ML20070M085
| ML20070M085 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/08/1991 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, LONG ISLAND LIGHTING CO., SCIENTISTS & ENGINEERS FOR SECURE ENERGY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#191-11516, CON-#191-11517, CON-#191-11518 OLA, OLA-2, NUDOCS 9103210053 | |
| Download: ML20070M085 (40) | |
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/ / 5/ y UNITED STATES OF AMERICA 00LKLIE0 N
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION '91 MR ~9 A6 48 a nt iu i*,
) *' '
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket Nos. 50-322
) 50-322-OLA, and (Shoreham Nuclear Power Station, ) 50-322-OLA-2 Unit 1) )
)
PETITIONERS' JOINT MOTION TO STAY OR VACATE LEENSE ISSUANCE AND OTHER MATTERS _
Pursuant to the Nuclear Regulatory Commission's ("NRC" or " Commission") inherent authority to exercise its discretionary supervisory authority to stay the Atomic Safety and Licensing Board ("ASLB") and NRC Staff actions, its power to provide interim equitable relief, and its duty to abstain from deciding crucial state law issues as a matter of comity, Shoreham-Wading River Central School District (" School District".) and Scientists and Engineers for Secure Energy, Inc. ("SE2 ") (jointly "Potitioners") jointly move the Commission, in the above-captioned proceedings, to (a) stay or, if issued, vacate the issuance of a possession only license for the Shoreham Nuclear Power Station, Unit 1 ("Shoreham"), to the Long Island Lighting Company ("LILCO") ,M (b) stay further proceedings by the ASLB, l i
i 1/ While the NRC Staff's final no significant hazards consideration determination is not subject to a " petition or
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i other request for review" by the Commission, the rules do not !
l appear to bar such review of an NRC Staff determination "the amendment should be issued." Comoare 10 C.F.R. 5 50.58(b)(6) 1 (1990) Elih 10 C.F.R. 5 50.91(a)(4) (1990).
9103210053 910308 PDR ADOCK 05000322 f:C 0 PDR)
e , snd (c) stay further NRC Staff review of pending applications for
]! cense amendments, exemptions, and other forms of permission, pending decision on the merits of the three appeals currently pending before the New York Court of Appeals contending, inter alia, that the LILCO/New York State Settlement Agreement was made and approved in violation of law and is, therefore, void.U Sag 2/ Such action by this Commission is ell the more necessary because such relief is not available from the New York Court of Appeals or the ASLB. The New York Court of Appeals appears to lack the power to preliminarily enjoin or temporarily restrain the parties from implementing the Gettlement Agreement pending appeal.
While all New York State courts have statutory authority to Etay "all proceedings to enforce the judgment or order appealed from pending the appeal," a " stay" of the judgments below (" petitions dismissed") would not prevent LILCO and the other parties to the Settlement Agreement from proceeding. CPLR $ 5519. Only the trial court (" Supreme Court") and the intermediate appellate courts (" Appellate Division") have statutory authority under the Civil Practice Law and Rules ("CPLR") to grant temporary restraining orders and preliminary injunctions pending judicial decision of the cause. CPLR 56 5518 (Appellate Division) & 6311 (Supreme Court). Now that the New York Court of Appeals has granted appellants' motions for leave to appeal, neither the Supreme Court nor the Appellate Division have jurisdiction to act. Professor David D. Siegel has described this situation as
" irrational" while recogni:ing that it is "apparently what the legislature stated to be its intention". McKinney's Civil Practice Law and Rules, C5518:1 (1978 ed.) (attached).
l The New York Court of Appeals' lack of jurisdiction to issue a temporary restraining order or preliminary injunction is further confirmed by a comparison of the rules of the U.S. Supreme Court and the New York Court of Appeals. Supreme Court of the United States Rules 20 and 23 recognize and further l implement its statutory authority to take auch actions; the rules l of the New York Court of Appeals lack any reference to such l jurisdiction. McKinney's 1991 New York Rules of Court Parts 500-530 (22 NYCRR Parts 500-530). Petitioners have been unable to l find any decision of the New York Court of Appeals addressing this issue. Such relief is not available from the ASLB because the ASLB created by the Commission in Docket Hos. 50-322-OLA and 50-322-(continued...) t . I l Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-86-12,.24 HRC 1, 4-5 (1986). I. THE STANDARD FOR A STAY, Traditionally, the Commission has considered four factors in ruling on a motion for stayt (1) whether petitioners will suffer 1 irreparable harm without a stay; (2) whether , petitioners are likely to provail on the merits; (3) whether other interested parties would not be substantially hnrmed by a stay; and (4) whether the public interest supports a stay. Viroinia Petroleum Jobbers Ass'n. v. F.P.C., 259 F.2d 921, 925 (D.C. Cir. 1958);- Washincton Metropolitan Area Transit 22E21ssion v. Holiday Tour.A, 559 F.2d 841, 843-44 (D.C. Cir. 1977). Uranium Mill Licensina Recuirements, CLI-81-9,.13-NRC 460, 463 (1981) (footnote omitted); also, agg 10 C.F.R. $ 2.788 (e) (1990) . For the reasons described below, Petitioners submit that: (1) absent a stay, they willEsuffer irreparable harm to their interests under both the Atomic-Energy Act.of 1954, as amended ("AEA"), and the National Environmental Policy Act of 1969, as amended ("NEPA") because actions taken in furtherance of
- the decommissioning of Shoreham, especially the issuance of l
2/ (... continued) OLA-2 has previously rejected requests for procedural relief' requested by Petitioners and indicated that such requests should be made to the Commission itself. Lono Island Lichtino Co., (Shoreham Huclear Power Station, Unit 1), ASLBP No. 91-621-OLA, Memorandum and Order of November 19, 1990 (Slip Op. at 8-11).
