ML20093K731
| ML20093K731 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, 05000000, Shoreham |
| Issue date: | 05/14/1984 |
| From: | Asselstine, Asselstine J NRC COMMISSION (OCM) |
| To: | Gilinsky, Palladino, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20093C457 | List: |
| References | |
| NUDOCS 8407310179 | |
| Download: ML20093K731 (2) | |
Text
S' l
UNITED STATES j
NUCLEAR REGULATORY COMMISSION J..
.g WASHIN GTON, D.C. 2t25
\\{**Cidj[
e
]!M OFFICE OF THE cOMWS$10NER gqay I4,1ggy MEl'.0RANDUM FOR:
Chairman Palladino Comissioner Gilinsky Commissioner Roberts Commissioner Bernthal FROM:
James K. Asselstine 2
/
SUBJECT:
MAY 4,1984 MARKEY LETTER In his May 4,1984 letter to the Comission, Congressman Markey requested an accounting of any communications with th-Executive Branch relating to emergency planning or the Shoreham proceedirg.
I have the following to report:
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On March 7,1984, while in Florida to obserse the full-scale federal field exercise at the St. Lucie plant, I had breaifa.st with Samuel W. Speck, FEMA's Associate Director for State and Local Programs and Support.
Although we did not discuss the emergency p;anning situation at Shoreham, we did discuss the proposed legislation offsred by Senator Simpson, which would provide for federal implementation of ar energency plan in the event that state and local governments refuse to :articipate.
I told Mr. Speck that based on what I had observed of the federal participation in the St.
Lucie drill, I suspected that it would be vtry difficult, if not impossi-ble, for the federal g6vernment to manage a: effective emergency response
-=".,.; without having a large cadre of federal enpoyees on site at all times.
I
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told Mr. Speck that I thought the federal response at St. Lucie was impressive, but because it was limited to a st:pport function to the state
_,- and local response authorities, the St. Luc'e federal response exercise o.
did not demonstrate a federal capability tc manage an emergency response at a commercial nuclear powerplant.
I also expressed the view that legislation granting a federal management r-le could well serve as an incentive to a number of state and local gosernnents not to participate in
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the implementation of radiological emergency response plans, thereby undermining our emergency response capabili y.
8407310179 840713 PDR COMMS NRCC cc:
OPE SECY OCA
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3 6/5/s4 UNI ~EC STATES OF A.MERIC A NUCLEAR P.EC-ULATOFY COMMISSION Before the Commiss_io_n
)
In the Matter of
)
)
LOMG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
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(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUSTY AND STATE OF NEW YORK REQUEST FO?. PECUSAL AND, ALTERMATIVELY, MOTION FOR DISOUALIFICATION OF CEAIRMAN PALLADINO Suffolk County and the State of. New York hereby request that c',sirman Nunzio J.
Palladino recuse hims~ elf from participating in any matters concerning the Long Island Lighting Company 's' ( "LILCO" ) Shoreham Nuclear Power Station
("Shoreham").
In the event the Chairman decides not to recuse himself, the County and State move the Commission to take cog-nizance of this issue snd vo te Wh e the r Chairman Pa1.ladino should be disqualified from participating in Shoreham-related matters.
The legal standard
+5ich applies ;o th e issue of whether Chairman Psiladino should be discualified is whether "a disin-
.teresten observer may conclude that [the Chairman) has in sans measure adjudged the facts as well as the law a' a particular
- g. ALttMCih _
o } N),
o v
Case in advance of hearing it."
Cinierella Career an6 F nishine S e', col s, I::.
v.
FTC, 425 F.26 SE3, 591 (D.C. Cir.
1970) c.uotine. with a.=.oroval from Gillican. Wi l l_ _&__Co. v. SEC, 267 F.2d 461, 469 (2d Cir. ), cert. denied, 361 U.S. A96 (1959)
(Emphasis added).
Tne documents referred to hereinafter show that Chairman Palladino 's actions on Ehoreham-rela ted mat ters are clearly within the proscription of this legal standard.
From at l' east March 16, 1994, the Chairman personally inter-vene in ad judicatory matters pending before the Licensing d
Board.
P.i s intervention caused the Staff, the Chief Adminis-trative Judge of the Licensing Boa rd Panel, and ultimately the Licensing Board Judges to take actions of factual and legal cot.secuence tha t prejudiced the interests of the County and State.
The Chairman did this in advance of hearing the posi-tions of the County and State.
In short, Chairnan Palladino's intervent ion in the Shoreham proceeding "may cause a disinterested observer to conclude" the following :
(1)
The Chairman, without consulting the other members of the Commission, took the initia tive with the Staf f and Chief Administrative Judge to engage in substantive discussions and to formulate a strategy for the Staf f and Licensing Board that would serve LILCO's interests without regard to those of the 20cnty and State:
- '2 -
4 (2)
The Chairman 's initiative causei the Staff to change
'its previous position and to support the licensing of Shoreham with no emergency onsite power system, contrary to che inter-ests of the County and State:
(3)
The Chairman's initiative caused the Chief Adminis-trative Judge to formulate an adjudicatory proposal to permit the licensing of Shoreham with no emergency onsite power system, contrary to the express provisions of the NRC's regula-tions and contrary to the interests of the County and State.
.ne Chairman circulated this proposal to the Licensing Board panel, including presumably the shoreham Judges, thus demonstrating his approval of the proposal; (4)
The Chairman's initiative caused the Staff and Licensing Board to work in parallel for the e stablishr. ent of an unconstitutional hearing format and schedule which benefitted LILCO, contrary to the rights and interests oE the County and State; (5)
The Chairman commenced his initia tive for the purpose of giving aid to LILCO before the Licensing Board and in the financial marketplace, a consideration which is outside the scope of interests protected by the Atomic Energy Act.
He commenced hi.s initiative in advance of hearing fron the County and State and without giving them notice of what he planned to I
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do, and, indeei, without even consu3 ting with other members of the Commission.
The actions of the Staff and Licensing Boa:M gave effect to his initiative, in contravention of the regula-tions, and prejudiced the County's an6 State's rights to due process of law.
The Chairman's initiative required tha t prejudgments he made on two issues then central to the licensing of Shoreham:
(1) the schedule on which LILCO would receive a low power licensing decision; and (2) the need for an onsite emergency power source.
These were issues which had been settled on February 22 by an Order of the Board chaired by Judge Brenner.
On March 16, the Chairman. met '* 1 th the Chief Administrative
- Judge, B.
caul Cotter, Jr.,
and the Staff's Executive Director and other top-level Staff personnel, including the Director of Nuclear Reactor Tegulation and the Executive Legal 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 financial health and formulated means to. aid LILCO.
In the words of the personal notes handwri*. ten by dudge Cotter at the March 16 meeting, an " alternative solution for low power" operation of Rhoreham was discussed.
This " solution" involved LILCO filing a " proposal to cet around [ thel diesal
- onsite emergency power source) issue and hold hearing on operation et low power."
(Final emphnsis :.a o-ig inal.. )
The
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.e b-E do, and, indeei, without even consulting with other members of the Commission.
The actions of the Staf f and Lie insing Boa:M gave effect to his initiative, in contravention of the regula-tions, and prejudiced the County's and State's rights to due process of law.
The Chairman's initiative recuired tha t prejudgments be made on two issues then central to the licensing of Shoreham:
(1) the schedule on which LILCO would receive a low power licensing decision; and (2) the need for an onsite emergency power source.
These were issues which had been settled on February 22 by an Order of the Roard chaired by Judge Brenner.
On March 16, the Chairman met with the Chief Administrative
- Judge, B.
Paul Cotter, Jr.,
and the Sta f f 's Executive Director and other top-level Staff personnel, including the Director of Nuclear Reactor Regulation and the Executive Legal 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 financial health and formulated means to aid LILCO.
In the words of the personal notes handwri*. ten by Judge Cotter at the March 16 meeting, an " alternative solution for low power" operation of shoreham was discussed.
This " solution" involved LILCO filing a " proposal to cet around [thei diesel
.onsite emergency power source 2 issue and hold hearing on J
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l operation at low power."
(Final empmsis
'.n original.)
The O
O
_ea...s a
a a
g a
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I formulatio. of an " expedite $" hearine meeting also involved the format and schedule.
Again, in Judge Cotter's words a hearing ordered by the Commission "would define ' contention' and set time frames for expedited procedure."
It would also "reviu 30trd order of February 22."
Significan tly, Judge Cotter noted that LILCC's financial health was discussed.
He wrote,
"~LILCO) Says [it) will go bankrrpt if [it has to wwit for) 12/S4 I.D.
[ Initial Decision of the Licensing Board)."
(It was then anticipated that the Brenner Board would issue its ieci-sion on low power operation of Shoreham in Decembe r 19'34. )
A reasonable observer may conclude that the only prompt decision 1
which could avert a LILCO. bankruptcy wa s a favorable one to LILCO.
"'hu s, on March 16, Chairman Palladino planned and set in motion with the NRC 's top judicial and Staff personnel. ch,i n ge s in the course of the Shoreham proceeding.
In short order, the
. following occurred:
(1)
New Licensing Board Judges were appointed to hear the proposal for icw power operation that LILCO filed with the Brenner Board four days after the Chairman's March 16 meeting.
(Judge Cotter's notes state:
" NOTE: Concern re Same Board written four days before [.,ILCO Chairman."
Also, tae notes, filei its proposal to operate Shorehan at low power without i
e em> +
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4 diese'.s, state:
"LILCO file proposal to get around diesel issue an* hold hearing on ooeration at low >oweg");
(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 sa fe at 5'4 w/o diesels");
(3)
The new Licensing Board issued an Order defining the issues to be heard under expedited hearing procedures.
(Judge Cotter's notes state:
" Define ' contention' and set time frames for expedited procedure").
4 These actions were planned at the Chairman's initiative 4
without regard for the interests of the County and State and in' advance of the Chairman hearing from those parties.
Given the i
i legal standard set, forth in the Cinderella case, supra, there is no lawful basis on which the Chairman should participate in any matters related to the Shoreham plant.
Surely, the facts described above, and as set forth at length below, may cause "a disinterested observer (to] conclude that [the Chairman) has in some measure adjudged the -facts as well as the law of [this) case in advance of hearing it."
