ML20092H130
| ML20092H130 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/22/1984 |
| From: | Brown H, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-4, NUDOCS 8406250361 | |
| Download: ML20092H130 (4) | |
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DC/rcN UNITED STATES OF AMERICA i
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NUCLEAR REGULATORY COMMISSION nr Before the Atomic _ Safety and Licensing Board d 'i n ~
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-4 (Shoreham Nuclear Power Station,
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Unit 1)
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)
SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF CHIEF ADMINISTRATIVE JUDGE COTTER Suffolk County and the State of New York hereby move that Chief Administrative Judge Cotter disqualify himself from participating in any matters concerning the Long Island Light-ing Company's ("LILCO").Shoreham Nuclear Power Station
("Shoreham").
The bases for this M'otion are stated in the County's and State's request for recusal of Chairman Palladino, dated June 5, 1984, a copy of which is attached hereto anc incorporated by reference, and the attached affidavit.
The legal standard which applies to the issue of whether-Judge Cotter should be disqualified is whether "a disinterested observer may conclude that-(Judge Cotter] has in-some measure adjudged the facts as well as the law of (this) case in advance
- / The attached af fidavit was submitted originally by Suffolk County and New York State to accompany the motion of'the
~
County and State to disqualify Judges Miller, Bright and Johnson.
The factual statements set forth therein are also bases for the' disqualification of Judge Cotter.
Accordingly, such affidavit is submitted herein to satisfy the require-ment of ' 52.704 (c).
N'N [
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G.Ca n, och
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=o 4, of hearing it."
Cinderella Career and Finishing Schools, Inc.
- v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) quoting with approval r
from Gilligan, Mill & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.),
, cert denied, 361 U.S. 896 (1959) (Emphasis added.)
The docu-ments referred to hereinbelow and incorporated by reference show that the actions of Judge Cotter are within the proscription of this legal standard.
Commencing March 16, 1984, Judge Cotter took actions at his own initiative, in parallel with, and in furtherance of the objectives of Chairman Palladino.
These objectives were formu-lated outside the hearing process and beyond the reach or knowledge of the parties and the public.
In essence, the Chair-man informed Judge Cotter that he wanted to " expedite" the issuance of a low power decision for Shoreham and "to get around" the issue of Shoreham's defective emergency diesel generators.
The Chairman, personally and through his legal assistant's discussions with Judge Cotter, through a " working paper" read to Judge Cotter, and through a March 16 ex carte meeting with Judge Cotter, the NRC Staff, and other NRC personnel, communicated those objectives.
Judge Cotter then took actions which facili-tated the achievement of the objectives, and the Licensing Board --
which Judge Cotter appointed for the low power proceeding --
issued the orders which secured them.
The actions of Judge Cotter clearly, in the words of the Cinderella case, permit a disinterested observer to conclude that he has "in soMe measure adjudged the facts as well as the law of [this casel in advance J
a 1 j-of hearing it."
For that reason, Judge Cotter should disqualify himself.
f The Cinderella standard is not prosecutorial, and it does not bring into controversy the question of " guilt."
The standard, rather, raises the issue of the objectivity, and the J
appearance 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 the Licensing Board include an instrumental role played by Judge Cotter.
This role has undermined public confidence in the impartiality of Judge Cotter.
There is, in short, justification for a disinterested observer of the Shoreham proceeding to conclude that Judge Cotter has "in some measure" prejudged the facts and law of the issues i
pending in the proceeding.
The actions of Judge Cotter are within the proscription of I
the disqualification standard of the Cinderella case.
Judge Cotter's participation in the Chairman's March 16 meeting where a discussion was held on " expediting" a low power decision for Shoreham and on means "to get around" the diesel issue, his discussion with the Chairman's legal assistant concerning the Chairman's " working paper," his draft Order of March 23 which set forth a proposed schedule and framework for the Shoreham low power proceeding, and the similarity of his draft Order with the April 6 order of the Licensing Board permit a dis-interested observer to conclude that Judge Cotter has "in some measure" prejudged matters within the prohibition of 'the Cinderella standard.
a N
O d j Accordingly, Suffolk County and New York State move that Judge Cotter disqualify himself from participating in any matter F
related to the Shoreham plant.
If he does not so act, the Commission or Appeal Board, as appropriate, should disqualify Judge Cotter.
See 10 CFR S2.704(c).
Respectfully submitted i
Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
.}v h
herbert H.
Brown Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite J00 Washington, D.C.
20036 Attorneys for Suffolk County
/
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/
Fabian G. Palomino Special Counsel to the Governor of New York State Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M. CUOMO June 22, 1984 Governor of the State of New York I
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6/5/94 UNITED STATES OF AMERICA l
NUCLEAR REGULATOPY COMMISSION Before the Commission
-)
In the Matter of
)
)
LONG ISLAND LIGHTING' COMPANY
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY AND STATE OF NEW YORK REQUEST FOR RECUSAL AND, ALTERNATIVELY, MOTION FOR DISOUALIFICATION OF CHAIRMAN PALLADINO I
Suf folk County and the State of ' New York.hereby request that C'1steman Nunzio J.
Palladino recuse himself from participating in any matters :encerning the Long Island
~
Lighting Company's ("LILCO") Shoreham Nuclear Power Station-("Shoreham").
In the event the - Chairman decides not to~ recuse himself, the County andl State move L the Commission to.take cog-niza.nce of this issue snd vote whether Chairman. Palladino should be disqualif'ied-from participating in _ Shoreham-related matters.
The legal standard which1 applies to the issue of whetherr Chairman Psiladino shoul'd b'ef.disquall'ied isLwhether "a.disin-Lterested - observer' may concludeLthat -[the ' Chairman) has in some
. measure adjudged the facts'as'well as the law A* a particular
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o case in advance of hearing it."
Cinderella Career and Finishino Schools. Inc.
v.
FTC, 425 F.2d 593, 591 (D.C. Cir.
1970) ouoting with approval from Gil11oan, 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 that Chairman Palladino's actions on Shoreham-related matters are clearly within the proscription of this legal standard.
From at least March 16, 1914, 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 intervention in the Shoreham proceeding "may cause a disintarestel observer to conclude" the following (1)
The Chairman, without consulting the other members of the Commission, took the initiative with the Staff and Chief Administrative Judge to engage in substantive discussions and to formulate a strategy for the Staff and Licensing Board that would serve LILCC's interests without regard to those of the County and Stater y.
- e 1
(2)
The Chairman's initiative :susei the Staff to change its previous position sna to support the licensing of shoreham with no emergency onsite power system, contrary to the inter-l ests of the County and Stater i
(3)
The Chairmgn's initiative caused the Chie f Adminis-trative Judge to formulate an adjudicatory proposal to permit the licensing of Shoreham with no emergency onsite power i
system, contrary to the express provisions of the NRC's regula-l tions and contrary to the interests of the County and State.
The Chairman circulated this proposal to the Licensing Moard panel, ir"luding presumably the Shoreham Judges, thus demonstrating his approval of the proposa1r (4)
The Chairman's initiative caused the Staf f ani Licensing Board to work in parallel for the establishment of an unconstitutional hearing format and schedule which benefittsi LILCO, contrary to the rights and interests of the County and State; (5)
The Chairman commenced -his initla tive for the purpose of giving aid to LILCO before the Licensing Board and in the financial marketplace, a consideration which is outsLde the 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 ha planned to u
do, and, indeei, without even consultina with other members Of
- he Co-mission.