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possession only license (and further actions premised on that license), would be irreversible and irretrievable commitments of resources irreparably harming those interests; (2) Petitioners are likely to prevail on the merits before the NRC because there is a 79.5-83.4% probability that the ; New York State Court of Appeals will find that the essential premise of the Commission's past and pending decisions in the above-captioned matters (namely, the validity of the settlement Agreement) is legally null and void and, in any event, the mere granting of leave to appeal in not one but all three cases attacking the validity of the Settlement Agreement satisfies the Commission's alternative statement of the standard as "a showing of a substantial question regarding its validity," since the New York Court of Appeals exercises its discretion to review civil cases sparingly to consider only "important" questions: the probability of gng such leave to appeal being granted is only about 11.5% and, thus, the probability of leave to appeal being granted in all three instances involving different legal issues is about 0.15% (13 NRC at 463 n.7); (3) the only substantial harm that may be alleged by other interested parties is, in the case of LILCO and other New York entities, the economic cost of maintaining of Shoreham, I which is not a permissible consideration in licensing decisions under the AEA (gigt, Power Reactor Develonment Co. v. International UnioD, 367 U.S. 396, 414-15, 815 Ct. 1529, , 6 L.Ed.2d 924, 936 (1961)) or NEPA (ggg Calvert Cliffs' s _ -m-si.-n- .m m. Fr e4 -emgL, e -pn 3 y e g -+&m mrfww-s 1
1 a Coordinatina Committee. Inc. v. U.S.A.E.CA, 449 F.2d 1109, 1115 (D.C. Cir. 1971)); such costs are in any event " disparaged" injuries under yirainia Petroleum Jobbers (ggg Holiday Tours, 559 F.2d at 843 n.2); and, in the case of the NRC Staff, an interest in expediting licensing proceedings, which is not a cognizable interest of a governmental agency under NEPA (id.) or the AEA (Holiday Tours, supra); and (4) the public interest in assuring that the Commission's premise (i .e. , the validity of the Settlement Agreement) for all of the decisions taken thus far (and proposed in the future) is indeed legally valid, demands that the Commission pause and allow review of this crucial state law issue (the validity of the Settlement Agreement) by the highest court of New York pursuant to its discretionary decision to review all three attacks on the validity of that Settlement Agreement. Holiday Tours, 559 F.2d at 843 ("The interest of the Commission .
. . is largely the same as that of the general public in having legal questions decided on the merits, as correctly and exceditiousiv as cossible." (Emphasis added)).
II. BACKGROUND Described below are (a) the Settlement Agreement, (b) three recent Commission decisions with-respect to LILCO operating license proceedings for Shoreham and (c) the three civil suits challenging the validity of the Settlement Agreement which are new in the highest court of the State of New York, the New York State Court of Appeals. A. The Settlement Acreement On February 28, 1989, LILCO and New York State (by its Governor, Mario M. Cuomo) signed a settlement agreement intended, among other things, to lead to the decommissioning of Shoreham and the construction of new fossil-fueled electric generation facilities on Long Island. That agreement'was to become
" effective" only after approval of the agreement and the Asset Transfer Agreement by the New York-Public Service Commission
("NYPSC") And approvals by the Broads of Trustees of both Long Island Power Authority ("LIPA") RDd the Power Authority of the State of New York ("NYPA"), as well as approvals by the Board of Directors and a majority of the shareholders of LILCo. The final such approval was provided by the shareholders of LILCO on June 28, 1989 At a meeting with NRC officials in Region I on June 30, 1989, LILCO announced its intention- not to operate Shoreham and to pursue the-plan for the decommissioning-of Shoreham including-its transfer to LIPA, all-premised upon the Settlement Agreement. Since that time, LILCO has sought and the NRC has granted a series of license amendments,-license exemptions and l other permissions which do not enhance the operability or use of 1 Shoreham as a nuclear power electric generation. facility and have j I i I
i l i i no utility independent of the proposal to decommission Shoreham-in accordance with the Settlement Agreement. B. The NRC's Premise for the Various Forms of-Pe rmi s s ion .-
- 1. In Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-90-08, 32 NRC 201 (1990), the Commission explicitly relied on the February 28, 1989 Settlement Agreement stating that it "became ei'fective on or about June 28, 1989" and that the actions taken by LILCO in " agreeing _to the Confirmatory order and seeking the license amendments described above" were taken "in accordance with the settlement agreement,"
finding that "the State of New York has not. indicated any intention to abrogate the settlement agreement.," and concluding
"(flinally, an-intermediate New York state court has recently issued an opinion upholding.the legislature's actions and the Settlement Agreement." 32 NRC at 204-205 (citation and footnote omitted). Later in that opinion, the Commission also recognized-l that "(i)t is fair to state that these actions would-likely not I
have been proposed but for LILCO's decision not to operate the facility" as required by the Settlement Agreement. 32 NRC at 207.F
- 2. In Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1) CLI-91-01, 33-NRC =-- (Slip Op. January 24, 1991), the Commission again reviewed-the " background" of its af And CLI-90-08.
l i t decision, stating anong other things, that the Settlement Agreement "also provided that LILCO would not operate Shoreham as a nuclear power plant" and required LILCO "to sell the Shoreham facility to the Long Island Power Authority ('LIPA'), an entity ; created by the Now York Legislature for the express purpose of acquiring and decommissioning Shoreham." CLI-91-01, Slip Op. at l
- 3. ;
- 3. In Lona Island Lichtina Co., (Shoreham ,
Nuclear Power Station, Unit 1) CLI-91-02, 33 NRC (Slip Op. ! February 22, 1991), again as part of the background the l l Commission said: "The Commission determined that the decision j not to operate Shoreham was a non-NRC action which did not , require an EIS under NEPA. CLI-90-08, 32 NRC at 207-208." CLI-91-02, Slip Op. at 2-3. The Commission described one of { Petitioners' claims as a claim that the NRC " violated the APA by ; taking ' judicial notice' of the validity of certain facts surrounding the Shoreham Settlement Agreement. Pet.. at 25- ; ! 2 7 . "I' CLI-91-02, Slip Op.. at 3. In Section V.A of that opinion , (" Analysis"), the Commission determined that (a)'"(i)t may be true that 'but for' the decision not to operate Shoreham, LILCO l would not be able to seek oermission'to decommission the , f acility. (Slip Op. at 9 (emphasis 1added) and (b) "[i]n this case, we-see no indication that either LILCO or'the State of-New
.In-fact, Petitioners' argument may be more fairly described A/
as being that the Commission should not rely on the validity of the Settlement Agreement until state-judicial review has-finally- -!. determined whether the Settlement Agreement is valid or void. r
f York plans to disavow their agreement not to operate Shoreham. I At this time, such an action would appear highly speculative at best." Slip Op. at 10. i While the Commission recognized that leave to appeal had been granted by the New York Court of Appeals in 2DA of the , i three state court actions contesting the validity of the agreement (Slip Op. at 10 n.2), the Commission said: , If we thoucht that the carties nicht reoudiate their agreement and favor a return ! to operation, we nicht not have made such a i findina." Id. And finally, the Commission said in rather delphic fashion: the fact that the parties to the settlement agreement have the ability to set the agreement aside does not prevent us from , recognizing its_ current status. Similarly, , there is no reason why we should not take notice of the current status of any legal challenges to the agreement. In sum, while , the petitioners may dispute the wisdom of the ' agreement, any leoal challenge to the agreement itself appears properly to lie in the New York courts. l CLI-91-02, Slip Op. at 15 (emphasis in original). The Commission also determined: As a threshold matter, petitioners have not , i even alleged that our recitation of the facts , l is not correct. Simply put, the existence of ? the settlement agreement is 'a matter beyond " reasonable controversy' and is ' capable of l immediate and accurate determination by resort to easily accessible sources of indisputable accuracy'. Government of virain Island v. Gereau, 523 F.2d 140, 147 (3d (sic) ; Cir. 1975) , cert. denied, 424 U.S. 917 (1976) I (citations omitted). -
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r i CLI-91-02, Slip Op. at 14-15.I' The Commission has consistently recognized that the - validity of the settlement Agreement is the essential basis for LILCO's proposals, and the Commission's approval, of license ; amendments, exemptions and other forms of permission leading to , the decommissioning of Shoreham. b C. The Status of the Three State Court Challenges to the Settlement Acreement.