WIP e. -
The legal standard quoted above is not presecutorial, 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 Chairman's ini t.i a tiv e on 'Mrch 15 have un-derminei public confidence in the impartiality of Chairman Falladino 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 der scrupulously fair procedures and reasoned decisions to be followed.
The starting point for this is the recusal of th.e Chairma'n.
I.
The Chairman's Personal Intervention In The Shoreham Proceeding Recuires Disoualification.
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 Sta f f on March 16, 1984.
To put this interven-tion into perspective, we will briefly describe the posture of the Shoreham proceeding prior to March 16.
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Events Prior to'hr.:h 16, 2944 On February 22, 1984, the Licensing Board chai ed by Ad-f ministrative. Judge Lawrence Brenner (the "Brenner Board") ruled that there was no basis for granting LlLCO a low power license Shoreham "in advence of conplete litigation" of the emer-for gency diesel issues.
The Brenner Poard 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 subsequ en t procedures.
In issuing that schedule the Brenner Board concluded:
f Based on what we have before us now, there is no basis to proceed toward s litication that could possibly lead to a low power license in advance of a co5pTete 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 is s u e s woul d be unli.e ly t.3 star:. before June, and a de-cision in all probability would not he expected before Decenher 19 8t..
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Significantly, as of Februa ry 22, the NRO Staff had taken the unequivocal position that under the IPC 's ruulations no low power license could be issuei "or Shoreham unless the die-sel issues were ~ first resolved.
Thus, as of February 22, the 1
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1 Staff position was that there could be no low power license until LILOO had an ensite electric power system which met NRC recuirements or had receivei a proper axemption from those NRC recuirements.
At the February.22 conference before the Brenner Board, the URO Staff opposed LILCO's arcuments tha t "enhcnced" offsi.e power could substitute for deficient onsite power.
Thus, the Staff would cive 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 17RC Staf f 's Fesponse to Suffelk County's Motion to Admit Supplemental Die-sel Generator Contentions (February 14, 1984) footnote 7 (Enphasis added).
The Staff took "no. position upon whether ap-plicant, upon a proper technical analysis, could or could not support an application for an exemption to allow it to go to low-power absent reliable safety-grade diesels."
Id. (F.mpha sis added).1/
1/
The Staff's position tha t no licen'se could be issued for
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Shoreham without an adequate onsite AC power system was publicly stated by Messrs. Haroli Denton and Darrell Eisenhut at an open meeting between the Sta f f and the TDI Owners Group on January 26, 1984.
Mr. Denton stated:
rW)e are not prepared to ao 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 pace)
_o
The Frenner Board's February 22 iecision to litigate the diese'. issues before considering e low power license 'or Ehoreham 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) that LILCO's Chairman. William J.
Catacosinos, had met with the NRC Commissioners.
Moreover, in a March 9, 1984, letter to shareholders published in LILCO 's 1993 Annual Report, Dr. Catacosinos noted:
Our inability to open Fhoreham has created a serious cash shortfall for LILCO.
Ac-cord ing l.y, since January 30, I have made i
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 i
shortage are essential to the continued vi-ability of LILCo.
i (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) l adeouately addressed.
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l Meeting transcript at 8.
Mr. Eisenhut added tha t " prior to licensing, even a low power license," the Staff must have confidence that the TDI diesel problems have been solved.
Meeting transcript at 75-96 (Imphasis added).
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i "preater un6erstanling" af f e.i e r a l officials to wh i ch D.
Catacosinos referred thus nale itself felt in ar.d through C
Chairman Palladino's office.
3 Chairman Palladine's Personal I n t e r v e n t_i.o n_.R_e c i n_n_.i.n_e.
March 1A 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 Moard, and there was thus no prospect for an early low power decision for Shoreham.
LILCO had not appealed from or sought reconsid-eration of the Brenner Board's February 22 ruling.
In this context, the following events occurred:
1.
On March 9, the NRC Staff notified the Commissioners of " potential licensing delays" o f 9 mon th s fo r 5horeham.
The 9 month " delay" was estimated by LILCO i tse i. i sna passed nn to the Commissioners by the Staff.
However, it has been revealed that the NRC Staf f disagreed with this.es timate, because the Staff did not consider LILCO's construction to be complete and thus the delay could not he attributed to the licensing process.
See April 24 'iemorandum from J.A.
Rehm, Assistant for Operntions, to the Commission.
In fact, it should have been l
l clear to all persons in March 1984 that there was no Shoreham l
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" delay" attributable to the licens ing pro:*s 4 ; ra ther, the only delay was due solely to the repeatea f :llar e of LILOO's TDI diesels.
Thus, the plant was not ready for licensing because the diesels would not work.
2.
On March 1s, in what turned out to be at improper ex parte meeting, Chairman Palladino met with members of the NRC Staff -
.a party in the Shoreham Licensing Board proceeding --
" Tony' Cotter" (B. Paul Cotter, Jr.,
the NRC 's Chie f Administra-tive Judge), and top level Staff personnel, including the 7.xec-utive - Director for Operations, the Director of the Office of Nuclear Reactor Regulation, the Executive Legal Director and their subordinates to discuss the alleged " _d e l a y " in the licensing of Shoreham.1/
The other Commissioners were not advised of the March 16 meeting in advance.
Neither the County nor State sas advised made.2/
Fu r th'e r, this of this meeting, and no transcript was 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 'Mrch 15 meeting.
See Individual Statement of Nunzio J.
Palladino Before the Subcomm. on Energy and the Environment, H.
Comm. on Interior and Insular Af f airs, May 17, 1984, pp. 9-9 (hereafter, "Palladino Statement").
3/
Ucmmissioner tsselstine has criticized Chairman Palladino
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for meeting with one party -- the Staff -- "without the opportunity for the others to have any notice of the l
. meeting or be provided an opportunity to comment i
NRC April 23 Meeting Transcript, p.
10.
Similarly, I
l (Footnote cont'f next page) i c.
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.mee-ing was held even though there was no,ea 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 disagree 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 meeting reveal:
"LILCO file proposal to get-around diesel issue and hold hearing on operation at low power."
While Chairman Palladino has stated that "some prelim-inary ideas regarding expediting the Shoreham hearing were discussed," see Palladino Memo to Commissioners, April 4,
- 1984, Judge Cotter's notes in fact indicate tha t these discussions.
4 (Footnote cont'd from previous page)
Commissioner Gilinsky stated:
"he Staff is a party in the hearing; the Ch, airman. is one of the ultimate judges.
The Staff 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 under the circumstances.
The Chairman is, by law, the Staff's direct supervisor.
He controls annual bonuses worth many thou-sands of dollars to senior Staff members.
What we have is a situation in Jhich one member of the ultimate NFC adjudicatory t ribun a l. appears to be directing the actions of a key party in the case.
CLI-94-R, Separate Views of Commissioner Gilinsky, May 16, 1984.
m =.-.
I included'" concern" with Judne 3:enner, a " Commission ordered bearing" that would " define contention and set time frames for expedited proce$ure," and discussion of a LILCn " proposal to get around diesel issue and hold hearing on coeration at low power."4/
Significantly, the LILCO " proposal" mentioned in Judge Cotter's March 16 notes was not filed until March 20, four days later.
Nothing in the public record suggested that LILCO.would file such a proposal "to get around r.the) diesel issue."
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These documented statements sharply contradict the testi-
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mony of Chairman Palladino before the House Subcommittee on Energy and Environment on May 17.
Chairman Palladino there stated:
a.t that meeting, held on March 16, 'I was b.rie f ed as to the status of a number of cases, including the shoreham proceeding.
Wh,ile the briefing included identification l
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 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 tha t 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 t, hat request.
Ps11adino Statement at 10.
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One reason that Chairman Palladino met with the Staff anti
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others on March 16 "was the possibility that i f 17F 0 d idn ' t do something Shoreham would go under because of NRC 's inability to make timely licensing decisions, and I felt that, whatever happene6 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 hael to Await a Licensing Board decision -- even assuming such a deciti.',n we:3 hvorable -- 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 a proposal from OGC [of fice of General Counsell for an expedited hearing on the diesel problem, or proposals for other possible actions so tha t at least a low power decision might be possible while awaiting resolution of the emergency planning issue.
I have asked the OGC to provide a paper on 4
this subject soon."
Chairman Palladino did not then repor., as he later did in his April 4 Memorandum, that iieas for expe.iiting the Shoreham proceeding had been diseassed at his
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a March 16 meeting.with the Staff and others who were present at that meeting.
~n. e Chairman also fid not report that the
" delay" estinate for shoreham was based on LILCO's estimate, not the NRC's, and that the Sta ff disagreed with LILCO's estimate.
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 Eno --
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' Ma rch' 20 -- the same day that the Chairman circu-lated his above-described Memorandum -- LILCO filed its unpree-edented proposal for a low power license, styled as a Supple-mental Motion for Low Power Operating Lic=nse.
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 al o ir.t:n. icd to install at Shoreham four mobile diesel generators,'not qualified for nuclear service, to " enhance" the 16 -
offsite AC electric power system.
L:LCD se-ved copies of the Motion on the NFC Commi s s io'n er.c.
7.v e n though L LCO'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 waiver or an exemption of that regulation.
5.
After March 16, Chairman Palladino had further dis-cussions with his staff and "with EDO a s we l l, 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 s an t.
t.,
Judge Cotter), which relates to LILCO's March 20 proposal:
The IDO has r.ecently provided the Commission an assessment for Shoreham that projects a nine-month lice.nsing 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-geted on an expedited basis with a target date.cf receiving the Board's decision on this matter by May 9, 1984.
Mould 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, 1084.
For planning purposes, you could assume the
- milowing steps:
l
- two week staff review of the pr.,pos-al by LILCO
17 l
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A one week discovery period A two week period for filing testimony and holding.a hearing; F.
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J A two week period to issue the Board's decision.
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Final Commission gu1Qance on the expedited
" hearing on,this matter.would be based on your submitta1 and fol l ow-up discus s ions.
