ML20076N179
| ML20076N179 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/25/1991 |
| From: | Coleman W LONG ISLAND POWER AUTHORITY, O'MELVENY & MYERS |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20076N173 | List: |
| References | |
| OLA, NUDOCS 9103280181 | |
| Download: ML20076N179 (28) | |
Text
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43
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UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION 91 cm 2S P3 25 BEFORE THE COMMIf:SION
- in u #i ua. <
@)(,h{ $i fl3 h ' N II tdi m.h In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322
)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
)
OPPOSITION OF THE LONG Z8MND POWER AUTHORITY TO JOINT MOTION FOR STAY .
The Shoreham-Wading River Central School District
("Sff9CSD") and Scientists and Engineers for Secure Energy, Inc. (jointly " petitioners") have moved the Nuclear Regulatory Commission ("NRC" or " Commission") to stay all Commission proceedings and Staff reviews concerning "pending applications for license avendments, exemptions, and other forms of permission" related to the Shorehau Nuclear Power Station, Unit 1 ("Shoreham"). (Sag Petitioners' Joint Motion to Stay or Vacate License Issuance and Other Matters
'(dated March 8, 1991) ("Jt. Motion"), pp. 1-2.) Petitioners have not specifically identified all activities mov3ht to be stayed, but their inotion expressly embracas "various applications" filed by the Long Island Lighting Company
("LILCO") anfa by the Long Island Power Authority ("LIPA") .
(Id., p. 13.)
@ 32002'31 910323 g ADOCK 05000322 PDR
?
LIPA vigorously opposes this frivolous motion in its entirety and particularly as it relates to joint
. applier. cions by LILCO and LIPA and to applications by LIPA alena. Petitioners have shown no justification whatever for the proposed stay, and LIPA urges the NRC to deny it and to proceed ex 2ditiously with Shoreham-related matters.*
In brief, the Joint Motion is simply another phase of petitioners' continuing crusade against the closure of Shoreham. The Joint Motion is not even based on new developments. The grant of review by the New York Court of Appeals (" Court cf Appeals") was known to, and remarked upon by, the Comnission in its Memorandum opinion and order CLI-91,-02 (dated Feb. 22, 1991) ("CLI-91-02"), where the Commission rejected the same arguments for delay that are raised-sgain here in the Joint Motion. (Egg Part I below.)
Petitioners have not sought a stay pending appeal from the state courts in New York; hence, the relief petitioners seek from tha NRC is forbidden, act requiral, by principles of
" comity." _(Egg Part II below.) Contrary to petitioners' repeated assertions, the validity of the 1989 Settlement Agreement _is D2t essential to questions that have been or will be resolved by this Commission. (Egg Part IV below.)
_?f the commission considers that the 10-page limits cf 10 C.F.R. 5 2.788 apply to the Joint Motion and oppositions thereto, LIPA respectfully requests leave to exceed the page limit in view of the length of petitioners' motion.
2
I-Moreover, LILCO's opposition to the Joint Motion, filed today, strongly reaffirms its intention never to operate Shoreham, even in ~che unlikely event that the Settlement Agreemant is invalidated. Thus, granting the requested stay would accomplish nothing, while conflicting with the considered policy of New York State and seriously prejudicing th: HRC and the public interests it regulates,
/ALO., LIPA, and Long Island ratepaywra. . (533 Parts III and V h 'vw.)
I. THE JOINT NOTION SIMPLY RERA8HE8~ ARGUMENT 8 FOR DELAY ALREADY REJECTED BY THIS COMMISSION.
.The NRC is well aware of the motivation for, and nature of, petitioners' scorched-earth campaign to frustrate the orderly conduct of Shoreham-related activitfas before l the Commission. Shoreham represents 90 Dercent of the i
SWRCSD's tax base,* and the longer petitioners succeed in i delaying transfer of the Shoreham license to LIPA, the more tax revenues SWRCSD will collect. !As N.Y. Pub. Auth. Law S .
i 1020-q(1) (McKinney Supp. 1990). As the Commission recently i
stated concerning petitioners' strategy,'in its February 7,
-1990 brief to the U.S. Court of Appeals for the District of Columbia Circuit:
S.gg SWRCSD Petition for Leave to Intervene and Request for Prior Hearing (dated Sept. 20, 1990), p. 20.