The actions of the Staff and Licensing DoarA gave effect to his initiative, in contravantion of tha reguls-tions, and prejudiced the County's and State's rights to due process of law.
l The Chairman's initiative required that prejudgments he nade on two issues then central to the licensing of Shoreham:
(1) ths schedule on which LILCO would receive a low power i
licensing decision; and (2) the need for an onsite emartvu:y power source.
These were issues which had been settled on February 22 by an order of the Aoard chaired by Judge Drenner.
On March tri, the Chairnan met with the Chief Administrative Judge, n. Dsul cotter, Jr., and the Otaff's Executive Director l
l and other top-level 9taf* personnel, including the Director >st Nuclear Remeter Regulation and the Executive Logal Director and members of their offices.
The Chairman discussed with these eersons the impact of the Licensing Board's February 22 order on LILCO's financint haalth snd formulated means to aid LILCO.
In the words of the personal notes handwrL*. ten by Judge Cotter at the March 16 meeting, an " alternative golution for low
~
power" operation of thereham was discussed.
This " solution" involved LILCO filing a " proposal to not around (thel dienal "snatte emergency power source) issun,ggj hold hearing,an nooration it low newer."
(Final amphusL4 b) JaiJln91.)
The 4
e meeting also involved the formulation of in "expeittei" hearing format and schedule.
Again, in Judae Cotter's words, s hearing ordered by the Commission "would define ' contention' and set time frames for expedited procedure."
It would also "revi44 3Dsel order of February 22."
Significantly, Judge Cotter note.1 that LILCO's financial health was discusso4.
He wrote,
":LILC03 Says tit) will go bankrupt if [it has to wait for]
12/94 f.D.
(Initial Decision of the Licensing Boar 12."
II: was then anticipatai that the Drenner Loard sould issue its teci-sion on low power operation of Fhoreham in D9:oinher 1774. )
A rinnonable observer may conclude that the only prompt decivia, which could avert a LILCO bankruptcy was a favorables Sqe t7 LILCO.
Thus, on March 16. Chairman Ps11adino plannad sn1 sot in motion with the NRC's top judicial and Staff perscanut, changes in the course of the shoraham proceeding.
In short order, the following occurrels (1)
New Licensing Board Judges were appointed ta haver the pr9posal for LSw power operation that LILCO filed with the Drenner Board four days af ter the Chs teman's March 16 meeting.
(Judge cetter's notes state
" NOTE: Concern re Same Roard Chairman."
- Also, a.'ie notes, written four days before LILCO flini (tg proposal to operate Ahoreham at low power without
.g.
diesels, state:
"LILCO file proposal to get around diesel issue and hold hearing on coeration at low power,");
(2)
The Staff abruptly reversed its previous position and supported the licensing of Shoreham with no onsite emergency power source.
(Judge
- Cotter's notes state:
" Based on LILCO proposal, staff can issue report in 30 days as to whether plant safe at 5% w/o diesels");
(3)s The new Licensing Board issued an Order defining the issues to be heard under ex'pedited 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 Cinderella case, supra,.there is no lawful basis on which the Chairma'n should particippte ~in s,.
any matters.related to the Shoreham plant.. Surely, the facts
~ described above, and as set forth-at lenijth below, may cause "a
- disinterested - observer -[to] concludejthat'[the Chairman) has in-
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.t some measure adjudgedJthe. facts.as well'as"the law of-[this]
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case in advance of hearing 'it.".
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e The legal standard quoted above is not prosecutorial, and it does not 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 C airman's init.iative 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 the individuals who have demonstrated, or have appeared to demon-strate, partiality toward LILCO to disqualify themselves and for scrupulously fair procedures and reasoned decisions to be followed.-
The st arting point for this is the.recusal of the Chairman.
I.
The. Chairman's-Personal Intervertion In The Shoreham Proceeding Requires Disqualification.
According to public documents, Chairman.Palladino's
_ personal intervention in the Shoreham licensing proceeding began with an ex narte meeting with the Chief Administrative Judge and the Staff'on March 16, 1984.
To put this interven-
- tion into perspective, 'we will brieflv1 describe the posture of 1
.the.Shoreham proceeding prior to: March 16.-.
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s A.
Events Prior to 'brch 16, 1924 On February 22, 1984, the Licensing Board chai-ed by Ad-ministrative Judge Lawrence Brenner (the "Brenner Board") ruled that there was no basis for granting LILCO a low power license for Shoreham "in advence of complete litigation" of the emer-gency diesel issues.
The Arenner Roard set a schedule for lit-igation of those issues that, after a discovery period of ap-proximately two months, provided for a conference of the parties on May 10, to determine subsequent procedures.
In issuing that schedule the Brenner Board concluded:
Based on what we have before us now, there is no basis to proceed towards litigation that could possibly lead to a low power license in advance of a complete litigation of Contentions 1, 2 and 3 [the outstanding diesel issues].
'See Transcript of ASLB Hearing, February 22, 1984, at 21,615.
Hence, as conceived by the Brenner Board, the hearing on the diesel issues would be unli%ely ta start before June, and a de-cision in all probability would not he expected before Decenher 1984.
~
Significantly, as of February 22, the NRC Staf f had taken the unequivocal position that-un:'er the -1PC 's regulations no -
low power license could he issued for Shoreham unless the die-sel issues were first resolved.
Thus, as of February 22, the
-g_
i Staff position was that there could be no low power license until LILCO had an onsite electric power system which met NRC requirements or had receivei a proper axemption from those NRC recuirements.
At the February.22 conference before the Brenner Board, the ':RC staff oonosed LILCO's arguments tha t " enhanced" offsite power could substitute for deficient onsite power.
Thus, the Staff would give no credit to LILCO's offsite oower system, including the gas turbine physically located at Shoreham, be-cause " General Design Criteria 17 recuires an independent, re-dundant and reliable source of on-site power."
See LTRC Staff's Response to Suffolk County's Motion to Admit Supplemental Die-sel Generator Contentions ( Februa ry _ l<4, 1984) footnote 7 (Enphasis aa<1ed).
The Staff took "no position upon whether ap-plicant, upon a proper technical analysis, could or could not support an application for an exemption to allow it to go to low-power absent reliable safety-grade diesels."
Id. (Emphasis added).1/
/
1/
The Staff's position that no licen'se could be. issued for Shoreham without an adequate onsite AC power syst6m was publicly stated by Messrs. Harold Denton'and Darrell Eisenhut at.an open meeting between the Sta f f and the _TDI Owners Group on January 26, 1984.
Mr. Denton sta ted:
fW)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 (Footnote' cont'd next page) o 4
i The Frenner Board's February 22 iecision to li ". ig a t e the
)
diesel issues before considering a low power license #or Shoreham was a serious setback '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, 1984) tha t-LILCO's Chairman, William J.
Catacosinos, had met with the NRC Commissioners.
Moreover, in
-a March 9, 1994, 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 LYLCO.
Ac-cordingly, since January 30, I have made government officials aware of.our critical situation. and I believe there now seems to be a creater understanding among federal, state and county officials of the crisis the company faces A timely reso-lution of the Shoreham situation and a res-olution of the Company's critical cash shortage are essential to the continued vi-ability of LILCO.
(Emphasis added).
Significantly, Judge Cotter's notes of the Chairman's March 16 meeting state:
"Says will go bankrupt if 12/94 I.D._[ Initial Decision of the Licensing _ Board]."