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If you..have any questions, 'please let me khow.3/
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s Chairman Palladino had not discussed this " working paper" with 4
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the other Commissioners and, thus, the reference to "The s
Commission" in the second paragraph was not accurate.
The informed kf Chairman Palladino's l
other. Commissioners were not
" working paper" or his request to Judge Cotter.uhtil April 4.
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6.
Judge Cotter responded to Chairman Palladino's k
t
" working paper" the next day.
His March 23 response, in the e'
form of a detailed 9 page proposed order foi. adoption by the Commission, contained the following elements::
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The time estimates in the " working paper" apparently were derived by Chairman Palladino from "OGC's rough estimates expedited hearing'such as suggested by of the time that an OGC might take Palladino Statment at 12.
The 1
estimate of a two 'wgek period for Staf f sre' view of the q
LILCO proposal -- a reduction from the 30-day review ptriod dimeus=ed vn 'breh 16 and reported in Judge A
Cotter's notes -- presumably reflects further conversation with the Sta f f either by the Chairman, his stff, or the OGC.
b.
t s
k
(ai A proposed decision that consideration of LILCO's low power proposal be expedited and that it be decidea on the merits.
This, of course, prejudged the very question at issoe:
Whether LILCO's crocosal 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. 5 2.758 or
- 6. 50. 3 2 (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 Prenner 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 tha t LILCO's March 20 Motion be litigated on a schedule that Judge Cotter described as "bru-
~
ta11y tight" and "[d]efinitely not recommended but possibly achievable."
The Cotter schedule called tar a decision on the LILCO Motion within 50 days.
To achieve such " expedition,"
m =
19 -
s2.s:
.,., 7
~
5 a
,..y-J3
.~udce Cottsrsuedested that there be 16 days for discovery,-5
/
days between
'.ose of' discovery and filing testinony, 5 days until the start of' hearing, and'10 days for the hearing.
'"n i s
~schedule is clearly responsive to and consistent with the Chairman's'" working paper" direedive that Judge Cotter devise
?-
an expediten sebJul's ~fo rG 5 hor eham.
Further, one reason cited i
by Judge Cotter for (Joption of this " brutally tight" schedule "t.he 3cormous f. iITA.c. ial investment" of LILCD.
See Cotter was 3,-
d ra f t. ce5 e.r, p. 4., This'was the same reason cited by Chairman J :,
pW Palledino for h:.s; personal' intervention in the first place.
See C2, suora.
Significantly, Judge Cotter's notes of the March 16 meeting with the Chairman state:
"Says will go bankrupt if12[84 I.D.--(Initial Decision of the Licensing
,, -,r Board]."
As noted pr evio.usly, the only decision that could
.s avert a LILOO bankruptcy was an early one favorable to LILCO.
< T.
On March 26, Su ffolk ' County submitted preliminary i,
views to the Brenner Board regarding LILCO's March 20 Motion.
., 'These views were submitted in response to a specific March 22
,t
.i 3,squest ofthe,Erennergcard that parties provide preliminary 1
views'on'how the new LILCO' Motion should be handled.
In these ls} ~,1
. ef
'lj pV
.*jv e s the County statedv' i w ir/ -
-.y e
a s
sj y
s i,
(a)
The p,qv.nty required more than the normal ten-day
', period to respond tc'.LILCO 's Low Power " lotion, because it
,' r i
(*f raised many new ana egmplex factual issuesi/ and the county a
)
?j f.
,2[/
U 6-The NRC's Office of General Counsel has agree *.
- hat issues raised b'v LILCO's Motidn are " extremely 8/&.h' he *12, infra.
' c.m M.s."
~
...e
-y a.
n.
l needed to-retain eppropriate experts to analytt those issues.
(b)
Analysis of the fsetual issues would first require the County to ohtain substantial information through Ci.vuvery.
(c)
Additional time wa s required to address legal issues raised by LILCO's Motion.
(d)
A number of threshold issues should be addressed before the.nerits of LILCO's Low Power Motion were considered, including: (i) the Motion did not meet the criteria enunciated by the Brenner Boar.d on February 22 for a new low power propos-al, because it did not state how it met regulatory requirements or shur a waiver therefrom should be granted: (ii) the Motion relie.d 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 seigt.lic requirements ; and (iii)
' contrary to the Boerd's February 22 order, the Motion appeared to rely upon the TDI die sel s.
The County requested a conference with the Brenner Board to discuss the procedural matters affecting the diesel litigation and LILCO's Low Power Motion.
On March 28, the state of ?ew Yort filed preliminary views
)
which supported those submitted by the County.
The County 1
- 21
1 -
E supelemented its views on March 30, urging that.the LILCD Motion-be summarily dismissed for f ailing to comp)y with GDC 17.
8.
On March 27, Chairman Palladino gave Judge Cotter's draft order to the O(fice of General Counsel.
Chairman Pelladino did not give the draft order to the other Cor.missioners until April 4.
9.
On March 30, the NRC Sta f f respooled to L!LCO's Low Power Motion.
In an abrupt and complete reversal of its prior position that no low power license could be issued for Fhoreham until the TDI diesel problems were solved, the Sta f f stated in-stead that operation of Shoreham could be permitted in the complete absence of any onsite_ electric power system.
4 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 Palladino's intervention had been influ-ential:
COMMISIONER GILINSKY:
I must say that this i*nnfirms ne even further in my view that the staff ought not be in these hearings.
Here is the staff concocting arguments on
how al; this can be rationalized and I must say that even though you didn't tell them anything about th'e hearings, this i< aftec vour neetine with them on the speedinc op the crocess so the effect of it is inevita-
~
b3e.
You have them go back and think,
'Well, how can we speed up this process? '
I am not suggesting tha t you did an ythi.v.
proper (sic) mind you but that is intrinsic in the way.the system works.
NRC Acril 25 Meeting Transcript,
- p. 59 (Emphasis added).1/
Further, without addressing any of the County's and State's concerns regarding the time recuired to respond to LILCO's Low Power Motion and without revealing the taff's meeting with Chairman Palladino, the Staff called for an expedited hearing on the Motion with 411 testimony to be filed by April 23.
This Staff sche'dule was consistent with the guidelines set forth in Chairman Pell.adino's " working paper" and with Judge Cotter's proposed orrier.
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 i
its members are heavily committed.to work on another operating license proceeding."
According to a recort in' Nucleonics
- eek, i
April 5, 1984:
-7/
See also CLI-84-8, Separate Views of Commissioner G111nsky, May 16, 1984 ("the Staff had been trying to run legal interference for the Company").
23 -
t Appointment of a board to hear Lilco's motion for a low-power license at Shoreham
".was] his idea, Cotter said through an agency spokesman.
However, he saii, Palladino's staff was " aware" of his deci-sion.
Indeed, Judoe Cotter informed the Chairmen o f the actaal 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 Narch 23 draft order Which was prepared at Chairman Palladino's recuest.
Further, even if the appointment of a new Board was Judge Cotter's " idea", this idea was one of the propa.mals developed by Judge Cotter at the request of Chairman ?s11adino and, thus, the " idea" clearly was the product of the Chi, irma.1 ' s
-intervention.
11.
On the same day, March 30, the parties'were notified
'by telephone that the new Licensing Board (the " Miller Board")
would hear oral arguments on April 4,
1994, on LILCO's Low 8/
The Office of General Counsel spoke with Judge Cotter several times between.varch 27 and March 30 regarding i
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.
c.
- 24
Powe r. Mo'.icn.
The telephonic notice stated that this Board was
" established to hear a::d decide the motion on an expedited 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 3 card would hear the issues raised by the parties "in their filing s, as well as a schedule for their expedited considera tiori and de ter.3 na ti on. "
(Emphasis added).
1 In light of the known f a cts, it would not he reasona' ole to conclude that the Miller Board 's March 30 decision to expedite the proceeding was independent of the chain of events that began with the Chairman's March 16 intervention.
It must be borne in mind that the Miller Board was appointed on March 30.
To make a reasoned and independent judgment to expe< lite the proceeding, the Board muld have had to review and consider LILCO's inch-thick March 20 Motion and the responsive pleadings of the County, St a.t e, and the Staf f, become familiar with the extensive record compiled by th'e Brenner Board, particularly the February 22 conference, and hear from the parties regarding the many issues raised by LILCO's motion.
Nevertheless, the Miller Board decided te expedite the proceeding the very same day it was appeinted -- March 30.
12.
On Aor21 2, the NRC 's General Counsel circulated a
.v norandum to a]l the 2mmissioners.
The purpose of this e
Wh>.
25 -
4
.I
Memorantum was to responf "to the Chairman's March 20, request that 030 develop proposals for expedited hearings on the Shoreham diesel prob}em."
The OGC noted that the " issues r.raisei by LILCO's Motion] are extremely complex OGC suagested a number of alternatives, including en 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 of. hearings,1/ and 15 between close of discovery and the start days for hearings.
13.
On April 3, the County filed Comments on the Miller Moard's March 30 Notice of oral Arguments, pointing out that "there is no basis for any expedited process," and tha t this issue should be addressed by the partias st the oral argument.
The County repeate.d its view that LILCO'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 roling that' LILCO's Low Power Motion would be given expedited consideration.
The State argued that 9/
Prefiled testimony was omittad.
i l
~ ~.
l
- 26 l
l w
expediting LILCO's Low Power Motion was arbitrary and would j
deny the State due process'of law, 14.
On April 4, Chairman Palladino distributed a Memoran-dum to the other Commissioners,. attached to Which was Chairman Palladino's March 22," working paper" and Judge Cotter's March 23 draft order.
The Chairman's April 4 Memorandum was also distributet to the Atomic Safety and Licensing Board Panel, of which Chie f Judge Cotter and Judges Miller, Bright, and Johnson (the Miller Board) are members.
15.
On April 4, the newly appointed Miller Board heard l
oral argument on the LILCO Motion, including Whether.GDC 17 was being impermissibly challenged by LILCO and Whether there was any basis to expedite the proceeding.
1 16.
On April 6, the Miller Board issued its Memorandum and Order Scheduling Hearing on LILCO's Supplemental Motion for
. Low-Power Operating License (the " Low Power Order").
