ML20092E067
| ML20092E067 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/18/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-4, NUDOCS 8406220266 | |
| Download: ML20092E067 (13) | |
Text
I hk Of, E{ED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board U. " t 'y
- n.,
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322-OL-4 (Shoreham Nuclear Power Station,
)
(Low Power)
Unit 1)
)
)
)
SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF JUDGES MILLER, BRIGHT, AND JOHNSON i
Suffolk County and the State of New York hereby move that Judges Marshall E. Miller, Glenn O.
Bright, and Elizabeth B.
Johnson disqualify themselves from participating in any matters concerning the Long Island Lighting Company's ("LILCO") Shoreham Nuclear Power Station ("Shoreham").
The bases for this Motion are stated hereinbelow and in the County's and State's request for recusal of Chairman Palladino, dated June 5, 1984, a copy of l
which is attached and hereto incorporated by reference.1!
The legal standard which applies to the issue of whether
-Judges Miller, Bright, and Johnson should be disqualified is whether "a disinterested observer may conclude that (each of the 1/. Section 2.704 (c) of the NRC's regulations calls for. submittal of an affidavit ~ accompanying a motion to disqualify an ASLB Judge.
Such an affidavit is unnecessary here,.because1all facts' set forth herein and in the Attachment ~are matters of public record contained in NRC and other public documents.
i fhkOkhofkO000 g
I 9
3 a
1 named Judges] has in some measure adjudged the facts as well as the law of [the] case in advance of hearing it."
Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) quoting with approval from Gilligan, Mill &
Co. v.
SEC, 267 F.2d 461, 469 (2d Cir.), cert denied, 361 4
U.S.
896 (1959) (Emphasis added.)
The documents referred to hereinbelow and incorporated by reference show that the actions of these Judges, individually and jointly, are within the pro-scription of this legal standard.
Commencing March 30, 1984, Judges Miller, Bright, and Johnson made decisions in parallel with, and in furtherance of, the objectives of Chairman Palladino.
These objectives were formulated outside the hearing process and beyond the reach or knowledge of the parties and the public.
In essence, the Chairman let it be known within the NRC that he wanted to
" expedite" the issuance of a low power decision for Shoreham and "to get around" the issue of Shoreham's defective emergency diesel generators.
The Chairman, personally and through his legal assistant, through memoranda, and through a March 16 ex parte meeting with the NRC Staff, the Chief Administrative Judge, and other-NRC personnel, communicated those objectives.
The Chief Administrative Judge and NRC Staff then took actions which set the stage for the achievement of the objectives,and the Licensing Board -- composed of Judges Miller, Bright, and i
Johnson -- issued the Orders which secured them.
The actions of i
these Judges clearly, in the words of'the Cinderella case, permit l
i
' a disinterested observer to conclude that Judges Miller, Bright, l
and Johnson have "in some measure adjudged the facts as well as the law of [this case) in advance of hearing it."
For that reason, they should disqualify themselves.
The Cinderella standard is not prosecutorial, and it does not bring into controversy the qu'estion of " guilt."
The standard, rather, raises the issue of the integrity, and the appearance of integrity, of the shoreham proceeding.
The events of record which began at the Chairman's initiative on March 16 and climaxed with the Orders of Judges Miller, Bright, and Johnson have undermined public confidence in the impartiality of these Judges.
There is, in short, justification for a disinterested observer of the Shoreham proceeding to conclude that the actions of Judges Miller, Bright, and Johnson were the product of their having "in some measure" prejudged the facts and law of the issues pending before them.
I.
Factual Background The data set forth in the attached request for recusal of Chairman Palladino (particularly pages 11-29) contain the basic information in support of the instant Motion.
Set forth below is a brief summary of some of-these. facts.
1.
On March 30, the day of being appointed by Chief Judge Cotter to pt aide over the low power proceeding in place of the Brenner Board, Judges Miller,'Dright, and Johnson (hereinafter the " Miller Board"). issued by' telephone an Order to the parties.
=
-4 This Order stated that the Miller Board would on April 4 hear
" oral arguments" on LILCO's Low Power Motion, and that the Board was " established to hear and decide the motion on an expedited
. basis."
This Order was confirmed by the Miller Board's Notice of Oral Arguments (March 30, 1984),which stated that at the oral argument the Board would hear the issues raised by the parties "in their filings, as well as a schedule for their expedited consideration and determination."
(Emphasis added.)
In light of the known facts, it would not be reasonable to conclude that the Miller Board's March 30 decision to expedite the preceeding was independent of the chain of events that began with 'he Chairman's March 16 intervention.
(See pages 7-24 of the attached request of the County and State for recusal of Chairman Palladino for a description of such chain of events.)
It must be borne in mind that the Miller Board was appointed on March 30.
To make a reasoned and independent judgment to expedite the proceeding, therefore, the Board would have had to review and consider LILCO's inch-thick March 20 Motion and the responsive pleadings of the County, State, and the Staff, become. familiar t
with the extensive record compiled by the Brenner Board, particu-larly the February 22 conference, and hear from the parties regarding the many issues raised by LILCO's Motion.
That Motion' included, for example, an unprecedented proposal to operate a nuclear plant without'a nuclear-qualified onsite cmergency power system.
Nevertheless, the. Miller: Board decided o
to expedite the proceeding the very same day it was appointed
-- March 30.
2.
On April 2, the NRC's General Counsel circulated a Memorandum to all the Commissioners.
The purpose of this Memorandum was to respond "to the Chairman's March 20 request that OGC develop proposals for expedited hearings on the Shoreham diesel problem." The OGC noted that the " issues [ raised by LILCO's Motion] are extremely complex.
OGC suggested a number of alternatives, including an expedited hearing schedule, which allowed a total of 80 days between a Commission Order starting the proceeding and a Licensing Board decision on the LILCO Motion.
Under this OGC " expedited" schedule, there would have been 15 days for-discovery,.10 days between close of discovery and the start hearings, and 15 days for hearings.
3.
On April 3, the County filed Comments on the Miller Board's March 30 Notice of Oral Arguments, pointing out that "there is no basis for any expedited process," and that this issue should be addressed by the parties at the oral argument.
The County repeated its view that LILCO's Low Power Motion should not be argued on the merits until the County had an opportunity to retain experts and conduct adequate discovery, as discussed in the County's March 26 Preliminary Views.
Also, on April-3, the State of New York filed a motion in. opposition to the Miller Board's ruling that LILCO's Low Power Motion would be given expedited consideration.
The State argued that expediting-LILCO's Low Power Motion was arbitrary and would deny t'he State-due process of law.
4.
On April 4, Chairman Palladino distributed a Memorandum to the other Commissioners, attached to which was Chairman Palladino's March 22 " working paper" and Judge Cotter's March 23 draft order.
The Chairman's April 4 Memorandum was also distrib-uted to the Atomic Safety and Licensing Board Panel, of which Chief' Judge Cotter and Judges Miller, Bright, and Johnson are members.
In his draft order, Judge Cotter suggested a " brutally tight" schedule to reach an expedited decision on LILCO's Motion.
That schedule called for 16 days for discovery, 5 days between the close of discovery and filing testimony, 5 days until the start of hearings, and 10 days for the hearing.
5.
On April 4, the newly appointed Miller Board heard oral argument on the LILCO Motion, including whether GDC 17 was being impermissibly challenged by LILCO and whether there was any basis to expedite the proceeding.
6.
On April 6, the Miller Board issued its Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low-Power Operating License (the " Low Power Order").
First, the Low Power Order stated that LILCO could operate Shoreham at low power with no onsite electric power system, provided that the public health and safety findings suggested by the NRC Staff were made.
The Board thus adopted the position urged by the Staff in its March 30 filing and by Judge Cotter in his March 23 draft order.
It provided the final link in the chain which.
began at the Chairman's March 16 meeting with the formulation of an " alternative solution for low power."