3
- ~ . ,
e f
Petitioners' real quarrel is not with anything the NRC has' done or not.done but rather with LILCO's decision to give up'its long fight to bring the Shoreham nuclear '
plant into service . . . . Hoping somehow to reverse-that decision or at least make it more painful, petitioners are now trying to block LILCO's efforts to reduce the burdens of maintaining.a facility it no-longer intends to operate. . ~. . Petitioners' effort to make.the NRC an ally in a campaign to pressure LILCO
'into changing its mind is misguided. 1 (Brief for Respondents in No. 90-1241 (dated Feb. 7, 1990),
- p. 23.)
Petitioners' campaign is. renewed here with shomecrn arguments that~ the Commission's processing - of shoreham-related applications, "especially the issuance of (a)' possession only license" (" POL *) , would violate supposed rights of petitioners under the Atomic Energy Act of 1954 i
.("AEA"), 42 U.S.C. 5 2C11 et sea., and the National Environmental Policy Act of'1969 ("NEPA"), 42 U.S.C. 5 4321 et seg. (Jt. Motion, pp. 3-4.) The Commission itself already has-issued three major opinions rejecting such arguments.- (ESA Memorandum and Order CLI-90-08, 32 NRC 201
" (1990);I"CLI-90-00"); Memorandum and Order CLI-91-01 (dated Jan.-24,;1991) ("CLI-91-01"); CLI-91-02.) :In addition, the Atomic Safety and Licensing Board has twice-determined that l.
[ petitioners'have failed-to identify any litigable contention under either the AEA or NEPA.'
Lona Island Liahtina-Co. (Shoreham Nuclear Power '
l- Station, Unit.1), LBP-91-1, 33 NRC (Jan. 8, 1991); Lono (continued...)
4
The supposed justification for petitioners' renewed requests for delay is the February 19, 1991 action of the Court of Appeals. On that date, the court granted review in three closely related cases presenting overlapping challenges to the Settlement Agreement whereby LILCO agreed not to operate Shoreham and to sell the plant to LIPA for decommissioning. (Jt. Hetion, p. 20.)'
But the action of the Court of Appeals in granting review clearly is not new matter. In the Commission's most recent rejection of petitioners' arguments for delay, the NRC specifically noted that leave to appeal had been granted in the two cases reported at Citizens for an orderly Enerav Policy. Inc. ("COEP") v. Cuomo, 159 A.D.2d 141, 559 N.Y.S.2d 381 (App. Div. 1990). (Eng CLI-91-02, p. 10 n.2.) The Commission squarely rejected the notion that the NRC's Shoreham-related activities should be brought to a standstill by the continued pendency of legal challenges in
- (... continued)
Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC (Mar. 6, 1991).
The three cases in which review has been granted are intimately intertwined. Two of the matters were resolved in a single opinion by the Appellate Division.
These were citizens for an orderly Enerav Policy. Inc.
("COEP") v. Cuomo and Dollard v. LIPA, both reported at 159 A.D. 141, 146, 559 N.Y.S.2d 381, 383 (App. Div. 1990)
(" claims raised in each proceeding are essentially the same"). The third case was decided the same day by the same appellate panel in a three-page decision relying substantially upon the decision in COEP/Dollard. Egg Nassau Suffolk Contractors' Ass'n v. Public Service Comm'n, 559 N.Y.S.2d 393 (App. Div. 1990).
5
New York. (Id., p. 15 ("cny leaal challenge to the agreement itself appears properly to lie in the New York courts") (emphasis in original).) The Joint Motion shows no basis whatever for the Commission to reverse field and stay its Shoreham-related activities pending outcome of the litigation in the court of Appeals.
II. THE JOINT NOTION IMPROPERLY SEEKS RELIEF FROM THE NRC WOT REQUESTED IN NEW YORK AND ASES THE NRC TO ACCORD LE88 WEIGHT TO THE APPELLATE DIVISION DECISION 8 TRAF DO THE COURT 8 OF NEW YORK.
Incredibly, the remedy sought from the NRC -- a stay during New York appellate proceedings -- was never even sought in New York, the logical place to vindicate rights claimed under New York law. Both LILCO and LIPA were parties to the COEP v. Cuomo cases. But petitioners sought no stay of LILCO/LIPA actions implementing the Settlement Agreemant (1) while the matter was pending before the Appellate Division, (2) while leave for appeal was sought from the Court of Appeals, (3) nor after grant of the leave to appeal.5 It is highly incongruous for petitioners to seek from this Commission relief that they have not even attempted-to apply for at any stage of the New York appellate proceedings.
5 Injunctive relief was sought at the trial-court level, but denied. Sag COEP v. Cuomo, 159 A.D.2d at 151, 559 N.Y.S.2d at 386. This aspect of the matter was not appealed, nor was a stay pending appeal cought at the Appellate Division level.