The Low Power Order stated first that LILCO could opera te.Thoreham at low power with no onsite electric power system, provided that the public health and safety findings suggested by the NRC Staff were'made.
The Board thus adopted the oosition urged by the Staff in its March 30 filing and by Judge Cotter in his 1
March 23 draft order.
It provided the final link in the chain which began at the rheirman's March 16 meeting with the N
- 27
8 formulation of an "al.ternative sol.ution for low power."
This was, as Judge Cotter's notes. reflected, the means for LILCO "to get around "the) diesal issue."
Second, despite the " extremely complex" issues presentec, 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 4
' 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 nr.ier for the Chairman.
Judoe Cotter Miller Board Time for discovery 16 days 10 days 1
Time between close f
discovery and filing of testimony 5 days 4 days Time between filing of testimony and start of hearing 5 days 4 days Elapsed time set aside for hearing 10 days 11 days 1.
=, - _ -
17.
Suffolk County and the State of New York protested the Miller Board's April 6 Order as denying them due process of law and as being contrary to GDC 17 and other MRC reguletions.
The County even submitted detailed affidavits of expert consul-tants documenting that the April 6 Order denied the County a chance to prepare for and participate meaningfully in the hear-j ing.
The Miller Board and, subsecuently, the Commission re-fused to alter the April 6 Order, forcing the County and the State to seek a temporary restraining order in federal court.
The TRO was granted on April 25.
II.
Chairman.Palladino Must Recuse Himself Or Otherwise Be Discualified By The Commission i
The standard for determining whether Chairman Palladino must recuse himself or otherwise be discuali#ied is whether "a "a disinterested observer" may conclude that Chairman Palladino "has in some measure adjudged the facts as well as the law" in the Shoreham case "in advance of hearing it."
Cind e rell a,,
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 Shereham proceeding.
See e.c.,
Palladino Statement at 20-21; Palladino Letter to Congressman Markey, April 6, 1984: CLI-94-8, Separate Views of Chairman Palladino, May 16, 1984.
His position, however, does not address the legal staniard se: forth in the Cinderella case.*
m
- 24
has at least in some measure adjudge 6 the facts and law in this case before hearing it.
Certainly, as noted previously, a dis-interested observer could conclude tha t the only decision Which could avert a LILCO bankruptcy was an expedited one favorable to LILCO.
The Cha irman 's March 16 meeting with top-level Staff per-sonnel -- an ex parte meeting prohibited by Section 2.780 of the regulations -- and his meeting with Judge Cotter, the NRC 's Chie f Administrative Judge, dealt with establishing a strategy and an action plan to help LILCO without any regard for the e f fects on the rights and interests of the County and State.
Tnis strategy and plan were based on the concern that the sub-stantive rulings and hearing procedures adopted by the Erenner Boa.r3 might permit LILCO to go bankrupt before a low power license 3ecision could be issued.
The re fore, to get aroun*
thnse rulings and procedures, the strategy and actions Fn U.aw-ing tha intervention of Chairman Palladino produced a new Licensing Board, a new legal standard Which would permit.th +
1 aw power operation of shoreham with no onsite power and with-out waiver of GDC 17, and a new expedited hearing schedule which ef fectively barred the County and State from preparing 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 nf Chaicnan Psiladino.ll/
11/
Chairman Palladino on v.ny 16, 1994 disputed the assertion of Comm.issioner Gilinsky that Chairman Pallsdino had
Significantly, Judge Cotter's notes reveal that the dis-cussion at the Chairman's March 16 meeting focused on how to chance What was then the law of the case.
The discussion thus focused en an " alternative solution for low power" -- that is, an alternative to What had been decided on the record by the Brenner Deerd with.tMe. participation of the parties under the provisions of the NRC's regulations.
The March 16 meeting was an entire'y different setting:
It dealt with a "LILCO propos-l 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) 41 ected the Staff's ideas on any issue in the Shoreham casa.
The Chairman suggeste.1, in fact, that the Staff had taken positions in February'1984 before the Brenner Board which were consistent with those taken by the Staf f on March 30, 1984.
See CLI-84-8, Separate Views of Chairman Palladino, May 16, 1984.
However, before the Brenner Board, the,Staf f had insisted that for a low power license, LILCO needed to fix the diesels or seek an exemp-
~
tion or waiver.
See Section I.A, supra.
On March 30, the Staff took the entirely new position (af ter mee tings with the Chairman) that; (a) the diesels did not need to he fixed; (b) LILCO could operate at low power with no onsite i
power system at all; and (c) LILCO did not need tE seek a waiver or exemption.
We submit that Commissioner Gilinsky was clearly egrrect:
the Staff ant its marching orders from the Chairman and carried them out.
31
In essence, the March 16 meeting was a planning session to figure out had to get around the lawful rulings of the Brenner Board.
Its purpose was improper: its discussion was imprope.r:
and the actions of NRC personnel that followed it were improp-er.
Each of these personnel acted as a link in a chain of im-propriety that commen'ced in the Chairman's office on March 16.
Under the Atomic Energy Act, the cone of interests to be protected by the NRC is the public's health and safety. See Power Reactor Develooment Coro.
v.
International Union of Electrical, Radio, and Machir.e Workers, 367 U.S.
409, 415 (1961);
c#. Portland General Electric Co., (Pebble Springs Mu-
. clear Plant, Units 1 and 2), CLI -7 6-2 7, 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 effnrts to secure an operating license in time to avoid bankruptcy.
(Judge Cotter's
'l notes of the Chairman's March 16 meeting underscore this concern for LILCO. )
Under the circumstances set forth herein, a disinterested observer.may surely conclude tha t Chairman Palladino has in some measure prejudged the fact.* as seU. as the law in the shoreham proceedina in advance of the hearing.
The final. evidence of the Chairman's prejudyaent csn be seen in the actions of the Chie f Administrative Juige, the -4ta f f, and
- 33 1
,,,---v-
the Licensing Board personnel who along the way gave effect to his wishes.
O-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 Suf folk County and New York State.
The only way to begin the process of restoring institutional integ-rity in this proceeding is by the disqualification of those whose actions have created the taint.
The place to start is with the Chairmen's recusal.
If he does not recuse himself, the County and State move the Commission to take cognizance of this matter and vote on whether to disqualify the Chairman.
Respectfully submitted, Martin Bradley Ashare suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11798 KIRKPATRICK, LOCKHART, HILL, CHRISTOPH24 & P9ILLIPS Herbert H.
Brown Lawrence Coe Lanpher 1900 M Street, N.W.
Washington, D. C.
20036 Attorneys for Suf folk County k b
'-e byf a
Fabian G.
Palamino 7
Special Counsel to the Govenor of
-...3 t
e New York State Executive Onamber - Room 229
" ~
~
. Capitol Building Albany, New York 12224; F
Attorney'for Mario M..Cuomo Governor of'the State of New York i:
!=
fJune 5,.
1984-f, '
3 f
f 1
'{
e i
i.
-f a e
i i
t Y
e.
6 i
k f
~,
- 34 _
i i
3 r.
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 Saf ety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country Road Washington, D.C.
20555 Mineola, New' York 11501 Judge Glenn O.
Bright
- Honorable Peter Cohalan Atomic Saf ety and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Commission H. Lee Dennison Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson **
Oak Ridge National Laboratory Fabian Palomino, Esq.**
P.O. Box X, Building 3500 special Counsel to the Oak: Ridge, Tennessee 37830 Governor Executive Chamber, Room 229 Eleanor L. Frucci, Esq.*
Stara Capitol Atomic Safety and Licensing Board Albany, New York 12224 U.S. Nuclear 1 Regulatory Commission Washington, D.C.
20555
- W.
Taylor Reveley, III, Esq.
Anthony F. Earley, Jr., Esq.
3ernard M.
Bordenick, Esq.*
Robert M.
Rolfe, Esq.
Edwin J. Reis, Esq.
Hunton & Williams Office of Exec. Legal. Director 707 East Main Street U.S. Nuclear Regulatory-Commission Richmond, Virginia 23212 Washington, D.C.
20555
.as i
i Mr.fMartin Suuber 1 James Dougherty,.Esq.
~
- c/c'Cong.uWilliam Carney 3045 Porter Street, N.W..
1113 *ongworth House Office-Washington, D.C.
20008 i
l Building j
Washington, D.C.-
'20515 Mr. Brian McCaffrey H
Long Island Lighting Company Martin Bradley Ashare, Esq.
Shoreham Nuclear Power Sta.
Suffolk County Attorney P.O. EBox 618 E. Lee Dennison Buildigg.
' North Country Road Veterans Memorial' Highway Wading River, New York 13792 Hauppauge, New York' 11788 Jay Dunkleberger, Esq.
Docketing and Service Branch New York State Energy Of fice i'
Office o,f the Secretary _
Agency Building 2 U.S. Nuclear Regulatory Commission Empire' State Plaza Washington, D.C.
20555' Albany, New York
-12223 Nunzio J.
Palladino, Chairman
- Comm. Frederick M.
Bernthal*
U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Comm.
Room 1114.
~
Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Commissioner Victor Gilinsky*
Comm. Thomas M. Roberts
- i U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Comm.
Room 1103 Room 1113 1717 H Street, N.W.
1717 H Street, N.W.
4 Washington, D.C.
20555.
Washington, D.C.
20555 Commissioner James K. Asselstine*
Stephen B..Latham, Esq.**
U.S. Nuclear Regulatory' Commission John F.
Shea, Esq.
!~
Room.1136 Twomey, Latham and Shea j
1717 H Street, N.W.
33 West Second Street
{.
. Washington, D.C.
20555 Riverhead, New York 11901 Herzal Plaine, Esq.
Lawrence J.
Brenner, Esq.
U.S.' Nuclear Regulatory Commission Administrative Judge l
10th Floor Atomic Saf ety & Licensing Bd.
1717 H. Street, N.W.
U.S.
Nuclear Regulatory Comm.
j Washington, D.C.
20555 Washington, D.C.
20555
.Dr.. George A. Ferguson Dr. Peter A. Morris Administrative Judge Administrative Judge
'Atc=i: Safety'& Licensing Board Atomic Safety & Licensing Bd.
l U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Comm.
j Washington, D.C.