This was, as Judge
Cotter's notes reflected, the means for LILCO "to get around
[the] diesel issue."
Second, despite the " extremely complex" issues presented, the Miller Board decided to expedite consideration of LILCO's Motion.
Again, this decision was consistent with the Chairman's
" working paper," with the position of the Staff, and with Judge Cotter's draft order.
The Board's Order defined the issues and established expedited procedures.
Judge Cotter's notes of the Chairman's March 16 meeting reveal a discussion to " define
' contention' and set time frames for expedited procedures."
Significantly, the time frames established by the Miller Board have a striking similarity to those proposed by Judge Cotter in his March 23 draft Order for the Chairman.
Judge Cotter Miller Board l
Time for discovery 16 days 10 days Time between close of diccavery and filing of testimony 5 days 4 days Time between filing of testimony and start of hearing 5 days 4 days Elapsed time set aside for hearing 10 days 11 days 7.
Suffolk County and the State of New York protested the Miller Board's April 6 order as denying them due process of law and as being contrary to GDC 17 and other NRC regulations.
The County even submitted detailed affidavits of expert consultants
- documenting that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hearing.
- he Miller Board and, subsequently, the Commission refused to alter the April 6 Order, forcing the County and the State to seek a temporary restraining order in federal court.
The TRO was granted on April 25.
II.
Judges Miller, Bright, and Johnson Must Recuse Themselves Or Otherwise Be Disqualified By The Commission The actions of the Miller Board, as discussed above, are within the proscription of the disqualification standard in the Cinderella case.
The immediacy of the Board's March 30 Order to expedite the low power proceeding in advance of hearing from the County and State, the refusal of the Board to provide any reason for expediting the proceeding over the objections of the County and State, the adoption of a schedule strikingly similar to that proposed by Judge Cotter after the Chairman's personal intervention, and the decision of the Board to frame issues for trial that eliminated GDC 17 over the objections of the County and State clearly permit a disinterested observer to conclude that the Miller Board "in some measure" prejudged the matters before it.
What is of particularly strong significance is that these actions of the Miller Board were precisely in keeping with the wishes and objectives expressed by the Chairman -- outside the hearing process and thus properly outside the reach of the Miller Board.
The Chairman's March 16 ex' parte meeting with the
._. O h.
Staff, Chief Administrative Judge Cotter, and other NRC personnel, his undated " working paper" read by his legal assistant to Judge Cotter, his March 20 Memorandum to the other Commissioners, and his April 4 Memorandum to the other Commissioners with Judge Cotter's draft Order attached (of which copies were sent to the ASLB panel), all were designed to as.hieve two objectives in the Shoreham low power proceeding:
1.
" Expediting" a decision in order to aid LILCO's financial position; and 2.
"Getting around" the issue of Shoreham's defective diesels and the obstacle posed by the Brenner Board's February 22 ruling on the applicability of GDC 17.
The achievement of these objectives required the accommoda-tion and parallel. action of the NRC Staff'and the Licensing Board Judges.
The Chairman's March 16 meeting provided the catalyst:
First, shortly thereafter, on March 30, the NRC Staff abruptly reversed itself and supported the operation of Shoreham with no onsite emergency power.
Second, Judge Cetter set out the framework for an expedited hearing and.the elimination of GDC 17, in his March 23 draft order which the Chairman circulated to the ASLB Panel.
' Third, the Miller Board on March 30 ordered the " expedited" hearing -- and later confirmed that order over the repeated objections of the County and State -- and on April 6 adopted-the Staff's position which eliminated GDC 17.and found onsite1 emergency power unnecessary for low power ~ operation.
Thus, these actions, individually-and in tandem, achieved.the Chairman's objectives'and. prejudiced the rights
'and interests of'the: County and State.
I-
-. n
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In the face of these actions, we submit that it would be unreasonable for a disinterested persan not to conclude that the Miller Board had "in some measure" prejudged matters within the prohibition of the Cinderella standard.
Indeed, on the facts of record a disinterested observer certainly may conclude that the actions of the Chairman, the Chief Administrative Judge, the NRC Staff, and the Miller Board were consciously in parallel with each other and in pursuit of the ultimate objective of aiding LILCO with an " expedited" low power decision that "got around" the diesel issue.
In short, the disinterested observer surely would be reasonable to conclude that the actions of the Miller Board were predicated on prejudgment of the facts and law, not on judgment following an impartial consideration of the merits.
It would here ask too much of the disinterested observer embraced by the Cinderella standard to view the facts any way other than requiring the disqualification of the Miller Board.
Indeed, the instant situation is a case where two such disinterested observers -- Commissioners Gilinsky and Asselstine -- have considered the facts of record and have condluded that Judges Miller, Bright, and Johnson should be replaced.E! By definition, therefore, the standard of the Cinderella case has been met.
3/ See separate Statements of Commissioner Gilinsky and Commissioner Asselstine appended to the Commission's May 16, 1984 Order in this docket.
f.
Accordingly, Suffolk County and New York State move that Judges Miller, Bright, and Johnson disqualify themselves from participating in any matter related to the Shoreham plant.
If they do not so act, the Commission or Appeal Board, as appropriate, should disqualify these Judges.
See 10 CFR
- 52. 704 (c).
Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
- }f l
/
/
7-
' Herbert H.
Brown Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,~ Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County r
r To k-.-
Q m
Fabian G.
Palomino
/
Special Counsel to the Governor New York State Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M.
CUOMO June.18, 1984 Governor of the S~ ate of New York c
s
O e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The Atomic Safety And Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISOUALIFICATION OF JUDGES MILLER, BRIGHT, AND JOHNSON, dated June 18, 1984, have been served to the following this 18th day of June, 1984 by U.S. mail, first class, by hand when indicated by one asterisk, and by Federal Express when indicated by two asterisks.
Judge Marshall E.
Miller, Chairman
- Edwin Reis, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff U.S.
Nuclear Regulatory Commission Office of the Executive Legal Washington, D.C.
20555 Director U.S.
Nuclear Regulatory Commissiom Judge Glenn O.
Bright Washington, D.C.
20555 Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Edward M.
Barrett, Esq.
Washington, D.C.
20555 Long Island Lighting Company 250 Old Country Road Judge Elizabeth B.
Johnson **
Mineola, New York 11501 Oak Ridge National Laboratory P.O.
Box X, Building 3500 Honorable Peter F.
Cohalan Oak Ridge, Tennessee 37830 Suffolk County Executive H.
Lee Dennison Building Eleanor L.
Frucci, Esq.
Veterans Memorial Highway Atomic Safety and Licensing Board Hauppauge, New York 11768 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
Fabian Palomino, Esq. *
- James B.
Dougherty, Esq.
Special Counsel to the Governor 30/.5 Porter Street, N.W.
Executive Chamber Washington, D.C.
20008 Room 229 State Capitol Mr. Brian McCaffrey Albany, New York 12224 Long Island Lighting Company Shoreham Nuclear Power Station W.
Taylor Reveley, III, Esq. *
- P.O.
Box 618 Anthony F.
- Earley, Jr.,
Esq.
North Country Road Robert M.
Rolfe, Esq.
Wading River, New York 11792 Hunton & Williams P.O.
Box 1535 Jay Dunkleberger, Esq.
707 East Main Street New York State Energy Office Richmond, Virginia 23212 Agency Building 2 Empire State Plaza Mr. Martin Suubert Albany, New York 12223 c/o Congressman William Carney 1113 Longworth House Office Bldg.
Stephen B.
Latham, Esq.
Washington, D.C.
20515 John F.
Shea, Esq.
Twomey, Latham and Shea Martin Bradley Ashare, Esq.
33 West Second Street Suffolk County Attorney Riverhead, New York 11901 H.
Lee Dennison Building Veterans Memorial Highway.