- 1. In the matter of Citizens for an Orderly Enerov Policy, Inc., et al. (including the School District) y2 Mario Cuomo et al., 559 N.Y.S.2d 381 (A.D. 3 Dept. 1990), the Appellate Division affirmed the Supreme Court's dismissal of the petition against the Governor, LIPA, NYPA and LILCO, alleging that the Settlement Agreement (1) required LIPA and NYPA to exceed their statutory authority, (2) violated separation of ;
powers, (3) violated due process, (4) violated equal protection, } I and (5) was approved in violation of the New York Open Meetings ' l Law. The NYPSC is an intervenor-respondent in this; proceeding. Motion for leave to appeal was denied by the Appe?. late Division. l 5/ The Gereau decision also recognized that " facts" which are
- l properly the subject of judicial: notice according to the .
standards described above are, concommitantly, " subject to. I rebuttal." 523 F.2d at 147 n.17. In this motion, petitioners ' l set _forth facts rebutting the Commission's presumption of validity of the Settlement. Agreement and argue that-the NRC should not make decisions based on that presumption before the New York Court of Appeals has resolved the issue of whether the ! I settlement agreement is valid or void, on the merits. i i 10 w e-r- m- ec .e,- ,aee <---,n -wn,- - .,w- awr. ww e an
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4
- 2. In the matter of J. Kenneth Dollard et al. y.
i Lono Island Power Authority et al. (including SE 2), 559 N.Y.S.2d 381 (A.D. 3 Dept. 1990), the Appellate Division dismissed the petition after transfer from the Supreme Court. The issues in j this proceeding include those raised in citizens for an orderiv Enerav Poliev and add the allegation that LIPA, NYPA, NYPSC and the Governor entered into the settlement arrangement without consideration of the <nvironmental impact statement required f the State Environmental Quality Review Act ("SEQRA"). The U.S. Department of Energy is an intervenor-petitioner in this case. > Motion for leave to appeal was denied by the Appellate Division.
- 3. In the matter of Nassau Suffolk Contractor's Association Inc. et al. (including the School District) y2 Public j Esrvice commission et al., 559 N.Y.S.2d 393 (A.D. 3 Dept. 1990),
the Appellate Division dismissed the petition after transfer from the Supreme Court. Petitioners in this proceeding challenge the NYPSC approval of the Settlement Agreement and its approval of ; the proposed Rate Moderation Agreement on the basis of violations of the SEQRA, of petitioners' procedural due process rights, and-of their statutory rights to a full hearing under the New York - Public Service Law. They also allege-that the PSC exceeded its-statutory. authority by coercing LILCo into-abandoning Shoreham ; through the use of its rate making powers.- -
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- 4. on February 19, 1991, the New York Court of
- Appeals in an exercise of its discretion granted leave to appeal ,
in all three of these state court matters. As discussed below in - l
greater detail, such motions are seldom granted (in 1989, about 11.5% of such motions were granted) and, when granted, often result in reversal (41%) or modification (4%) of the judgment below. III. THE DOCTRINE OF COMITY REQUIRES THE COMMISSION TO ABSTAIN FROM FURTHER PROCEEDINGS PENDING REVIEW OT THE VALIDITY OF THE SETTLEMENT AGREEMENT BY THE NEW YORK COURT OF APPEALS. In its various decisions, the Commission has recognized that the validity of the Settlement Agreement is fundamental to its processing of the various applications in furtherance of decommissioning including, for exsmple, whether the alternative of resumed operation should be considered in a NEPA analysis and whether LILCO even has the ability to make an application for decommissioning. That central issue of whether the Settlement Agreement is valid or void in whole or part, is now before the hignest court of the State of New York, involving a bevy of New York State law issues. The U.S. Supreue Court has determined that when there is a "truly novel" issue of " vital concern" to the State and "actually pending" in the courts of that state (thus assuring that " resolution willbe forthcoming soon"), the federal judiciary (and we suggest, a fortiorari, a federal agency) should stay : 1 federal proceedings pending the state court d lons. Kaiser Steel Coro, v. W.S. Ranch Co., 391 U.S. 593, L , 88 S.Ct. 1753, 1754 (1968). Those factors fit the facts of this case like a glove.
)
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If the NRC were to proceed on its assumption of validity of the Settlement Agreement, that would be only a
" tentative answer which may be displaced tommorow by a state ,
adjudication. . . . The resources of equity are equal to an adjustment that will avoid the waste of a t'entative decision . . l
" Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed.2d 971 (1941). Since the commission is able to stay its proceedings while awaiting a ;
definitive ruling from the New York Court of Appeals while fully 1 protecting the pendency of LILCo's and LIPA's various applications, the agency "should exercise its wise discretion by i staying its hands." Pul lma n Cp , 312 U . S . at 501, 61 S.Ct. at 645-46.
"(T]he rationale of (the rule governing pendent stat.e-law claims) centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with tht; controlling principals and the authority to render a final judgment." 1(aggns v. Lavine, 415 U.S. 582, 548, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577, 594 (1974).
