ML20092G451
| ML20092G451 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/21/1984 |
| From: | Brown H, Lanpher L, Palomino F NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| Shared Package | |
| ML20092G435 | List: |
| References | |
| OL-4, NUDOCS 8406250129 | |
| Download: ML20092G451 (23) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISb10N 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)
)
)
AFFIDAVIT OF HERBERT H.
BROWN, LAWRENCE COE LANPHER, FABIAN G.
PALOMINO I
Herbert H. Brown, Lawrence Coe Lanpher, and Fabian G.
Pal-omino, being duly sworn, do state under oath the following:
1.
The undersigned are attorneys in the Shoreham low power proceeding, Messrs. Brown and Lanpher representing Suffolk County and Mr. Palomino representing the State of New York.
The purpose of this Affidavit is to furnish source data for the Suffolk County and State of New York Motion for Dis-qualification of Judges Miller, Bright, and Johnson.
2.
The factual statements set forth in paragraphs 3-41 below are derived from publicly available documents, except for certain instances (paragraphs 11, 12, 24, 34) which pertain primarily to the Affiants' personal recollections of Chairman 8406250129 840621 PDR ADOCK 05000322 Q
o Palladino's oral testimony on May 17, 1984, before the Subcommittee on Energy and the Environment of the House Commit-
~
tee on Interior and Insular Affairs.
As to each factual state-ment set forth below, the Affiants provide the~ basis or bases for the Statement, i.e.,
identification of the publicly avail-able document or any other source of the data.
3.
On February 22, 1984, the NRC Licensing Board chaired by Administrative Judge Lawrence Brenner (the "Brenner Board")
ruled that there was no basis for granting LILCO a low power license for Shoreham "in advance of complete litigation" of the i
emergency diesel issues.
Source:
Transcript of ASLB Hearing, Feb.-22, 1984, at 21,615.
The Brenner Board set a schedule for litigation of those issues that, after a discovery period f
of approximately two months, provided for a conference of the parties after May 10, to determine subsequent procedures.
Source:
Id. at 21,634.
In issuing that schedule the Brenner i
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 l
of Contentions 1, 2 and 3 [the outstanding L
diesel issues].
i Source:
Id. at 21,615.
I l'
l-l l l I
y e
r a
4.
Under the Brenner Board schedule, it was estimated by the NRC Staff that an initial decision on emergency diesel gen-erator contentions would be issued in December 1984.
Source:
Attachment to Memorandum from William J.
Dircks to Commissioners, March 9, 1984, available as part of FOIA-84-250.
5.
As of February 22, the NRC Staff opposed LILCO's arguments that " enhanced" offsite power could substitute for deficient onsite power.
The Staff would give no credit to LILCO's offsite power system, including the gas turbine physi-cally located at Shoreham, because " General Design Criteria 17 requires an-independent, redundant and reliable source of on-site power."
Source:
NRC Staff's Response to Suffolk County's Motion to Admit Supplemental Diesel Generator Conten-tions, February 14, 1984, at 12, footnote 7.
The Staff took "no position upon whether applicant, upon a proper technical analysis, could or could not support an applicatien for an ex-emption to allow it to go to low-power absent reliable safety-grade diesels."
Source:
Id.
6.
At an open meeting between the NRC Staff and the TDI Owners Group on January 26, 1984, Mr. Harold Denton of the Staff 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
-adequately addressed.
r e
Source:
Jan. 26 Meeting transcript at 8.
Mr. Darrel Eisenhut of the Staff stated at the same meeting that " prior to licensing, even a low power license," the Staff must have con-fidence that the TDI diesel problems have been solved.
Source:
Id. at 95-96.
7.
The Brenner Board's February 22 decision was followed two days later by a published report that LILCO's Chairman, William J. Catacosinos, had met with the NRC Commissioners.
Source:
Newsday, Feb. 24, 1984.
8.
In a March 9, 1984, letter to LILCO shareholders, 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 A timely reso-the company faces 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.
Source:
LILCO 1983 Annual Report.
9.
On March 9, the NRC Staff notified the Commissioners of potential licensing delays of 9 months for Shoreham.
The 9 month delay was estimated by LILCO and passed on to the Commissioners by the Staff.
Source:
Attachment to Memorandum
from William J.
Dircks to Commissioners, March 9,
- 1984, available as part of FOIA-84-250.
r 10.
Chairman Palladino met on March 15 with personnel from the Offices of Policy Evaluation and General Counsel con-cerning the potential licensing delays.
It was then decided to hold a meeting on March 16.
Source: Individual Statement of Nunzio J. Palladino Before the Subcomm. on Energy and the Envi-
- ronment, H.
Comm. on Interior and Insular Affairs, May 17, 1984, pp. 8-9 (hereafter, "Palladino Statement").
11.
On March 16, Chairman Palladino met with members of
. commission offices, " Tony Cotter" (B. Paul Cotter, Jr.,
the NRC 's Chie f Administrative Judge), and top level Staff person-nel, including the Executive ' Director for Operations, the Director of the Office of Nuclear Reactor Regulation, the Exec-utive Legal Director and their subordinates to discuss the alleged delay in the licensing of Shoreham and other plants.
Source:
Palladino Memo to Commissioners, March 20, 1984 (here-after, "Palladino 3/20 Memo"); Palladino Statement at 8-10; Af-
[
fiants' recollection of Chairman Palladino's May 17 Congressio-nal testimony (as to fact that Directors of NRR and OELD were present).
12.
The other Commissioners were not advised of the March l
l 16 meeting in advance.
Source:
Affiants' recollection of 1
5-i l
f
~
e Chairman Palladino's May 17 Congressional testimony.
Neither the County nor State was advised of this meeting, and no transcript was made.
Sources:
No prior notice of meeting was given to County or State, and there has never been any indica-tion that a transcript was made; NRC Commissioners' April 23 Meeting Transcript, p.10.
13.
Commissioner Asselstine criticized Chairman Palladino for meeting with one party -- the Staff -
"without the oppor-tunity for the others to have any notice of the meeting or be Source:
NRC provided an opportunity to comment Commissioner's April 23 Meeting Transcript, p.
10.
t 14.
Commissioner Gilinsky questioned whether it was proper for the Staf f to meet 5 ith Chairman Palladino at the March 16 meeting:
[
t The Staff is a party in the hearing; the Chairman is one of the ultimate judges 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 l
they did not say this under the circumstances.
The Chairman is, by law, the Staff's direct su-l pervisor.
He controls annual bonuses worth many i
thousands of dollars to senior Staff members.
l What we have is a situation in which one member l~
of the ultimate NRC adjudicatory tribunal appears to be directing the actions of a key j
party in the case.
Source:
CLI-84-8, Separate Views of Commissioner Gilinsky, i
May 16, 1984.,
a,
- t. -,
,.-----,r m-,--
15.
Chairman Palladino's March 16 meeting was held even though LILCO had not filed a new motion for low power operation of Shoreham.
NRC April 23 Meeting Transcript, p.
7.
16.
Judge Cotter's notes of the Chairman's March 16 meeting reveal that the following matters were discussed per-taining to Shoreham:
"Says will go bankrupt if 12/84 I.D.;"
" Alternative solution for low power;" "LILCO file proposal to get around diesel issue and hold hearing on operation at low power;" " Based on LILCO proposal, Staff issue report in 30 days as to whether safe at 5% without diesels;" " Commission ordered hearing would a) define ' contention' and set time frames for expedited procedure b) Reverse Board Order of 2/22;" " Note:
Concern re same Board Chaiman."
Source:
Judge Cotter's Notes, available as part of FOIA-84-267 (emphasis in original).
17.
