ML20092G431
| ML20092G431 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/21/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20092G435 | List: |
| References | |
| OL-4, NUDOCS 8406250125 | |
| Download: ML20092G431 (13) | |
Text
..
-e h'D 6/21/84 O
dh/p7 Pd:Sg 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)
)
)
SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF JUDGES MILLER, BRIGHT, AND JOHNSON 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, in the County's and State's request for recusal of Chairman Palladino, dated June 5, 1984, a copy of which is attached and hereto incorporated by reference, and in the attached Affidavit.1/
The legal standard which applies to the issue of whethar Judges Miller, Bright, and Johnson should be disqualified is 1/
Section 2.704(c) of the NRC's regulations calls for sub-mittal of an affidavit accompanying a motion to disqualify an ASLB judge.
In the view of the County and State, such an affi-davit is unnecessary here, because all material facts set forth herein and in the attachment are matters of public record con-tained in NRC and other publicly available documents.
- However, in view of the Board's telegraphic order of June 19, 1984, an Affidavit is submitted herewith.
8406250125 840621 1
PDR ADOCK 05000322 9
, whether "a disinterested observer may conclude that (each of the 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 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 proscription of this legal standard.
As further noted hereinbelow, two NRC Commissioners have stated their conclusion that these Judges should be replaced.
The actions of these Judges, the documents of public record, and the statements of the two Commissioners provide solid grounds for other disinterested observers to join the conclusion of the Commissioners that these Judges should be replaced.
The standard of the Cinderella case, therefore, is clearly met here.
Commencing March 30, 1984, Judges Miller, Bright, and Johnson made decisions which paralleled and furthered 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 Chair-man 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 gen-erators.
The Chairman, personally and through his legal assist-
.. ant, 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 Administra-tive Judge;and NRC Staff then took actions which set the stage for tne achievement of the objectives, and the Licensing Board --
composed of Judges Miller,' Bright, and Johnson -- issued the Orders which secured them.
The actions of these Judges clearly, in the words of the Cinderella case, permit a disinterested observer to conclude that Judges Miller, Bright, 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 question of " guilt."
The stand-ard, rather, raises the issue of the objectivity, and the appear-ance of objectivity, 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 mea'sure" prejudged the facts and law of the issues pending before them.
8 o.
I.
Factual Background The data, set forth in the attached request for recusal of Chairman Palladino (particularly pages 11-29) and in the attached Affidavit 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 preside over the low power proceeding in place of the Brenner Board, Judges Miller, Bright, and Johnson (hereinafter the " Miller Board") issued by telephone an Order to the parties.
This Order stated that the Miller Board would on April 4 hear
" oral arguments" on LILCO's Low Power Motion, and that the Board would consider a schedule for their " expedited decision."
Affi-davit, 11 32, 34.
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 fcr their expedited consideration and determination."
Affidavit t 34.
(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 proceeding was independent of the chain of events that began with the Chairman's March 16 intervention.
(See pages 7-24 of the attached request of the County and State for recusal of Chairman Palladino and paragraphs 11-31, 33 of the attached Affi-davit for a description of such chain of events.)
It must be e_
y
e-borne in mind that the Miller Board was appointed on March 30.
To make a rea,soned and independent judgment to expedite the pro-ceeding and to deal with the unprecedented GDC 17 issue, 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 with the extensive record compiled by the Brenner Board, particularly the February 22 conference, and hear from the parties regarding the many issues raised by LILCO's Motion.
That Motion included, for example, an unprece-dented proposal to operate a nuclear plant without a nuclear-qualified onsite emergency power system, a proposal which clearly called into question LILCO's compliance with GDC 17 and other regulations.
Nevertheless, the Miller Board decided 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 Memo-randum 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 tatal 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 dis-
I~
' covery and the start of hearings, and 15 days for hearings.
Affidavit 1 35.
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.
Affidavit 1 36.
- 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 the State due process of law.
Affidavit 1 37.
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 Me,morandum was also distri-buted to the Atomic Safety and Licensing Board Panel, of which Chief Judge Cotter and Judges Miller, Bright and Johnson are members.
Affidavit 1 38.
In'his draft order, Judge Cotter sug-gested a schedule which he described as " brutally tight" 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.
Affidavit 1 25.
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.
Affidavit 1 39.
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 public health and safety findings similar to those suggested by the NRC Staff were made.
Affidavit 1 40.
The Board thus essentially adopted the position urged.by the Staff in its March 30 filing (Affidavit 1 30) and by Judge Cotter in his March 23 draft order (Affidavit 1 25).
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."
Affidavit 1 16.
This was, as Judge Cotter's notes reflected, the means for LILCO "to get around [the] diesel issue."
Affidavit 1 16.
Second, despite the " extremely complex" issues presented
-(Affidavit 1 35), theMillerboarddecidedtoexpediteconsider-
-ation of LILCO's Motion.
Affidavit 1 40.
Again, this decision was consistent with the Chairman's " working paper" (Affidavit 1 24), with the position of the Staff (Affidavit 1 30), and with Judge Cotter's draft order.
Affidavit 1 25.