Docketing and Service Branch Hauppauge, New York 11783 Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
. tA L
) &*
Lawrence Coe Lanph8r KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
June 18, 1984 O
R
-2_
o 6/5/84 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
In the Matter'of
)
's LONG ISLAND LIGHTIMG COMPANY
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
-SUFFOLK COUNTY AND STATE OF NEW YORK REQUEST FOR RECUSAL AND, ALTERNATIVELY, MOTION FOR DISQUALIFICATION OF CHAIRMAN PALLADINO Suffolk County and the State of New York hereby request-that Chairman Nunzio J.
Palladino recuse himself from participating in any matters concerning the Long Island Lighting Company's ~("LILCO") Shoreham Nuclear Power Station
'("Shoreham").
In the event the Chairman decides not to recuse himself, the County and State move the Commission. to take cog-nizance of-this.insue snd vote Ewhether Chairman Palladino
- should be disqualified from participating in Shoreham-related matters.-
-The-legal standar'd which applies to. the issue of wh' ether Chairman Pilladino should be disqualified _ is whether "aydisin-terested observer may conclude that [the-Chairman]:has in'some
- %asure ad judged s the :. facts' as well _ as the law of.a particular-5 cn/ A r/m ha::
- ^
- - ~
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case in advance of hearing it."
Cinderella Career and Finishing Schools, Inc.
v.
FTC, 425 F.2d 583, 591 (D.C. Cir.
1970) quoting with approval from Gilligan, Will & Co.
v.
- SEC, 2671F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896 (1959)
(Emphasis added).
The documents referred to hereinafter show that Chairman Palladino's actions on Shoreham-related matters are clearly within the proscription of this legal standard.
From at least March 16, 1994, the Chairman personally inter-vened in adjudicatory matters pending before the Licensing Board.
His intervention caused the Staff, the Chief Adminis-trative Judge of the Licensing Board Panel, and ultimately the Licensing Board Judges to take actions of factual and legal consequence tha t prejudiced the interests of the County and State.
The Chairman did this in advance of hearing the posi-tions_of the County and State.
In short, Chairman Palladino's intervention in the Shoreham proceeding "may cause a disinterested observer 1to conclude" the following:
(-1)
The Chairman, without. consulting the other members of the Commission, took the initiative with the Staf f and Chief Adminisdretive Judge to engage in substantive discussions and-to formulate a stra tegy; for - the Staff and Licensing Board that would serve LILCO'_s interests-without regard _ to those of the County and State; p
i
- _s s
o (2)
The Chairman's initiative caused the Staff to change its previous position and to support the licensing of Shoreham with no emergency onsite power system, contrary to the inter-ests of the County and State; (3)
The Chairman's initiative caused the Chief Adminis-trative Judge to formulate an adjudicatory proposal to permit the licensing of Shoreham with no emergency onsite power system, contrary to the express provisions of the }TRC's regula-tions and contrary to the interests of the County and State.
The Chairman circulated this proposal to the Licensing Board panel, including presumably the Shoreham Judges, thus demonstrating his approval of the proposal; (4)
The Chairman's initiative caused the Staff and Licensing Board to work in parallel for the establishment of an unconstitutional hearing format and schedule which benefitted LILCO,. contrary to the rights and-interests of the County and State; (5)
The Chairman commenced. his -initia t ive for the purpose of giving aid to LILCO before the Licensing Board 'and.in the.
financial marketplace,- a consideration which is outside the.
scope of interests protected.by the Atomic Energy Act~.
He' commenced his initiative -in advance of hearing from the Coun ty and State.and without giving them notice of what he planned to 3-
~
do, and, indeed, without even consulting with other members of the Commission.
The actions of the Staf f and Licensing Board gave effect to his initiative, in contravention of the regula-tions, and prejudiced the County's and State's rights to due process of law.
The Chairman's initiative required tha t prejudgments he made on t'o issues then central to the licensing of Shoreham:
w (1) the schedule on which LILCO would receive a low power licensing decision; and (2) the need for an onsite emergency power source.
These were issues which had been settled on February 22 by an Order of the Roard chaired b';
'udge Brenner.
On March 16, the Chairman met with the Chief Administrative
- Judge, B.
Paul Cotter, Jr.,
and the Staff's Executive Director and other top-level Staff personnel, including the Director of Nuclear Reactor Regulation and the Executive Legal Director and
-members of their o.ffices.
Th? Chairman discussed with these persons the. impact of the Licensing Board's February 22 Order on LILCO's financial health snd formulated means to aid LILCO.
In the words of the personal notes handwrik. ten by Judge Cotter at the March 16 meeting, an " alternative solution for low power" operation of shoreham was discussed.
This " solution"'
involved LILCO filing a " proposal to get around [the]. diesel
[onsite emergency power source] issue.and hold hearing on operation at lew' power."
-(Final emphas is i.n orig inal. )
The-1 J
o-meeting also involved the formulation of an " expedited" hearing format and schedule.
Again, in Judge Cotter's words, a hearing ordered by the Commission "would define ' contention' and set time frames for expedited procedure."
It would also "revi+<
30ard order of February 22."
Significantly, Judge Cotter noted that LILCO's financial health was discussed.
He wrote,
"[LILCO] Says [it] will go bankrupt if [it has to wait for]
12/94 I.D.
[ Initial Decision of the Licensing Board]."
(It was then anticipated that the Brenner Board would issue its ieci-sion on low power operation of Shoreham in - December 1984. )
A reasonable observer may conclude that the only prompt decision which could avert a LILCO bankruptcy was a favorable one to LILCO.
Thus, on March 16, Chairman Palladino planned and set in motion with the NRC's top judicial and Staff personnel changes in the course of the Shoreham proceeding.
In short order, the e
following occurred:
l (1)
New Licensing Board Judges were_ appointed to hear the proposal for low power operation that-LILCO filed with the Brenner Board four days after the Chairman's March 16 meeting.
(Judge Cotter's notes state:
" NOTE: Concern-re Same Board Chairman."
Also, the notes, written four days before LILCO filed-its proposal'to operate Shoreham at low power _without 5-
-i i
I
a diesels, state:
"LILCO file proposal to get around diesel issue and hold hearing on operation at low power,");
(2)
The Staff abruptly reversed its previous position and supported _the licensing of Shoreham with no onsite emergency power source.
(Judge Cotter's notes state:
" Based on LILCO proposal, staff can issue report in 30 days as to whether plant safe at 5% w/o diesels");
(3)
The new Licensing Board issued an Order defining the issues to be heard under expedited hearing procedures.
(Judge Cotter's notes state:
" Define ' contention' and set time frames for expedited procedure").
These actions were planned at the Cha irman ' s initiative without regard for the interests of the County and State and in advance of the Chairman hearing from those parties.
Given the legal standard set. forth in the Cinderella case, supra, there is no lawful basis on which the Chairman should' participate in i
any matters related to the Shoreham plant.
Surely, the facts described above, and as set for th a t length below, may cause "a disinterested observer [to] conclude that [the Chairman] has in some measure adjudged.the facts as well as the law of [this]
case in advance of hearing it."
i.
6-
The legal standard quoted above is not prosecutorial, and it does not bring into controversy the ques tion of " guilt. "
The issue, rather, is one of the integrity, and the appearance of integrity, of the Shoreham proceeding.
The events of record which began at the Chairman 's init.i a tive on 'iarch 16 have un-dermined public confidence in the impartiality of Chairman Palladino and other NRC personnel.
The only way to restore public confidence in the Shoreham proceeding is for the individuals who have demonstrated, or have appeared to demon-strate, partiality toward LILCO to disqualify themselves and for scrupulously fair procedures and reasoned decisions to be followed.
The starting point for this is the recusal of the Chairman.
I.
The Chairman's Personal Intervention In The Shoreham Proceeding Requires Disqualification.
According to public documents, Chairman Palladino's personal intervention in the Shoreham licensing proceeding began with an'ex parte meeting with the Chief Administrative
' Judge and the Sta f f. on March 16, 1984. 'To put this interven-tion into perspective, we will briefly. describe. the posture of f
the. Shoreham proceeding prior to March 16.