Chairman Palladino later told the other Commissioners that at the March 16 meeting "some preliminary ideas regarding expediting the Shoreham hearing were discussed."
Source:
Palladino Memo to Commissioners, April 4, 1984 (hereafter, "Palladino 4/4 Memo"), available as part of FOIA-84-267.
Commissioner Asselstine stated:
I understand from Tony Cotter that there was discussion.at the March 16th meeting of the scope and type of issues that would be consid-ered in a low-power licensing proceeding with the Staff.
Source:
NRC Transcript of April 23 meeting, at 9-10.
18.
On May 17, Chairman Palladino stated:
At that meeting, held on March 16, I was briefed as to the status of a number of including the Shoreham proceeding.
- cases, While the briefing included identification by the Staf f 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 that if the Staff had done that, or if any other impropriety had been committed, one or more of the several top agency lawyers present would have raised a warning flag.
Likewise, I recall the staff advising that they understood that LILCO planned to appeal the denial of its low power request.
But again, there was no discussion, to the best of my recollection, of the merits of that request.
Source:
Palladino Statement at 10.
19.
One reason that Chairman Palladino met with the Staff and others on March 16 "was the possibility that if NRC 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 cause."
Source:
Palladino Statement at 4-5; see id. at 11.
Judge Cotter's notes of the March 16 meeting underscote the concern for LILCO's financial condition: the March 16 meeting included discussion that LILCO would "go bankrupt" if it had to await a Licensing Board decision in December 1984.
Source:
Judge Cotter's notes, supra, M 16.
_g_
d 20.
On March 20, Chairman Palladino circulated a memoran-dum to the other Commissioners.
The memorandum reported on the March 16 meeting and proposed that in order to " reduce the delays at Shoreham," the Commission should " consider a proposal from OGC for an expedited hearing on the diesel problem, or proposals for other possible actions so that at 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."
Source:
Palladino 3/20 Memo.
Chairman Palladino did not then report, as he later did in his April 4 Memorandum, that some preliminary ideas for expediting the Shoreham proceeding had been discussed with the Staff and others who were present at that meeting.
Sources:
Palladino 3/20 Memo; Palladino 4/4 Memo.
21.
The Chairman's March 20 Memorandum was circulated to "SECY, OGC, OPE, OIA, EDO."
Thus, the Staff's Executive Director for Operations was further advised of the Chairman's view that the Shoreham proceeding needed to be speeded up.
The March 20 Memorandum also specifically reauested the EDO to respond to the March 20 Memorandum and to prepare a paper outlining steps to deal with the " potential delays".
Source:
Palladino 3/20 Memo.
[
22.
On March 20 -- the same day that the Chairman circu-lated his Memorandum (see 99 20-21) -- LILCO filed a new pro-posal for a low power license, styled as a Supplemental Motion for Low Power Operating License.
LILCO made essentially the same arguments for a low power license that the Brenner Board had previously rejected, excep't that LILCO provided greater de-tail and added that it also intended to install at Shoreham i
~
four mobile-diesel generators to enhance the offsite AC i
electric power system.
LILCO served copies of the Motion on
[
the NRC Commissioners.
LILCO did not apply for a waiver of or an exemption from GDC 17.
Sources:
LILCO's March 20 Supple-mental Motion for Low Power Operating License; LILCO's Fesponse to Suffolk County's Motion to Admit Supplemental Diesel Genera-tor Contentions, Feb.
7, 1984, at S-7.
23.
After March 16, Chairman Palladino had further dis-cussions with his staff and apparently "with EDO as well, searching for options," to deal with the alleged delay.
Source:
Palladino Statement at 11.
24.
Chairman Palladino's legal assistant discussed with Judge Cotter the following " working paper" prepared by the I
Chairman's office (the paper-was sent to Judge Cotter on March 22), which relates to the Chairman's desire to expedite the Shorehan proceeding:
i L
[
e.
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 litigate the diesel-generator questions before allowing operation 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.
Would you 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 could assume the following steps:
A two week staff review of the propos-al by LILCO; 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.
Sources:
Palladino Statement at 11-12; Palladino 4/4 Memo and Attachments.
The time estimates in the " working paper" appar-ently were derived by Chairman Palladino from "OGC's rough estimates of the time that an expedited hearing such as suggested by OGC might take Source:
Palladino Statment at 12.
Chairman Palladino had not discussed this 11 -
o
" working paper" with the other Commissioners.
Thus, the reference to "The Commission" in the second paragraph was not accurate.
The other Commissioners were not informed of Chair-man Palladino's " working paper" or his request to Judge Cotter until April 4 when the working paper was distributed to the other Commissioners.
Source:
Affiants' recollection of Chair-man Palladino's May 17 oral Congressional testimony; Palladino Statement at 12; Palladino 4/4 Memo.
25.
Judge Cotter responded to Chairman Palladino's
" working paper" on March 23.
Source:
Palladino Statement at 13.
His March 23 response, in the form of a 9 page proposed order for adoption by the Commission, contained, inter alia, the following elements:
(a)
A proposed decision that consideration of LILCO's low power proposal be expedited and that it be decided on the merits, with specific issues to be decided spelled out.
(b)
A proposed decision that a new Licensing Board be appointed to replace the Brenner Board.
(c)
A proposed decision that LILCO's March 20 Motion be litigated on a schedule described as " brutally tight" and
"[d]efinitely not recommended but possibly achievable."
The Cotter schedule called for a decision on the LILCO Motion 12 -
L
3
=
within 60 days.
To achieve such expedition, 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.
(d)
One reason cited by Judge Cotter for adoption of the proposed order was "the enormous financial investment" of LILCO.
Source:
Cotter draft order, attached to Palladino 4/4 Memo.
26.
On March 26, Suffolk County submitted preliminary views to the Brenner Board regarding LILCO's March 20 Motion.
These views were submitted in response to a specific March 22 oral reouest of the Brenner Board that parties provide prelimi-nary 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 Motion, because it raised many new and complex factual issues and the County 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 discovery..
I
O O
(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: (1) the Motion did not meet the criteria enunciated 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 site which were not seismically qualified, as required, but LILCO had sought no waiver of the NRC's seismic requirements; and (iii) contrary to the Board's February 22 order, the Motion appeared to rely upon the TDI diesels.
(e)
The County requested a conference with the Brenner Board to discuss the procedural hatters affecting the diesel litigation and LILCO's Low Power Motion.
Source:
Suffolk County's Preliminary Views on Scheduling Regarding LILCO's New Motion, March 23, 1984.
27.
On March 28, the State of New York filed preliminary Source:
views which supported those submitted by the County.
Preliminary View of Governor Cuomo, Representing the State of New York, Pegarding LILCO's So Called " Supplemental Motion for 8
i a Low Power Operating License," March 28, 1984.
The County supplemented its views on March 30, urging that the LILCO Motion be summarily dismissed for failing to comply with GDC 17.
Source:
Supplement to Suffolk County's Preliminary Views on Scheduling Regarding LILCO's New Motion, March 30, 1984.
28.
On March 27, Chairman Palladino gave Judge Cotter's draft order to the Office of General Counsel.
Source:
Palladino Statement at 13.
Chairman Palladino did not give the draft order to the other Commissioners until April 4.
Source:
Palladino 4/4 Memo.
29.
On Morch 27, Judges Brenner and Morris wrote Judge Cotter that "[d]epending on the schedule established (by us or the Commission), the Shoreham Licensing Board on which we sit hdl may have to be reconstituted by you due to our heavy sc e u e for the Limerick evidentiary hearing in April and May."
Source:
Brenner and Morris Memo to Cotter, May 27, 1984, available as part of FOIA-84-267.
- 30. -
On March 30, the NRC Staff responded to LILCO's Low Power Motion.