20555 Washington, D.C.
20555 i
James A. Laurenson,-Chairman Dr. Jerry R.
Kline
. Atomic Safety & Licensing Board Administrative Judge i
U.S. Nuclear Regulatory Commission Atomic Saf ety & - Licensing Bd.
Washington, D.C.
20555 U.S.
Nuclear. Regulatory Comm.
Washington, D.C.
20555
~
.Mr. Frederick J.
Shon Administrative Judge Ralph Shapiro, Esq.
Atomic Safety & licensing Board Cammer and Shapiro U.S.
Nuclear Regulatory Commission 9 East 4 0th 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 Rockef eller Plaza Washington, D.C.
20555 Albany, New York 12223 Ms. Nora Bredes Mr. Stuart Diamond Executive Director Business / Financial Shoreham Opponents Coalition MEW 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 Vetetans Memorial Highway p6[.a-o
~
Hauppauge, New York 11788 a'<d Lawrence Coe Lahphet KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite COO l
Washington, D.C.
20036 DATE:
June 6,1984 c.
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1.)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF JUDGES MILLER, BRIGHT, AND JOHNSON, dated June 21, 1984, have been served on the following this 21st day of June 1984 by U.S. mail, first class; by hand when indicated by one asterisk; and by Federal Express when indicated by two asterisks.
Judge Marshall E.
Miller, Chairman
- Edward M.
Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company i
U.S.
Nuclear Regulatory Commission 250 Old Country Road Washington, D.C.
20555 Mineola, New York 11501 Judge Glenn O.
Bright
- Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S.
Nuclear Regulatory Commission H.
Lee Dennison Building Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11788 Judge Elizabeth B. Johnson **
Oak Ridge National Laboratory Fabian Palomino, Esq.**
P.O.
Box X, Building 3500 Special Counsel to the Oak Ridge, Tennessee 37830 Governor Executive Chamber, Room 229 Eleanor L. Frucci, Esq.*
State Capitol Atomic Safety and Licensing Board Albany, New York 12224 U.S. Nuclear Regulatory Commission Washington, -D.C.
20555
- W.
Taylor Reveley, III, Esq.
Anthony F.
Earley, Jr., Esq.
Bernard M.
Bordenick, Esq.*
Robert M. Rolfe, Esq.
rdwin J. Reis, Esq.
Hunton & Williams Office of Exec. Legal Director 707 East Main Street U.S. Nuclear Regulatory Commission Richmond, Virginia 23212 Washington, D.C.
20555
y
?
2-Mr. Martin Suubert James Dougherty, Esq.
c/o Cong. William Carney 3045 Porter Street, N.W.
1113 Longworth House Office Washington, D.C.
20008 Building Washington, D.C.
20515 Mr. Brian McCaffrey Long Island Lighting Company Martin Bradley-Ashare, Esq.
Shoreham Nuclear Power Sta.
Suffolk County Attorney P.O.
Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Jay Dunkleberger, 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 Stephen B.
Latham, Esq.
John F. Shea, Esq.
Twomey, Latham and Shea 33 West Second Street Riverhead, New York 11901 W
W Lawrence Coe Lanphef KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N. W., Suite 800 Washington, D.C.
20036 DATE:
June 21, 1984 1
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- LILCO Juna 18, 1984 cetxETED us :a:
~84, JJ!; 18 P 3 :43 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION - - Z Us Before the Commission In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
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Unit 1)
)
LILCO'S RESPONSE TO SUFFOLK COUNTY
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AND STATE OF NEW YORK' S REQUEST FOR RECUSAL AND, ALTERNATIVELY, MOTION FOR DISOUALIFICATION OF CHAIRMAN -PALLADINO I.
INTRODUCTION Nearly two months after first improperly demanding the recusal of Chairman Palladino, Suffolk County and Governor
'Cuomo have now formally moved for the Chairman's recusal and, alternatively, for his disqualification by the entire Commission.
The f acts upon which Chairman Palladino must decide the motion are uniquely known to 'him; LILCO will not comment upon them.
LILCO is concerned, however, that this motion not be used as a further delaying tactic by the County and Governor Cuomo in an ef fort to avoid reaching the merits of various licensing matters pertinent to Shoreham.
Indeed, LILCO mI N'd f ' ^i ! "'"
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improper bias is indicated mplicit suggestion that to ensure that merely by administering the proces the substantive merits, rather th s
delays, determine the ultimate result 4
an procedural forth below the applicable law whi hAccordingly, LILCO sets c
account by Chairman Palladino, ought to be taken into II.
THE DECISION ON RECUSAL f
RESTS SOLELY WITH THE CHAIRMAN The decision with respect to re solely by Chairman P,alladino and iscusal must be made the Commission.
motion for consideration and disqu at the Commission must be denied:
cation by the whole 1/
Consistent with the practice, and. the genera. commission's past of the federal courts and administratilly accepted practic agencies, the Commission has determined disqualification. decisions should ve that and are not revievable by the Commissiex reside oner on.
Pacific' Gas and Electric Co (Diablo Canyon Nuclear Power 1/
substantive standards for recusalResearch has not dis disqualification by a person acti, which is simply self-erence between the and for disqualifica, tion of such a persng in the capacity j
on by others.
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Units 1 and 2), CLI-80-6, 11 NRC 411, 412 (1980).2/
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. III.
TIMELINESS OF THE MOTION MUST BE CONSIDERED Both federal courts and administrative agencies require i
th'at a motion for recusal be filed ag soon as the party asking for recusal becomes aware of the information leading to the request.. Marcus v. Director, Office of Worker's Compensation Procrams, 548 F.2d 1044,1051 (D.C. Cir.1976), Public Service l
Co. of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-749, 18 NRC 1195, 1198 (1983).
This -requirement for prompt action increases administrative efficiency by avoiding unnecessary delay in the proceeding should recusal be warranted,14., and prevents conversion of "the serious and.
laudatory business of insuring judicial f airness into a mere litigation strategy."
Delesdernier v. Porterie, 666 F.2d 116, 121 (5th Cir.), serl denied, 103 S. Ct. 86 (1982).
1/
The County /Cuomo motion's failure to cite any of the abundant Commission precedent on recusal and disqualification
- and specifically its failure to mention this case -- directly on point. and contrary to their position -- is disturbing and potentially unethical. It is all the more surprising in view of the f act that Suf folk County's counsel vere counsel of record for Governor Jerry Brown in the Diablo Canyon proceeding at the time this decision was rendered.
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The actions by Chairman Palladino of which the County and Govern 8r Cuomo complain occurred between March 16, 1984 and, at th'e latest, April 4, 1984.. The County and Governor Cuomo were clearly aware of them by April 11,'when the County Executive wrote a letter to the Commission alleging that Chairman Palladino was biased.
The instant motion was not i
filed until almost two mcnths later, a period of. delay which I
has not been tolerated in other comparable proceedings.
Egg Seabrook, 18 NRC at 1199 (motion for disqualification late when party waited almost two months to raise its concerns); Pucet Sound Power and Licht Co. (Skagit Nuclear Power Project, " nits 1 and 2), ALAB-556, 10 NRC 30, 32 n.6 (1979) (motion filed more than six weeks af ter the order on which it was predicated is j
untimely).
Timeliness should not be considered solely for the sake of adjudicatory efficency, but also to the extent that it reflects on the credibility of the County's and Governor Cuomo's asserted belief that recusal is necessary.
At.least three times beginning April 11, the County, with or without Gove'rno Cuomo, has called for the Chairman's recusal without any factual predicate and without any properly filed motion.1/
J/
These include the letter of County Executive Peter Cohalan on April 1,1, the Amended Complaint in Cuomo v. ERC, Civ. Action (Footnote cont'd)
. _. _ -. _. ~.. ~., _ _.. _ _ _ _. _ _ _ _ _ _ -. _ _ _ _ _ _. _ -. _ _ _ _ _ _ _ _
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Each request appears to have been prompted solely by progress i
toward adjudicating the merits of LILCO's low power license request.
A request for recusal should not be used to delay the adjudicatory process.
The two-month delay in properly raising this issue, particularly give the multiplicit3 of attempts to raise it improperly in the interim, suggests that litigation tactics, rather than any concern with fairness, may have prompted the motion.
IV.
STANDARD FOR RECUSAL -
Disqualification of a judge or an agency official acting in an adjudicative capacity is unusual.
There is a presumption of the decisionmaker's honesty and integrity.
Egg Withrov v.
Larkin, 421 U.S. 35, 47 (1975).
This presumption is overcome only if the decis'.onmaker harbors an attitude that a
(Footnote cont'd from previous page)
No. 84-1264 (D.D.C. filed April 23, 1984), and Suffolk County's msmorandum of April 27, 1984 to counsel for parties in Cuomo v.
1 NRC (quoted in the Licensing Board's Status Report to Commissioners dated April 30, 1984).
Further, Mr. Cohalan, and counsel for Governor Cuomo, delivered lengthy accusations of misconduct by Chairman Palladino in prepared and live testimony at May 17, 1984 oversight hearings on the regulatory process at Shoreham called by the Subcommittee on Energy and the Environment of the House Interior Committee.
(Prepared Testimony of Peter Cohalan at 2-4; Prepared Testimony of Fabian l
G. Palamino, at 4-5).
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fair-minded person would 'be' nable to set aside so that he
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could eval 6 ate objectively the arguments presented by all V_
parties.
Egg United States v. Conforte, 624 F.2d 869, 881 (9th i
Cir. ), ggri, den i ed, 449 U.S. 1012 (1980 ).
Thus, sf or example,
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a general bias in f avor of nuclear power does not disqualify an adjudicator from participating in a nuclear licensing decision if the adjudicator can base his decision on the evidence before him.
Egg Carolina Environmental Studv ' Group v.
United States, 510 F.2d 796 (D.C. Cir.1975).
The standards for determining whether recusal is varranted are as follows:i/
( An] administrative trier of f act is
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subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a " personal 4
bias" against a participant; if he has" served in a prosecutive or investigative role with regard to the same facts that are an issue; if he has prejudged f actual -- as distin-guished f rom legal or policy -- issues; or if j
he has tengaged in conduct which gives the appearance of personal bias or prejudgment of factua) issues.