I i
l -
n A.
Events Prior to March 16, 1934 On February 22, 1984, the Licensing Board chaired by Ad-ministrative Judge Lawrence Brenner (the "Brenner Board") ruled that there was no basis for granting L.LCO a low power license
~
for Shoreham "in advance of complete litigation" of the emer-gency diesel issues.
The Brenner Board set a schedule for lit-igation of those issues that, after a discovery period of ap-proximately two months, _provided for a conference of the parties on'May 10, to determine subsequent procedures.
In issuing that schedule the Brenner Board concluded:
Based on what we have before us now, there is no' basis to proceed towards litigation that could possibly lead to a low power license in advance of a complete litigation of Contentions 1, 2 and 3_[the outstanding diesel issues].
See Transcript ~of ASLB Hearing, February 22, 1984, at 21,615.
Hence, as conceived by the Brenner Board, the hearing on the diesel issues woi.ld be unlikely.to start before June, and a de-cision in all probability would not he expected before-Decenher 1984.
Significantly, as of February 22, the '.4RC Sta f f had taken i-the unequivocal position that under the IPC's r33alations no low power l'icense could he issued For.Shoreham unless the die-
. sel issues were first resolved.
Thus,-as of-February _22, the -
D i
w fw'
~
7
i
' Staff position was that there could be no low power license until LILCO had an onsite electric power system which met NRC requirements or had receivei a proper axemption from those NRC requirements.
At the February 22 conference before the Brenner Board, the URC Staff opposed LILCO's arguments tha t " enhanced" offsite power could substitute for deficient onsite power.
Thus, the Staff would give no credit to LILCO's offsite power system, including the gas turbine ' physically located at Shoreham, he-cause " General Design' Criteria 17 requires an independent, re-dundant and reliable source of on-site power."
See MRC Staff's i
Response to Suffolk County's Motion to Admit Supplemental Die-sel Generator Contentions (February 14, 1984) footnote 7 (Emphasis added).
The Staff took "no position upon whether ap-plicant, upon a proper technical analysis, could or could not support an application for an exemption to allow it to go to low-power absent reliable safety-grade' diesels."
Id. (Emphasis added).1/
1/
The Staf f's position that no license could be issued for Shoreham without an adequate-onsite AC power system was
~
publicly stated by Messrs. Harold Denton and Darrell JEisenhut-at. an open meeting-be tween the Sta f f and the TDI i
Owners Group on January 26, 1984.
Mr. Denton stated:
[W]e-are not prepared to go 'forth and recommend the issuance of new licenses on-any plant that-has Delaval diesels until the issues that'are raised here-today are 4
(_ Footnote cont'd next page)
- o[ -
+
.6
.-e a
'The Brenner Board's February 22 decision to litigate the
~ iesel. issues before considering a low power license for l
d Shoreham was a serious setback for LILCO, and one which
.. threatened to put.LILCO into bankruptcy.
The Brenner Board's Edecision was followed two days.later by a published report (Newsday, February ~24,.1984) that LILCO's Chairman, William J.
8 Catacosinos, had met with the'NRC Commissioners.
Moreover, in
- a March 9, 1984, letter to shareholders published in LILCO's l
1983 Annual-Report, Dr. Catacosinos noted:
Our inability to open Shoreham has created a serious cash shortfall for LILCO.
Ac--
=cordingly, since' January 30, I have;made government officials aware of our critical situation, and I believe there now seems to be a greater understanding among federal, state and-county officials of-the crisis the company faces A timely.reso-lution of the Shoreham situation-and. a-res-olution of the Company's critical cash' shortage are essential to the continued vi-ability of=LILCO.-
(Emphasis added). *Significantly, Judge Cotter'.s notes of'the
- Chairman's March 16 meeting state:
Says will go bankrupt'if
' 12/94 IiD. [ Initial' Decision of-the Licensing Board]."' -The
' (Footnote' cont'd from-yiavious page) adequately._ addressed.
Meeting. transcript at-8.
/Mr. Eisenhut added that " prior
.toilicensing, even'a low power license,"'the. Staff must Dh' ave. confidence. tha t the TDI diesel problems have been solved.
Meeting-transecipt at. M -96. (Emphasis'. added ).. ;>
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__ _ _ _. _ _ _ = _ _
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" greater understanding" of fe.leral of ficials to wh ich Dr.
Catacosinos referred thus nale itself felt in and through Chairman Palladino's office.
B.
Chairman Palladino's Personal Intervention Recinnina March _ 16 Between to February 22 and March 20 there was no pending LILCO proposal for low power operation of Shoreham.
LTLCO 's original low power motion which relied upon the TDI I
diesels had been rejected on February 22 by the Brenner Roard, and the re w a s thus no prospect for an early low power decision for Shoreham.
LILCO had not appealed from or sought reconsid-eration of the Brenner Board's February 22 ruling.
In this context, the following events occurred:
1.
On March 9, the NRC Staff notified the Commissioners o f " potential licensing delays" of 7 mon tM for Tao reham.
The 9 month " delay" was estimated by LILCO i t.s e t
- and passa3 nn to the Commissioners by the Staff.
However, it ha. been revealed that the NRC Sta f f disagreed with this as tima te, because the Staf f did not consider LILCO's construction to be complete and thus the delay could no. be attributed to the licensing process.
See April 24 Memorandum from J. A.
Rehm, Assistant for Operations, to the Commission.
In fact, it should have been clear to all persons in March 1984 that there was no Shoreham 11 -
b L
" delay" attributable to the licensing proc =sa rather, the only f
delay was due solely to the repeated ftilure o f LILCO's TDI diesels.
Thus, the plant was not ready for licensing because the liesels would not work.
E m
2.
On March 16, in what turned out to be an improper ex parte meeting, Cha irman Palladino met with members of the NRC r
Staff -
.a party in the Shoreham Licensing Board proceeding --
E
" Tony Cotter" (B. Paul Cotter, Jr.,
the NRC's Chief Administra-L tive Judge), and top level Staff personnel, including the Exec-utive Director for Operations, the Director of the Office of r
Nuclear Reactor Regulation, the Executive Legal Director and i
6 their subordinates to discuss the alleged " delay" in the licensing of Shoreham.S/
1 The other Commissioners were not advised of the March 16 meeting in advance.
Neiti3r the Coun ty n.,r Sta te was advised 1
of this meeting, and no transcript was made.3/
Further, this 1
e
?
?
2/
Cha irman Palladino had met on. March 15 with personnel from
~
the Offices of Policy Evaluation and General Counsel con-
}
corning the potential delays.
It was then decided to hold 0
the '1 arch 15 meeting.
See Individual Statement of Nunzio J. Palladino Before the Subcomm. on Energy and the Environment, H.
Comm. on Interior and Insular Affairs, May 17, 1984, pp. 8-9 (hereafter, "Palladino Statement").
J 3/
Commissioner Asselstine has criticized Chairman Palladino i
for meeting with one party -- the Staff -- "w!thout the
~
E opportunity for the others to have any notice of the meeting or be provided an opportunity to comment NRC April 23 'teeting Transcript, p.
10.
Similar1v, l
(Footnote cont'd qext page) r
=
12 -
r
?
e e.
meeting was held 'even though there was no oes LILCO prooosal 1
=
. for low power. operation of Shoreham, and even though, as noted above, LILCO had taken no appeal of or any other action to disagree with the Brenner Board's February 22 rulings concern-ing. low power operation, the TDI diesels, or the schedule fo r litigation.
Nevertheless, Judge Cotter's notes of the Chair-man's. March 16 meeting reveal:
"LILCO file proposal to get i
around diesel issue and hold hearing on operation at low power."