In reversal of its prior position that no low power license could be issued for Shoreham until the TDI diesel problems were solved (absent a waiver or exemption regarding which the Staf f had taken no position), see, i 5, supra, the Staf f stated that operation of Shoreham could be permitted in 15 -
e the complete absence of any nuclear qualified-onsite electric power system.
If the protection afforded to the public at low-power levels without diesel generators is,found to be equivalent to (or greater than) the protection af forded to the public at' full-poder with approved diesel genera-tors, the Staff submits that LILCO's motion should be granted.
Source:
NRC Staf f Response to LILCO's Supplemental Motion for Low Power Operating License, March 30, 1984.
Without address-ing the County's and State's concerns regarding the time required to respond to LILCO's Low Power Motion and without re-vealing the Staf f's March 16 meeting with Chairman Palladino, the Staf f called for an expedited hearing on the Motion, with all testimony to be filed by April 23.
Source:
Id.
31.
Commissionser Gilinsky criticized the Staf f's posi-tion before the Licensing Board.
I must say that this confirms me even further in my view that the staff ought not be in these hearings.
Here is the staff concocting arguments on how all this [GDC17 and Section 50.57(c)] can be rationalized and I must say that even though you didn' t tell them anything about the hearings, this is after your meeting with them on the speeding up the pr.ocess so the effect of it is inevitable.
You have them go back and think, 'Well, how can we speed up this process?'
I am not suggesting that you did anything proper [ sic] mind you but that is intrinsic in'the way the system works.
e Source:
NRC April 23 Meeting Transcript, p.
59.
See also
'CLI-84-8, Separate Views of Commissioner Gilinsky ("the Staff had been trying to 'run legal interference for the Company"),
and Commissioner Asselstine, May 16, 1984.
32.
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 that "two of its members are heavily committed to work on another operating license proceeding."
Source:
Order, " Establishment of Atomic Safety and Licensing Board to Preside in Proceeding," March 30, 1984.
According to a report in Nucleonics Week, April 5, 1984:
Appointment of a board to hear Lilco's motion for a low-power license at Shoreham.
(was] his idea, Cotter said through an agency spokesman.
However, he said, Palladino's staff was " aware" of his deci-sion.
-Source:
Nucleonics Week, April 5, 1984, at 10.
Chairman Palladino recalls that Judge Cotter informed the Chairman's of fice of the appointment before it was made.
Fources Palladino Statement at 14.
i 33.
The NRC's Office of General Counsel spoke with Judge Cotter several times between March 27 and March 30 regarding Judge Cotter's proposal to appoint a new board and questioned whether the action did not appear to presume that LILCO's Motion would be granted.. Source:
NRC April 23, 1984 Meeting I
Transcript, pp.
8-9.
Mr. Malsch of the Office of General
' Counsel described these conversations as follows:
[Malsh]:
After the meeting between the i
Chairman, ourselves, EDO and so forth, there ap-peared on my desk a draft notice from Tony Cotter announcing a reconstitution of the Licensing Board.
I called Tony and asked him --
I told him that I was sort of bothered by it on its face since it wasn't clear to me that there was a scheduling conflict unless it was presumed that the LILCO low-power motion is granted.
At that time the motion had been filed.
I didn't think that he, Tony Cotter, had the authority to grant a low-power motion and then refer the motion to'another Licensing Board.-
I also raised reservations about how the whole thing would appear.
He said, "Oh, no,"
that he had been advised by Larry Brenner who was the Chairman of the other Licensing Board that he, Larry Brenner, couldn't really give the low-power motion'any consideration at all either granting it or denying it because he was so in-volved in the Limerick case and therefore, Tony didn't feel that his appointment of a new Board in effect prejudged action on the low-power motion.
He said that he would think about my problem about appearances and ce.11 me back.
He then called me back the next day and said that they were going forward with it.
CHl.IRMAN PALLADINO:
With what? -
s' MR. MALSH:
And that they were going forward with the reappointment of the new Licens'ing Board.
34.
On March 30, the parties were notified by telephone that the new Licensing Board (the " Miller Board") would hear oral arguments on April 4, 1984, on LILCO's Low Power Motion and the response thereto.
The telephone notice indicated that "a schedule for their expedited decision" would be considered on April 4.
Sources:
Statement of Oral Notice, available as part of FOIA-84-267; Mr. Lanpher's recollection of the phone call.
This oral notice was confirmed in writing by the Miller Board on March 30, 1984.
The Board 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 ennsideration and determination."
Source:
ASLB Notice of Oral Arguments, March 30, 1984.
35.
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, 1984 request that OGC develop proposals for expedited hearings on the Shoreham diesel problem."
The OGC noted that the " issues 7
[ raised by LILCO's Motion] are extremely complex 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
. 4
L i
4 decision on the LILCO. Motion.
Under this OGC schedule, there would have been 15 days for discovery, 10 days between close of i
discovery and the start of hearings, and 15 days for hearings.
Source:
Memorandum from Herzel Plaine to NRC Commissioners,
[
-- April 2,.1984.
t 36.
On April 3, the County filed Comments on the Miller t
Board's March 30 Notice of Oral Arguments, pointing out that i
"there'is no basis for any expedited process," and that this j
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 op-
' portunity to retain experts and conduct adequate discovery,
[
as discussed ' in the County's March 26 Preliminary Views.
Source:
Suf folk County's Comments on Notice or Oral Arguments, April 3, t
1984.
)
37.
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.
Source:
Motion
[
t by Governor Cuomo to Delete Provision in this Board's Order of March 30, 1984 Mandating Expeditious Consideration and Determi-nation of Issues Raised in LILCO's Supplemental Motion, April 3, 1984.
t 20 -
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- a 38.
On April 4, Chairman Palladino distributed a Memoran-dum to the other Commissioners, attached to which was Chairman Palladino's March 22 " working paper" (see 1 24, supra) and Judge Cotter's March 23 draft order (see T 25, supra).
The Chairman's April 4 Memorandum was also distribu'.ed to the Atom-ic Safety and Licensing Board Panel.
Source:
Palladino 4/4 Memo.
39.
On April 4, the Miller Board heard oral argument on the LILCO Motion.
Source:
ASLB Transcript, April 4, 1984.
40.
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").
The Low Power Order stated that LILCO could operate Shoreham at low power with no onsite electric power system, provided that pub-lic health and safety findings similar to those suggested by the NRC Staff were made.
Source:
ASLB Low Power Order.
The time-frames established by the Miller Board for con-sideration of LILCO's Motion were as follows:
Time for discovery 10 days Time between close of discovery and filing of testimony 4 days Time between filing of testimony and start of hearing 4 days 21 -
a Elapsed time set aside for hearing 11 days Source:
Low Power Order.
The time-frames ordered that the hearing would end by May 5.
Source:
Low Power Order.
41.
'Suffolk County and the State of New York objected to 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.
Source:
Joint Objections of Suffolk County and the State of New York to Memorandum and Order Scheduling Hearing on LILCC's Supplemental Motion for Low Power Operating License, April 16, 1984.
The County submitted affidavits of expert consultants indicating that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hearing.
Source:
Letter from Lawrence Coe Lanpher to ASLB, April 23, 1984, transmitting affidavits.
The Miller Board and, subse-quently, the Commission refused to alter the April 6 Order.
Source:
ASLB Order Denying Intervenors' Motion to Vacate Order, April 20, 1984; NRC April 23, 1984 transcript, at 122-25.
The County and State sought a temporary restraining order in federal court that was granted on April 25.
Source:
Memo-randum Opinion, U.S.
District Court Docket 84-1264, April 25, 1984.
s Herbert H.