i In short, all of the traditional considerationn require the NRC to stay and abstain from further proceedings in the above-captioned dockets as a matter-of-comity until the New York court of Appeals has resolved the " crucial," "truly noval," and 1
" vital" issue of the validity of the Settlement Agrecatmt under ;
New York law. l i
i IV. THE REQUESTED STAYS ARE APPROPRIATj,ANQ_dCCESSARY. j i i As indicated above, the four factors which'the- : Commission considers in deciding whether to grant a stay as a l matter of its supervisory authority or its-power to provide , equitable relief are: <1) the likelihood of. irreparable harm l without a stay, (2) the likelihood that petitioners will prevail on the merits, (3) whether other interested parties would suffer - substantial harm from the stay, and -(4) whether there-is "a i further (public) interest, that precludes maintaining the status i gun while the merits are being decided on appeal." Holiday- ! Tours, 559 F.2d at 843. ) i As detailed below, Petitioners submit: (1) they would suffer irreparable ruoan to their interests under the AEA and NEPA f without a stayi (2) they are likely to prevail on.the merits of one or more of the appeals attacking.the validity.of the l Settlement Agreement in the New York State Court of Appeals, and l thus prevail on the merits before this Commission by voiding the keystone assumption (itg1,--the validity of thatLSettlement l Agreement) for the Commission's granting;offlicense amendments, examptions and.other forms of permission in the above-captioned i proceedings,-as well as the-fundamental predicate for its l decisions in - CLI-90-08, ~ CLI-91-01, and.CLI-91-02; _(3)' no other i party would suffer any' harm by a stay which is-cognizable under. NEPA and the AEA or Holiday Tours; and (4) there is no public. interest that precludes maintaining the status gun.while the' 'i l i I
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q merits of the validity of the Settlement Agreement are being f i decided by the New York State Court of Appeals. t And even if the Commission should determine that it i disayrees with Petitioners on one or two of these factors, the requested stays would still be'necessary and appropriate on a l balancing of all four factors.F Holiday Tours, 559 F.2d at 844. l A. The Petitioners will Suffer Irreparable Harm Without a Stav. j i Petitioners-seek in the above-captioned: proceedings to i protect their interests under both_the AEA and NEPA. l AEA. One of the principal purposes of the AEA and, j thus one of the principal responsibilities of the NRC-in ! l administering-that Act, is to conduct "a program for . . . the- i possession, use and production of atomic _ energy . . . so-directed- l as to make the maximum contribution-to-the common defense and ! security and national-welfare -"
. . -. . 42 U.S.C.12013 (c) (1988)' l l
(emphacir added). !
-Petitioners in the-above-captioned-proceedings seek to -
protect their. rights under AEA to the benefits of nuclear generated electricity from Shoreham. Unless the possession only- ! i 1/ No single one of the factors is, Eof-itself, necessarily { dispositive. Rather, the strength or weakness'of Petitioners' i showing on.a particular factor will determine how: strong his showing on the other factors must.be in order,to justify the j stay. Public Service'Co. of New-Hamoshire, (Seabrook Station, i Units 1 & 2), ALAB-338, 4 NRC 10 (1976). For' example, a strong-showing on the other three stay factors justifies-issuance of_a stay.even if Petitioner-totally fails -to show irreparable tuunn. 1 Egg, . Public Service Co. of New Hamoshire, (Seabrook Station, ! Units 1 & 2),-CLY-90-3, 31 NRC 219, 260 (1990). i i _..-.-,~ -, . . . . _ . _ _ . _ .... _ ._ ._.._. _ _ .. . . _ _....._.._.__.--.-__.2._.-. .-
l l l license and the above-captioned proceedings (including the i l granting of various further forms of permission to dispose of j that plant) are stayed, Petitioners would suffer irreparable harm to their interests under the AEA if the fundamental premise (the validity of the Settlement Agreement) of those actions is ultimately declared void by the New York Court of Appeals. Such irreparable harm would occur because the steps taken and proposed would have more than a substantial probability of proving irreversible and irretrievable. For example, Petitioners believe that at no time in the history of the NRC, or the predecessor Atomic Energy Commission, has a possession only license for a power reactor ever been reconverted into a full power operating license, as a practical matter. As a regulatory matter, the Commission's regulations do not even provide procedures for such a reconversion. In these circumstances, a reconversion may not be legally possible, and even if legally possible (treating such an application as a ngw application for a construction permit and l operating license), an irreversible decision may have been made since it would then be practically impossible to endure a repeat of the over 20 years of licensing proceedings required to issue the existing full power operating license. NEPA. First, it is qv. a4 ?Fble whether Petitioners seeking a stay on the basis of ali: +^ NEPA violations need show irreparable harm. Illinois CQmagree Comm'n. v. I.C.C., 848 F.2d 1246, 1259-60 (D.C. Cir. 1988). And if irreparable harm is'a
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4 4 necessary element, the commission should presume the existence of
" potential irreparable harm" and proceed to a balancing of the equities under the judicial test. Ep .onwealth of Mass. v. Watt, 716 F.2d 946, 952 (1st Cir. 1983).
In this case the Commission has already. confessed that:
" Petitioners' correctly point out that LILCO plans to replace Shoreham's generating capacity with fossil-burning units." CLI-91-02, Slip Op. at 7. The Commission's only reason for n21 considering that adverse and irretrievable impact was its reliance on the validity of the Settlement Agreement and its professed lack of authority to consider such adverse impacts of the Settlement Agreement. Id. at 8. If that Settlement Agreement is determined to be void by the New York Court of Appeals, but the Commission does not stay its actions relying on the alleged validity of that agreement in the interim, the incremental commitment of resources to.the proposed course of action ray make a subsequent Commission or judicial order to reconsider the decision of fruitless exercise.F Sierra club v.
Marsh, 872 F.2d 497, 500 (1st Cir. 1989). Absent a stay, Petitioners 8 NEPA interests would also be irreparably harmed. One of the principal issues. permeating the above-captioned matters, has been the Petitioners' contention 2/ It is well settled that such an irreversible commitment of resources without an adequate EIS constitutes irreparable harm to "a citizen's right to have environmental factors taken into account by the decision-maker. .New York, Natural Resources Defense Council. Inc. v. Kleggs, 429 U.S. 1307, 1312, 97 S.Ct. 4, 6-7, 50 L.Ed.2d 38 (1976) (Mr. Justice Marshall, in chambers).
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i 4 a that an environmental impact statement conzidering, among other . things, the resumed operation of Shoreham is required.F The i Commission has found that resumed operation is not a > reasonable alternative because of the i circumstances surrounding and leading to LILCO's decision . . . . If we thought the i parties might repudiate their agreement and i favor a return to operation, we might-not have made such a finding. CLI-91-02, Slip Op. at 10.- Given the New York Court of Appeals discretionary decision to grant leave to appeal in allfArg_q legal challenges to the Settlement Agreement, the issue is not whether the parties might " repudiate," " disavow," or " abrogate" , the Settlement Agreement, but whether the New York Court of , Appeals may find the agreement Egid. The effect on the Commission's decisions would be the same.