While Chairman Palladino has stated that "some prelim-inary ideas regarding expediting the Shoreham hearing were discussed," see Palladino Memo to Commissioners, April 4,
- 1984, Judge Cotter's notes in-fact indicate. tha t these discussions 1
(Footnote cont'd from previous page)
Commissioner Gilinsky stated:
The-Staff is a party in the hearing; the Chairman, is.one cf the ultimate -judges.
1 The Staff Directors should have told the.
Chairman politely that it'is not their job ~ -
to carry the ball for the Company.
'It'is understandable that they did not say this under the circumstances.
The Chairman is, by' law, the Staff's' direct supervisor.
He.
controls annual bonuses worth many thou-sands'of dollars to senior 15taff members.
What we havecis a situation in Which one member-of the. ultimate'NRC adjudicatory-tribunal.. appears to be directing.'the actions of a ' key party inl the " case.
I CLI-94-R, Separate: Views of Commissioner Gilinsky, May 16, 1984.
- 135-a m._
A
i' 3-included " concern" with Judge Drenner, a " Commission ordered I'
bearing" 'tha t would " define contention and set-time frames for expedited procedure," and discussion of a LILCS " proposal to get around diesel issue and hold hearing on operation at low power."4/
Significantly,.the LILCO " proposal" mentioned in Judge Cotter's March 16' notes was not filed until March 20, four days-later.
Nothing in the public record suggested that LILCO would file such a proposal "to get around fthe] diesel issue."
I, 4/-
These documented statements sharply contradict the testi-i-
mony of Chairman Palladino before 'the House : Subcommittee.
on Energy.and Environment on '4ay 17.
Chairman Palladino
.there-stated:
At - tha t meeting, held on March 16, I was briefed as to the status of a number of cases,- including. the Shoreham proceeding.
While.the briefing included identification j
'by.the' Staff of the-issues of the-Shoreham proceeding,.I do not recall the' Staff in any-way-stating or intimating how.those issues should be-resolved.
I-am confident
~ 'f - the Sta f f. had done that,o or i f any.
i that other / impropriety had been committed, one or -more of ' the1 several top _ agency lawyers-
.present would1have raised -a warning flag.
!~
Likewise,. I recall the ~staf f = advising. that ~
th ey ' understood thatELILCO planned: to' appeal-the' denial'of-its_ low, power request.
4-l
- But;again,'there was no discussion, to the -
Lbest---of'myJrecollection, of;the: merits'of b
that request.:
-Psl'ladino-Statement att10.
v n
,-:141-
=
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^1.
._m
m
. s e
One reason that Chairman Palladino met with the Staff and others on March 16 "was the possibility that if tTRC didn' t do something Shoreham would go under because of NRC's inability to make timely licensing decisions, and I felt that, whatever happened to Shoreham, I did not want inaction by NRC to be. the id,. at 11.
Thus, the cause."
Palladino. Statement at 4-5; see Chairman clearly was acting at least in part out of concern for LILCO's financial condition.
Judge Cotter's notes underscore that point: _ the March 16 meeting includei discussion that LILCO would "go bankrupt" if it had to await a Licensing Board decision -- even assuming such a decision vera favorable -- in December 1984.
3.
On March 20, Chairman Palladino circulated a memoran-dum to the other Connissioners.
The memorandum purported to report on the March 16 meeting and proposed that in order to
" reduce the delays.at Shoreham," the Commission abould "considor a proposal from OGC [ Office of General Counsell for an exped.4 ted hearing-on the diesel problem, or proposals for other possible actions so tha t a t least a low power decision might be possible while awaiting resolution of the emergency-planning issue.
I have asked the OGC to provide a paper on this subject-soon."
Chairman Palladino did not then report, as he later did in his April 4 Memorandum, that ideas ~for expe.iiting the Shoreham proceeding had been discussed at his r
15 -
l
e March 16 meeting with the Staf f and others who were present at that meeting.
The Chairman also did not report that the
" delay" estinate for Shoreham was based on LILCO's estimate, not the NRC 's, and that the Sta f f disagreed with LILCO's estimate.
The Chairman's March 20 Memorandum was circul.sted to "SECY, OGC, OPE, OIA, EDO."
Thus, at a minimum, the NRC Staff, through the Executive Director of Operations, was f'-
ther advised of Chairman's view that the Shoreham procee< _ng needed to be speeded up so that a low power decision could be reached earlier than the schedule adopted by the Brenner Board.
In-deed, the March 20 4emorandum specifically requested the EDO --
i.e.,
the Staff, a party in the Shoreham proceeding -- to respond to the March 20 Memorandum and to prepare a paper outlining steps to deal with the " delays".
4.
On March 20 -- the same day that the Chairman circu-lated his above-described Memorandum -- LILCO filed its unprec-edented proposal for a low power license, styled as a Supple-mental Motion for Low Power Operating License.
LILCO made es-sentially the same arguments fo r a low power license that the Brenner Board had previously rejected, except that LILCO added that it also intended to install at Shoreham four mobile diesel generators, not qualified for nuclear service, to " enhance" the )
l
1 o
o offsite'AC electric power system.
LILCO served copies of the Motion on the NRC Commissioners.
F.ven though LILCO's March 20 proposal for Shoreham's operation did not comply with GDC 17 --
t, there woul3 he no onsite electric power system -- LILCO did not apply for a waiver or an exemption of that regulation.
5.
After March 16, Chairman Palladino had further dis-cussions with his staff and "with EDO as well, searching for options," to deal with the' alleged delay.
Palladino Statement at 11.
On March 22, Chairman Palladino's legal assistant read to Judge Cotter by telephone the following " working paper" prepared by the Chairman's office (this paper later was na! ta Judge Cotter), which relates to LILCO's Mar.:h 20 proposal :
The EDO has recently provided the Commission an assessment for Shoreham that
{
projects a nine-month licensing delay due to, I am told, the Shoreham-Licensing Board's requirement to litigare the diesel-generator questions before allowing.
i operatio'n at low power.
The Commission would like this matter liti-gated on an expedited basis with a-target
.date of receiving the Board's decision on this matter by May 9, 1984. -Nould yon please-look into what' steps are required to meet such a date.and inform the Commission on these steps as soon as possible, but not later than March 30, 1984.
For planning purposes, you cculd assume the following steps:
A tv 7 week sta f f review of the prop u-al by LILOS:.
i o
A one week discovery period A two week period for filing testimony and holding a hearing; A two week period to issue the Board's decision.
Final Commission guidance on the expedited hearing on this matter would be based on your submittal and follow-up discussions.
If you have any questions, please let me know.1/
Chairman Palladino had not discussed this " working paper" with the other Commissioners and, thus, the reference to "The Commission" in the second paragraph was not accurate.
The other Commissioners were not informed of Chairman Palladino's
" working paper" or his request to Judge Cotter until April 4.
6.
Judge Cotter responded to Chairman Palladino's
" working paper" the next day.
His March 23 response, in the form of a detailed 9 page proposed order for adoption by the Commission, contained the following elements:
5/
The time estimates in the " working paper" apparently were derived by Chairman Palladino from "OGC's rough estimates of the time that an expddited hearing such as suggested by OGC:might take_.
Palladino Statment at 12.
The estimate of a two week period for Sta f f review of the LILCO proposal -- a roduction,from the 30-day review period discussed on March 16 and reported in Judge Cotter's notes -- presumably reflects further conversation with the' Sta ? f either by the - Chairman, his stff, or the OGC. r
o (ai A' proposed decision that consideration of LILCO's low power proposal be expedited and that it be decided on the merits.
. Thi s, of course. prejudged the very question at issue:
whether LILCO's oroposal was a challenge to GDC 17 that had to be rejected outright.
It thus had the ef fect of deciding that the GDC 17 requirement of an onsite electric power system could be eliminated. wi thout even requiring LILCO to seek an exemption or waiver under 10 C.F.R. $ 2.758 or
$ 50.32(a).
(b)
A proposed decision that-a new Licensing Board be appointed to replace the Brenner Board, which on February 22, 1984, had dealt LILCO a setback.