The
-(Footnote cont'd from previous page) adeouately addressed.
Meeting transcript st.8.
Mr. Eisenhut added tha t " prior to licensing, even a-low power license," the Staff must have confidence t'na t the TDI diesel problems have been solved.
Meeting tr>nscript at 73-96 (Emphasis added).
- e e
o "creater understanling" af fe.ieral officials to idhich Dr.
Catacosinos referrec1 th us na le itsalf felt in and through Chairman Palladino's office.
B.
Chairman Palladino's Personal Intervention Eeninninc 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 Brenner Roard, and there was thus no prospect for an early low power decision for Fhoreham.
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 Sta f f notified the Commissioners of " potential licensing delays" o f 9 mon th s *ar Thoreham.
The 9 month " delay" was estimated by LILCO i ts e l. " and passad on to the Commissioners by the Staff.
However, it has-been revealed that the NRC Staff disagreed with this estimate, because the Staff did not consider LILCO's construction to be complete and thus the delay could not be attributed to the licensing-process.
See April 24 Memorandum.from 'J. A.
Rehm,-Assistant for Operations, torthe Commission.
In fact, it should have been clear to all persons in March 1984 that there was no Shoreham
- 11 r
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i
" delay" attributable to the licensing pro.:=ss; rather, the only 1
delay was due solely to the repeated fillar e o f LILCO 's TDI diesels.
Thus, the plant was not ready for licensing because the iiesels would not work.
2.
On March 1Q, in what turned out to be at: improper ex parte meeting, Cha irman Palladino met with members of the NRC Sta f f -- 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, including the Exec-utive Director for Operations, the Director of the Office of Nuclear Reactor 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 State was. advised of this meeting, and no transcript was made.3/
Further, this 2/
Chairman Palladino had met on. March 15 with personnel from
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the Offices of Policy Evaluation and General Counsel con-cerning the potential delays.
It was then decided to hold
.the 'tarch-15 meeting.
See Individual Statement of Nunkio J.
Palladino Btfore the Subcomm. on Energy and-the Environment, H.
Comm. on Interior and Insular Affairs, May 17, 1984, pp. 8-9 (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 menring. or be provided an opportunity to comment
- NRC April 23 Meeting Transcript, p.
10.
Similarly, (Footnote cont'd next page)
[. xv
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meeting was held even though there was no les L!LCO proposal for low power operation of Shoreham, and even though, as noted above, LILCO had taken no appeal of or any other action to cisagree with the Brenner Board's February 22 rulings
~
concern-
-ing low power operation, the TDI diesels, or the schedule for litigation.
Nevertheless, Judge 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 nower."
While Chairman Palladino has stated that "some prelim-inary ideas regarding expediting the Shoreham hearing were discussed," see Palladino Memo to Commissioners, April 4,
- 198d, 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 ultimate judges.
The Staf'f Directors should have told the Chairman politely'that it is not their j ob -
to carry the ball. for the Company.
It is-understandable-that they did not say this und er the circumstances. l ' The Chairman is, -
by law, the Staff's directLsupervisor.
He controls annual bonuses worth many thou-sands of. dollars to senior Staff members.
What we have is a situation in which one member of the ultimate NPC, adjudicatory tribunal' appears to-be directing.the-actions of a. key party in the case.
'CLI-94-R,-Separate-Views of Commissioner Gilinsky, May 1'6, 1984.
- 13 x
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Lincluded concern" with Judge Drenner, a " Commission ordered bearing" that would " define contention and set time frames far l~
' expedited ! procedure, " and discussion of a LILCS " proposal to get around diesel issue and hold hearing on operation at low power."4/
Significantly, the LILCO " proposal" mentioned in Judge Cotter's March 16 notes-was not filed until March 20, four days later.
Nothing in the-public record suggested tha t' LILCO would file such a proposal "to get around Tthe] diesel issue."
J J
4/
These documented statements sharply contradict: the testi-i many of Chairman Palladino before the House ~ Subcommittee on Energy and Environment on May_17.
- Chairman Palladino there stated:.
At that meeting, held on March 16, I was briefed as to the status.cf a number of cases, including the Shoreham proceeding.
4 While the hriefing 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' 1
i-issues should be resolved.-
I am confident that if the Staff had done that, c'r : i f gny o ther 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.
i hey understood.that-LILCO planned to t
appeal 1the-denial of its.. low power., request.
But again,cthere was'no discussion, to,the best of my-recollection, of :the merits of that request.
'Palladino Statement.at~10...
-.14 g
1 d
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One reason that Chairman Palladino met with the Staff and others on March 16 "was the possibility that if tTPC Midn ' 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."
Palladino Statement at 4-5: see id. at 11.
Thus, the Chairnan clearly was acting at least in part out of concern for LILCO's financial condition.
Judge Cotter's notes underscore that point:
the March 16 meeting includei discussion that LILCO would "go bankrupt" if it had to asait a Licensing Board decision -- even assuming such a decision va :t Esvorable -- in December 1984.
3.
On March 20, Chairman Palladino circulated a memoran-dum to the other Connissioners.
The. memorandum purported to report on.the March 16 meeting and' proposed that in order'.to
" reduce the delays.at Shoreham, " the Commission should
" consider.e-proposal from OGC [ Office of General Counsell for
~
an. expedited hearing on the diesel problem,' or proposals -for other possible actions so Ltha t at -least a low power decisioni might be possible while awaiting reso1.ution~of;the emergency.
~
~
planning issue.
.I 'have asked. the OGC to provide a paper on this subject soon."
-Chairman Palladino did not then repor, as he later did in his April-4: Memorandum, that ideas for-expe31 ting the Shoreham proceeding hadsbeen. discussed'at his
-115 -
i March 16 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.the NRC's, and that the Sta f f disagreed with LILCO 's estimate.
The Chairman's March 20 Memorandum was ci rc ul. s tem to "SECY, OGC, OPE, OIA, EDO."
Thus, at a minimum, the NRC Staff, through 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 specifically requested the EDO i.e.,
the Staff, a party in the Shoreham proceeding -- to respond to the March 20 Memorandum and to prepare a paper outlining steps to deal with the " delays".
4.
On March' 20 -- the same day that the Chairman circu-lated his above-described Memorandum -- LILCO filed its-unprec-edented proposal for a low power license, styled as a Supple-mental-Motion for Low Power Operat'ing License.
LILCO made es-sentially the'same arguments for a low power license that; the Brenner Board had previously rejected,-except that LILCO added that it also intended to install at Shoreham four mobile-diesel
_ generators, not qualified for. nuclear service,Eto "anhance" ~ the -
a
offsite AC electric power system.
LILCO served copies of the Motion on the NFC Commissioners.
Faen though LILCO's March 20 proposal for Shoreham's operation did not comply with GDC 17 --
there would he no onsite electric power system -- LILCO did not apply for a saiver or an exemption of that regulation.
5.
After March 16, Chairman Palladino had further dis-cussions with his staff and "with EDO as well, searching for options," to deal with the alleged delay.
Palladino Statement at 11.
On March 22, Chairman Palladino 's legal assistant read to Judge Cotter by telephone the following " working paper" prepared by the Chairman's office (this paper later was saa ta Juige Cotter), which relates to LILCO's March 20 proposal:
The 3DO 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 operatio'n at low power.