6
i In this regard, without explaining their failure l
to seek such relief at the Appellate Division level, petitioners claim that injunctive relief condente lite would not be available I' rom the Court of Appeals. (Jt. Motion,
- p. 2 n.2.) But petitioners fail to support this claim.
Their assertion is premised upon snippets quoted from a McKinney's Practico Commentary by Professor David D. Siegel.
(1d.) In fact, petit.'.oners have misrepresented the thrust of Professor Siegel's comments.
Far from concluding that injunctive relief cannot be had during the pendency of a matter before the Court of Appeals, Professor Siegel concludes that such relief should be available:
It is doubtful that CPLR 5518 was intended to bring on (the) irrational results (of making injunctive relief unavailable from the Court of Appeals). . . . 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 filtance in respect of the provisional remedies, s - luding the injunction and restraining order of
, ticle 63. . . . 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 Division, as an arm of the Supreme Court, should be deemed to have the power while the case is on 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 remedies during the possibly prolonged pendency of an appeal.
7
s + a - - . > .
7 i:t n.-
c N.Y. Civ. prac. L. & R. C5518:1 (McKinney 1978) (attached).'
It thus appears _that petitioners may well have had a remedy at the court'of Appeals.
But even if petitioners are correct that the Court of Appeals could not grant a stay of activities pursuant to the Settlement Agreemunt, it still would be highly inappropriate for this commission to stay its Shoreham-related-activities pending the outcome of the appeals. If petitioners-are correct about the powers of the court of
-Appeals, then New York has determined as a matter of its appellate policies that, without regard to equitable considerations, the Settlement Agreement will be treated as valid and= effective cendente lite. It is also black istter
~ 1aw-that the decisions of the Appellate Division in the Shoreham cases are res iudicata despite the pendency of a further appeal. 133 Restatement (Second) of Judgments $ 13
. &' Comment f-(1982). Thus, there is no conceivable basis for this Commission to accord less weight to the Appellate
~ Division decisions than do the courts of New York State.
l, l
l-The' Joint Motion is predicated entirely on the concept thatsthe NRC should, as a matter of comity, defer to the New York courts on questions as to the validity of the
- Petitioners claim to have attached this Commentary to ~ the Joint Motion (Jt. Motion, _ p. 2 n.2) , but it was omitted from the copy served on LIPA.
8
Settlement Agreement. (Jt. Motion, pp. 1, 12-13.) If comity is to be the guiding principle, the NRC can-hardly refuse to continue processing Shoreham-related applications when New York law treats the Settlement Agreement as binding and effective. Indeed, petitioners seek to create a situation in which the NRC is the 2nly forum not recognizing the res iudlanta effect of the Appellate Division decisions.
This would not be extending comity to the New York courts; it would be flouting the judgment of the Appellate Division and the supposed policy of New York precluding an injunction during proceedings in the Court of Appeals. Egg Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 500 (1941)
("[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies").
III. PETITIONERS' ABSTENTION AUTHORITIES ARE INAPPOSITE.
The foregoing section demonstrates that principles of comity forbid, rather than require, the entry of the requested stay. Even if this were not the case, the Joint Motion would independently suffer from another fatal defect
-- the entire concept of abstention on which the motion rests is inapposite.
Abstention cases seek to adjust the relationship between federal courts and state courts when both have 9
jurisdiction over the Rama question, so as to avoid unreliable interpretations of state law issues by federal courts. The NRC has not been called upon, nor will it be, to resolve the controversy concerning the Settlement Agreement. To the contrary, the Comnission has specifically eschewed any intention to develop an independent view on the state law dispute, simply noting the " current status" of the Settlement Agreement and observing that "any leaal challenge to the agreement itself appears properly to lie in the New York courts." (CLI-91-02, p. 15 (emphasis in original).)
By thus declining to become embroiled in those questions of New York law, the Commission has fully effectuated any conceivable obligation of federal administrative agencies under principles of comity. The NRC is not further obliged to allow the pendency of litigation in the New York courts to bring to a halt the Commission's own business of reviewing applications properly before it, none of which turn on the validity of the Settlement Agreement. (Eng
- p. 16 infra.)
Petitioners cite no authority for the proposition that abstention principles foreclose a federal administrative agency from processing technical applications made under its authorizing statute simply because those applications implement policies which are being challenged, thus far unsuccessfully, in related litigation in state courts. Lacking authorities, petitioners simply assert that this result should follow "a fortiorari" (sic) from the 10
l-principles governing judicial abstention. (Jt. Motion,
- p. 12.) Petitioners are plainly incorrect.