This proposal to i
appoint a new Licensing Board cane four days before the Brenner l
Board advised Judge Cotter that it had a potential schedule conflict due to the judges' involvement in the Limerick pro-ceeding.
Significantly, Judge Cotter's notes of the Chairman's March 16 meeting state:
" NOTE:
Concern re Same Board Chair-man"
[i.e., Judge Brenner].
l (c)
A propos ul decision that LILCU's March. 20 Motion L
be litigated.on a schedule that Judge Cotter described as "bru-tally tight" and "Ed]efinitely not recommended but possibly achievable."
The Cotter schedule called for a decision on the l
LILCO Motion within 50 days.
To achieve such " expedition,"
r Judge Cotter suggested that there be 16 days for discovery, 5 days between close of discovery and filing testimony, 5 days until the start of hearing, and 10 days for the hearing.
This schedule is clearly responsive to and consistent with the Chairman's " working paper" directive that Judge Cotter devise an expedited schedule for Shoreham.
Further, one re,ason cited by Judge Cotter for adoption of this " brutally tight" schedule was "the enormous financial investment" of LILCO.
See Cotter dra ft order, p.
4.-
This was the same reason cited by Chairman Palladino for his personal intervention in the first place-See M2, suora.
Significantly, Judge Cotter's notes of the March 16 meeting with the Chairman stata:
"Says will go bankrupt if 12/84 I.D.'rInitial Decision of the Licensing Board]."
As noted previously, the only decision that could avert a LILCO bankruptcy was an early one favorable to LILCO.
7.
On March,26, Su f folk County submitted preliminary _
views to the Brenner Board regarding LILCO's Maren 20 Mot #on.
These views were submitted in response to a specific tiarch 22 request of the Brenner Board that parties provide preliminary views on how the new LILCO Motion should be handled.
In-these views the County stated:
(a)
The County required more than the normal ten-day period to respond to LILCO's Low Power Slotion, because it raised many new'and complex factual issues 6/ and the County 6/
The NRC's Office of General Counsel has aareed that Tw
~
issues raised by LILCO's Motion are " extremely c>mpi.s':."
Sie "12,
- infra,
needed to retain appropriate experts to analyze those issues.
(b)
Analysis of the factual issues would first require the County to obtain substantial information through diocovery.
(c)
Additional time was required to address legal issues raised by-LILCO's Motion.
(d)
A number of threshold issues should be addressed before the merits of LILCO's Low Power Motion were considered, including: (i) the Motion did not meet the criteria enunciated i
by the Brenner Board on February 22 for a new low power propos-al, because it did not state how it met regulatory requirements or why a waiver therefrom should be granted; (ii) the Motion relied upon power sources located at the Shoreham sita which
~
were not seismically qualified, as required, but LILCO had sought no waiver o.f the NRC's seismic requirements; a n.i (iii) contrary to the Board's February 22 order, the Motion appeared to rely upon the TDI diesels.
The County requested a conference with the Brenner Board to discuss the procedural matters affecting the diesel-litigation and LILCO's' Low Power Motion.
On March 28, the State of New York filed preliminary views which supported those submitted by the County.
The County-.
9 Y
F
m supplemented its views on March 30, urging that the LILCO Motion be summarily dismissed fo r failing to comply with GDC 17.
8.
On March 27, Chairman Palladino gave Judge Cotter's draft order to the Office of General Counsel.
Chairman l
Palladino did not give the draft order to the other Commissio.ners until April 4.
9.
On March 30, the NRC Staff responle1 to LILCO's Low Power Motion.
In an abrupt and. complete reversal of its prior position that no low power license could be issued for Shoreham until the TDI diesel problems were solved, the Staff stated in-stead that operation of Shoreham could be permitted in the complete absence of any onsite electric power system.
If the protection af forded to the public at low-power levels without diesel generators is found to be equivalent to (or greater than) th'e protection af forded to the public at full-power with approved diesel genera-tors, the Sta f f submits that LILCO's motion-should be granted.
This sudden change in Staff position _ led a Commissioner to conclude that Chairman Palladino's intervention had been influ-ential:
COMMISIONER GILINSKY:
I must'say that this s'o n f l.rm s ne even further in my view that the staff ought -not be in these hearings.
Here is the staff concocting arguments on L 4
y e
how all this can be rationalized and I must say that even though you didn't tell them anything about the hearings, this is aftec your meeting with them on the spesiing ug the process so the effect of it is inevita-ble.
You have them go back and think,
'Well, how can we speed up this process?'
I am not suggesting that you did anythin; proper (sic] mind you but that is intrinsic in the way the system works.
NRC April 23 Meeting Transcript,
- p. 59 (Emphasis added).1/
Further, without addressing any of the County's and State's concerns regarding the time required to respond to LILCO's Low Power Motion and without revealing the ~taff's meeting with Chairman Palladino, the Staff called for an expedited hearing on the Motion with all testimony to be filed by April 23.
This Staff schedule was consistent with the guidelines set forth in Chairman Pallad ino ' s " working. paper" and with Judge Cotter's proposed ordec.
10.
On March 30, Chief Administrative Judge Cotter issued an order removing the Brenner Board and establishing a new licensing board "to hear and decide" LILCO's Low Power Motion.
The order noted the " advice" of the Brenner Board tha t "two of its members are heavily committed.to work on another operal-ing license proceeding."
According to a report in' Nucleonics Week,
' April 5, 1984:.
7/
See also CLI-84-R, Separate Views of Commissioner
~
Gilinsky, May 16, 1984 ("the Staff had been trying to run legel interference for the Company").
___________a
e e
l Appointment of a board to hear Lilco's motion fo r a low-power license at shoreham
[wss] his idea, Cotter said through an agency spokesman.
However, he said, Palladino's staff was " aware" of his deci-sion.
Indeed, Judge Cotter informed the Chairman of the actaal ap-pointment before it was made.
Palladino Statement at 14.3/
Moreover, Judge Cotter's notes of the March 16 neeting reveal that there was " concern" with Judge Brenner.
In any event, Chairman Palladino was aware of Judge Cotter's decision because Judge Cotter had proposed appointment of a new Board in his March 23 draft order Which was prepared at Chairman Palladino's request.
vurther, even if the appointment of a new Board was Judge Cotter's " idea", this idea was one of tha proposal.s developed by Judge Cotter at the request of Chairman Pilladino and, thus, the " idea" clearly was the product of the Onirmaa's intervention.
11.
On the same day, March 30, the parties'were notified by telephone that the new Licensing Board (the " Miller Roard")
would hear oral arguments on April 4,-1994, on LILCO's Low 8/
The Of fice of-General Counsel spoke with Judge Cotter i
several times between March 27 and 'farch 30 regarding Judge Cotter's proposal to appoint a new board and npocif-ically questioned Whether the action did not appear to presume that LILCO's Motion would be granted.
See NRC April 23, 1984 Meeting Transcript, pp.
R-9.
i i,
Power Motion.
The telephonic notice stated that this Board was
" established to hear and decide the motion on an expedited basis."
This oral notice was confirmed by the Miller Board's Notice of Oral Arguments (March 30, 1994), which stated that at the oral argument the Board would hear the issues raised by the parties "in their Eil ing s, as well as a schedule for their expedited consideration and determination."
(Emphasis added).
In light of the known fa cts, it would not be reasonable to conclude tha t the Miller Board's March 30 decision to expedite the proceeding was independent of the chain of events that began with the Chairman's March 16 intervention.
It must he borne in mind that the Miller Board was appointed on March 30.
To make a reasoned and independent judgment to expedite the proceeding, the Board would have had to review and consider LILCO's inch-thick March 20 Motion and the responsive pleadings of the County, State, and the Sta f f, become familiar with the extensive record compiled by th'e Brenner Board, particularly the February 22 conference, and hear from the parties regarding the many issues raised by LILCO's motion.