The Commission would like this matter liti-gated on an expedited basis with a target date of receiving the Board's decision on this matter by May 9, 1984.
Nould 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, youfcould assume the
- m116 wing steps:
A two. week sta f f review of the propos-al by LILC9;,:
_m
'_. _j
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 fol l ow-up discussions.
If you have any questions, 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
" 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 Palladino Statment at.12.
The estimate of a two' week period for Staff review of the LILCO proposal -- a' reduction from the 30-day ~revies
-period diaeus=ed un Match 16 and reported in Judge Cotter's notes -- presumably reflects further conversation with.the -Sta f f either by _ the ' Chairman, his stff,.or the OGC.
1
1 (a)
A proposed decision that consideration of LILCO's low power proposal be expedited and that it be decide 1 on the merits.
This, of course, prejudged the very question at issaa:
Vhether LILCO's orocosal was a challenge to GDC 17 that had to be rejected outright.
It thus had the effect of deciding that the GDC 17 requirement of an onsite electric power system could be eliminated without even requiring LILCO to seek an exemption or waiver under 10 C.F.R.
$ 2.758 or 5 50.12(a).
(b)
A proposed decision that a new Licensing Board be appointed to replace the Brenner Board, which on February 22, 1984, had dealt LILCO a setback.
This proposal to appoint a new Licensing Board came four days before the Brenner Board advised Judge Cotter that it had a potential schedule conflict due to the judges' involvement in the Limerick pro-ceeding.
Significantly, Judge Cotter's notes of the Chairman's March 16 meeting state:
" NOTE:
Concern re Same Board Chair-
. man"
[i.e.,
Judge Brenner].
(c)
A proposed decision that LILCO's March 20 Motion be litigated on a schedule that Judge; Cotter described as "bru-tally tight"'and "[d]efinitely not recommended but possibly achievable."' Tne' Cotter schedule called.for a decision on the LILCO Motion within'50 days.
To achieve such " expedition,"
~19 -
x.
-Judge Cotter suggested that there be 16 days for discovery, 5 Mays between close cf discovery and filing testimony, 5 days until the start of ' hearing,. and 10 days for the hearing.
This schedule is clearly responsive to and consistent with the
. Chairman's " working paper" directive that Judge Cotter devise an expedited schedule for Shoreham.
Further, one reason cited by Judge Cotter for adoption of this " brutally tight" schedule was "the ' enormous financial investment" of LILCD.
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 l
March 16 meeting with the Chairman stata:
"Says-will go bankrupt if 12/84 I. D.' [ Initial Decision of the Licensing i
Board]."
As noted previously, the only decision that could a
avert _a LILCO bankruptcy was an sarly one favorable to LILCO.
-7.
On March,26, S'offolk 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-request of the Brenner Board that -parties provide preliminary
-views on how the new LILCO Motion lshould be handled.- - In '..the s e :
. views the County stated:
( a).. The County required more than the nornial. un-day.
period to respond'to LILCO's Low Power.* lotion, becauseEit.
raised many-new and complex factual issuesl/ and the1 County
-6/
The L NRC's Of fice of General Counsel haslagreed *. hat ".%
issues raised by LILCO's Motion are "ex'tremely c3mp1.as:."
See 512, infra..
-s
'E 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 disuuvery.
(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 of LILCO's Low Power Motion were considered, including: (i) 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 hos 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 o,f the NRC's seismic requirements; and (iii) contrary to the Board's February 22 order, the Motion appeared to rely upon the TDI diesels.
The County requested a conference.with'the'Brenner Board to discuss the procedura1' matters affecting the diesel litigation and LILCO's Low-Power Motion.
On-March 28,1the State'of New York. filed preliminary views which supported those ~ submitted by the County.
The County 21
=
i 1
-supolemented its views on March 30, urging that the LILCO Motion be sumnarily dismissed for failing to compl y with GDC 17.
8.
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 respoolel 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,_el_ectric 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 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 Ps11adino's interi ention had been influ-ential:
COMMISIONER GILINSKY:
I must say that this inofi.rms ne even further in my. view that-
.the staff ought not be inithese hearings.
Here is the sta f f concocting arguments on
- 22
how all this can be rationalized and I must say that even though you didn't tell them anything about the hearings, this is aftee your meetine with them on the s pe e-l ing og
- j the process so the effect of it is inevita-ble.
You have them go back and think,
'Well, how can we speed up this process?'
I am not suggesting tha t you did anythin; proper (sic] mind you but that is intrinsic in the way.the system works.
NRC Aoril 23 Meeting Transcript,
- p. 59 (Emphasis added).1/
Further, without addressing any of the County's and State's concerns regarding the time required to respond to LILCO's Low Power Motion and without reveal: qg the 3taff's meeting with Cnairman Palladino, the Staff called for an expedited hearing on the Motion with all testimony to be filed by April 23.
This Staff schedule was consistent with the guidelines set forth in Chairman Palladino's " working paper" and with Judge Cotter's proposed order.
10. -
On March 30, Chief Administrative Judge Cotter issued an order removing the Brenner Board and establishing a new licensing board "to hear and decide" LILCO's Low Power Motion.
The order noted the " advice" of the Brenner Board that "two of its members are heavily committed to work'on another operating license proceeding."
'According to a report in' Nucleonics-Week, April $,
1984:
7/;
See'also CLI-84-8, Separat? Views of Commissioner l
Gilinsky, May 16, 1984 ("the Staff had been trying to'run legal-interference for.the Company" ).
- 23:~-
?
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.
However, he said, Ps11adino's staff was " aware" of his deci-sion.
Indeed, Judge Cotter informed the Chairmen o' the ac:Ja1 ap-pointment before it was made.
Palladino Statement at 14.5/
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 appointment of a new Board was Judge Cotter's " idea", this idea was one of the proposals developed by Judge Cotter at the request of Chairman Ps11adino and, thus, the " idea" clearly was the product of the Ch a i rma.1 ' s iqtervention.
11.
On the same day, March 30, the parties'were notified by telephone that the new Licensing Board (the " Miller Roard")
would hear oral arguments on April 4,
1994, on LILCO's Low
-8/
The Office of General Counsel spoke with Judae Cotter
.several times between March 27 and March 30 regarding Judge Cotter's proposal to' appoint'a new board and specif-ically questioned whether -the action did _not appear to presume that LILCO's Motion would be granted.
See NRC April ;23, 1984 Meeting ~ Transcript, pp.
A-9.
- 24
Power. Motion.
Tne telephonic notice stated that this Board was
" established to hear and decide the motion on an expeditei 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 their ?ilings, as well as a schedule for their expedited consideration and Setarmination."
(Emphasis added).
In light of the known facts, it would not he reasonable to conclude tha t the Miller Board's March 30 decision to expedite the proceeding was independent of the chain of events that began with the Chairman's March 16 intervention.
It must 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, S t a.t e, and the Staf f, 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.
Nevertheless, the Miller Board decided to expedite the-proceeding the very same day it was appointed -- March 30.
12.
On Aoril 2,-the NRC's General Counsel circulated a Memorandum to all the Commissioners.
.The purpose of this '
Memorantun 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
[raisei by LILCO's Motion] are extremely complex OGC suggested a number of alternatives, including an expedited hearing schedule, which allowed a total of 80 days between a Commission Order starting the proceeding and a Licensing Board decision on the LILCO Motion.