Brown W
W Lawrence Coe Lanphef W
fabian G.
Palomino Sworn to this day of June, 1984.
My Commission expires:
QMeb - d T
/
Notary Public
'6 CJ S r : a 7.e:q n, : -
o 6/5/94 UNITED STATES OF AMERICA NUCLEAR D.EC-ULATOPY COMMISSION Before the Commission
~)
In'the Matter of
)
)
.LOMG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY AND STATE OF NEW YOP.K REQUEST FOR RECUSAL AND, ALTERMATIVELY, MOTION FOR DISQUALIFICATION OF CHAIRMAN PALLADINO Suffolk County and the State of New York hereby request that O'1Mirman Nunzio J.
Ps11adino recuse himself from pa r*.icipa ting 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 ecg-nizance of this issue snd vote whether Chairman Pa'.ladino should be disqualified from participating in Shoreham-related matters.
The legal stanMari which applies to the issue of whether Chairman Ps11adino should be disqualified is whether "a disin-terested observer may conclude that r the Chairnan] has in =ame measure adjudged the facts as we1.1 ms the lad a# a particular
- jff,
, n <l#
t ucoupu N M u
case in advance of hearing it."
Cinierella Career an?
Finisbine Schocis. Inc.
v.
FTC, 425 F.2d 5F3, 591 (D.C. Cir.
1970) cuoting with approval from Gilligan. Will & Co.
v.
- SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S.
A96 (1059)
(Emphasis added).
The documents referred to hereinafter show
- hat-Chairman Palladino's actions on Shoreham-related matters are clearly within the proscription of this legal standard.
From at least March 16, 1934, 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 Roard Judges to take actions of factual and legal consecuence that 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 interv-ntion in the Shoreham proceeding "may cause a disint.* rested observer to conclude" the following:
(1)
The Chairman, without ennsulting the other members of the Commission, took the initiative with the Staff and Chief Administrative Jur1ge to engage in substantive discussions and to formulate a strstegf Der the staff and Licensing Board that would serve LILOC's interests without regard to those of the Coc ty and State; 2
o (2)
The Chairman's initiative susei the Staff to change its previous position and to support the licensing of Shoreham i
with no emergency onsite power system, contrary to the inter-ests of the County and State; (3)
The Chairmgn's initiative caused the Chief Adminis-trative Judge to formulate an adjudicatory proposal to permit the licensing of Shoreham with no emergency onsite poser system, contrary to the express provisions o f the NRC 's regula-tions and contrary to the interests of the Cocnty and State.
The Chairman circulated this proposal to the Licensing Moard 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 uneenstitutional hearing format and schedule which benefittei LILCO, contrary to the rights and interests oE the County and State:
(5)
The Chairman commenced his ini t ia t ive f7r the purpose of giving aid to LILCO before the Licensing Board and in the financial marketplace, a consideration which is outside the I
scope of interests protected by the Atomic Energy Act.
He commenced his initiative in advance of hearing from the County and State and without giving them notice of what he clanned to 3-t
q.
I r
i
- n\\ ;.a
\\
'E;, - (i '
3 r
('.
do, ad?,' inheei, without even consul-ing with other members cf the Commission.
The actions of the Staff and Licensing Boar.i gavd effect to his initiative, in contravention o f the regula-(
i' tions,'and prejudiced the County's and State's rights to due process ef' law.
i Ehe Chairman's initiative recuired that prejudgments be r
(
r 7
/nade on two issues then. central to the licensing of Shoreham:
(1) the schedule on which ' LILCO would receive a low power and (2).the need for an onsite emergency M.') :~e n s i n g d e g i s i o n ;
power source.
These were issues which had been settled on February 22 by an Order of the Board chaired by Judge Brenner.
On March 16, the Chairman met with the Chief Administrative
'A
- Judge, R.
Daol Cotter, Jr.,
and the Sta f f 's Executive Director and other top-level staff personnel, including the Director of Nuclear Reactor Regulation and the Executive Le' gal Director and members of their offices.
The Chairman discussed with these oersons the impact of the Licensing Board's February 22 Order g
on LILCO's financial health and #ormulated means to aid LILCO.
h In the words of,the personal notes handwritten by Judge Cotter t
at the March 16 meeting, an " alternative solution'for low power" opera tion o f shoreham 'was discussed.
This," solution"
~
involved LILCO. filing a " proposal' to cet around [thei diesel A
onsite emergency power source 2 issue and hold hearing on
~
' 4 3g (FinateN,6 basis JPtJ nal.)
The l
'1 operation at low newer."
3 3
.f-y 4-
~ _. _ _ - -.
,.,,._,_.,,.c
e v,\\
^
t de, and,.i nd e e i, without even consultin with other members :f h'
the Conrission.
The actions of the Staff and Licensing BoarM 3
i i
o his initiative, in contravention o f the regula-cave'
=##a-*
tions, and prejudiced the County's and State's rights to due k
process of law.
1
(
'i i
1 The Chairman's initiative required that prejudgments he c
,nade on two issues then central to the licensing of Shoreham:
- j. l (1) the sche'dule.on which LILCO would receive a low power I lic sing decision; and (2) the need for an onsite emnegency power source.
These were issues which had been settled on February 22 by an Order of the Roard chaired by Judge Brenner.
On March 16, the Chairman met with the Chief Administrative f)
(
i
.'t
,.J uig e,
B.
Dsul Cotter, Jr.,
and the Staff's Executive Director
,,j.
s
.v and'other top-level 9taff personnel, including the Director of Nuclear Reactor Regulation and the Executive Legal Director and members.of their offices.
The Chairman discussed with these x
cersons the impact of the Licensing Board's February 22 Order on LILCO's financial health and formulated means to aid LILCO.
In the words of the personal notes handwritten by Judge Cotter st the March 16 meeting, an " alternative solution for low yf(
power" operation o f Rhorehar,i ' ras discussed.
This " solution"
~
. involved LILCO filing a " proposal to cet around [ thel diesel MP"
-:onsite emer:ency power source 2 issue and hold hearing on i
operation at low power;"
(Final emphasis
'.a o-tyinal.)
The k
- \\f li -.;
o
E g
o meeting aise involved the formulation of an "expeditei" hearing format and schedule.
Again, in Judge Cotter's words, a hearing orderei by the Commission "would define ' contention' and set time frames for expedited procedure."
It would also "reviav 30 sri orier of February 22."
Significantly, Judge Cotter note]
that LILCO's financial health was discussed.
He wrote,
":LILCO3 Says ".it] will go bankrupt if [it has to wait for]
12/S4 I.D.
[ Initial Decision of the Licensing Boar 12."
II: va s then anticipated that the Brenner Board would issue its ieci-sion on low power operation of Shoreham in December 1734.)
ressonable observer may conclude that the only prompt decision which could avert a LILCO bankruptcy was a favorable 70e t7 LILCO.
Thus, on March 16, Chairman Palladino planned and set in motion with the NRC's top judicial and Staff personne?. cha,ges in the course of_the Shoreham~ proceeding.
In short order, the following occurrei:
(1)
New Licensing Board Judges were appointed ta 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 1cw power without 5-i l
s-
O dieseis, state:
"LILCO file proposal to get aroun1 diesel issa? sni 5311 'cearing on coeration at los powe_r");
(2)
The Staff abruptly reversed its previous positian aco supported the licensing of shoreham with no onsite emergen:-;
power source.
IJudge* Cotter's notes state:
" Based on LILCO proposal, staff can issue report in 30 days as to whether plant safe at 51 w/o iiesels");
(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 Chairman'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 Cinderalla case, suora, there is no lawful basis on which the Chairman should participate in any matters related to the Shoreham plant.