Nevertheless, the Miller Goard decided -to expedite the proceeding the veri same day it was appointed -- March 30.
12.
On April 2, the NRC's General Counsel circulated a Menorandum to all the Commis11oners.-
The purpose of this-
_o Memcrandum-was to respond "to the Chairman 's March 20, request that-OGC develop proposals for expedited hearings on the Shorehan diesel prchlen."
The OGC noted tha t the " issues Craised by LILCO's Motion] are extremely complex OGC suggested a number of alternatives, including an expedited hearing schedule, which allowed a total of 80 days between a Commission Order starting the proceeding and a Licensing Board decision on the LILCO Motion.
Under this OGC " expedited" schedule, there would have been 15 days for discovery, 10 days between close of discovery and the start of hearings,f/ and 15 days for hearings.
13.
On April 3, the County filed Comments on the Miller Roard's March 30 Notice of Oral Arguments, pointing out that "there is no basis for any expedited process," and tha t this
-issue should be addressed by the partias at the oral. argument.
The County repeate.d - its view that LILCO's Low Power Motion should not be argued on the, merits.until the Countychad an op-portunity to retain experts and conduct adequate discovery, as discussed in the County's March 26 Preliminary Views.
Also, on April 3, the State of.New York filed a motion in opposition.to tKe Miller Goard's ruling that LILCO's Low Power Motion would be.givan expedited. consideration.
The' State argued that 9/
Prefiled testimony was omitted.
- 16 w_
r 0
expediting LILCO's Low Power Motion was arbitrary and would deny the State due process of law.
14.
On April 4, Chairman Palladino distributed a Memoran-dum to the other Commissioners, attached to which was Chairman Palladino's March 22 " working paper" and Judge Cotter's March 23 draft order.
The Chairman's April 4 Memorandum was also distributed to the Atomic Safety and Licensing Board Panel, of which Chief Judge Cotter and Judges Miller, Bright, and Johnson (the Miller Board) are members.
15.
On April 4, the newly appointed Miller Board heard oral argument on the LILCO Motion, including whether GDC 17 was being impermissibly challenged by LILCO and whether there was any basis to expedite the proceeding.
16.
On April 6, the Miller Board issued its Memorandum i
and Order Scheduling Hearing on LILCO's Supplemental Motion for Low-Power Operating License.(the " Low Power Order").
The Low Power Order stated first that LILCO could operate Shoreham at low power with no onsite electric nower system, provided that i
the public health and safety findings suggested by the NRC Staff were made.
The Board - thus adopted the' position urged by.
the Staff in its March 30 filing and by Judge Cotter in his March -23 dra f t order.
It provided the final link in the chain which began at the Chairman's March 16 meeting with the
- 27
e 6
formulation - of an " alternative solution for low power."
This was, as Judge Cotter's notes reflected, the means for LILCO "to
.get around fthe] diesal issue."
Second, despite the " extremely complex" issues presentea, the Board decided to expedite consideration of LILCO's Motion.
Again, this decision was consistent with the Chairman's
" working paper," the position of the Staff, and with Judge Cotter's draft order.
The Board 's Order defined the issues and estabitshed expedited procedures.
Judge Cotter's notes of the Chairman's March 16 meeting reveal a discussion to " define
' contention' and set time' frames for expedited procedures. "
Significantly, the time frames established by;the' Miller Board
.have a striking similarity to those proposed by Judge Cotter in his March 23 draftHnrier for the Chairman.
Judge Cotter Miller Board Time for discovery-16 days 10 days Time between close of discovery and filing of testimony.
5~ days 4' days Time.between filing of testimony and start of hearing 5 days 4 days-
' Elapsed time. set aside forLhearing:
10; days _
11 days.
'28'-
T:'
p-17.
Suffolk County and the State of New York protested the Miller Board's April 6 Order as denying them due process of law and as being contrary to GDC 17 and other MRC regulations.
l
'The County even submitted detailed af fidavits of expert consul-tants documenting that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hear-ing.
The Miller Board and, subsequently, the Comnission re-fused to alter the April 6 Order, forcing the County and the State to seek a. temporary restraining order in federal court.
The TRO was granted on April 25.
II.
Chairman Palladino Must Recuse Himsel f or Otherwise Be Disaualified By _The_ Commission The standard for determining whether Chairman Palladino must recuse himself or otherwise be disqualified is-whether "a "a disinterested observer" may conclude that Chairman Palladino "has in some measure adjudged the facts as well as the law"~in the Shoreham case "in advance of hearing 'it."
Cinderella2 suora, 425 F.2d at 591 (emphasis supplied).10/ -Under the Cinderella standard and the facts described above, a disinter-1 ested observer certainly may conclude that Chairman Palladino 10/
Chairman Palladino has contended-that he has not prejudged the Shoreham proceeding. 'See e.g.,
Palladino' Statement at 20-21; Palladino Letter to Congressman Markey,' April 6, 1984; CLI-94-9, Separate ' Views of Chairman Palladino, May 16,~1984..
His. position, however, does not address the
. legal standard set forth in ' the - Cinderella case..
?
9 has at least in some measure adjudged the facts and law in this case before hearing it.
Certainly, as noted previously, a dis-interested observer could conclude tha t the only decision which could avert a LILCO hankruptcy was an expedited one favorable to LILCO.
The Cha irman 's March 16 meeting with top-level Staff per-sonnel -. an ex parte meeting prohibited by Section 2.780 of the regulations -- and his meeting with Judge Cotter, the NRC's Chie f Aiministrative Judge, dealt with establishing a strategy and an action p1'an to help LILCO without any regard for the e f fects on the rights and interests of the County and State.
This strategy and plan were based on the concern that the sub-stantive rulings and hearing procedures adopted by the Brenner Board might permit LILCO to go bankrupt before a low power licansa 3ecision could be issued.
Therefore, to get around those rulings and procedures, the strategy and actions Follow-ing the intervention of Chairman Palladino produced a new Licensing Board, a new legal standard.which would permit ths l >< power operation of Shoreham with no onsite power and with-out waiver of GDC 17, and a new expedited hearing schedule which ef fectively barred the County and State from preparing f or and carticipating meaningfuly in the hearing.
The County f
and State submit that these results would not have been produced but for the personal intervention of Taal nan Palladino.11/
11/
Chairman Palladino on May 16, 1984 disputed the assertion of Commissioner Gilinsky that Chairman Palt.adino had (Footnote.;ont'd_next page)
1 Significantly, Judge Cotter's notes reveal that the dis-cussion at the Chairman's March 16 meeting focused on how to change what was then the law of the case.
The discussion thus focused on an " alternative solution for low power" -- tha t is, an alternative to what had been decided on the record by the Brenner Daard with the participation of the parties under the provisions oF the NRC's regulations.
The March 16 meeting was an entirely different setting:
It dealt with a "LILCO propos-al" which had not even been submitted and of which the County and State had no knowledge; it was a secret meeting of which there was no public notice; the discussion was not on the record; the parties (except for the Staff) were not present; it focused on a means of obtaining a favorable decision in time to avert a LILCO bankruptcy; and the NRC 's ex parte rules were violatei.
1 (Footnote cont'd from previous page) 11 ected the Sta f f's ideas on any issue in the Shoreham casa.
The Chairman suggested, in fac t, tha t the Staf f had taken positions in February 1984 before the Brenner Board which were consistent with - those taken by the Staf f on March 30, 1984.
See CLI-84-8, Separate Views of Chairman Palladino, May 16, 1984.
However, before the Brenner' Board, the Sta f f had insisted that for a low power license, LILCO needed to fix the diesels or seek an exemp-tion or waiver.
See Section I.A, supra.
On March 30, the Sta f f took the. entirely new position (after meetings with the Chairman) tha t ; (a) the iiesels did not need to be 4
fixed; (b) LILCO could operate at low power with no onsite power system at all; and (c) LILCO did not need to seek a waiver or exemption.