Under this OGC " expedited" schedule, there would have been 15 days for discovery, 10 days between close of discovery and the start of hearings,1/ 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 39 basis for any expedited process," and tha t this issue should be addressed by the partias it the 7tal argument.
The County repeate.d its view that LIICO's Low Power Motion.
should-not be argued on the merits until th+ County had an op-portunity to retain. experts and conduct adequate discovery, as discussed in the County's March 26 Preliminary Views.
Also, on April 3, the State of New York filed.a motion in opposition to the Miller Board's ruling. tha t LILCO's Low Power. Motion would be giuan; expedited. considerstion.
The State argued that t
. 9/
Prefiled testimony was omittai.
- 26 m
expediting LILCO's Low Power Motion was arbitracy and would deny the State _due process of law.
14.
On April 4, Chairman Palladino distributed a Memoran-dum to the other Commissioners, attached to Which was Chairman Palladino's March 22, working pape r" and Judge Cotter's March 23 draft order.
The Chairman's April 4 Memorandum was also distributei to the Atomic Safety and Licensing Board Panel, of which Chie f Judge Cotter and Judges Miller, Bright, and Johnson (the Miller Boari) are members.
15.
On April 4, the newly appointed Miller 90ard heard 2
oral argument on the LILCO Motion, including Whether GDC 17 was being imnermissibly 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 Scheduli.ng Hearing on LILCO's Supplemental Motion for Low-Power-Operating License (the " Low Power Order").
The Low Power Order stated first that LILCO could operate Shoreham at low power with no onsite electric nower system, provided that the publi-c health and safety findings suggested by the NRC l
l Staff were made.
The Board thus adopted the oosition urged by
~
l the. Staff in its March 30 filing and by' Judge Cotter in his March 23 draft order.
It provided the final link ~in~the chain l
c which began at the Chairman's March 16 meeting with'the L
- 27 r
e
.O e
formulation of an " a l. t e r n a ti v e solution for low power."
This was, as Juige Cotter's notes reflected, the means for LILCO "to get arcund " the) diesal issue."
Second, despite the " extremely complex" issues presentea, the Board decided to. expedite consideration of LILCO's Motion.
Again, this decision was consistent with the Chairman's
" working paper," the position of the Staff, and with Judge Cotter's draft order.
The Board's Order defined the issues and established expedited procedures.
Judge Cotter's notes of the Chairman's March 16 meeting reveal a discussion to " define
' contention' and set time frames for expedited procedures. "
Significantly, the-time frames established by the Miller Board have a striking similarity to those proposed by Judge Cotter in his March 23 draft Orier for the Chairman.
Judoe 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 5: days 4 days of hearing
-Elapsed time set aside for hearing 10 days 11 days 1.
L-J:
17.
Suffolk County and the State of New York protested the Miller Board's April 6 Order as denying them due process of law and as being contrary to GDC 17 and other NRC regulotions.
The County even submitted detailed af fidavits of expert consul-tants documenting that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hear-ing.
The Miller Board and, subsequently, the Comnission re-fused to alter the April 6 Order, forcing the County and the State to seek a temporary restraining order in fede r al court.
The TRO was granted on April 25.
II.
Chairman Palladino Must Recuse Himself Or
~
Otherwise Be Disoualified By The Commission The standard for determining whether Chairman Palladino must recuse himself.or otherwise be disquali#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 tha t Chairman Palladino 10/
Chairman Palladino has contended that he has not prejudged the Shoreham proceeding.
See e.g.,
Palladino Statement at
~
20-21; Palladino Letter to Congressman Markey, April 6,
-1984; CLI-94-9, Separate Views of Chairman Palladino, May 16, 1984.
Mis position, however, does not address - the legal standard set forth in the Cinderella' case.
29 l
L
4 0
has at least'in some measure adjudged the facts and law in this case before hearing it.
Certainly, as noted previousl y, a dis-interested observer could conclude tha t the only decision which could avert a LILCO bankruptcy was an expedited one favorable to LILCO.
The Chairman's March 16 meeting with top-level Staff per-sonnel -- an ex par'.e meeting prohibited by Section 2.7A0 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 effects on the rights and interests of the County and State.
This strategy and plan were based on the concern that the sub-stantive rulings and hearing procedures. adopted by the Brenner Boar 3 might permit LILCO to go bankrupt before a low power licansa 3ecision could be issued.
Therefore, to get around those rulings and procedures, the strategy and actions Fa l. i. aw-ing tha intervention of Chairman Palladino produced a new.
Licensing Board, a new legal standard which would permit tlw 1 34 power operation of Shoreham with no onsite power and with-out waiver of GDC 17,.and a new expedited hearing schedule which -ef fectively barred the County and State from prepariny for and participating meaningfuly in the hearing.
The County and State submit that these results would not have-been ~'
-produced but for the personal intervention of "haicnan Psiladino.ll/
11/. Chairman Palladino on May 16, 1984 disputed the assertion of Commissioner Gilinsky that Chairman = Palladino had.
page).
-(Footnote' cont'd next L._
O O
l i
j Significantly, Judge Cotter's notes reveal that the dis-cussion at the Chairman 's March 16 mee ting focuse3 on how to chance What was then the law of the case.
The discussion thus that is, focused on an " alternative solution for low power" an alternative to What had been decided on the record by the Brenner Daard with tite participation of the parties under the provisians of the NRC's regulations.
The Ma rch 16 meeting wss an entirely different setting:
It dealt with a "LILCO propos-al" Which had not even been submitted and of Which the County and State had no knowledge; it was a secret meeting of which there was no public notice; the discussion was not on the record; the parties (except for the Staff) were not present; it focused on a means of obtaining a favorable decision in time to avert a LILCO bankruptcy; and the NRC's ex parte rules were violatei.
(Footnote cont ' d from previous page) ii ected the Staff's ideas on any issue in the Sho reham casa.
The Chairman suggested, in fact, tha t the Sta f f had taken positions in February-1984 before the Brenner Board which were consistent with those taken by the Staf f on March 30,-1984.
See CLI-94-8, Separate Views of Chairman Palladino, May 16, 1984.
However, before the Brenner Board, the Sta f f had insisted - that _ for a low power license, LILCO needed to fix the diesels or seek an exemp-
~
tion or waiver.-
See Section I.A, supra.
On March 30, the Staff to'k the entirely new position (after meetings with o
the Chairman) tha t ; (a) the liesels did not need to he fixed; (b) LILCO could operate at' low power with no onsite
. power system at all; and (c) LILCO did not need to seek a waiver or exemption.
We submit.that Commissioner Gilinsky was clearly correct:
the Staff ant its marching orders f rom.the Chairman and carried them out.
b
- 31
-. -. -. ~
n 1
)
In essence, the March 16 meeting was a planning session to ficure 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 aa a link in a chain of im-propriety that commen*ced in the Chmirman's of fice on March 16.
Under the Atomic Energy Act, the zone of interests to be protected by the NRC is the public's health and safety. See Power Reactor Dev,e,1,ooment Corp.
v.
International Union of Electrical, Radion_and_ Machine Workers, 367 U.S.
409, 415 (1961); cf. Portland General Electric Co.,
(Pebble Springs Mu-clear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C.
610 (1976).
In the present' case, however, there is every indication 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 ci,rcumstances set forth herein, a' disinterested. observer may surely conclude that Chairman Palladino has-in some measure prejudged - the fsets as soll as the law in~the Shoreham proceeding in advance of the hearing.