As a federal regulatory agency, the NRC is ubliged to exercise active supervision over the regulatory matters within ita jurisdiction and to control its regulatory agenda and is not subject to "wholesalo transplantation" of rules "which have evolved from the history and experience of courts." FCC v. Pottsville Broadcastina Co., 309 U.S. 134, 141-43 (1940). Hence, federal agencies do not routinely defer their proceedings pending the outcome of related cases. Egg, gxgt, United States v. Kordel, 397 U.S. 1, 11 (1970) (FDA did not stay civil proceedings pending criminal trial).
If accepted, petitioners' abstention contentions would strip the NRC of control over its calendar and transfer such control to litigants and courts all over the country, with deleterious results for the public health and safety. For example, the Commission has recognized the importance of formulating decommissioning plans shortly after the cessation of operations. Egg 53 Fed. Reg. 24,018, 24,024 (1988). Operations have ceased at the Shoreham plant and, consistent with its existing rights under New York law, LIPA has presented a comprehensive decommissioning plan (which LILCO also has asked the NRC to review). Yet, according to petitioners, the NRC may not continue with 11 1
timely processing of that plan merely because of the oossibility that the Court of Appeels will reverse the Appellate Division. The petitioners' approach would hobble the NRC in a fashion that would be entirely inconsistent with the regulatory mandates imposed by Congress.
73
- - Evidence that federal agencies cannot be tied into knots by the pendency of litigation in state courts also is provided by the NRC's own practice. The NRC does not routinely grant a stay of its proceedings during the pendency of either an administrative appeal or an appeal to a United States Court of Appeals on issues within the NRC's own jurisdiction. Egg, g2g2, Lona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1619 (1985) ; Uranium Mill Licensina Recuirements, CLI-81-9, 13 NRC 460, 461-62 & n.4 (1981); Public Service Co. of New Hameshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10, 13-14 (1976). There would be even less reason to stay the NRC's ongoing proceedings due to an appeal of a state law issue falling outside the NRC's cognizance.
IV. THE VALIDITY OF THE SETTLEMENT AGREEMENT IS NOT A PREREQUISITE FOR ONGOING NRC ACTIVITIES.
There is yet another fatal defic!ency afflicting the Joint Motion, especially insofar as petitioners focus principally on LILCO's application for a POL. petitioners 12
4 assert that, in CLI-90-08, CLI-91-01, and CLI ^1-02, "[t]he Commission has consistently recognized that the validity of the Settlement Agreement is the essential basis" for the Commission's Shoreham-related activities. (Jt. Motion,
- p. 10 (emphasis in original).) In this regard, the Joint Motion plainly misrepresents the relevant Commission decisions, attributing a false significance to the Settlement Agreement.
First, the NRC's fundamental holding in rejecting petitioners' previous bids for delay has not been the status of the Settlement Agreement, much less its " validity," but rather the lack of federal action in LILCO's decision not to operate Shoreham. (Egg 32 NRC at 207-08; CLI-90-02, pp. 7-9.) The validity or invalidity of the Settlement Agreement is irrelevant to that fundamental holding. Whatever the reason for LILCO's decision not to operate Shoreham, that decision did not constitute federal action. Moreover, invalidation of the Settlement Agreement would not change LILCO's decision. LILCO has today filed an opposition to the Joint Motion which emphatic.-11y states that LILCO intends never to operate Shoreham as a nuclear facility, no matter what the outcome of the cases before the Court of Appeals. Thus, even if the Settlement Agreement should fail for some reason, Shoreham would remain closed and in need of 13
e prompt decommissioning as a result of non-federal initiatives.'
z It is only under the Commission's " alternative" holding in CLI-90-08 concerning the NEPA " rule of reason" that the validity of the Settlement Agreement would have any relevance whatever. (ERR 32 NRC at 208.) Even in that I
regard, however, the Commission's prior decisions did not rely solely upon t.he validity of the Settlement Agreement; i
in fact, CLI-90-02 expressly acknowledged the action of the Court of Appeals in granting review. The Settlement t
' Agreement simply was cited as one factor among the many I
factors indicating that operation of Shoreham is not a Petitioners claim that the validity of the Settlement Agreement deteenines "whether LILCO even haa the 6
ability te make an application for decommissioning." (Jt.