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1/5 "The County /Cuomo' motion cites as its standard for recusal the formulation first : addressed in Gillican, Will & Co. v.
- SEC, 267 F.2d 461, 469 (2d Cir.),. cert. denied, 361 U.S. 896 (motion at 1-2).
However, the motion never mentions any of the numerous cases bef ore 'the Commission which have applied and construed that very general verbal formula under circumstances applicable to Commission practice.
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. Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), No. 50-354-OL, ALAB-759, slip op. at 12 (Jan.
25, 1984) (quoting Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973)); sf. 28 U.S.C.
S 455 (providing standards for disqualification of'a federal judge).
The Commission has held in applying these standards that only bias or prejudgment attributable to extra-judicial sources requires disqualification.
Houston Lichtino and Power Co.
(South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363 (1982), citine United States v.
Grinnel Coro., 384 U.S. 563, 583 (1966).E/
The County /Cuomo motion does not meet this standard.
Even if. accepted at face value, the facts averred in it would not lead a disinterested observer to conclude that the Chairman has prejudged the facts concerning Shoreham in advance of hearing the issues.
The primary basis for the recusal motion is the Chairman's alleged role in expeditino the schedule for reaching a decision on whether a low power license should issue for Shoreham.
Such an attempt to ensure that the process 1/
The Commission left open the possibility that in the most extreme. cases judicial conduct demonstrating pervasive bias and prejudice against a party might be grounds for disqualifica-tion.
South Texas, 15 NRC at 1366.
Obviously, no such facts exist here.
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itself (specifically, its leneth) does not artifically dictate the ;esult* indicates no predisposizion on the merits.
i Inte estingly, the motion contains no particularized averment I
thht Chairman Palladino has reached any substantive viev g
' concerning LILCO's low power license request or that he has attempted to influence the substar.:ive views of others involved in the process.-
Indeed, in the one lov power license matter that has thus f ar reached the Cc =ission, the Chairman voted.
against LILCO's position.
Lonc Island Lichtino Company (Shorehan Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC (May 16, 1984 ).
In contrast,' scheduling questions are procedural.
521 Public Service Co. of' New Hampshire (Seabrook Station, Units 1 and 2), ALAB-757,18 NRC 1356,1359 n.17 (1983).
The public interest in setting a schedule for licensing hearings is usually best served by proceeding as rapidly as is possible, consistent with the. opportunity fer all parties to be heard.
See Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 684-85 (1975); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAS-277, 1 NRC 539 (1975).
The Commission has recognize'd the public interest in concluding licensing proceedings expeditiously and certainly prior to r-
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campletion of construction of a nuclear plant.
Ee3 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC I
452 (1981); Statement of General Policy and Procedure: Conduct of Proceedings for the Issuance of Construction Permits and
)
09erating Licenses for Production and Utilization Fa ili i c
t es foe Which a Hearing is Required under Section 189A of th e
Atenic Energy Act of 1954, as amendec, 10 CFR Part 2, Appendix A.
As a result, the Commission's policy is to encourage expedited hearings as a means of avoiding licensing delays a to maintain its commitment to a fair and ' thorough h n
earing process.
To the extent Chairman Palladino sought to encoura ge,an expedited. hearing on f,ILCO's application for a low power lienuse, his actions appear simply to have been consist ent with inglementation of this policy.5/
The Chairman has many duties
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in addition to his adjudicatory role, including responsibility for ensuring that the Commission staf f is responsive to 6/
The meeting on March 16 i
1984 did not, Coung and State, involve ex, parte contacts as alleged by the 2
communications involve substantive matters at Ex parte s
proceeding.
10 C.F.R. S 2.780(a)(2); Puerto Rico Waterissue in the Resourcer Authority (North Coast Nuclear Plant, ALA3-313, 3 NRC 94, Unit 1) 96 (1976).
Scheduling questions are, purely procedural.
See Public Serv. Co. of New Hamcshire Station, Units 1 and 2),
(Seabrook (1983).
ALAB-757, 18 NRC 1356, 1359 n.17
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I Commission policy.
Egg Reorganization Plan No. 1, 45 Fed. Reg. 40561 (1988).
The mere f act that he performs these other duties does not necessitate his recusal.
If it did, it would be impossible for any agency chairman to carry out both his adjudicatory and his other legal duties, gf. Kennecott Cooper FTC, 467 F.2d 67, 79-80 (10th Cir.1972) (Commission Corp.
v.
not disqualified when Act requires it to perform.other duties Involving the very subject matter of the case), cert. denied, 416 U.S. 909 (1974).
Further guidance may be gleaned by comparing the present situation to two other instances in which recusal or disqualification was an issue.
In the.Diablo Canyon 1
proceeding, Commissioner Hendrie declined to recuse himself after discussing scheduling matters with the applicant in an off-the-record meeting.
See Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant), Nos. 50-275-OL and 50-323-OL (Commissioner Hendrie's Memorandum to Counsel for Parties, March 13, 1980).
In contrast, in the only instance disclosed by research in which an adjudicative officer at NRC has been removed from a case, the Hooe Creek Appeal Board found that an appearance of impropriety existed because the disqualified judge had actua'lly worked for the applicant on the particular plant at issue and that work had been cited in the
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. decision approving a construction permit.
See Hope Creek, slip op. at 17.
Chairman Palladino's alleged actions f ar more example than the latter.2/
closely resemble the first
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Additional perspective on whether the previous conduct or f
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statements of Chairman Palladino, or any other Commissioner, may be of such a nature as to lead a disinterested observer to conclude that prejudgment of f acts or lav has occurred is gained by comparing them with actions or statements which were i
not considered by the only competent j udge -- the Commissioner himself -- to warrant recusal.
In that regard, it is helpful to remember Commissioner Gilinsky's May,1983 dissent from the Commission's refusal of Suf folk County's demand that it pre-ee.ptively terminate emergency planning proceedings at Shoreham
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- There, bef ore ever allowing any evidence.to be taken.
Commissioner Gilinsky clearly indicated his. views on the outcome:
[T]he Commission has f ailed to deal with the
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actual issue in this case.
That is: can there be adequate emergency preparedness (as distinct from planning) if neither the State nor the County Governments vill participate?
i The answer is, clearly, No.
There cannot be
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adequate emergency preparedness for the surrounding population without the participation of a responsible government entity.
Lonc Island Lichtino Company (Shoreham Nuclear Power Station),
CLI-83-13, 17 NRC 741, 744 (1983).
Such views, if logically pursued by Commissioner Gilinsky, vonid utterly preclude his voting in f avor of an operating license for Shoreham, despite statutory and regulatory provisions which not only empower but obligate the Commission to hear f airly the merits of a plan sponsored only by a utility.
Chainnan Palladino's actions and l
statements, unlike those of Commissioner Gilinsky, go only to scheduling, not to substance; yet Con =tissioner Gilinsky has not recused himselfsf rom Commission decisions and deliberations on 3
Shoreham.
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CONCLUSION
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In. deciding the motion for his recusal, Chairman Palladino should consider the matters discussed above.
Based on the facts as alleged, recusal,does not appear to be warranted in these circumstances.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY By/. Taylor Reveleyf I'y f W
Donald P.
Irwin Robert M.
Rolfe Anthony F. Earley, Jr.
Hunton & Williams
' Post' Office Box 1535 Richmond, Virginia 23212 DATED:
June 18, 1984 e
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..LCO, June 18, 1984 CERTIFICATE OF SERVICI U,{
I' d
18 P3:43 In the Matter of l
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) C0;..
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Docket No. 50-322-OL-4 (Low Power)
I hereby certify that copies of LILCO'S RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK'S REQUEST FOR RECUSAL AND, ALTERNATIVELY, MCTION FOR DISCUALIFICATION OF CHAIRMAN PALLACINO were served this date upon the following by U.S.
i mail, first-class, postage prepaid, and in addition by hand (as indicated by one asterisk), by Federal Express (as indicated by two asterisks).
Chairman Nunzio J. Palladino*
Washington, D.C.
20555 U.S.-Nuclear Regulatory Commission Judge Marshall E. Miller
- Atomic Safety and Licensing 1717 H Street Washington, D.C.
20555 Board U.S. NRC 4350 East-West Highway a
Commissioner James K. Asnelstine*
Fourth Floor (North Tower)*
U.S. Nuclear Regulatory Bethesda, Maryland 20814 Commission 1717 E Street, N.U.
Washington, D.C.
20555 Judge Glenn O. Bright
- Atomic Safety and Licensing Board Cometssioner Victor Gilinsky*
U.S. NRC U.S. Nuclear Regulatory 4350 East-West Highway Commission Fourth Floor (North Tower) 1717 H Street, N.W.
Bethesda, Maryland 20814 Washington, D.C.
20555 Judge Elizabeth B. Johnson **
Oak Ridge National Laboratory P.O. Box X, Building 3500
)
Commissioner Frederick M. Bernthal*
Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Eleanor L. Frucci, Esq.*
1717 H Street, N.W.
Atomic Safety and Licensing Wa'shington, D.C.
20555 Board U.S. NRC Commissioner Thomas M. Roberts
- 4350 East-West Highway U.S. Nuclear Regulatory Fourth Floor (North Tower)
Commission Bethesda, Maryland 20814 1717 H Street, N.W.
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Honorable Peter Cohalan Suffolk County Executive-County Executive /
Jay Eunkleberger, Esq.
Legislative Building New York State Energy Office Veteran's Memorial Highway Agency Building 2 Hauppauge, New York 11788 Empire State Plaza Albany, New York, 12223 Fabian G. Palomino, Esq.**
Special Coun$11 to the Edwin J. Reis, Esq.*
Governor Executive Chamber, Room 229 U.S. Nuclear Regulatory Commission State Capitol Albany, New York 12224 Maryland National Bank Bldg.
7735 Old Georgetown Road Be thesda, Maryland 20814 At tn:
NRC lst Floor Mailroom Alan R. Dynner, Esq.*
Martin Bradley Ashare, Esq.
Herbert H. Brown, Esq.
Suffolk County Attorney Lawrence Coe Lanpher, Esq.
H.