The final evidence of the Chairman's. prejuelgment asa be seen in the actions of the Chie f Administ rative Juige, the 9taff, and-4.
o the Licensing Board personnal who along the way gave ef fect to his wishes.
The Shoreham proceeding has been pervasively tainted by the Chairman and others who worked in parallel with him to aid LILCO at the expense,of Suffolk County and New York State.
The only way to begin the process of restoring institutional integ-rity in this proceeling is by the disqualification of those whose actions have create 1 the taint.
The place to start is with the Chairmen's recusal.
If he does not recuse himnelf, the County and State move the Commission to take cognizance of this matter and vote on whether to disqualify the Chairman.
Respectfully submitte:1, Martin Bradley Ashare suf folk County Department of Law Veterans Memorial Highway Hauppauge, Mew York 11798 KIRKPATRICK, LOCKHART, HILL, CHRISTOPH*:9 & P9ILLIPS e
v Herbert H.
Brown Lawrence Coe Lanpher 1900 M Streat, N.W.
Washington, D.C.
20036 Attorneys for Suf folk County k
Fabian G.
Pslamino Special Counsel to the Govenor of.
s.
O ti New York State Executive 7namber - Room 229 Capitol Building
.l Albany, New York 12224 Attorney for Mario M.
Cuomo l
Governor of the State of New York June 5, 1984 s
auS e
9" m
9%
s*"'.C
(-
7w~w:
u
-~
.-n~-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the 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 been served 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 11'501-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 Rioge,. Tennessee: 37830
. Governor--
Executive Chamber, Roomf229 Eleanor L.
Frucci, Esq.*
StaraLCapitol 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 11..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 L
Washington, D.C.<
.20555,
^
/
~
. ~ _ -
e z.-
.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 1
' 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_Buildig,g North Country Road
. Veterans Memorial Highway Wading. River, New York 11792 L
Hauppauge, New York 11788 Jay Dunkleberger, Esq.
. Docketing and Service Branch New York State Energy. Office 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.
i' 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 I
Commissioner James K.
Asselstine*
Stephen B..Latham,--Esq.**
4 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: 111901
.Herzal Plaine, Esq.
_ Lawrence rJ. Brenner, Esq. -
'U.S.
Nuclear Regulatory Commiss' ion AdministrativeLJudge' 10th Floor
- Atomic-Safety ll Licensing Bd.
~
1717 H" Street, N.W.-
'U.S.. Nuclear Regulatory:Comm.
Washington, D.C.-
f20555-EWashington, D.C._
20555 4
Dr.'GeorgeLA.;Ferguson' Dr.' Peter'A.z Morris
' Administrative; Judge:
. AdministrativeLJudge LAtomic' Safety 8 Licensing Board?
Atomic?Safetyla Li. censing.Bd.'
U.S._NuclearTRegulatory1 Commission E U. S.3 Nuclear. Regulatory.Comm.
Washington,JD.C.-
20555:
.. Washington, D.C.>
'20555 1 James.A.. Laurenson,LChairman_
_Dr'.rJerry)R...Kline:
- Atomic Safety &cLicensing"Boardi
> Administrative Judge; 4
U.S..NuclearERegulatoryiCommission JAtomic' Safety &l Licensing Bd.
Washington,ED.C.;
f20555 40.S bNuclear-Regulatory Comm.
- Washington,LD.C.(
20555~
3r t
+
u 6
s r
4
.5 :
,{
R
~
'}
r Mr. Frederick J.
Shon Administrative Judge Ralph Shapiro, Esq.
Atomic Safety & Licensing Board Cammer and Shapiro
.U.S.
Nuclear Regulatory Commission 9 East 40th Street
. Washington, D.C.
20555 New York, New York 10016 Stewart M. Glass, Esq.
Joel Blau, Esq.
Regional Counsel New York Public Service Comm.
Federal Emergency Management Agency Gov. Rockefeller Building New York, New York 10278 Empire State Plaza Albany, New York 12223 Atomic Safety and Licensing Board Panel Mr. Marc W.
Goldsmith U.S.
Nuclear Regulatory Commission Energy Research Group, Inc.
Washington, D.C.
20555 400-1 Totten Pond Road Waltham, Massachusetts 02154 MHB Technical Associates 1723 Hamilton Avenue Spence Perry, Esq.
Suite K Associate General Counsel San Jose, California 95125 Fed. Emergency Mgmt. Agency Washington, D.C.
20472 Jonathan D.
Feinberg, Esq.
Staff Counsel Atomic Safety & Licensing New York State.Public Service Appeal Board Commission U.S.
Nuclear Regulatory.Comm.
3 Rockefeller Plaza Washington, D.C.-
20555 Albany, New York 12223 Ms. Nora Bredes Mr. Stuart Diamond
-Executive Director Business / Financial 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 9d D
Lawrence Coe Lahphdt KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER &-PHILLIPS
-1900 M Street, N.W.,
Suite'800 Washington, D.C.
20036 DATE:
June 6, 1984 l
g 4
's b
UNITED STATES OF AMERICA
.i NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ILLANO LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
'Jnit 1)
)
)
4 AFFIDAVIT OF HERBERT H.
BROWF, LAWRENCE COE LANPHER, FABIAN G.
PALOMINO 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 Suf folk ' 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 i
below'are. derived from publicly available documents, except. for f
certain instances.(paragraphs 11,'12, 24, 34) which pertain
.primarily to the Affiants' personal recollections of Chairman cou n 4 _
,..a
%fMQL)
+
e,
e r
r
e e
Palladino ' ti 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 emergency diesel issues.
Source:
Transcript of ASLB Hearing, Feb. 22, 1994, at 21,615.
The Brenner Board set a schedule for litigation of those issues that, after a discovery period of approximately two months, provided for a conference of the parties after May 10, to determine subsequent procedures.
4 Source:
Id. at 21,634.
In issuina 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].
i Source:
Id. at 21,615.
I I
i s l l
[
l'
V.
- A 4.
.Under the Brenner Board schedule, it was estimated by the NRC Staff that an initial decision on emergency diesel gen-f erator contentions would be issued in December 1984.
Source:
Attachment to Memoraudum 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" of fsite power could substitute for i
deficient onsite power.
The Staff would give no credit to including the gas turbine physi-LILCO's offsite' power system, cally located at Shoreham, because " General Design Criteria 17 reauires an independent, redundant and reliable source of on-site powers" Source:
NRC Staff's Response to Suffolk County's Motion to Admit Supplemental Diesel Generator Conten-l 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 application for an ex-emption to allow it to go to low-power absent reliable safety-crade diesels."
Sources Id.
t an open meeting between the NRC' Staff and the TDI 6.
At Owners Group on January 26, 1984, Mr. Harold Denton of the i'
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 t
i adequately addressed.
_3_
i l
l i
Source:
Jan. 26 Meeting transcript at 9.
Mr. Darrel Eisenhut of the Staff stated at the same meeting that " prior to i
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, 1994, 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 j
of potential licensing delays of 9 months for Shorehem.
The 9 month delay was estimated by LILCO and passed on to the Commissioners by the Staff.
Source:
Attachment to Memorandum m
from William J.
Dircks to Commissioners, March 9,
- 1984, available as part of FOIA-84-250.
i 10.
Chairman Palladino met on March 15 with personnel from the Offices of Policy Evaluation and General Counsel con-4 cerning the potential
- licensing delays.