We submit that commissioner Gilinsky was clearly corrects the Sta f f got its r. arching orders from the Chairman and carried them out.
- 31 1
.o e
In essence, the March 16 meeting was a planning session to figure out hos to get around the lawful rulings of the Brenner j
Board.
Its purpose was improper; its discussion was improper; and the actions of NRC personnel that followed it were improp-Each of these personnel acted as a link in a chain of in-er.
propriety that commenced in the Chairman's of fice on March 16.
Under the Atomic Energy Act, the zone of interests to be protected by the NRC is the public's health and safety. See Powe* Reactor Dev,e),ooment Corp. v.
International Union of Electrical, Radio,.and Machine Workers, 367 U.S.
409, 415 i
(1961); cf. Portland General F,lectric Co.,
(Pebble Springs Mu-clear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C.
610 (1976).
In the present case, however, there is,every indication tha t Chairman Palladino used the power and prestige of his of fice to set in motion actions which prejudiced the rights and interests of the County and State, but aided LILCO's efforts to secure an operating license in time to avald bankruptcy.
(Judge Cotter's l
notes of the Chairman's March 16 meeting underscore this concern for LILCO. )
Under the circumstances set forth herein, a disinterested' observer may surely conclude that Chairman Palladino has in some measure prejudged the facts as soll as the law in the Shoreham proceeding in advance of the hearing.
The final evidence of.the Chairman's prejudgment a n be seen in the actions of the Chie f Administrative Juige, the 9ta f f, and 32 -
o o
the Licensing Board personnel who along the way gave ef fect to his wishes.
The Shoreham proceeding has been pervasively tainted by the Chairman and others who worked in parallel with him to aid LILCO at the expense of Suffolk County and New York State.
The only way to begin the process of restoring institutional integ-rity in this proceeling is by the' disqualification of those whose actions have created the taint.
The place to start is with the Chairmen's recusal.
If he does not recuse himself, the County and State move the Commission to take cognizance of this matter and vote on whether to disqualify the Chairman.
a j
Respectfully submitted, Martin Bradley Ashare Suf folk County Department ol Law Veterans Memorial Highway Hauppauge, Ne vi York 11798 i
i KIRKPATRICK, LOCKHART, HILL, CHRISTOPH M & P91LLIPS 1
A v
Herbert H.
Br'5Gn Lawrence Coe Lanpher 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suf folk County 1
__ f Fabian G.
Palamino Special Counsel to the Govenor of i
33 -
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New York State Executive Chamber - Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M.
Cuomo Governor of the State of New York June 5, 1984 b 1
j o
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY AND THE STATE OF NEW YORK REQUEST FOR RECUSAL AND, ALTERNATIVELY, MOTION FOR DISQUALIFICATION OF CHAIRMAN PALLADINO, dated June 5, 1984, have been served to the following this 6th day of June 1984 by U.S.
i mail, first class, except that some are being served by hand (when indicated by one asterisk), and some by Federal Express (when indicated by two asterisks).
)
Judge Marshall E. Miller, Chairman
- Edward M.
Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company U.S.
Nuclear Regulatory Commission 250 Old Country Road Washington, D.C.
20555 Mineola, New York 11501 Judge Glenn O.
Bright
- Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S.
Nuclear Regulatory Commission H.
Lee Dennison Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson **
Oak Ridge National Laboratory Fabian Palomino, Esq.**
P.O.
Box X, Building ~3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor Executive Chamber, Room 229 Eleanor L.
Frucci, Esq.*
State Capitol Atomic Safety ~and Licensing Board Albany, New York 12224 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- W.
Taylor Reveley, III, Esq.
Anthony F.
- Earley, Jr.,
Esq.
Bernard M.
Bordenick, Esq.*
Robert M. Rolfe, Esq.
j Edwin J.
Reis, Esq.
Hunton & Williams l
Office of Exec.. Legal Director 707 East Main Street O.S.
Nuclear Regulatory Commission
-Richmond, Virginia 23212 Washington, D.C.
20555-
!=
L.
' o i
Mr.' Martin Suubert James Dougherty, Esq.
2.
c/o Cong. William. Carney 3045 Porter Street, N.W.
1113 Longworth House Office Washington, D.C.
20008 i
Building Washington, D.C.
20515 Mr. Brian McCaffrey l
Long Island Lighting Company l
Martin Bradley Ashare, Esq.
Shoreham Nuclear Power Sta.
i Suffolk County Attorney P.O. Box 618 H.
Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 l
Hauppauge, New York 11788 Jay Dunkleberger, Esq.
Docketing and Service Branch New York State Energy Office i
Office of the Secretary Agency Building 2 U.S.
Nuclear Regulatory Commission Empire State Plaza Washington, D.C.
20555 Albany, New York 12223 Nunzio J.
Palladino, Chairman
- Comm. Frederick M.
Bernthal*
U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Comm.
7 Room 1114 Room 1156 1717 H Street, N.W.-
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 1
Commissioner Victor Gilinsky*,
Comm. Thomas M. Roberts
- U.S. Nuclear Regulatory Commission U.S.-Nuclear Regulatory Comm.
l Room'1103 Room 1113 f
1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555
. Washington, D.C.
20555 Commissioner James K. Asselstine*
Stephen B.
Latham, Esq.**
l U.S.
Nuclear Regulatory Commission John F. Shea, Esq.
Room 1136 Twomey, Latham and Shea.
1717 H Street, N.W.
33 West'Second' Street Washington, D.C.
20555 Riverhead, New York 11901 i
l Herzal Plaine, Esq.
Lawrence J.
Brenner, Esq.
j U.S.
Nuclear Regulatory Commission Administrative-Judge 10th Floor
_ Atomic Safety.& Licensing Bd.
i 1717 H Street, N.W.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555-Washington, D.C.
20555 1
i.
Dr. George A.- Ferguson Dr. Peter A.
Morris Administrative Judge Administrative' Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Bd.
U.S.
Nuclear Regulatory Commission U.S.. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555
~ James A.
Laurenson,. Chairman Dr. Jerry R.
Kline Atomic Safety & Licensing Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety & Licensing-Bd.-
Washington, D.C.
20555' U.S.
Nuclear Regulatory Comm.
Washington,.D.C.
-20555
=
Mr. Frederick J.
Shon Administrative Judge Ralph Shapiro, Esq.
Atomic Safety & Licensing Board Cammer and Shapiro U.S.
Nuclear Regulatory Commission 9 East 40th Street Washington, D.C.
20555 New York, New York 10016 Stewart M. Glass, Esq.
Joel Blau, Esq.
Regional Counsel New York Public Service Comm.
Federal Emergency Management Agency Gov. Rockefeller Building New York, New York 10278
~
Empire State Plaza Albany, New York 12223 Atomic Safety and Licensing Board Pan'el Mr. Marc W.
Goldsmith U.S.
Nuclear Regulatory Commission Energy Research Group, Inc.
Washington, D.C.
20555 400-1 Totten Pond Road Waltham, Massachusetts 02154 MHB Technical Associates 1723 Hamilton Avenue Spence Perry, Esq.
Suite K Associate General Counsel San Jose, California 95125 Fed. Emergency Mgmt. Agency Washington, D.C.
20472 Jonathan D.
Feinberg, Esq.
Staff Counsel Atomic Safety & Licensing New York State Public Service Appeal Board Commission U.S.
Nuclear Regulatory Comm.
3 Rockefeller Plaza Washington, D.C, 20555 Albany, New York 12223 Ms. Nora Bredes Mr. Stuart Diamond Executive Director Business / Financial Shcreham Opponents Coalition i
NEW YORK TIMES 195 East Main Street 229 W.
43rd Street Smithtown, New York 11787 New York, New York 10036 Mr. Frank R. Jones **
Deputy County Executive H.
Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 4V '
l
.n__ w Lawrence Coe Lahphdf KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800-Washington, D.C.
20036 DATE:
June 6, 1984 l
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