F- Motion, p. 12; gan id., pp. F, 10, 25.) This assertion is
[ premised on a sentence qucted from CLI-90-02 (p. 9). As the
= NRC is well aware, however, it le LIEA that will seek E approval of a decommissionina plant presumably CLI-90-02 was j intended to indicate that "'but fot4 the decision (of LILCO) s not to operate Shoreham, (LIPA) would not be able to seek permission to decommission the facility." (CLI-90-02, p. 9.)
obviously, LIEh would not be in a position to submit a decommissioning plan for Shoreham if the Settlement
__ Agreement or some similar arrangement did not exist. By contrast, however, LILCo has un unfettered right to determine whether and when operations at Shoreham will cease
- in favor of decommissioning. (32 NRC at 207 ("the NRC lacks r authority to direct a licensee to operate a licensed F facility"); id. ("LILCo is legally entitled under the Atomic L Energy Act and our regulations to make, without any NRC E7 approval, an irrevocable decision not to operate g, Shoreham").) Thus, it is clear that the validity of the Settlement Agreement could not possibly be relevant to LILCO's ability to submit a decommissioning plan to the
- Commission, i
I E
V E
reasonable alternative required to be considered under NEPA.
.(32 NRC at 208-09; CLI-91-02, pp. 9-10.)
The opposition in New York to operation of Shoreham remains fundamental and broad based, and it is obvious that other mechanisms would-be sought to assure the-closure and decommissioning of Shoreham if the court of Appeals invalidated the settlement Agreement as presently -
formulated. Now, as before, consideration of_the supposed alternative of operating Shoreham as a nuclear power facility requires numerous layers of speculation, clearly setting that possibility outside the bounds of the NEPA
-. " rule of reason" on grounds entirely independent of the l
validity of the Settlement Agreement.
a F V. PETITIONERS AL80 FAIL TO SATISFY THE TRADITIONAL REOUInuwwuT8 FOR IS8UANCE OF 1 STAY.
- p. .
The Joint Motion collapses entirely under the weight of the fundamental defects already discussed. In M ,
addition to those defects, however, petitioners have failed h'
to demonstrate satisfaction of the traditional four-part test for granting a motion for stay.
l i
>l L
L i
L 15 s
A. Petitioners Have Not Demonstrated A Likelihood Of Prevailino on The Merits.
Petitioners' omnibus motion to stay numerous, mostly unspecified, Commission activities never comes to grips with the likely merits outcome of any decision that this Commission will be called upon to make. For example, petitioners make no showing that, on the merits under the AEA, LILCO is not entitled to a POL. Instead of focusing on the merits of questions that will be before this Commission, petitioners focus solely on the alleged likelihood that the New York Court of Appeals will invalidate the Settlement Agreement as a matter of New York law. Such a step, however, would not lead to the conclusion that LILCO is not entitled to a POL. Nor would invalidation lead to the conclusion that the Shoreham license should not be transferred to LIPA under appropriate alternative arrangements. Nor would invalidation change the merits of the decommissioning plan submitted by LIPA in December 1990.
Since petitioners have-completely failed to show that they are likely to prevail on any question to be considered by the NRC, there is no basis for the NRC to suspend the orderly conduct of its activities.
Even if it would suffice to show that the court of Appeals is likely to invalidate the Settlement Agreement, petitioners have not done so. In fact, petitioners admit 16 1
4 that they have not even attempted to show a likelihood that the Court of Appeals will reverse a unanimous five-judge panel of the Appellate Division on the law and facts specifically applicable to the issues actually raised before the Court of Appeals regarding Shoreham. (Jt. Motion, pp. 24-25.)*
Instead of addressing the merits of the New York appeals, petitioners' argument on the likelihood criterion is confined to meaninglesa derivations of mathematical probabilities that are completely divorced from the particular cases involving Shoreham. The absurdity of petitioners' approach is underscored by their assertion that the closely intertwined cases decided on a single day by the same panel of the Appellate Division (ang p. 5 supra) should be treated as independent variables in the already far-fetched exercise of relying on generalized statistics to guide the equitable powers of the Commission. Such gimmickry could not possibly sustain issuance of a stay.
Notably, the standard applied by the Court of Appeals for granting motions for leave to appeal involves
" novel (ty)" and "public importance," not alleged error in the decision below. Egg McKinney's New York Rules of Court 5 500.11(d) (1) (v) (1991) (22 N.Y.C.R.R. 5 500.11(d) (1) (v) ) .
17
B. Petitioners Have Not shown Irreparable Iniury.
Petitioners' perfunctory efforts to establish the
-threat of irreparable injury are equally unavailing. This failing alone is critical given the importance of the irreparable injury requirement. Public Service co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-90-03, 31 NRC 219, 258 (1990) (irreparable injury is the "most crucial" i
factor) (citation omitted). 4 I
First, petitioners contend that they have " rights under-AEA to the benefits of nuclear generated electricity from Shoreham." (Jt. Motion, p. 15.) Petitioners cite no authority:for this extraordinary contention, and the Commission has already rejected it. (32 NRC at 207 ("LILCO is legally entitled'under the Atomic Energy Act and our regulations to make, without any NRC approval, an irrevocable decision not to operate Shorehara") . )
With respect to NEPA, petitioners contend that the Commission "should presume" potential irreparable harm from the alleged violation of their rights under NEPA. (Jt.