Surely, the facts described above, and as set forth at length below, may cause "a
disinterested observer [to] conclude that [the Chairman.) has in some measure adjudged the fa' cts as well as the law of [this)
~
case in advance of hearing it."
6-
o e
The legal standard quotei aboue is not presecuterial, and it does noc bring into controversy the question 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.iatitre on March 15 have un-derminei 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 t'Te individuals who have demonstrated, or have appearei 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 nacte 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 the Shoreham proceeding orior to March 16.
~
-7
A.
Events Prior in 'hrti 16, 1994 On February 22, 1984, the Licensing Board chai ei by :sd-ministrative Judge Lawrence Brenner (the "Brenner Board") ruled that there was no basis for granting L1LCO a low power license for Shoreham "in advence of complete litigation" of the emer-The a enner Moard set a schedule
'o r lit-gency diesel issues.
r i
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 ASL3 Hearing, February 22, 1984, at 21,A15.
Hence, as conceived by the Brenner Board, the hearing on the diesel issues would be unlitaly
',a stsrt before June, and a ie-cision in all probability would not be expected before December 1994 Significantly, as of February 22, the MRC Staff had taken
~
the unequivocal position tha t un:'er the Nac's regulations no low power license could be issuei "or Shoreham unless the die-sel issues were "irst resolved.
Thus, as of rebruary 22, the l
_g_
v r--
'O Staff position was that there could be no low power ticense until LILCO had an onsite electric power sys tem, which me t NRC requirements or had receivel a proper axemption from those NRC recuirements.
At the February.22 conference before the Brenner Boari, the '!RC Staff conosed LILCO's arguments that " enhanced" offsite power could substitute for deficient onsite power.
Thus, the Staff would cive no credit to LILCO's offsite oower systen, including the gas turbine physically located at Shoreham, be-cause " General Design Criteria 17 recuires an independent, re-duniant and reliable source of on-site power."
See iTRC Staff's Fesponse to Suffolk County's Motion to Admit Supplemental Die-sel Generator Contentions (February 14, 1994) footnote 7 (Enphasis adried).
"he Staf f took "no position upon whether ap-plicant, upon a proper technical analysis, could or could no support an application for an exemption to allow it to go to low-power absent reliable safety-grade diesels."
Id. (Emphasis added).1/.
j[/
The Staff's position tha t no license could be issued for Shoreham without an adequate onsite AC power system was publicly stated by Messrs. Haroli Denton and Darrell Eisenhut at an open meeting betwean the Sta?! Tnd the TDI Owners Group on January 26, 1984.
Mr. Denton stated:
rW]e are not prepared to go forth an.3 recommend the issuance of new licenses on any plant that has Delaval diesels until the issues that are raised here today are (Footnote cont'd next pace) o L_
o The Frenner Board's February 22 decision to li igate the diesel issues before considering + iow power license 'or Shoreham was a serious sstback 'or LILCO, and one which threatened to put LILCO into bankruptcy.
The Brenner Board's decision was followed two days later by a published report (Newsday, February 22, 1994) that-LILCO's Chairman, William J.
Catacosinos, had met with the NRC Commissioners.
Moceover, in a March 9, 19 P,4, letter to shareholders published in LILCO's 1993 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.
i 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 I.D.
[ Initial Decision of the Licensing Boars]."
The (Footnote cont'd from previous page) adequately addressed.
Meeting transcript at 9.
Mr. Eisenhut added tha t " prior to licensing, even a low power license," the Staff must have confidence : Mat
.he TDI diesel problems have been solved.
Meeting transcrip; at '3-96 (Imphasis added)..
"creater understan Mng"
.,f
'eieral officials to which Dr.
1 Catacosinos referrei thus 13 ' e its?lf felt in and through Chairman Palladino's office.
i f
3.
Chairman Palladino's Personal Intervention Becinnine March 16
=
Between to February 22 and March 20 there was no pending LILCO proposal for low power operation of Shoreham.
LILCO's original low power motion which relied upon the TDI diesels had been rejected on February 22 by the Rrenner Roard, and there was 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 notifie1 the Commissioners of " potential licensing delays" o' 7 aon th s "o r T1oreham.
The 9 month " delay" was estimated by LILCo i t s-i. " s aa
,,a s sq 3 no t o the Commissioners by the Staff.
However, it has been revealed that the NRC Staf f disagre+d with this astimate, becausa the S ta f f did not consider LILCO's construction to be complete and thus the delay could not he at.ributed to the licensing process.
See April 24 'iemorandum from J. A.
Rehm, A.ssistant for
^7erntions, to the Commission.
In fact, it should have been clear to all persons in March 1084 that there was no Shoreham
- 11
-r-
.-.,17-m-- - - - -,
,-v-.v----,---_----.,.,y
.-v.-.---
r
--.ww y
" delay" attributa'cle to the licens ing pro :=s = ; rather, the oni;r delay was due solely to the repeate' f:ilure of LILCO's TDI diesels.
Thus, the plant was not ready for licensing because the iiesels would not work.
2.
On March 1A, in what turned out to be an i m o r o c. e r _e _x
=
parte meeting, Chairman Palladino met with members of the NRC Staf" -- a party in the Shoreham Licensing Board proceeding --
" Tony Cotter" (B. Paul Cotter, Jr.,
the NRC's Chief Administra-tive Judge), and top level Staff personnel, includ ing the Exec-utive Director for Operations, the Director of the Office of Nuclear Peactor Regulation, the Executive Legal Director and their subordinates to discuss the alleged " delay" in the licensing of Shoreham.S/
The other Commissioners were not advised of the March 16 meeting in advance.
Neither the County nor Sta te was advised of this meeting, and no transcript was made.1/
Further, this 2/
Chairman Palladino had met on March 15 with personnel from
~
the Offices of Policy Evaluation and General Counsel con-cerning the potential delays.
It was then decided to hol' the '1a rch 15 meeting.
See Individual Statement of Nunzio J.
Palladino Before the Subcomm. on Energy and the Environment, H.
Comm. c:: Interior and Insular Affairs, May 17, 1984, pp. 9-9 (hereafter, "Palladino Statement").
3/
Commissioner asselstine has criticized Chairman Palladino for meeting with one party -- the Staff -- "without th e opportunity for the others to have any notice of the meeting or be provided an opportunity to comment NPC April 23 'ieeting Transcript, p.
10.
Similarly, (Footnote cont'd next ?sge)
I.
meeting was held even though there was n' 1e I L LCO,,roposa'.
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 for litigation.
Nevertheless, Judae Cotter's notes of the Cha ir-man's March 16 neeting reveal:
"LILCO file proposal to get around diesel issue and hold hearing on operation at low power."
Whi]e Chairnan Palladino has stated that "some prelim-inary ideas regarding expediting the Shoreham hearing were discussed," see Palladino Memo to Commissioners, April 4,
- 1994, Judge Cotter's notes in fact indicate tha t these discussions (Footnote cont'd from previous page)
. Commissioner Gilinsky stated:
'he staff is a party in the hearing-the Chairman is one of the ulti. ate judges.
m 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.9taff members.
What we have is a situation in 4hich one member of the ultimate NFC adjudicatory trihuaal. appears to be directing the actions of a key party in the case.
CLI-94-R, Separate Views of Commissioner Gilinsky, May 16, 1984.
included " concern" with Judge 2renner, a " Commission ordered bearing" th a
- would " define contention and set time frames far expedited proce4ure," and discussion of a LILC9 " proposal to get around diesel issue and hold hearing on operation at low power."i/
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 suggesten that LILCO would file such a proposal "to get around [the] diesel issue."
4/
These documented statements sharply contradict the testi-many of Chairman Palladino before the
- douse Subcommittee on Energy and Environment on '4ay 17.