- In that event, the Commission's opinion in CLI-91-02 clearly indicates that the Commissian might find not only (a)
R/ The Commission's recognition'that it "might not have" found . l that resumed operation is "not currently a ' reasonable t l alternative' to be considered in NEPA review of the proposal to
- decommission Shoreham" if it had " thought that the parties might-repudiate their agreement in favor of return to operation" applies with equal force in the current situation where the ,
highest court of the State of New York may find that agreement is l void. CLI-91-02, Slip Op. at 10. 7 Thus, pursuing the current course when there is such a L significant probability that the Settlement Agreement will bo L found void would be pursuing-these licensing proceedings in violation of NEPA according to the Commission'c own interpretation of its responsibilities. In these circumstances, "there is a presumption that-injunctive relief should be granted against continuation of the action Cuomo v. U.S.N.R.C.,.772 F.2d 972, 976 (D.C. Cir. 1985).
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that an EIS including, among other things, the consideration of resumed operation of Shoreham was necessary, but also (b) that LILCO was without authority to seek the license amendments, exemptions, and other forms of permission granted and pending before this Commission, that is, that "but for" a locally valid Settlement Agreement "LILCO would not be able to seek permission to decommission the facility." CLI-91-02, Slip Op. at 9. For the foregoing reasons, Petitioners conclude that they would suf fer irreparable harm to their interests under the AEA and NEPA, each independently, if the requested stays are not granted. B. Petitioners are Likely to Succeed on the Merits. The Commission has recognized in three decisions, with ever increasing intensity and clarity, that the existence of th9 Settlement Agreement-with no reasonable-prospect of it being j undone has been the sine EMa n2D for the various forms of permissions given LILCO and for i<:s decisions in CLI-90-08, CLI-91-01, and CLI-91-02. In fact,-in CLI-91-02 the Commission said that: l , Petitioners also object to the-NRC taking
' notice' of the agreements between LILCO, LIPA and New York State. Pet. at 25-27.
However, the Petitioners hare failed to demonstrate why the Commission should not be able to take notice of those matters. As a threshold matter, Petitioners have not even alleged that our recitation of the facts is not correct. Simply put, the existence of l the Settlement Agreement is 'a matter beyond reasonable controversy' and is ' capable of g u
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immediate and accurate determination by resort of easily accessible sources of indisputable accuracy'. Government of virain IgJand v. Cfreau, 523 F.2d 140, 147 (3d (sic) Cir. 1975), cert. denied, 424 U.S. 917 (1976) (citations omitted). CLI-91-02, Slip Op. at 14-15. Assuming that " existence" is equivalent to " validity", in their Joint Petition for
- Reconsideration of October 29, 1990 (at 27), Petitioners questioned the Commission's reliance on the " Settlement Agreement" and its subsidiary agreements because "the fact that-an ' intermediate' New York state court has upheld the Settlement Agreement is hardly relevant to whether that agreement will l ultimatelv be found to be legal." (Emphasis added.)
Now the New York Court of Appeals has issued orders (attached) granting leave to appeal in not simply one of the i cases _ questioning the validity of the Settlement Agreement and j its inferior agreements, but all three actions attacking the legality of that agreement.2/ i Petitioners respectfully suggest that the significance of the New York Court of Appeals action in granting. leave to appeal was not known to the commission when.it issued CLI-91-02 } on February 22, 1991. Petitioners establish a likelihood of success on the merits on the both their AEA and NEPA claims in the above-2/ Petitioners submit that the grant of all three motions for leave to appeal constitutes much more than a showing of $ " possibility of legal error," gigt, Philadelohia Electric Co., (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-221, 8 AEC 95, 96 (1974). i
,- v w -1 '-
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captioned matters on the basis of (a) "a showing of a substantial question regLrding (the] validity" of the Commission's fundamental - numption in the these matters (i.e., the assumption of tha valla.' of the Settlement Agreement) and independent i showings of a (b) substantial and (c) mothematical probability , that the validity of that assumption will be ultimately held to be in error by the relevant court, the New York Court of Appeals. Uranium Mill Licensino Recuirements, CLI-81-09, 13 NRC 460, 463 & n.7. (1981); Alag agg, Holidav Tqurs, 559 F.2d at 844 (" tribunals may properly stay their own orders when they have ruled on an admittedly difficult question"). The showing of a " substantial question" or an
" admittedly difficult legal question" regarding the validity of the Commission's critical assumptionlof the validity of the Settlement Agreement is demonstrated by the granting of leave to appeal by the New York Court of Appeals in ADY 2Da of the three challenges to that settlement Agreement, and is made starkly apparent by the granting of leave to appeal in all three cases given both the standard applied by that court of Appeals in granting such notions and the infrequency with which such motions are granted.E' 12/ Given the significant doubt cast on the validity of the Settlement Agreement by virtue of the New York Court of Appeals grants of motions to leave to appeal, the public interest calls for the staying of further actions pursuant to the proposal to decommission Shoreham, since those resources spent in furtherance of decommissioning would have to be considered in any future cost-benefit analysis and, if substantial, could skew the cost-benefit analysis in-favor of the proposal to decommission over (continued...)
~ The New York Court of Appeals applies a standard for granting motions for leave to appeal similar to that applied by the U.S. Supreme Court to petitions for writs of certiorari. The motion must contain a " direct and concise argument showing why the questions presented scrit review by this Court, such as that ' they are novel or of publ.ic importance, or involve a conflict with prior decisions of this Court, or there is a conflict among appellate divisions." McKinney's 1991 New York Rules of Court i 500.11 (d) (1) (v) (22 H.Y.C.R.R. I 500.11(d) (1) (v)) . And the difficulty of the legal questions presented as well as the substantiality of the question of the settlement Agreement's validity is further reinforced by the rarity wrich the New York Court of Appeals grants such motions for leavJ to appeal. Relevant excerpts ftom the 1909 Annual Report (the most recent year available) of the Clert of the court of Appeals for the State of New York, at 4 ("12)S Annual ReggIt") show that the Court of Appeals granted only 11.5% of the 1,069 such notions , which it decided in 1989, approximately 123 motions granted.U/ And the substantiality of the legal issues as to the validity of la/ (... continued) ' the alternative of resumed operation. Ett, Kerr-McGee Chemical CSIpa, (West Chicago Rare Earth Facility), ALAB-928, 31 NRC 263, 268-69 (1990). __ 11/ The rarity of the granting of motions for. leave te appeal in the New York Court of Appeals is approxinately the same as the grants of petitions for writs of certiorari in the U.S. Supreme Court Over the ten year period 1980-89, the U.S. Supreme Court granted such petitions 8.4-13.4% annually, averaging about 11.16% annually. 104 Harg. L. Ety. 367 (November 1990).
