Richmond, VA 23212
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2-Nicholas S. Reynolds Gerald C. Goldstein, Esq.
David A. Repka Office of the General Counsel Win > ton & Strawn New York Power Authority 1400 L Street, NW 1633 Broadway Washington, DC 20005 New York, NY 10019 Stanley B. Klimberg, Esq.
Office of the Secretary' (16)
Executive Director and General Counsel Attn: Docketing and Service 1.ong Island Power Authority U.S. Nuclear Regulatory Commission 200 Garden City Plaza, Suite 201 Washington, DC 20555 Garden City, NY 11530 Atomic Safety and Ucensing Board Samuel A. Cherniak, Esq.
Panel' (1)
NYS Department of 12w U.S. Nuclear Regulatory Commission Bureau of Consumer Frauds and Washington, DC 20555 Protection 120 Broadway Adjudicatory File' (2)
New York, NY 10271 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Carl R. Schenker, Jr., Esq.
Washington, DC 20555 O'Melveny & Meyers 55513th Street, NW Atora:e Safety and Licensing Appeal Washington, DC 20004 Panel' (6)
U.S. Nuclear Regulatory Commission Washington, DC 20555 t
- f. Hull
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C nsel for NRC Staff 1
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