Chairman Palladino there stated:
At thst. 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 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 resolvei.
I am confident that if the Staff had done that, or tF any ather impropriety had been committed, one or more of the several top agency lawyers present would have raised a warning flag.
Likewise, I recall the sta f f advising tha t they understood that LILCO planned to appeal the denial of its low power request.
~But again, there was no discussion,
'o
'he best of my recollection, of the merits of that request.
Ps119dino Statement at 10.
- 14
o One reason that Chairman Palladino met with the Staff and others on varch 16 "was the possibility that if "nC iiln't do something Shoreham would go under because of imC'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 cause."
Palladino Statement at 4-5; see id. at 11.
Thus, the 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 ha,!
,o asait a Licensing Board decision -- even assuming such a decisian va 3 Es/orable -- in December 1984.
3.
On March 20, Chairnan 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 shoul.d
" consider a proposal from OGC [ Office of General Counsell for an expedited hearing on the diesel problem, or proposals for other possible actions so that at least a low power iecision might be possible while awaiting resolution of the emergency planning issue.
I have asked the OGC to provide a paper
.7 n this subject soon."
Chairman Palladino did not
.h e n :eport, as he.later did in his April 4 Memorandum, that ileas for exce?iting t*1 e Shoreham proceeding had been ii se.ts sed at his 15 -
t l
March 15 meeting with the Staff and others who were present at
~
that meeting.
The Chairman also did not report that the
" delay" estimate for Shoreham was based on LILCO's estimate,
[
not ths '7RC s, and that the Staff disagreed with LILCO's t
estimate.
The Chairman's March 20 Memorandum was circulstei to "SECY, OGC, OPE, OIA, EDO."
Thus, at a minimum, the NFC Staff, throuch the Executive Director of Operations, was further advised of Chairman's view that the Shoreham proceeding 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 Memorandum specifica]ly requested the EDO i.e.,
the Staff, a party in the Thoreham 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-F 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 for a 104 power license that the Brenner Board'had previously rejected, except that LILCO added that it'also intended to install at Shoreham four =obile diesel generators, not cualified for nuclear service, to " enhance" the 16 -
w y
w
tffsite AC electric power system.
L:LCD se-ved copies of the Motion on the NFC Commissioners.
Eren though LILCO's v.ar:h 20 proposal for Shoreham's operation did not comply with GDC l' --
there woul? he no onsite electric power systen -- LILCO did not waiver or an exemption of that regulation.
aoply for a
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, Ch airman Palladino's legal assistant resA to Judge Cotter by telephone the following " working paper" prepared by the Chairman's office (this paper later was saat t.,
Julge Cotter), which relates to LILCO's March 20 proposal:
'he TDO has recently provided the Commission.an assessment for Shoreham that projects a nine-month licensing delay due to, I am told, the Shorehan Licensing Board's requirement to litigate the diesel-generator questions before allowing operation at low power.
The Commission would like this matter liti-gated on an expedited basis with a target date of receiving the Poard's decision on this matter by May 9, 1984.
'40u1M you please look into what steps are required to l'
meet such a -late and inform the Commission on these steps as soon as possible, but not i
later than March 30, 1984.
I
~
t or planning purposes, you could assume the e
' mil.' wing steps:
A two week staff review of the pre,p s-al by LIL 7; o
I i-I
-.r v--,
,c w
--r-
s 1
.i one week discovery period A two week period for filing testimony t
and holding a hearing; A two week period to issue the Board's decision.
Einal Commissien guidance on the expedited hearing on,this matter would be based on your submittal and fol l ow-up discussions.
If you have any cuestions, please let me know.5/
Chairman Palladino had not discussed this " working paper" with the other Commissioners and, thus, the reference to "The Commission" in the second naragraph 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 r
" 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 expedited hearing such as suggested by OGC might take Dalladino Statment at 12.
The estimate of a two week period for Staff review of the LILCO proposal -- a reduction from the 30-day' review period discus =ed un 'bich 16 and reported in Judgc Cotter's notes -- presumably reflects further conversation with the 5:s?f either by the Chairman, his stff, or the OGC.
19 -
~
o (ai A proposed decision that consideration of LILCO's low power proposal be expedited and that it be decide' on :he merir.s.
This, of course, prejudged the very question at issue:
vhether LILCO's crocosal was a challenge to GDC 17 that had to be rejectei outright.
It thus had the effect of deciding that the GDC 17 requirement of an onsite electric power system could be eliminated without euen requiring LILCO to seek an exemption or ' waiver under 10 C.F.R. 5 2.758 or 6 50.12(a).
(b)
A proposed decision that a new Licensing Boari be appointed to replace the Brenner Board, which on February 22, 1984, had dealt LILCO a setback.
This proposal to appoint a new Licensing Board came four days before the Frenner Board advised Judge Cott.er 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].
(c)
A proposed decision that LILCO's March 20 Motion be litigated on a schedule that Judge Cotter described as "bcu-tally tight" and "Cd]efinitely not recommended but possibly achievable."
The Cotter schedule called for a decision on the LILCO Motion within 50 days.
To achieve such " expedition,"
19 -
g Judge Cotter suggested that there be 16 days for discovery, 5 fays between-close of discovery and filing testinony, 5 days until the start of hearing, an$ 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 schelule for shoreham.
Further, one reason cited by Judge Cotter for adoption of this " brutally tight" scheMule was "the ' enormous financial investment" of LILC3.
See Cotter draft 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 12/94 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, Suffolk County submitted preliminary views to the Brenner Board regarding LILCO's March 20 Motion.
These views were submitted in response to a specific March 22 requast of the~ Brenner Board that parties provide preliminary views on how the new LILCO Motion should he handled.
In these views the County stated:
(a)
The County required more than the normal cen-day p?rio? to respond to LILCO's Low Power 'Iotion, because it raised.any new and compl ex factual issuesi/ and the County 6/
Tha NRC's Office of General Counsel has agreed
.h a t
.'t e
. issues raised by LILCO's Motion are " extremely e.eple:. "
3ae ~12, infra.
m_
D needed to retain appropriate experts to analyte those issues.
(b)
Analysis of the factual issues would first require the County to obtain substantial information through 5touvvery.
(c)
Additional time was required to address legal issues raisei by LILCO's Motion.
(d)
A number of threshold issues should be addressed before the merits o' LILCO's Low Power Motion were considered, including: (i) the Motion did not meet the criteria enunciated by the Frenner Board on February 22 for a new low power propos-al,-because it did not state hos 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 recuired, but LILCO had sought no waiver of the NRC's seismic requirements; and (iii) contrary to the Board's February 22 order, the Motion appeared to rely upon the TDI diesels.
Che County requested a conference with the Brenner Boari to discuss the procedural matters affecting the diesel litigation and LILCO's Low Power Motion.
On March 29, the 9 tate of '!ew York filed preliminary views which supported those submitted by the County.
The County
- 21
4.
i b
supelemented its views on March 39, urging that the LILCD Motion be sumnarily dismissed for failing to comply with GDC 17.
9.
On March 27, Chairman Palladino gave Judge Cotter's
' draft order to the O(fice of General Counsel.
Chairman Palladino did not give the draft order to the other Commissioners until April 4.
9.
On March 30, the NRC Staff respoole1 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 afforded to the public r
at full-power with approved diesel genera-tors, the Staff 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 ro o f ;. rin ne even further in my view that the sta ff ought ~ not be in these hearings.
Here is the sta f f concocting arguments on.
o D
how al' this can be rationalized and I must say that even though you didn't tell them anything about the hearings, r.his 14 a ? ". e -
vour meetine with them on the snee-lina ao the crocess so the effect of it is ineviEa-
~
ble.-
You have them go back and think,
'Well, how can we speed up this process?'