It was then decided to hold a meeting on March 16.
Source: Indi'vidual 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 Chief 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).
i 12.
The other Commissioners were not advised of the March 16 meeting in advance.
Source:
Affiants' recollection of i
! l
v.
Chairman Palladino's May 17 Congressional testimony.
Neither the County nor State was advised of this meeting, and no
~
transcript wgp 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 mader NRC Commissioners' April 23 Meeting Transcript, p'.10.
13.
Commissioner Asselstine criticized Chairman Palladino i
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.
14.
Commissioner Gilinsky questioned whether it was proper for the Staf f to meet with Chairman Palladino at the March 16 meeting:
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 they did not say this under the circumstances.
The Chairman is, by law, the Staff's direct su-pervisor.
He controls annual bonuses worth many thousands of dollars to senior Staff members.
1 What we have is a situation in which one member of the ultimate NRC adjudicatory tribunal i
appears to be directing the actions of a key
. party in the case.
Source:
CLI-84-8, Separate Views of Commissioner Gilinsky, May 16, 1984.
l i l-
v-15.
_ Chairman Palladino's March 16 meeting was held even though-LILCO had not filed a new motion for low power operation
- i of Shoreham.
NRC April 23 Meeting Transcript, p.
7.
16.
Judge Cotter's notes of the Chairman's March 16 meeting reveal that fhe 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 51 without diesels;" " Commission ordered hearing would a) define ' contention' and set time frames fo r 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 the March 16 meeting "some preliminary ideas regarding that at expediting the Shoreham hearing were discussed."
Source:
1 Palladino Memo to Commissioners, April 4, 1984 (hereafter, "Palladino 4/4 Memo"), available as part of'FOIA-84-267.
Commissioner Asselstine stated:
I understandffrom 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.
- 1.,
rr-w
Source:
NRC Transcript of April 23 meeting, at 9-10.
18.
On May 17, Chairman Palladino stated:
F At that 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 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 haue 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 lo something Shoreham would go under because of NBC'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 underscore the-concern for'LILCO's financia'l conditions the March 16 meeting included discussion that LILCO would "go bankrupt" if it had to Source:
await a' Licensing Board decision in December 1984.
Judge Cotter's notes, supra, 9 16.
i l
20.
.On March 20, Chairman Palladino circulated a memoran-dum to the other Commissioners.
The memorandum reported on the l
- i March 16 meeting and proposed that in order to " reduce the delays at Shoreham," the Commission should " consider a proposal from OGC for an exped,ited 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 orovide a paper on this subject soon."
Source:
Palladino 3/20 Memo.
Chairman Palladino did not then report, as he later did in his 4
April 4 Memorandum, that some preliminary ideas for expediting the Shoreham proceeding had been discussed with the Staf f 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 i
March 20 Memorandum also specifically reauested the EDO to l
4 respond to the March 20 Memorandum and to prepare a paper outlining steps to deal with-the " potential delays".
- Source, l
Palladino 3/20 Memo.
. r i.
- 22. -
On March 20 -- the same day that the Chairman circu-lated his Memorandum (see MM 20-21) -- LILCO filed a new pro-posal'for a'[ow 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, except that LILCO provided greater de-tail and added that it also intended to install at Shoreham four mobile diesel generators to enhance the offsite AC electric power system.
LILCO served copies of the Motion on the NBC 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 Pesponse to Suffolk County's Motion to Admit Supplemental Diesel Genera-ter Contentions, Feb.
7, 1984, at 5-7.
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 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 10 -
The EDO has recently provided the Commission an assessment for Shoreham that projects a nine-month licensing delay due to,f I am told, the Shoreham L;. censing Board's requiremenw 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 wore derived by Chairman Palladino from "OCC'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 i-
..m.
.e..
- 4
-t
" working paper" with the other Commissioners.
Thus, the reference to "The Commission" in the second paragraph was not T$e other Commissioners were not informed of Chair-accurate.
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 Congressicnal testimony; Palladino Statement at 12; Palladino 4/4 Memo.
25.
Judge Cotter responded to Chairman Palladino's
" working pacer" 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:
i (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 -
4 within 60. days.
To achieve such expedition, Judge Cotter
)
suggested that there be 16 days for discovery, 5 days between
't 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 i
financial investment" of the proposed order was "the enormous 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 recuest of the Brenner Board that parties provide prelimi-In nary views on how the new LILCO Motion should be handled.
these views the County stated:
(a)
The County required more than the normal ten-day it period to respond to LILCO's Low Power Motion, because 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.
~ u
s
.e (c)
Additional time was required to address legal issues raised by LILCO's Mction.
i (d)
A rumber of threshold issues should be addressed the merits of LILCO's Low Power Motion were considered, before including: (i) the Mdtion did not meet the criteria enunciated by the Brenner Board on February 22 for a new low power propos-al, because it did net 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 matters affecting the diesel litigation and LILCO's Low Power Motion.
Suffolk County's Preliminary Views on Scheduling Source:
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.
i Preliminary View of Governor Cuomo, Representing the State of New York, Pegarding LILCO's So Called " Supplemental Motion for.
=
s-4 a Low Power Operating License," March 28, 1984.
The County supplemented its views on March 30, urging that the LILCO i
Motion be summarily dismissed for failing to comply with GDC 17.
Source:
Supplement to Suf folk County's Preliminary Views March 30, 1984.
on Scheduling Regardi,ng LILCO's New Motion, 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 March 27, Judges Brenner and Morris wrote Judge
"..jepending on the schedule established (by us or Cotter that the Commission), the Shoreham Licensing Board on which we sit may have to be reconstituted by you due to our heavy schedule for the L.merick 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 Staff had taken no position), see, M 5, supra, the Staff stated that operation of Shoreham could be permitted in 15 -
the complete absence of any nuclear qualified onsite electric power system.
i 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 afforded to the public at full-oower 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-I vealing the Staff's March 16 meeting with Chairman Palladino, 4
the Staff called for an expedited hearing on the Motion, with all testimony to be filed by Acril 23.
Source:
Id.
31.
Commissionser Gilinsky criticized the Staff'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 process 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.
Source:
NRC April 23 Meeting Transcript, p.
59.
See also CLI-84-8, Separate Views of Commissioner Gilinsky ("the Staff
.f 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 4
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 l
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 Ewas) his idea, Cotter said through an agency spokesman.
However, he said, Palladino's staff was " aware" of his deci-sion.
j 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.
Source:
Palladino Statement at 14.
e.
~.
._~ -.-
p e
)
33 1te NRC's Office of General Counsel spoke with Judge Cotter several times between March 27 and March 30 regarding i
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 Transcript, pp.
8-9.
Mr. Malsch of the Office of General Counsel described these conversations as follows:
l
[Malsh):
After the meeting between the 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 Licen.!ng Board.
I also raised reservations about how the whole thing would appear.
He sa.3, "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 appointmenc 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 call me.back.
'He
-then called me back the next day and said that they were going forward with it.
CHAIRMAN PALLADINO:
With what? :
A
e 0
s
-MR. MALSH:
And that they were going forward with the reappointment of the new Licensing Board.
'i 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:
State.nent 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 consideration 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 I
Shoreham diesel problem."
The OGC noted that the " issues OGC
[ 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 19 -
k
=
T 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, 4
April 2, 1984.
36.
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 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, 1994.
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 arcued that expediting LILCO's Low Power Motion was arbitrary and would deny the State due process of law.