Lee Dennison Building Kirkpatrick, Lockhart, Bill, Veterans Memorial Highway Christopher & Phillips Hauppauge, New York 11788 1900 M Street, N.W.,
8th Floor Washington, D.C.
20036 Docketing and Service Branch Of fice of the Secretary Mr. Martin Suubert U.S. Nuclear Regulatory c/o Congressman William Carney Commission 113 Longworth House Office Bldg.
Washington, D.C.
20555
' Washington, D.C.
20515 James Dougherty, Esq.
3045 Porter Street, N.W.
Washington, D.C.
20008
/Ar2 AdA/0/b
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Robert M. R~olfe /
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p Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
June 18, 1984
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"5' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'84 JUN 21 20:33
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i' Nunzio J. Palladino,-Chairman Of 'E ;.. i. ;;.,
000 iEilHe & SCF.
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In the Matter of
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i LONG ISLAND LIGHTING COMPANY.
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Docket No. 50-322-OL-4 i
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i (Shoreham Nuclear Generating
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MEMORANDUM TO THE PARTIES On June 6, 1984, counsel for Suffolk County and the State j
1 of New York served on me a formal request that I recuse myself from the Shoreham operating license proceeding.
On June 18, L
h tne applicant filed a response to that request.
In considering the Suffolk County /New York State request, it would be useful to have the comments of all parties as to whether I should recuse myself from this proceeding, either as a matter of legal i
requirement or of discretion.
Accordingly, by this memorandum I request the submission of views by the NRC staff, to be filed no later than July 6, 1984.
Until such time as I make a decision on the Suffolk i
County /New York State request, I intend not to participate in b\\/,
any Commission deliberations on adjudicatory matters in the C
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Shoreham proceeding.
My decision to refrain from such-o
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participation while the request remains pending should in no
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sense be taken to suggest, one way or the other, any judgment on the legal merits of the request.
For the benefit of the parties, I have requested the Secretary, in serving copies of this Memorandum on the parties, to attach a copy of my testimony, prepared for the hearing of the House Committee on Interior and Insular Affairs on May 17, 1984, in which I presented an account of my participation in this proceeding.
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NUNZIO J9 PALLADINO CHAIRMAN Dated at Washington, D.C.
ThisA
day of June, 1984.
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INDIVIDUAL STATEMENT OF NUNZIO J. PALLADINO, CHAIRMAN U. S. NUCLEAR REGULATORY COMMISSION BEFORE THE SUBCOMMITTEE ON ENERGY AND THE ENVIRONMENT COMMITTEE ON INTERIOR AND INSULAR AFFAIRS U. S. HOUSE OF. REPRESENTATIVES MAY 17,1984 l
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l I WILL BEGIN J4Y STATEMENT BY BRIEFLY COVERING SOME OF THE i
l SHOREHAM BACKGROUND.
THE LONG ISLAND LIGHTING COMPANY, OR
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l "LILC0", APPLIED FOR A CONSTRUCTION PERMIT FOR THE SHOREHAM NUCLEAR POWER STATION IN 1968, AND RECEIVED THAT PERMIT IN 1973.
IN 1975 LILCO APPLIED FOR AN OPERATING LICENSE.
A LICENSING BOARD WAS APPOINTED IN 1981 TC CONDUCT A PUBLIC HEARING, AND THE HEARING STARTED IN 1982.
A SECOND BOARD WAS APPOINTED IN AUGUST, 1982 TO ADDRESS PHYSICAL SECURITY ISSUES IN THE CASE.
A THIRD BOARD WAS APPOINTED IN MAY,, 1983 TO DEAL WITH OFFSITE EMERGENCY PLANNING.
On JUNE 3, 1983 LILC0 FILED A MOTION WITH THE LICENSING BOARD REQUESTING A LICENSE TO OPERATE AT LOW POWER -- THAT IS, AT UP TO 5% OF RATED POWER.
ON SEPTEMBER 21, 1983 THE FIRST LICENSING BOARD ISSUED A PARTIAL INITIAL DECISION IN WHICH IT RULED THAT FUEL LOADING AND LOW POWER OPERATION COULD BE AUTHORIZED IN ALL OTHER RESPECTS EXCEPT FOR THE NEED TO RESOLVE A PENDING
s-
.1 CONTENTION _RELATED TO EMERGENCY ONSITE DIESEL GENERATORS.
(LBP-83-57, 18 NRC 468 (1983).)
ON FEBRUARY 22, 1984 THE LICENSING BOARD ADMITTED THREE CONTENTIONS, FILED BY SUFFOLK COUNTY, RELATING TO THE DIESEL GENERATORS.
IN AN ORAL RULING THE BOARD STATED THAT, ON THE BASIS OF THE RECORD THEN BEFORE IT, IT COULD NOT FIND THE DIESEL GENERATORS ADEQUATE TO PERMIT LOW POWER OPERATION UNLESS IT CONSIDERED THE THREE CONTENTIONS,0N THE MERITS.
HOWEVER, THE BOARD ADDED:
WHAT WE HAVE SAID SO FAR WOULD NOT PRECLUDE LILCO FROM PROPOSING OTHER METHODS BY WHICH LILCO BELIEVES THE STANDARDS OF 50.57(C) COULD BE MET, SHORT OF LITIGATION OF CONTENTIONS 1, 2, AND 3 ON THE MERITS.
OR POSSIBLY SEEKING SOME SORT OF WAIVER UNDER.2.758 OR OTHER PROCEDURES.
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(TRANSCRIPT OF CONFERENCE OF PARTIES, FEBRUARY 22, 1984, PAGE 21,616.)
FOUR WEEKS LATER, ON MARCH 20, 1984 LILCd FILED SUCH A REQUEST WITH THE LICENSING BOARD..
UNWARRANTED LICENSING DELAYS IN THE MEANTIME, HOWEVER, OTHER EVENTS HAD TAKEN PLACE.
AS THE COMMITTEE IS AWARE, THE COMMISSI,0N ROUTINELY REPORTS TO THE CONGRESS ON THE STATUS OF OUR LICENSING CASES.
THAT REPORT INCLUDES ESTIMATES OF THE DATES ON WHICH THE COMMISSION IS PROJECTED TO REACH LICENSING DECISIONS IN THESE CASES.
AS RECENTLY AS JANUARY 25, 1984 THE COMMISSION HAD ADVISED THE i
. CONGRESS THAT IN ONLY ONE CASE WAS IT PROJECTED THAT THE FACILITY WOULD BE PHYSICALLY COMPLETE, AND THEREFORE POTENTIALLY READY FOR OPERATION, PRIOR TO A DECISION ON ITS OPERATING LICENSE.
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PLANT WAS LIMERICK, AND THE ESTIMATED TIME GAP INVOLVED WAS 7 MONTHS.
ON MARCH 9, 1984, HOWEVER, OUR EXECUTIVE DIRECTOR FOR OPERATIONS NOTIFIED THE COMMISSION THAT THE AMOUNT OF DELAY HAD INCREASED SIGNIFICANTLY.
THE EDO NOW PROJECTED A TOTAL TIME GAP OF 14 MONTHS -- 5 MONTHS ATTRIBUTABLE TO LIMERICK AND 9 MONTHS TO SHOREHAM.
I WAS FURTHER INFORMED ORALLY BY THE EDO, ON OR ABOUT MARCH 13, THAT ADDITIONAL DELAYS, MIGHT BE DEVELOPING WITH RESPECT TO THE WATERFORD AND COMANCHE PEAK FACILITIES, AND THAT SIZEABLE NRC STAFFING ADJUSTMENTS WERE BEING MADE FOR THESE TWO PLANTS.
I BELIEVE THE ED0 ALSO INFORMED ME AT THAT TIME THAT HE WAS SENDING A NOTE (OR NOTES) ON 3YRON AND SHOREHAM.
I DO NOT RECALL THAT HE DESCRIBED THE NOTES FURTHER.
NEVERTHELESS, I WAS MINDFUL OF CONCERN'S FROM THIS COMMITTEE AND FROM INDIVIDUAL COMMISSIONERS ABOUT SURPRISES AS A RESULT OF A RECENT BOARD DECISION DENYING THE BYRON LICENSE. ' ALSO IN MY MIND AT THAT TIME WAS THE
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5 POSSIBILITY THAT IF NRC BIDN'T DO SOMETHING SHOREHAM WOULD GO UNDER BECAUSE OF NRC'S INABILITY TO MAKE TIMELY LICENSING DECISIONS, AND I FELT Ts.T, WHATEVER HAPPENED TO SHOREHAM, I DID NOT WANT INACTION BY NRC TO BE THE CAUSE.
I DON'T RECALL THAT THESE THOUGHTS ON SHOREHAM WERE DISCUSSED WITH THE EDO.
ALL OF THIS BACKGROUND. CONTRIBUTED TO MY DESIRE TO HAVE A BRIEFING ON THE STATUS OF THESE MATTERS.
I WAS CONCERNED ABOUT THE INFORMATION I WAS RECEIVING, AND I THINK 1 WAS RIGHT, AS CIRIRMAN, TO BE CONCERNED.
I FELT THE SITUATION I WAS BEING IIFORMED OF WARRANTED PROMPT ATTENTION, ALSO, ANY TIME THAT THE CHAIRMAN OF THE AGENCY DISCOVERS THAT INFORMATION HE PROVIDED TO THE CONGRESS ONLY SIX WEEKS EARLIER WAS NO LONGER ACCURATE IN A SIGNIFICANT RESPECT, I THINK HE OUGHT TO BE CONCERNED, AND HE OUGHT TO BE ASKING HOW THIS CAME ABOUT.
THE LAST THING I WANTdD TO HAPPEN WAS TO HAVE THE PROJECTED 4.
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DELAYS CONTINUE TO INCREASE RAPIDLY AND. CATCH THE COMMISSION AND THE CONGRESS BY SURPRISE.
OvER THE LAST SEVERAL YEARS, CONGRESS HAS INDICATED ITS CONCERN ABOUT UNWARRANTED LICSNSING DELAY.
IN ITS REPORT ON THE NRC APPROPRIATION FOR FY 1981, THE house APPROPRIATIONS-COMMITTEE DIRECTED THE COMMISSION TO PROVIDE A MONTHLY REPORT TO THE CONGRESS ON THE STATUS OF LICENSING PROCEEDINGS.
