ML20092P716
| ML20092P716 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/06/1984 |
| From: | Lanpher L, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | |
| References | |
| OL-4, NUDOCS 8407090302 | |
| Download: ML20092P716 (7) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
_7 73 g g Before the Atomic Safety and Licensing Appeal Board
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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
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(Low Power)
(Shoreham Nuclear Power Station,
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Unit 1)
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SUFFOLK COUNTY AND STATE OF NEW YORK FILING IN RESPONSE TO APPEAL BOARD ORDER OF JUNE 26, 1984 On June 21, 1984, Suffolk County and the State of New York moved for disqualification of the three members of the Low Power Licensing Board.
See Suffolk County and State of h v York Motion for Disqualification of Judges Miller, Bright, and.Tohnson, June 21, 1984 (hereafter, the " Motion").
On June 25, 1984, the Low Power Board denied the Motion.
See Order Denying Intervenors' Motion for Disqualification of Judges Miller, Bright and Johnson, June 25, 1984.
By Order dated June 26, 1964, this Appeal Board stated that any party wishing to present views either in support of or in opposition to the Licensing Board's June 25 Order should file papers by July 6, 1984.
The instant filing by Suffolk County and the State of New York responds to the Appeal Board's June 26 Order.
The Licensing Board denied the Motion on two grounds:
that the Motion was untimely; and that the Motion and the supporting f
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PDR ADOCK 05000322 0
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, to affidavit were " wholly insufficient to justify disqualification."
Order Denying Intervenors' Motion for Disqualification of Judges Miller, Bright and Johnson, at 5.
Suffolk County and the State of New York urge the Appeal Board to reverse the Licensing Board's Order and to direct disqualification of Judges Miller, Bright and Johnson.
The basic reasons for such disqualification
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are set forth in the Motion and supporting affidavit and need not be repeated here.
However, there are two comments which must be made respecting the stated bases for the Licensing Board's action.
First, contrary to the Licensing Board's assertion, the Motion was not untimely.
Part of the bases for this M. ion did begin to become known in early April 1984; however, the full bases, as set forth in the Motion and the affidavit, did not become available to the County until late May 1984.
Namely, key information pertinent to the need for disqualification (particu-larly, Judge. Cotter's notes of the March 16, 1984 meeting) did not become available to the County until late May 1984 when they were obtained by the County in response to Freedom of Information Act Request 84-267.
Thus, it was not until late May.that the County and State were in a position to file a motion for recusal or disqualification.1/
Once all those data were compiled, the 1/
The County did raise disqualification in an amended complaint to the Civil Action filed in late April 1984.
That complaint was dismissed after che Commission vacated most pro-visions of the Licensing Board's April 6 Order.
In subsequent briefs to the Commission, the need for a new Licensing Board was raised, and the matter was also addressed by several Commission-ers in the May 16, 1984 NRC Order.
It was shortly thereafter, (footnote continued)
e
. (v County and State moved promptly.
First, the County and State filed a motion for recusal or disqualification of Chairman Palladino.
That motion was filed on June 6, 1984.
Subsequently, the County and State filed the instant motion regarding the Low Power Board.
Under all the circumstances, we submit that filing the Motion within a month of receiving the Freedom of Information Act materials and just over a month after the NRC's issuance of the May 16 Order was prompt and timely.
Second, the Licensing Board's denial of the disqualification motion argues at scme length that the Low Power Licensing Board was not influenced by whatever activities were going on elsewhere at the NRC, such as Chairman Palladino's March 16 meeting.
Since the Licensing Board stated that it was not influenced by these activities, it concluded that it would not be in the public interest for it to disqualify itself.
However, the Low Power Board failed to apply the necessary legal standard of the Cinderella case, namely whether a disinterested observer would have reason to believe that the Board may have been affected in some manner by the chain of events set forth in the Motion and in the attached affidavit.
When that correct legal standard is applied, Suffolk County and the State of New York submit that no conclusion is possible other than that the Low Power Board must be disqualified.
(footnote continued from previous page) when the preFent Licensing Board was left in charge of this proceeding, that the FOIA data became available and the County and State commenced work on motions to disqualify Chairman Palladino, the Low Power Board, and Judge Cotter.
f
. 4' Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
- = /n Eerbert H.