Source:
Motion 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, 1.984..
r 3
y
e c
38.
.On April 4, Chairman Palladino distributed a Memoran-dum to the other Commissioners, attached to which was Chairman
- f Palladino's March 22 " working paper" (see T 24, supra) and Judge Cotter's March 23 draft order (see W 25, supra).
The Chairman's April 4 Me,morandum was also distributed 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 i
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-1 lic health and safety findings similar to those suggested by the NRC Staff were made.
Source:
ASLB Low Power Order.
i The time-frames established by the Miller Board for con-sideration of LILCO's Motion were as follows:
J Time for discovery 10 days Time between close of discovery and filing 4 days
.of testimony Time between filing of testimony and start of hearing 4 days f
(
t Elap' sed time set aside for hearing 11 days
.i Source:
Low Power Order.
The time-frames ordered that the hearing would end by I
Low Power Order.
May 5.
Source:
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 LILCO'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, 1484, 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 A4-1264, April 25, 1984.
f C
N i
/
Herbert H.
Brown Lawrence Coe Lanphef f
a Tablan G.
Palomino sworn to tnis M day of June, 1984.
QMeb-d T,
My Comaission expires:
f Notary Public Ca.. ':.***.:*.:z.:,...
- i; 3
l
(\\
' N4./
l L
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
{
l
)
l In the Matter of
)
)
l LONG ISLAND LIGHTING COMPANY
)
)
(Shoreham Nuclear Power Station,
)
Docket No. 50-322-OL-4 Unit 1)
)
l
)
)
CERTIFICATE OF SERVICE I horeby certify that copios of SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF CHIEF ADMINISTRATIVE JUDGE COTTER, dated June 22, 1984, have been served to the following this 22nd day of June, 1984 by U.S. mail, first class; by hand when indicated by one astorisk; and by Federal Express when indicated by two astorisks.
i Judge Marshall E. Miller, Chairman Edward M. Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Co.
U.S. Nuclear Regulatory Commission 250 Old Country Road Washing ton, D.C. 20555 Mineola. New York 11501 l
l Judge Glenn O. Bright Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive l
U.S. Nuclear Regulatory Commission H. Lee Dennison Building Washington, D.C. 20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson l
Oak Ridge National Laboratory Fabian Palomino, Esq. **
P.O. Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor Esecutive Chamber, Room 229 Eleanor L. Frucci, Esq.
State Capitol Atomic Safety and Licensing Board Albany, New York 12224 U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 -
- 18. Taylor Reveley, III, Esq. *
- Anthony F. Earley, Jr., Esq.
Bernard M. Bordenick, Esq.
Robert M. Rolfe, Esq.
Edwin J. Reis, Esq.
Hunton 6 Williams Of fice of Esec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission P.O. Bos 1535 Washington, D.:. 20555 Richmond, Virginia 23212
n
(
Mr.
Martin Suubert Mr. Brian McCaffrey c/o Cong. William Carney Long Island Lighting Co.
.1113 Longworth House Office ShorehadtNuclear Power Building Station'
-Washington, D.C.
20515 P.O.
Box 618 North Country Road Martin _Bradley Ashare, Esq.
Wading River, New York 11792 Suffolk County Attorney H.
Lee Dennisen Building Jay Dunkleberger, Esq.
Veterans Memorial highway New York State Energy Ofc.
Hauppauge, New York 11788 Agency' Building 2 Empire State Plaza Docketing and Service Branch Albany, New York 12223 Office of the Secretary U.S. Nuclear Regulatory Commission Comm. Frederick M.
Bernthal Washing ton, D.C.
20555 U.S. Nuclear Regulatory Comm.
1717 H St.,
N.W.,
Room 1156 Nunzio J.
Palladino, Chairman Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission 1717 H Street, N.W.,
Room 1114 Comm. Thomas M.
Roberts Washington, D.C.
20555 U.S.
Nuclear Regulatory Comm.
1717 H St.,
N.W., Room 1113 Commissioner Victor Gilinsky Washing ton, D.C.
20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1103 Stephen B.
Latham, Esq.
Washington, D.C.
20555_
John F. Shea, Esq.
Twomey, Latham and Shea Commissioner James K. Asselstine 33' West Second Street U.S.
Nuclear Regulatory Commission Riverhead, New. York 11901 1717 H Street, N.W., Room 1136 Washing ton, D.C. 20555:
Lawrence J. Brenner, Esq.
Administrative Judge
.Herzal Plaine, Esq.-
Atomic Safety & Licensing U.S. Nuclear Regulatory Commission Board i
1717LH Street, N.W.,
10th Floor U.S.. Nuclear Regulatory Comm.
' Washington, D.C.
20555 Washing ton, D.C.
20555 Dr. George A.
Ferguson Dr.- Peter A.. Morris Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing U.S. Nuclear Regulatory Commission Board-
.. Washington,-D.C. 20555 U.S 14ucleat negulatory: Comm.
. Washing ton, D.C.
20555 James A.
Laurenson,: Chairman Atomic Safety.& Licensing Board Dr.' Jerry R.
Kline U.S. Nuclear Regulatory Commission Administrative Judge-Washing ton,' D.C.
20555 Atomic Safety & Licensing-Board James - Dougherty, Esq.
U.S. Nuclear. Regulatory Comm.
~3045 Porter Street, N.W..
Washington,.D.C. 20555 Washington,-D.C. 20008 f
. E2 -
e f
().
Mr. Frederick J. Shon Joel Blau, Esq.
Administrative Judge New York Public Service Comm.
Atomic Safety 6, Licensing Bd.
Gov. Rockefeller Building i
U.S. Nuclear Regulatory Comm.
Empire State Plaza Washing ton, D.C.
20555 Albany, New York 12223 Stewart M.
Glass, Esq.
Mr. Marc W. Goldsmith Regional Counsel Energy Research Group, Inc.
Federal Emergency Management 400-1 Totten Pond Road Agency Waltham, Massachusetts 02154 New York, New York 10278 Spence Perry, Esq.
Atomic Safety and Licensing Associate General Counsel Board Panel Federal Emergency Management U.S. Nuclear Regulatory Comm.
Agency Washing ton, D.C.
20555 Washing ton, D.C.
20472 MHB Technical Associates Atomic Safety & Licensing 1723 Hamilton Avenue Appeal Board Suite K U.S.
Nuclear Regulatory Comm.
San Jose, California 95125 Washing ton, D.C.
20555 Jonathan D.
Feinberg, Esq.
Nora Bredes Staff Counsel Executive Director New York State Public Service Shoreham Opponents Coalition Commission 195 East Main Street 3 Rockefeller Plaza Smithtown, New York 11787 Albany, New York 12223 Judge B.
Paul Cotter
- Mr. Stuart Diamond Chief Administrative Judge Business / Financial Atomic Safety and Licensing NEW YORK TIMES Board Panel 229 W.
43rd Street U.S. Nuclear Regulatory Commission New York, New York 10036 Washingon,D.C. 20 %5 Mr. Frank R. Jones
/ /"~
JE, Deputy-County Executive gerbert H.
Bro H.
Lee Dennison Building KIRKPATRICK, LOdKHART, HILL, Veterans Memorial Highway CHRISTOPHER & PHILLIPS Hauppauge, New York 11788 1900 M Street, N.W.,
Suite 800 Washing ton, D.C.
20036 Dated:
June 22, 1984
,. _