The Board's Order
m e
,_ defined the issues and established expedited procedures.
Judge Cotter's notes of the Chairman's March 16 meeting reveal a dis-cussion to " define ' contention' and set time' frames for expedited procedures."
Affidavit 1 16.
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 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 for hearing 10 days 11 days Affidavit 11 25, 40.
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.
Affidavit 1 41.
The County even submitted affidavits of expert consultants documenting that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hearing.
Affidavit 1 41.
The Miller Board and, subsequently, the Commission refused to alter the April 6 Order, forcing the l
County and-the State to seek a temporary restraining order in L
b
o
. federal court.
Affidavit 1 41.
The TRO was granted on April 25.
Affidavit 1 41.
II.
Judges Miller, Bright and Johnson Must Recuse Them-selves or Otherwise be Disqualified by the Commission The actions of the Miller Board are within the disqualifi-cation standard of 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 persuasive reasons 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 indicate that a disinterested observer "may conclude" that the Miller Board "in some measure" prejudged the matters before it.
What is of particular significance is that these actions of the Miller Board furthered 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 Staff, Chief Administrative Judge Cotter, and other NRC personnel, his undated " working paper" discussed by his legal assistant with 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 at-
. tached (of which copies were sent to the ASLB Panel), all were designed to achieve two objectives in the Shoreham low power preceeding:
1.
" Expediting" a decision in order to aid LILCO's finan-cial 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 accommo-dation 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.
Affidavit 11 5, 6,
30, 31.
Second, Judge Cotter 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.
Affidavit 11 25, 38.
Third, the Miller Board on March 30 ordered the "expe-dited" hearing -- and later confirmed that order over the repeated objections of the County and State -- and on April 6 essentially adopted the Staff's position which eliminated GDC 17 and found.onsite emergency power unnecessary for low power opera-tion. Affidavit 11 34, 36, 37, 40, 41.
Thus, these actions achieved the Chairman's objectives and prejudiced the rights and interests of the County and State.
,- In the face of these actions, we submit that it would be clearly reaso.nable for a disinterested observer to conclude that the Miller Board had "in some measure" prejudged matters within the prohibition of the Cinderella standard.
Indeed, such an observer certainly "may conclude" that the actions of the Chairman, the Chief Administrative Judge, the NRC Staff, and the Miller Board were consciously in pursuit of aiding LILCO with an
" expedited" low power decision that "got around" the diesel issue.
Moreover, the instant situation is a case where two dis-interested observers -- Commissioners Gilinsky and Asselstine --
have considered the facts of record and have concluded that Judges Miller, Bright and Johnson should be replaced.2/
By 2/
See separate Statements of Commissioner Gilinsky and Commis-sioner Asselstine appended to the Commission's May 16, 1984 Order in this docket.
Commissioner-Asselstine stated in part:
I believe the Commission's Order is defi-cient because it fails to address a series of procedural questions associated with the conduct of this proceeding.
These questions involve procedural irreg-ularities associated with certain actions by the Chairman of the Commission which are related to this, case, and the conduct of the Licensing Board Chairman, includ-ing his decision to institute disciplin-ary action against an attorney for one of the parties to the proceeding.
Taken together, these procedural questions create.the appearance of impropriety in the conduct of this proceeding, and call for prompt and effective corrective action by the Commission.
The Commission should have directed the (footnote continued)
6 O
9 k
i
. \\
definition, therefore, the standard of theiCinderella case has
]
nT ean met:
Not only "may disinterested observers" conclude that b
fj the Miller Board should be replaced, but two have already done Accordingly, Suffolk County and New York State move that so.
h Judges Miller, BrightandJohnsondisqualifypemselvesfrom A
4 participati,ng,in,'any matter related to the Shoreham plant.
If they do not'sotact; the Commission or Appeal Board, as appro-
^
priate, should}kisqualifytheseJudges.
See 10 C.F.R. 6
- 2.704(c).
Respectfully submitted, c
,t Martin Bradley4Ashare Suffolk' County Department of Law j
y
- y 1,!,
Veterans Memo,gial Highway Hauppauge,' New York.
11788
,'3' v
(footnote continued from previous page)
F establishment of a.new Licensing Board to consider any modified motion submitted by the Applicant under 10 CFR section 50.12.
The establishment.of a new Licensing Board would have done much to restore the appearance of objectivity and fairness to this proceeding.
Moreover, it would.have g";.
eliminated many of the procedural defi-ciencies that could call into question the validity of any subsequent decision of the Licensing Board and'the Commission on the issuance of an exemption under 10 CFR section 50.12.
s Id. '< Commissioner Gilinsky stated in part:
/
I also agree emphatically with Com'-
missioner Asselstine that,the case should be heard.by a new hearing Board for the reasons h,e cites.
4 Id.
t L.
/
d e'
., s I
8
/
g_
~
Herbert H.
Brown
\\f Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, o'
CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 V*
Washington, D.C.
20036 Attorneys for Suffolk County
=
s'
(
)
Fabian G.
Palomino Special Counsel to the Governor 3
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 21, 1984 i
I
\\ ',
.')