I am not suggesting that you did anythi.n; proper (sic] mind you but that is intrinsic in the way,the system works.
NRC April 2 3 'ieeting 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 7taff's meeting with Chairman Palladino, the Sta ff called for an expedited hearing on the Motion with all testimony to be filed i
by April 23.
This Staff schedule was consistent with the guiielines set forth in Chairnan Palladino'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.
Tne order noted the " advice" of the Brenner Board that "two of its members are heavily committed to work on another operaring license proceeding."
According to a report in' Nucleonics Week, Acril 5, 1984:
-7/
See also CLI 04-8, Separata Views of Commissioner G111nsky, May 16, 1984 ("the Staff had been trying to run legal interference for the Company").
Appointment of a board to hear Lilco's motion for a low-power license at Shoreham
[wss) his idea, Cotter said through an agency spokesman.
- dowever, he said, Psiladino's staff was " aware" of his deci-sion.
Indeed, Judce Cotter informed the Chairmen o' the actaal ap-pointment before it was made.
Palladino Statement at 1.4.3/
Moreover, Judge Cotter's notes of the March 16 meeting ' 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 reauest.
Further, even if the appointmer,t of a new Moard was Judge Cotter's " idea", this idea was one of tSe propomal.s developed by Judge Cotter at the request of Chairman ps11adino and, thus, the " idea" clearly was the product of the Ch,b maa's iqtervention.
11.
On the same day, March 30, the parties' sere notifled byf telephone that the new Licensing Board (the " Miller 93ard")
would hear oral arguments on April 4,
1994, on LILCO's Low 8/
The Office of General Counsel spoke with Judge Cotter several times between. March 27 and March 30 regarding Judge Cotter,'s proposal to appoint a new boari and specif-ically questioned Whether the action did not appear to
-presume tha t LILCO's Motion would be granted.
See NRC
- April 23, 1984 Meeting Transcript, pp.
A-9.
24 -
Power. Motion.
The telephonic notice stated that this Board was
'" established to hear and decide the motion on an ex pe li te-i basis."
This oral notice 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 thei- ?ilings, as well as a schedule for their deter.7 nation."
(Emphasis add ed ).
1 expedited consideration 9.n 3 In light of the known facts, it would not he reasonable to conclude that the Miller Board's March 30 decision to expedite the proceeding was independent of the chain of events that began wi th the Chairman's March 16 intervention.
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, 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 confarence, and hear from the parties regarding the many issues raised by LILCO's motion.
Nevertheless, the Mi'.lar Board decided to expedite the proceeding the very same day it was appointed -- March 30.
12.
On Aoril 2, the 'mC 's General Counsel circulated a
.venorandun to all the Commissioners.
The purpose of this 25 -
3 a
Memoranfum was to responf "to the Chairman 's March 20, recuest tha-OGC develop proposals for expedited hearings on the Shoreham diesel problem."
The OGC noted that the " issues Craisei 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 Orier 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 Board'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 it the oral argument.
The County repeate.d its view that LILCO's Low Power Motion should not be argued on the merits un t il tha County had an op-portunity to retain experts and conduct adequate iiscovery, 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 3 card's ruling that LILCO's Low Power Motion would be gi"an expedit+1 considerstion.
The State argued that 9/
Prefiled testinonv. was omittai.
- 26 L-_
e expediting LILCO.'s Low Power Motion was arbitracy and would deny the State due process of law.
14.
On April 4,
Chairman Palladino distribute d a Memoran-dum to the other Commissioners, attachei to Which was Chairman Palladinos March 22," working paper" and Judge Cotter's March 23 draft or9er.
The Chairman's April 4 Memorandum was also distributed to the Atomic Safety and Licensing Board Panel, of which C. tie f Judge Cotter and Judges Miller, Bright, and Johnson (tSe Miller Board) are members.
15.
On April 4, the newly appointed Miller 90ard heard oral argument on the LILCO Motion, including Whether GDC 17 was being imnernissibly challenged by LILCO and Whether there was any basis to expedite the proceeding.
16.
On April 6, the Miller Board issued its Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for Low Dower 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 the public health and safety findings suggested by the NRC Staff were made.
The Board thus adopted the cosition urged by
- Se Staff in its March 30 filing and by Judge Cotter in ' Tis March 23 draft order.
It provided the final link in the chain which began at the 2hairman's March 16 meeting with the
- 27 c_-
formulation of an "al ternative solution for low power."
This was, as Judga Cotter's notes reflected, the means for LILCO "to cet around "the] diesal issue."
Second, despite the "extramely 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 dra f t order.
The Board's Order defined the issues and estsblished 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 21 dra't orier 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 3 days a days Elapsed time set aside for hearing 10 days 11 days 28 -
b
m 17.
Suffolk County and the State of New York protested the Miller Board's April 6 Order as denying them due process of law end as being contrary to GDC 17 and other FFF reguietions.
The County even submitted detailed affidavits of exper: :onsul-tants documenting that the April 6 Order deniel the County a chance to prepare for and participate meaningfully in the hear-ing.
The Miller Board and, subsecuently, the Co:nnission re-fused to alter the April 6 Order, forcing the County and the State to seek a temporary restraining order in fe 3eral court.
The TRO was granted on April 25.
II.
Chairman Palladino Must Recuse Himself Or Otherwise Be Disoualifie,i By The Commission The standard for determining whether Chairman Palladino-must recuse himself or otherwise be discuali#ied is whether "a "a disinterested observer" may conclude that Chairnan Palladino "has in some measure adjudged the facts as well as the law" in the Shoreham case "in advance of hearing it."
Cinderella_,
suora, 425~F.2d at 591 (emphasis supplied).12/
Under the Cinderella standard and the facts described above, a disinter-ested observer certainly may conclude that Cha irman Palladino 10/
Chairman Palladino has contended that he has not crejudged the Shoreham proceeding.
See e.g.,
Palladino Statement at 20-21; Palladino Letter to Congressman Markey, April 6,
1994: CLI-94-4, Separate Views of Chairman Palladino, May 16, 1984.
Mis position, however, loes not address the legal staniari set forth in the Cinderella case.
20 -
^
has at least in some measure adjudged the facts and law in this case before hearing ~it.
Certainly, as noted previously, a dis-intarested observer could conclude that the only decision which LILCO bankruptcy was an expedited one favorable could avert a tn LILCO.
The -Chairman 's March 16 meeting with top-level Staff per-sonnel -- an ex car *.e meeting prohibited by Section 2.7PO of the regulations -- and his meeting with Judge Cotter, the NRC's Chie f Aiministrative Judge, dealt with establishing a strategy and an action plan 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 rulinos and hearing procedures adopted by the Brenner 30a.c.i might permit LILCn to go bankrupt before a low power liiansa.lecision could be issued.
Therefore, to get aroun.1 those rulings and procedures, the strategy and actions
'n 1 1.)4-ing tha intervention of Chairman Palladino produced a new
-Licensing Board, a new legal standard which would permit ths 1 34 power operation of Shoreham with no onsite power and.with-out waiver of GDC 17, and a new expedited hearing schelule which =ffectively barred the, County and State from prepacLag for and earticipating meaningfuly in the ' Tear'ing.
The County ani' State submit that these results wonii not have been penduced but for the personal intervention 3f Chai' man Palladino._1.,
1/
11/
Chairman Palladino on Mav. 16, 1964 disputed the assertion of 0:nmissionar Gilinsky tha*. Chairman Pa11 sdino had (Footnate cont'd next page,
1 a!