't the Settlement Agreement is further reinforced by the extraordinarily low probability of all three motions for leave to 1 appeal being gran:ed the probability of that event is approximately 15/100ths of 14 (0.115 )3 . And even if the Commission does not consider that the mere granting of the three motions for leave to appeal establish-the substantiality or difficulty of the legal question as to the P Settlement Agreement validity, the substantial likelihood that Petitioners will be successful (obtain resorsal or modification of the judgment below) in one or more of those state court < appeals, should persuade the Commission to stay (itg2, defer further action on matters in the above-captioned proceedings.) Holidav Tours, 559 F.2d at 844 ("A mathematical probability of success" is not necessary). A substantial probability is demonstrated by a review of the statistics set forth in the 1989 Annual Reoorts of the 90 civil appeals allowed on nation for leave to appeal by the Court i of Appeals and subsequently disposed of by that court of Appeals in 1969, 40 resulted in reversal of the judgment below (41%), 4 resulted in "medification" (undefined) of the judgment below (4%) and 54% resulted in affirmance. 1989 Annual RecoII, at Appendices 1 & 5B. Thus, while this experience does not 4 dsmonstrate a mathematical probability of success in the Court of Appeals, if just one of the motions for leave to appeal had been granted, it does certainly raise a " substantial" probability of success in that court. This is emphasized by the fact that no l
1 i a other category of civil or criminal appeal to the New York Court of Appeals even remotely approaches that success rate. Id. And if the Commission is inclined to go yet furthsr, i and require a m_athematical probability of achieving reversal of the judgment below, the fact that the court has granted leave to appeal in all three cases satisfies a pure mathematical probability test of e.chieving a Irversal in at least enn of the three cases of with a reversal probability 79.5% (41% in one case, thus 1-0. 593 ) , a truly very high probability of success. And if one considers that the commission'c reliance on the validity of the Settlement Agreement and its subsidiary agreements cou~1d be invalid in the event of either reversal or nodification of one the judgments belcw, the chance of at least one of the three appeals resulting in reversal Er modificatica in 11211 (45% in one case, thus 1-0.55 )3 . Looked at from a different perspectivet since there is only a 54% chance of affirmance and a it chance of dismissal of the appeal in any one case, the mathematical probability of affirmance, or dismissal of the appeal in all three caseh is only 16.6% (0.55 3 ) , a very small probability that the settlement-Agreement will survive judicial review intact. ( petitioners recognize that an analysis of the legal l L issues presented by an expert in New York State law might result in a different, and non. mathematical, judgment of probability of success; but such a judgment is-certainly beyond the kan of undersigned counsel and, respectfully, beyond'the expertise of 1 t- .. .
_ - - . ~ _ . - - - . . - . . . . _ = - . _ . - . - . - . . - - . . _ . __ - _ - _ . ..- .- i . . I 1 this Commisolon. Baltimore cas & Electric Co. v. NROC, 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 7 L.Ed.2d 437 (1983) (" predictions i
. . . at the frontiers of science").
Even if the Commission requires, but does not find, a
" mathematical probability" (more than 50%) of success, the j probability constitutes such a significant probability
- (approaching 50%) and goes so directly to LILCO's legal authority
. to seek the possession only license and other license amendments
- and exemptions leading to decommissioning that the Commisalon should not proceed to issue a possession only license or conduct
] further proceedings when there is only slightly more than a 50-i 50 chance (54%) in a sinole case that the Settlement Agreement ) will ultimately be determined to be legally valid and binding. ] And finally, even if the Commission should disagree with Petitioners as to the probability of success on the merits on all of the bases described above, the commission should still issue the requested stays since probability of success on the l merits is not considered to be a proper consideration when HEPA
- violations are alleged and stays ara requested. Egg, gigt, l
Illinois Commerce Comm'n., 848 F.2d at 1259-60. 2 C. No other Interested Party Would Suffer Any l Substantial or Coanizable Harm By a-Stav. i l _ LILCO and the other parties Eo the Settlement Agreement may allege harm from increased costs and delay in the _ proceedings, and the NRC Staff may allege harm from delay in the proceedings. l I I
_. _ _ ~ . . _ _ . . _ _ _ _ _ . _ _ _ . _ _ . .___ . . _ . _ . _ ._ _ _ _ _ . . _ . _ _ . _ . _ . . _ _ . _ i However, it has long been established that f
" (c)onsiderationa of administrative difficulty, delay or economic costs" are not cognizable considerations in the context of stays to protect petitioners' rights under NEPA. 449 F.2d at 1115.
Hor should they be considered in setting minimum safety standards ; t under the AEA. Union of Concerned Scientists v. U.S.N.R.Q2, 800 i F.2d 552, 554 (D.C. Cir. 1909) And if cost considerations are cognizable, they should be taken into consideration as a negative f actor only if the costs were such as to threaten LILCO's
" destruction in its current form." Holidav Tours, 559 F.2d at- !
843. This test is not met. LILCo ar.d LIPA have both represented l to the NRC that the NYPSC has agrecd to allow LILCO to recover j all costs related to the course of action under the Settlement ! Agreement. Irgaggrict of Meetina between NRC and LI LCO/LI PA /NYPA t License Transfer and Decommissionina of Shoreham, at 30-41 (February 13, 1991). Thus, the " economic f injuries" which Ley result are of the character " disparaged in ! [Vircinia Petroleum Jobbers, namely) the necessary expenditure of j funds pending appeal and temporary monetary losses for which ;
' adequate compensatory or other corrective relief will be I
available at a later date' 259 F.2d at 925." Holidav Tours, 559 : F.2d at 843 n.2. Likewise, delay whether urged by LILCO and the other ' 1 ( parties to the settlement Agreement or the NRC Staff is not a cognizable harm under NEPA or the AEA. Exgt, Calvert cliffs 8, ; 449 F.2d at 1115. Further, the interest of public servants such b 4 9
, ..cm -.. ~ .- -%.., ,,,m. --r-., . ,- ,-,,-,,.u--y-m,-3 ..y. %.- . -ri._y-, ,y y v m._, ,,,,,.c.vmgwn m,%
--_n., -