Motion, pp. 16-17.) But the Commission already has rejected the contention that NEPA has been violated by any action taken to date, and there plainly is no basis to issue a stay to protect NEPA rights concerning NRC activities that are not.even underway.
18
p l
Absent a stay, such rights as petitioners have under the AEA or NEPA will be fully preserved. All Shoreham-related applications will be processed in compliance with NRC regulations which will fully protect the substantive and procedural rights of all interested persons, including petitioners.
C. The Balance of Equities Precludes Issuance Of A Stav.
I Even if a showing of probable success on the merits and irreparable harm had been made, a stay still would be. improper if it "would have a serious adverse effect on other interested persons." Vircinia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). This is clearly a situation where the balance of equities would preclude issuance of a stay even if petitioners' showings were far less deficient than they are.
The Commission is well aware of the very substantial expenses presently being incurred by LILCO to maintain Shoreham in a non-degraded state. After nearly 15 months of NRC review, the anticipated issuance of a POL offers the prospect of substantially reducing those costs.
Staying issuance of the POL until final decision by the Court of Appeals would-perpetuate the imposition of these costs on LILCO's ratepayers, contrary to the desires of the 19 I__
ratepayers, LILco, LIPA, and New York State. Similarly, delay in processing the joint LILCO/LIpA application for license transfer and LIPA's decommissioning plan would increase the cost of decommissioning.
Petitioners cavalierly dismiss these massive delay costs on the grounds that LILCO will be made whole by ratemaking and that economic losses are "' disparaged'"
injuries. (Jt. Motion, p. 26. ) But there is no one to make the ratecaveta whole, and the injury imposed on them by wasted expenditures are palpable and irreparable.'
Moronver, in exercising its equitable discretion, the Commission is hardly required to disregard the effect that a stay would have in imposing millions of dollars of needless costs on Long Island ratepayers. Egg PhiladelDhia Electric C2 (Limerick Generating Station, Units 1 & 2), ALAB-808, 21 NRC 1595, 1603 (1985) ("(f]or stay purposes," the NRC has "taken into account the economic harm that an applicant might suffer if a stay of its license is granted").
Consideration of the costs that would be imposed on ratepayers by the requested stay is particularly appropriate in the circumstances presented here. Despite The New York Legislature has determined that the entire Long Island area is prejudiced by ongoing Shoreham costs. Ese N.Y. Pub. Auth. Law S 1020-a (excessive electricity rates have caused "a serious threat to the economic well-being, health and safety" in the Long Island service area of LILCO).
l 20
l petitioners' repeated invocations of supposed environmental concerns, it is clear that the underlying motivation of the SWRCSD in seeking delay before the NRC is purely economic to maintain Shoreham as an element of its tax base.
(Eng p. 3 gypIg.) But that interest cannot be preferred over the interest of ratepayers in achieving reductions in Shoreham costs. The Legislature of the State of New York has specifically determined that the broad economic interests of the Long Island ratepayers are to be put ahead of SWRCSD's narrower interests. Egg N.Y. Pub. Auth. Law 6 1020-q (addressing payments to SWRCSD) . This Commission should be significantly influenced by the policy decisions of the New York Legislature in exercising its equitable discretion. Egg Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-86-12, 24 NRC 1, 5 n.2 (1986) (in weighing equities, the NRC took account of
" Congress' special concerns").
Moreover, as already suggested, delay in the NRC's processing of Shoreham-related applications is contrary to the NRC policy of making provisions for decommissioning as soon as possible after the cessation of operations.
Contrary to petitioners' apparent belief, the NRC does not have a roving mandate to advance the general public interest. Egg, gas., NAACP v. FPC, 425 U.S. 662, 669 (1976)
("use of the words 'public interest' in a regulatory statute is not a broad license to promote the general public 21
welfare," but "take(s) meaning from the purposes of the regulatory legislation"). Rather, the NRC has a mandate to assure public health and safety from radiological hazards at Shoreham. -It would 'oe inconsistent with that mandate for the Commission to defer processing of applications seeking to assure prompt decommissioning of a non-operating plant at
.? the behest of these petitioners, who persist in raising n
frivolous arguments in favor of delay.
n, 4
22
.t-i t.
CONCLUSION i
For._the foregoing reasons, petitioners' Joint Motion should be denied forthwith.