)
i 0-1Significantly, Judge Cotter's notes reveal.that the dis-i cu.sion at the Chairnan's March 16 meeting foduse9 on how to k
, e t
ir
,[
i t
[
chance What was then the law of the case.
The discussion thus focused in an " alternative solution for low power" -- that is, 1-an al'ternative to what had been decided on the record by the 1
-Brenner 30ard wit', tite participation of the parties under the s
provisions of the "RC's regulations.
The March 16 meeting was an entirely different setting:
It dealt with a "LILCO propos-al" Which had not even been submittei and of Which the County and State had no knowledge; it was a secret meeting of which i 5hepe was no public notice; the discussion was not on the
)
recordrathe 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; snd the NRC 's ex parte rules were i'
e s
.Vialatei.
' <. ~
-i (Footnote cont'd f~ rom previous page).
[' M
,.I.il ected the : Sta ff's ideas on any issue in the Shoreham s-cisa.
.TheDChairman suggested, in fact, that the Staff had o
'taken p'ositions in February 1984 before theorenner Board which were consistent.with those taken by the Stiff on
. Mar 6h 10, 1984.
See CLI-94-8, SeparatelViews of Chairman-Palladino, May 16, 1994.
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
, Staff took the entirely new position (after meetings sith
' the i T' a i'n.maa ) that; (a) the liesels did not n'eed to he fixed: (b) LILCO could operate'at Icw power with no onsite power system at all; and (c) LILCO did not need to seek a waiver or exemption.
We submit that Conmissioner 3ilinsky was clearly correct:
the Staff cot its' marching orders fran the Chairman til carrie.d them out.
,s
?
- 31 ' --
- 1 1
-f
$('
/;
Y,3
O In essence, the March 16 meeting sas a planning session to figure out has to get around the lawful rulings of the Brenner Board.
Its ourpose was improper its discussion was improper and the actions of NRC personnel that followed it were improp-er.
Each of these personnel acted as a link in a chain of in-
' 'pr priety that commen'ced in the Chairman's office on March 16.
c
)
E',)
Under the Atomic Energy Act, the zone of interests to be
. ),-
.5'.
a protected by the NRC is the public's health and sa fe ty. See n
v.
International Union of Coro.
Power Reactor Dev.e.l.oom_en.t_
n1 Electrical, Radio and Machine Workers, 367 U.S.
409, 415 s
(1961); cf[. Portland General Electric Co.,
(Pebble Springs 57a-clear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C.
610 (1976).
In the present case, however, there is every indication that 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 avoid bankruptcy.
(Judge Cotter's notes of the Chairman's March 16 meeting underscore this concern for LILCO.)
Under the circumstances set forth herein, a disinterested obser/er may surely conclude that Chairman Palladino has in some measure prejudged the facts as se U. a s t', e law in the Shoreham proceedino in advance of the hearing.
The-final evidence of the Chairman's prejudgnent aim be seen in t
the actions of the Chie f Administ rative Jaige, the staff, and c s
'D the Licensing Board personnel who along the way gave effect to his wishes.
The Shoreham procbeding has been pervasively tainted by the Thai rman and others who worked in parallel with him to al.1 The LILCO at the expense,of Suffolk County and New York State.
only way to begin the process of restoring institutional integ-rity in this procee ling is by the disaualification 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.
Respectfully submittel, Martin Bradley Ashare Suf folk County Department of Law Veterans Memorial Fighway Hauppauge, ?Iew York 11798 KIRKPATRICK, LOCKHART, HILL, CHRISTOPH-:R L P91LLIPS t*-
Herbert H.
Bidwn Lawrence Coe Lanpher 1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suf folk County 2
Y Fabian G.
Palamino Special Counsel to the Govennr of 33 -
i New York State Executive 0, amber - Rocr 220 Capitol Building Albany, New York 12224 Attorney for Maric M.
Cuomo Governor of the State of New York June 5, 1984
. L
m 3
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before rhe Commission
)
In the Matter of
)
)
-LONG ISLAND LIGHTING CGMPANY
)
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 beensserved to the following this 6th day of June 1984 by U.S.
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.*
Stara 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.
Rcife, Esq.
Edwin J.
Reis, Esq.
Hunton & Williams Office cf Exec. Legal Director 707 East Main Street U.S.
Nuclear Regulatory Commission Richmond, Virginia 22212 Washington, D.C.
20555 w
w
--m m
m
-2.
a -
n Mr. Martin Suubert.
James Dougherty, Esq.
c/c Cong. William Carney 3045 Porter Street, N.W.
lil3.Longworth House Office Washington, D.C.
20008 Building Washington, D.C.
20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq.
Shoreham Nuclear Power Sta.
Suffolk County Attorney P.O. Box 618 H. Lee'Dennison Buildia,g North Country Road Veterans Memorial Highway Wading River, New York 11792
-Hauppauge, New York 11788 Jay Dunkleberger, Esq.
Docketing and Service Branch.
New York State Energy Office 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.
Room 1114 Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Victor Gilinsky*
Comm. Thomas M.
Roberts
- U.S. Nuclear-Regulatory Commission U.S.
Nuclear Regulatory Comm.
Room 1103 Room 1113 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.**
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 Her:al Plaine, Esq.
Lawrence J.
Brenner, Esq.
U.S. Nuclear Regulatory Commission Administrative Judge 10th Floor Atomic Safety & Licensing Bd.
1717 H Street, N.W.
U.S.
Nuclear Regulatory Comm.
Washington,~D.C.
20555 Washington, D.C.
20555 Dr. Gecrge 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 a
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.
New York Public Service Comm.
Regional Counsel Federal Emergency Manag,ement Agency Gov. Rockefeller Building New York, New York 10278 Empire State Plaza Albany, New York 12223 Atomic Safety and Licensing Board Panel Mr. Marc W.
Go'.dsmith U.S. Nuclear Regulatory Commission Energy Researcn Group, Inc.
Washington, D.C.
20555 400-1 Totten Pond Road Waltham, Massachusetts 02154 MHB Technical Associates 1723 Hamilton Avenue Spence Perry, Esq.
Associate General "ounsel Suite K San. Jose, California 95125 Fed. Emergency Mgn. 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 Shoreham Opponents Coalition
'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 f
MrA%rb~
Lawrence Coe Lahph#t KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
June 6, 1984
o&
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 DISQUALIFICATION OF JUDGES MILLER, BRIGHT, AND JOHNSON, dated June 21, 1984, have been served on the following this 21st 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
- 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 Johnson **
Judge Elizabeth B.
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 Boara
- Albany, New York 12224
,,D U.S. Nuclear Regulatory Commission washington, D.C.
20555
- W.
Taylor Beveley, III, Esq.
Anthony F. Earley, Jr.,
Esq.
Bernard M.
Bordenick, Esq.*
Robert M. Rolfe, Esq.
Edwin-J. Reis, Esq.
Hunton & Williams Office of Exec. Legal. Director 707 East Main Street U.S. Nuclear Regulatory' Commission Richmond, Virginia 23212 Washington, D.C.
20555
'D u Mr. Martin'Suubert James Dougherty, Esq.
c/o Cong. William Carney 3045 Porter Street, N.W.
1113 Longworth House Office Washington, D.C.
20008 Building Washington, D.C.
20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley Ashare, Esq.
Shoreham Nuclear Power Sta.
Suffolk County' Attorney P.O.
Box 618 H.' Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, Fsq.
Docketing and Service Branch New York State Encrgy Office Office of the Secretary Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C.
20555 Albany, New York 12223 Stephen B.
Latham, Esq.
John F. Shea, Esq.
Twomey, Latham and Shea 33 West Second Street Riverhead, New York 11901 W W Lawrence Coe Lanphef KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
June 21, 1984 L..