Brown Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County Fa u & M a [ 6 M /
Fabian G.
Palomino Special Counsel to the Governor Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for MARIO M. CUOMO, Governor of the State of New York July 6, 1984 4
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board g L-h
'Ib9-33.?.R
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In-the Matter of
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I
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fa" LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL
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(Shoreham Nuclear Power Station,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY RESPONSE TO APPEAL BOARD ORDER OF JUNE 7, 1984 and SUFFOLK COUNTY AND STATE OF P"h 10RK FILING IN RESPONSE TO AP?EAL BOARD ORDER OF JUNE 26, 1984, dated July 6,
1984, have been served on the following this 6th day of July 1984 by U.S. mail, first class, except as otherwise indicated.
Alan S. Rosenthal, Chairman
- Mr. Marc W. Goldsmith Atomic Safety and Licensing Energy Research Group, Inc.
Appeal Board 400-1 Totten Pond Road U.S.
Nuclear Regulatory Commission Waltham, Massachusetts 02154 Washington, D.C.
20555 MHB Technical Associates Mr. Howard A. Wilber*
1723 Hamilton Avenue Atomic Safety and Licensing Suite K Appeal Board San Jose, California 95125 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 W. Taylor Reveley, III, Esq.
Hunton & Williams P.O.
Box 1535 Mr. Gary J.
Edles*
707 East Main Street Atomic Safety and Licensing Richmond, Virginia 23212 Appeal Board U.S.
Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, D.C.
20555 New York State Energy Office
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Agency Building 2 Empire State Plaza Edward M.
Barrett, Esq.
Albany, New York 12223 General Counsel Long Island Lighting Company James B. Dougherty, Esq.
250 Old Country Road 3045 Porter Street, N.W.
Mineola, New York 11501 Washington, D.C.
20008 i
D.
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Mr. Brian R. McCaffrey Anthony F.
Earley, Jr., Esq.
Long Island Lighting Company Hunton & Williams Shoreham Nuclear Power Station P.O.
Box 1535 P.O. Box 618 707 East Main Street North Country Road Richmond, Virginia 23212 Wading River, New York 11792 Stephen B.
Latham, Esq.
Joel Blau, Esq.
Twomey, Latham & Shea New York Public Service Commission P.O.
Box 398 The Governor Nelson A.
Rockefeller 33 West Second Street Building Riverhead, New York 11901 Empire State Plaza
. Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq.
H.
Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.
Special Counsel to the Atomic Safety and Licensing Board Governor Panel Executive Chamber, Room 229 U.S.
Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Albany, New York 12224 Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Appeal Board U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory 1717 H Street, N.W.
Commission Washington, D.C.
20555 Washington, D.C.
20555 Rernard M.
Bordenick, Esq.
Jonathan D. Feinberg, Esq.
Edwin J. Reis, Esq.
Staff Counsel U.S.
Nuclear Regulatory Commission New York State Public Service Washington, D.C.
20555-Commission 3 Rockefeller Plaza Mr. Stuart Diamond Albany, New York 12223 Business / Financial NEW YORK TIMES Mr. Bruce L. Harshe 229 W.
43rd Street Consumers Power Company New York, New York 10036 1945 W.
Parnall Road Jackson, Michigan 49201 Stewart'M. Glass, Esq.
Regional Counsel Dr. Peter F. Riehm Federal Emergency Management KMC, Inc.
Agency 801 18th Street, N.W.
26 Federal Plaza Washington, D.C.
20006 i
New' York, New York 10278
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Lawrence J.
Brenner, Esq.
Judge Marshall E. Miller Atomic Safety and Licensing Board Chairman U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Dr. George A. Ferguson School of Engineering Judge Glenn O.
Bright Howard University Atomic Safety & Licensing Board 2300 6th Street, N.W.
U.S.
Nuclear Regulatory Comm.
Washington, D.C.
20559 Washington, D.C.
20555 Dr. Peter A. Morris Judge Elizabeth B. Johnson Atomic Safety and Licensing Board Oak Ridge National Laboratory U.S.
Nuclear Regulatory Commission P.O.
Box X Washington, D.C.
20555 Building 3500 Oak Ridge, Tennessee 37830 Odesdeid)
Y Ldwrence Coe Lanph(r KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 DATE:
July 6, 1984 By Hand i
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