Respectfully submitted,
_ ! -6 L
.Of counselt 1111am T. Coleman ,/'Jr.
Carl R. Schenker, Jr.
Stanley B. Klimberg O'MELVENY & MYERS Executive, Director and 555 13th Street, N.W.
General Counsel .
_W ashington, D.C. 20004 Richard.P. Bonnifield (202).383-5360 Associate General Counsel
--LONG~ ISLAND POWER AUTHORITY = Nicholas S. Reynolds 200 Garden City. Plaza- David A. Repka
- Garden City,-NY 11530 WINSTON & STRAWN (516) 742-2200 1400 L Street, N.W.
Washington, D.C. 20005 (202)_371-5726 Counsel for the Long Island Power Authority Dated: March 25, 1991 23
5518 APPEALS-GENERALLY Art. 55 a
s 5518. ereuminary injunction or temporary restraining order by appellate division The appellate division may grant, modify or limit a prelimi-nary injunction or temporary restraining order pending an ap-peal or determination of a motion for permission _to appeal in any case specified in section 6301.
L.1962, c. 308.
Historical Note Derivation. C.P.A.1920. I 880. C.P. t Fleid I'mlel lMM. A 31x.
C.C.P.1876, ) 606 amended L.1013
- c. 112.
Practice Commentaries by David D. Siegel C5518:1, Preliminary Injunction from Appellate Division.
This statute gives the Appellate Division the power to grant, modify, limit and presumably vacate either a preliminary in-junction or a temporary restraining order while the case is on appeal (i. e., after a notice of appeal has been served), or while a motion for permission to appeal is pending (f. e., after the motion papers have been served). In effect, it gives the Ap-pellate Division during the appeal stage the same powers that
-the Supreme Court has during the action's pretrial and trial stage. The application is governed by Article 63, ine'.uding the restriction that the injunction is permissible only in the situations set forth in CPLR 6301.
This is a carry over from prior law, inserted into the Ad-visory Committee's work product after it had been submitted to legislative committees. See 5th Rep. Leg. Doc. (1961) No.
15,p.654. It comes from i 880 of the old Civil Practice Act.
The language of CPLR 5518 would suggest that it applies regardless of the court in which the appeal is pending. From another aspect, it would seem to apply'only when the appeal la pending in the Appellate Division, since its injunctive powers are conferred on that court. The latter is apparently what the Legislature stated to be its intention. Old 6 880 specifically afforded the Appellate Division these powers whether the case was on appeal to it or to the Court of Ap-peals. The omission of the Court of Appeals suggests that the power to effect preliminary injunctiona is to apply only when the appeal is at Appellate Division level. This would in turn suggest that once the case is on appeal to the Court of 178
o I.' .
., Art. 55' APPEALE--GENERALLY 5518 Appeals, neither the Appellate Division.nor the Court of Ap-peals can affect the injunction during the pendency of the appeal, and it would also seem that the trial court cannot do so at this' stage either. See Ahern v. McNab,18 Misc.2d 899, 189 N.Y.S.2d 816 (Sup.Ct. Queens 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 v'e to conclude that the modification is precluded because no court mn entertain it?
A sounder argument, though not clearly the law, is that as soon as an appellate court's jurisdiction is invoked-any appel-late court's-that court should be deemed to stand in the posi- ,
tion of the court of original instance in respect of the pro-visional remedies, including the injunction and restraining order of Article 63. If. that is the rule, then CPLR 5518 is superflucas. Certainly civil practice would be better off with-out it. When one juxtaposes CPLR 5518 with its avowed model, Civil Practice Act 6 880, it is difficult to perceive how ;
the one could give rise to the other. If, during the appellate stage of a case, the appellate coun is without power to affect the provisional remedies, then the trial court should be deemed-to retain such power during the appellate process; Alterna- _;
tively, the Appellate Division, as an arm of the Supreme Court, should be deemed to have the power while the case is on appeal
- to it or to the Court of Appeals. Rejecting all of these alter-natives would be to hold the judiciary impotent L supervise the often . drastic provisional remedies during the pcssibly pro . ,
longed pendency of an appeal.
These conclusions are the more compelling when one con-siders 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 dur-ing all of the appellate stages of the case would frustrate the r purpose of Article 63 altogether. CPLR 5518 obviously does not intend that.
Nothing contained.in CPLR 5513 should be confused with the stay provisions of CPLR 5519. The latter is concerned with suspending enforcement of the order or judgment being appealed, an4 in the sense -that a r,tay of the enforcement -
keeps status quo there is some analogy to the Article 63 in-junction and therefore some tendency to confuse the two.