) 4 as the NRC Staff is primarily in "having legal questions decided on the merits, as correctly . . . as possible." Holiday Tours, 559 F.2d at 843 (expedition is only a tertiary component of such interest). Thus, Petitioners urge the Commission to find that there is no cognizable harm and, in any event, no substantial harm to be suffered by any of the other interested parties if a stay is issued. D. The Public Interest Supports Issuance of the Recuested Stavs. In Holidav Tours., the Court defined the " general public" interest as being an interest "in having legal questions decided en the merits, as correctly and expeditiously as , possible." 559 F.2d at 843. In this case, he basic premise for the Commission's decisions to date, as well as its proposed decisions on the issuance of a possession only license and other matters jr the validity of the Settlement Agreement -- a topic beyond the expertise of this Commission. Tne validity of that agreement is now before the New York Court of Appeals in three separate cases, l where it will be " decided on the merits." Such a decision by New York's highest court will also give the commission confidence l l that that decision (whether the court of Appeals finds the l Settlement Agreement valid or void) will be the " correct" decision on which the Commission may base its findings. i r
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t 6 l l l Until the New York Court of Appeals has decided these l issues, they will not have been decided on the merits and the Commission can have no confidence that its assumption of the validity of the settlement Agreement is indeed " correct". To the contrary, the granting of the three motions for leave to appeal calls into serious question the " correctness" of the Commission'a assumption of validity thus far. The only element of the public interest which the issuance of the requested stays may not satisfy is the element of as " expeditiously as possible" but stays always involve delay, an0 Petitioners suggest in any event that " expeditiously" modifies " decided on the merits". Under these circumstances, the Commission should have confidence that the New York Court of Appeals will proceed to its decision on the merits as " expeditiously as possible." gag Egiper Steel, suora (pendency in state court provides assurance that " resolution will be forthcoming soon"). The public interest in issuance of the stays is also satisfied when the " plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them a fair ground for litigation, and thus, for more deliberative investigation." Uplidav Tours, 559 F.2d at 844 quoting Hamilton Watch Co. v. Benrust Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953) (footnote omitted) .- The granting of all three motions for leave to appeal by the New York Court of Appeals surely shows that Petitioners here have satisfied that standard of the public interest. l l l
l For all of these reasons, the public interest supports the issuance of the requested stays. V. CONCLUSION WHEREFORE, Petitioners urge the Commission pursuant to I its inherent authority to excerise discretionary supervisory authority to stay ASLB and NRC Staff actions in the above-captioned proceedings its power to provide interim equitacle relief and its duty to abstain from deciding state law issues as a matter of comity to (a) stay or, if issued, vacate issuance of a possession only license, (b) stay further proceedings by the Atomic Safety and Licensing Boards, and (c) stay further NRC Staff review of pending applications for license amendments, exemptions and other forms permission relating to Shoreham. If the Commission denies the foregoing relief, petitioners request such stays pending judicial review of that denial. Respectfully submitted, March 8, 1991 *
\*
, Jpm'es P. McGraneryy(/p'. Dov, Lohnes & Albertsen Suite 500 1255 Twenty-Third Street, N.W. Washington, D.C. 20037 (202) 857-2929 Counsel to Petitioners Shoreham-Wading River Cential School District and Scientists and 4 Engineers for Secure Energy, Inc. ) - - - . - - . . - . . . . . - - . . - . . - - -. _ _. ..- - .
Stat ( o" Meto Mark, , C014t Of 3ppCala At a truien ofthe Court, holdat Court of Apprah Hallin the City of Ahny : o a th e . .. a.'..".t..'.?
- a t.b . .. .. day ;
of. ..ratrue. y. . .. A . D. 19 " - e @(0 (, H0h'. 501. WAt'H71.MR < 'A "/.!..<ier. er a eliv Me. No. 1384
- the Hatter of C!tteens for en orderly Energy Poltay. !wr.. *
*t al..
Appellants. v. Matto M. Cueto, se Ccsernce cf the .
- tate of Nov York.
F.e e p on c e n t . ead *utlic Servi:e Ccentsetoe en t a. c state cf New York, p Intervener-tes; ndent. (Procee dit s he. li { ,
!Ane another proceedira.)
A .Tction for leave to appeal to the Court of Appeals
, in the above cause,having been heretofore Ede upon the part af
_ q: ' . the appebants herern ind papers having been duly submitted thereen and due deliberation thereupon had, f,t is ORDERED, tha~t the said motion be and the same hereby is granted. ,,, ,, .,, M. [ Donald M. Sheraw Clark of the Court . l l ) l t l
- ~_- . . . _ - + -. . ,- . , - . _ _ _ . m.--
1 j 1 State 0"Ett0 MON, I court of 9pptals A t a senian of the Ccurt, held at Cou rt c) Appeals Hallin the City of Albany on tho A t t.c t.R " s.h . . . . day of. . . Tehrvary A. D.19 e ' (b(N(, HUN .*"I WAt'!iT f. Lit * * .e J cf.v. pee s er, <v
' 11 Mo. No. 131 in the Mattar of Kassau Suffolk l Cenerseter's Ensectatter.. 3 ri t . .
et et..
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tespendentt. d i 4 4
..S A motion for leave to appeal to the Court of Ar,eals
~ . . , . . . . . .
4 in the above esuse having been here:cfore made upon the eart nf the appellants hereikb papers havitt bean duly eubmitted
~'
thereon and due deliberation'thereupon had, it is ORDERED, that the said motion be and the same hereby is granted. - o.. . h rW W .IL -- Donald M. Sherav Clerk of the Court
t
$tatto"Mcmgork, Court 0" 3pptab :
A t a senion of the Court, held at Court of ( Appenh Hallin the City of Albany on the. . .. n ( "
- t ' " .c h... day !
of . . ...... ..ra d r v a r y.. A. D.19 91 [(8( , HON bil.W4:11 T L E R < > ./ /...tu, . s.r. ...t. ..; 3*!1 Mo. Ne. 1115 ; J. Kenneth Dollard, et al., i i Appellants, l The United State = et Amertes. Intervener-Appellent. [
- v. l The Long Island Fever Austerity. l st al.,
Respeedents. i t I t i i i Mot ic,n s for leave to appeal to the Court of Appeals in the above cause having been heretofore made upon the part of and intervanor-appellant ; the appellanta/herein and papers having been duly submitted thereon and due deliberation thereupon had, it is ORDERED, that the said motionsbe and the same hereby l are granted. bM A.bO _ _ _ Donstd M. Sheraw Clerk of the Court l l
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additional responsibilities in decision processing t o meet the demands for timely electronic transmission of th e Court's decisions to the office of Court Administration and posting on the Court's own computerized electronic u b ll etin board. Chief Motion Clerk John Asiello and Assistant Dep t u y Clerk Laurene Tacy, by coding appeals and motions for leave t o appeal by subject matter, also have been able to extract e from th case-tracking computer information useful forendaring cal and noting the progress of related matters in internal reports on pending appeals and motions.
- b. Dispositions The total number of appeals dispositions i fewer than last year. n 1989 was 295, 74 down from 240 in 1988. There were 192 civil dispositions in 198 ,
declined, from 129 in 1988 to 103 in 1989 Dispos Of the 1,069 motions for leave to appeal d 11.5% were granted, 66.5% were denied ecided in 1989, In 1988, decisions on motions for leave to, and 22t were dism appeal were 8.8% granted, 71.3% denied, and 19.9% dismissed Amicus coriae filings are one indicator of general inter the Court, and the increase in such fili est in cases heard by Court has used its certiorari jurisdictiongs demonstrates how the State-wide and oftentimes national import n to hear cases of ance. In 1986, a transition year in which many appeals tak en under the former appeal as of right jurisdiction were argued 1 appeals, and there were 44 motions for amicu, the Court heard 4 , of which were granted. s curiae relief, 29 In 1989, the Court heard 302 appeals , but y.
e thure were 99 motions for gmicus curiae relief, 78 of which were granted. The percentage of criminal 3 cave applications granted rose to over three, from last year's 2.6% -- 91 applications, or, on average, 13 per Judge, were granted in 1989. The increase in the rate of grants of both motions for leave to appeal in civil cases and applications for leave to appeal in l criminal cases, combined with the increase in overall filings of these motions and applications, may signal an impending halt, if not reversal, of the steady decline in appeals filings and dispositions following the passage of chapter 300 of the Laws of 1985. In 1989, the Court reviewed four determinations of the State Commission on Judicial conduct. The sanction of removal determined by the Commission was accepted in three; the sanction was rejected in the other and the Court imposed censure. In addition, five suspensions were ordered with pay and one without pay. There was a single request for review pursuant to Rule 4 500.17 in 1989, Home Ins. Co. v American Home Prods. Corp. On l June 8, 1989, the Court accepted the certification by the United
! States Court of Appeals for the Second Circuit, and directed I
- briefing and oral argument (74 NY2d 699). At the close of the 1
l calendar year, the matter remained pending undecided. Consultation Clerk John J. Mathews and Assistant Consultation Clerk Andrew Klein, in addition to their primary roles of advising the Court and professional members of Judges' and Clerk's staff on matters of procedure and substance, verify t 5-
~~ ~
votes on each case and assist in the drafting of decretal provisions. John J. Mathews, in conjunction with John Asiello , oversees the production, and assures the accuracy, of decision lists and accompanying written decisions for external release and publication. Andrew Klein assists in that process and prepares digests of internal reports and decisions for the court's use . In this endeavor, he is ably assisted by June Hoyka .
- c. The calendar Continued refinement of calendar practice has accelerated considerably the court's review of calendared appeals. In 19B9, the average period from filing of notice of appeal or order granting leave to appeal to calendaring was 5.6 months , compared to 6.9 months in 1988.
l In 1969, the average period from readiness (all appellants' papers served and filed) to calendaring dropped dramatically to 1.3 months, from 2.3 months in 1986. The average length of time from the filing of a notice of i appeal or order granting leave to appeal to the external disposition of an appeal decided on submissions pursuant to section 500.4 of the Court's Rules of practice (SSM) was in 1989. s 161 da 2. i Sua Sponte Monitorino of Jurisdiction and Appeals JRule 500.3 and Rule 500.4)
- a. Rule 500.3 Pursuant to Rule 500.3, the Clerk reviews all jurisdictional statements filed for subject matter jurisdiction.
The review
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e APPENDIX 5(B) [
SUMMARY
OF DISPOSITIONS BY JURISDICTIONAL PREDICATE (showing percentage of type of disposition within each categrey of furisdictional predicate) Jcnuary 1,1989 through December 31. 1989 { CIVII, APPEALS Type of Disposition Jurisdictional Predicate: Affirmance Reverssi M<wfification Dismiss =! Other Dissents in Apnellate Division 731. 171 3% (22 of an) 71 - (5 or 30) (I of 30) (2 of 30) Permission of Court of Appenis 541 411, or Judge thereof (53 of 93) 4% 1% - (40 of 98) (4 of 98) (I of 98) Perndesion of AppeIInte Division 68% or Justice thereof 261 9% 2Ts (27 of 40) (II of 43) (4 of 43) (1 of 43) Constitutional question g31 (5 of H) 251 m _ (2 of R) (I of R) Stipulation for Ju A pnent - Absolute ~
~
Other 3gg g3, (e.g. anoenlies. Judiciary I;iw (4 or 13) (2 of 13) $
~
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$ 44[7), Remand from U.S. ~
(7 "I I3) Supreme Court) M N h 6-N *hw* Mie- g. m g.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g BEFORE TiiE COMMISSION p u ; ui,4 a.a l'hbKil4- t Vf f.}
)
In the Matter of )
) Docket Nos. 50 322, Ung Island Ughting Company ) 50 322 OLA, and
) 50322 OLA 2 (Shoreham Nuclear Power Station, )
Unit 1) i CERTIFICATE OF SERVICE I hereby certify that one copy of the Petitioners' Joint Motion to Stay or Vacate Ucense issuance and Other Matters is being served upon the following by first class mail, postage prepaid on this 8th day of March,1991: Atomic Safety and Ucensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Morton B. Margulies, Chairman Washington, D.C. 20555 Atomic Safety and Ucensing Board U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Jerry R. Kline Atomic Safety and Ucensing Board Administrative Judge U.S. Nuclear Regulatory Commission George A. Ferguson Washington, D.C. 20555 ASLBP 5307 Al Jones Drive Edwin J. Reis, Esq. Columbia Beach, Maryland 20764 Deputy Assistant General Counsel for Reactor Ucensing Michael R. Deland, Chairman Mitzi A. Young, Esq. Council on Environmental Quality Senior Supervisory Trial Attorney Executive Office of the President Office of the General Counsel : Washington, D.C. 20500 - U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stanley B. Klimberg, Esq. Executive Director and General Counsel Carl R. Schenker, Jr., Esq. I.ong Island Power Authority-Counsel, Long Island Power Authority Suite 201 O'Melveny & Myers 200 Garden City Plaza . 55513th Street, N.W. Garden City, New York 11530 Washington, D.C. 20004
= ,,- ..- , . - . -. - -
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( . . - - !o.>% i
- 2 ,
Ste' phen A. Wakefield, Esq. Donald P. Irwin, Esq. Ge neral Counsel Hunton & Williams U.fi. Department of Energy P.O. Box 1535 Wishington, D.C. 20585 Richmond, Virginia 23212 Gerald C. Goldstein, Esq. Samuel A. Cherniak, Esq. Office of General Counsel NYS Department of Lan New York Power Authority Bureau of Consumer 1633 Broadway Frauds and Protection New York, New York 10019 120 Broadway New York, New York 10271 Nicholas S. Reynolds, Esq. Regulatory Publications Branch David A. Repka, Esq. DMslon of Freedom of Winston & Strawn Information & Publications Services 1400 L Street, N.W. Office of Administration Washington, D.C. 20005 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- - . L
/ emes P. McGranery, (/
Counsel for Petitioner Shoreham Wading Rh r Central School
- District and Scientists and Engineers
, for Secure Energy, Inc. I I i 4 4
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