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s.
t UNITED STATES OF AMERICA
( , NUCLEAR REGULATORY COMMISSION g(ID BEFORE THE COMMISSION 91 Wa 25 P3 :45
)
In the Matter of ) .J6!u s< ' Ji 1/d
) WI ' % .? ' ' M IDNG ISLAND LIGHTING COMPANY ) Docket No. 50-322"*'
)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
. )
NOTICE OF &FighPJQLQ3 Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R. 5 2.713(b), the following information is provided:
Name: - Carl R. Schenker, Jr.
Address: - O'Melveny & Myers 555 13th Street, N.W.
Washington, D.C. 20004-1109 Telephone Number: -
(202) 383-5360 Admission: - U.S. Supreme Court U.S. Court of Appeals, D.C. Circuit U.S. District Court, District of Columbia District of Columbia Court of Appeals Name of- Party: - The Long Island Power Authority Respectfully submitted, OC ,
Carl R., Schenker, Jr/
O'MELVENY L MYERS /
555 13th Street, N.W.
Wanhington, D.C. 20004-1109 (202) 383-5360 March 25, 1990
e i
, t e :i b REBIIFICATE OF SERVICE 2*#
91 nm 2$ p3 25 Pursuant to the service requirements of 10 C.F.R.
,, . ' ta IherebycertifythatonMarch$.fE5,[339X'I'g 5 2.712 (1990),
served the accompanying Opposition of the Long Island Power Authority to Joint Motion to Stay, Notice of Appearance., and transmittal letter via Courier upon the following, except where otherwise indicated:
Commissioner Kenneth M. Carr The Honorable Samuel J. ChilK Chairman The Secretary of the Commission Nuclear Regulatory Commissi n Nuclear Regulatory Cmamissien One White Flint North Building One White Flint North Building 11555 Rockville Pike 11555 Rockville Pike .
Rockville, Maryland 20852 Rockville, Maryland 20852 Commissioner Kenneth C. Rogers Atomic Safety ar.d Licensing appeal Nuclear Regulatory Commission Board one White Flint North Building U.S. Nuclear Regulatory Commission 11555 Rockville Pike Washington, D.C. 20555 Rockville, Maryland 20852 (First Cl:ss Mail)
Commissiorier James R. Curtiss Administrative Judge Nuclecr Regulatory Commission Morton B. Margulies, Chairman One White Flint North Building Administratfve Judge 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 Washington, D.C. 20555 (First Class Mail)
Commissioner Forrest J. Remick Administrative Judge Nuclear Regulatory Commission Jerry R. Kline One White Flint North Building Atomic Safety and Licenslag Board 11555 Rockville Pike U.S. Nuclaar Regulatory Commission
-Rockville, Maryland 20852 Washington, D.C. 20555 (First Class Mail)
Michael R. Deland, Chairman Administrative Judge Council on Environmental Quality George A. Ferguson Executive Office of the President 5307 Al Jones Drive 722 Jackson Place, N.W. Columbia Beach, Maryland 20764 W2shington, D.C. 20503 (First Class Mail)
(First Class Mail)
t'
+
Stephen A.'Wakefield,=Esq. Donald P. Irwin, Esq.
General. Counsel- Counsel, Long Island-Lighting U.S.-Department of Energy Company Forrestal Building Hunton & Williams
-1000 Independonce Avenue, S.W. 707 East Main Street Washington, D.C. 20585 Richmond, Virginia 23212 (First Class Mail) (Via Federal Express)
Edwin J. Reis, d.4 Gerald C. Goldstein, Esq.
Deputy Assistant General Counsel Office of the General Counsel for Reactor Licensing Power Authority of State of New U.S. Nuclear Regulatory Commission York One White Flint North 1633 Broadway 11555 Rockville Pike New Y mk, New York 10019 Washington , . li. C . 20852 (Via F6'9ral Express)
James P. McGranery, Jr. Samuel A. Cherniak, Esq.
1 Dow,-Lohnes.& Albertson NYS Orgartment of Law 1255 23rd Street, U.W.- Bureau of Consumer Frauds and Suite 500 Protection Washington, D.C. 20037 120 Broadway New York, New York 10271 (Via Federal Express)
Regulatory Publications Branch Division of~ Freedom of Information
&-Publications' Services Office of Administration U.S.' Nuclear Regulatory Commission Washington, D.C. 20555 (First-Class Mail) i [' , (
l /V/ b671 Carl R. Schenker, Jr. // '
O'Melveny & Myers 555-13th Street, N.W.
Washirgton, D.C. 20004 DATED: March 25, 1991 2
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