(H. REP.
NO. 96-1093, 96TH CONG., 2D SESS,.,146-47 (1980). )
THE HISTORY OF THIS REQUIREMENT MAKES CLEAR THE CONCERN OVER UNWARRANTED LICENSING DELAY.
ANOTHER EXAMPLE IS THE TEMPORARY OPERATING LICENSE AUTHORITY IN THE COMMISSION'S AUTHORIZATION FOR FY 1982-83 IN WHICH THE CONGRESS DIRECTED THE COMMISSION TO ADOPT ADMINISTRATIVE MEASURES TO MINIMIZE THE NEED TO LICENSE PLANTS PR'... TO THE COMPLETION OF PUBLIC HEARINGS.
(PUB. LAW 97-415, 96 STAT. 2067, S 11 (1983).)
IT IS CLEAR TO ME THAT THE INTENT OF THIS CONGRESSIONAL INSTRUCTION WAS THAT THE COMMISSION SHGULD
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7 ADDRESS ADMINISTRATIVELY THE MATTER OF UNWARRANTED LICENSING
~
DELAY IN SPECIFIC CASES.
THE COMMISSION's POLICY AND PLANNING GUIDANCE ALSO ADDRESSES THE MATTER OF DELAY IN THE LICENSING PROCESS.
AMONG OTHER THINGS, IT 4
PROVIDES THAT, " CONSISTENT WITH MAINTAINING THE SAFETY OF OPERATING FACILITIES, STAFF REVIEWS AND PUBLIC HEARINGS SHOULD BE COMPLETED ON A SCHEDULE THAT ASSURES THE LICEMSING PROCESS WILL NOT BE A CRITICAL PATH ITEM WHICE COULD UNNECESSARILY DELAY REACTOR STARTUP."
AS CHAIRMAN, IT IS MY RESPONSIBILITY TO TAKE STEPS TO GATHER DATA AND INFORM THE COMMISSION OF ACTION NEEDED TO FULFILL THIS GUIDANCE.
~
.THE ADM:NISTRATIVE PROCEDURE ACT (APA) REQUIRES THAT AGENCY LICENSING PROCEEDINGS BE CONDUCTED BOTH WITH DUE REGARD FOR THE RIGHTS OF ALL THE PARTIES AND COMPLETED "WITHIN A REASONABLE TIME."
SINCE THE COMMISSION HAS SUPERVISORY RESPCNSIBILITY OVER
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ALL OF ITS ADJUDICATIONS, IT IS ENTIRELY IN KEEPING WITH THE SPIRIT OF THE APA THAT I, AS CHAIRMAN, SUGGEST MEASURES DESIGNED TO ASSURE THAT THE COMMISSION COMPLIES WITH BOTH THESE STATUTORY REQUIREMENTS.
[1 ARCH 16, 1984 MEETING THE BEST THING TO DO IN MY VIEW WAS TO TRY TO GATHER AS MANY FACTS AS POSSIBLE ABOUT THE VARIOUS PLANTS THAT WERE POTENTIALLY DELAYED, AND THEN ALERT THE COMM.ISSIONERS (AND ULTIMATELY THE
~
CONGRESS) ABOUT THE PROBLEM AND ADVISE THEM OF PROPOSED COURSES OF ACTION TO ADDRESS IT.
ON MARCH 15 I MET WITH REPRESENTATIVES FROM OUR OFFICES OF POLICY EVALUATION AND GENERAL COUNSEL CONCERNING WHAT COULD BE DONE ABOUT THE PLANTS IMPACTED BY THE I
POTENTIAL DELAYS NOW BEING PROJECTED.
DURING THAT DISCUSSION THERE WAS A CONSENSUS THAT I SHOULD CALL A MEETING WITH THE EXECUTIVE DIRECTOR FOR OPERATIONS, MEMBERS OF HIS STAFF, THE l
GENERAL COUNSEL ANDHIS DEPUTY, AND THE CHAIRMAN OF THE ATOMIC l
9 SAFETY AND LICENSING BOARD PANEL TO DISCUSS THE STATUS OF A NUMBER OF PLANTS AT WHICH THERE WERE PROBLEMS OR POTENTIAL
- PROBLEMS, I WOULD LIKE TO SAY A FEW WORDS AT THIS TIME ABOUT THE ATTENDANCE AT THAT MEETING.
THE NRC STAFF WAS TO BE THERE BECAUSE EXPERIENCE SHOWS THAT THE STAFF'S REVIEW AFFECTS LICENSING SCHEDULES.
THE CHAIRMAN OF THE LICENSING BOARD PANEL 11AS ASKED TO ATTEND BECAUSE IT IS HIS JOB.TO BE KNOWLEDGEABLE ABOUT THE STATUS OF LICENSING CASES AND HE MIGHT HAVE IDEAS AS TO HOW UNNECESSARY DELAYS INVOLVING THE BOARDS COULD BE AVOIDED.
HE WAS ALSO ASKED TO BE THERE TO CLARIFY ANY QUESTIONS ABOUT WHETHER OR NOT DELAYS WERE DUE TO THE NEED FOR STAFF DOCUMENTS BEFORE HEARINGS COULD BEGIN.
THE GENERAL COUNSEL AND HIS DEPUTY WERE ASKED TO ATTEND IN ORDER TO PROVIDE ADVICE BASED ON THEIR EXPERIENCE AND TO ENSURE THAT 'UR DISCUSSIONS WERE WITHIN LAW AND l
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COMMISSION RULES.
THE OTHER ATTENDEES WERE ASKED TO ATTEND BECAUSE THEY MIGHT HAVE INFORMATION OR ADVICE TO CONTRIBUTE.
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 HAVE RAISED A WARNING FLAG.
LIKEWISE, I RECALL THE STAFF ADVISING THAT THEY UNDERSTOOD THAT LILCO PLANNED TO APPEAL THE DENIAL OF ITS LOW POWER REQUEST.
BUT AGAIN, THERE WAS NO DISCUSSION, TO THE BEST'0F MY RECOLLECTION, OF THE MERITS OF THAT REQUEST.
1 i
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n AT THE MARCH 16 MEETING, AS WAYS OF LESSENING THE PROJECTED 9 MONTH TIME GAP FOR SHOREHAM WERE DISCUSSED, AMONG THE SUGGESTIONS MADE -- AS I RECALL, BY OUR OFFICE OF GENERAL COUNSEL
-- WAS THAT AN EXPEDITED HEARING COULD BE HELD ON THE DIESEL GENERATOR ISSUE.
AT THAT MEETING, 0GC WAS ASKED TO PREPARE AN OPTIONS PAPER FOR THE COMMISSION.
MY MEMORANDUM OF MARCH 20, 1984 TO THE OTHER COMMISSIONERS REPORTED ON THAT MEETING.
MARCH 22 WORKING PAPERS AND MARCH 23 DRAFT ORDER FOLLOWING THE MEETING, I CONTINUED TO BE QUITE CONCERNED ABOUT THE 9 MONTH DELAY FORECAST FOR SHOREHAM, FRANKLY, I WAS CONCERNED THAT THE FATE OF THE SHOREHAM FACILITY MIGHT BE DETERMINED NOT BY THE MERITS OF THE CASE, ONE WAY OR THE OTHER, BUT INSTEAD BY THE NRC'S INABILITY TO RUN ITS PROCESSES EFFICIENTLY.
I THEREFORE FELT A NEED AS CHAIRMAN TO CONSIDER DOING MORE.
I HAD OTHER CONVERSATIONS WITH MY STAFF AND, AT ONE POINT I SELIEVE, WITH THE EDO AS WELL, SEARCHING FOR OPTIONS.
l
1
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THESE CONVERSATIONS CONFIRMED THAT, OTHER THAN AFFECTING THE STAFF'S REVIEW TIME, FURTHER OPTIONS WOULD HAVE TO BE DEVELOPED
'AT THE COMMISSION LEVEL.
AT MY REQUEST, AND BASED ON OGC'S ROOGH ESTIMATES OF THE TIME THAT AN EXPEDITED HEARING SUCH AS SUGGESTED BY OGC MIGHT TAKE, MY STAFF. PREPARED A ONE-PAGE CONCEPTUAL DRAFT DIRECTIVE FROM THE COMMISSION T,0 THE CHAIRMAN OF THE LICEi4 SING BOARD PANEL.
I WAS CONSIDERING THE POSSIBILITY OF C,IRCULATING SUCH A DRAFT TO THE OTHER COMMISSIONERS FOR REVIEW AS A POSSIBLE CONCEPT FOR EXPEDITING THE PROCESS.
HOWEVER, I HAD NO BASIS TO ESTIMATE WHETHER THE ROUGH ESTIMATES OF A SCHEDULE WERE REASONABLE OR EVEN FEASIBLE.
l ON MARCH 22 A WORKING PAPER CONTAINING THE SUBSTANCE OF THAT l
POSSIBLE DRAFT DIRECTIVE WAS SENT TO JUDGE COTTER.
JUDGE COTTER MONITORS AND PERIODI'CALLY REPORTS TO THE COMMISSION ON THE STATUS i
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OF ACTIVITIES IN THE MANY LICENSING CASES PENDING BEFORE LICENSING BOARDS.
I WAS INTERESTED IN HIS OPINION ON THE i
POSSIBLE SCHEDULE IN THE DRAFT WORKING PAPER BECAUSE OF HIS 1
EXPERIENCE IN COMPLEX LITIGATION AND HIS FAMILIARITY WITH THE SH5REHAMCASE.
ON OR ABOUT MARCH 23, I WAS INFORMED OF A PAPER RECEIVED BY MY OFFICE FROM JUDGE COTTER WHICH WAS TAKEN TO BE HIS COMMENTS ON THE BRIEF WORKING PAPER WHICH MY, STAFF HAD SENT TO HIM.
IT WAS IN THE FORM OF A DRAFT COMMISSION ORDER DIRECTING THAT AN EXPEDITED HEARING BE CONDUCTED BEFORE A NEWLY APPOINTED LICENSING BOARD.
ON MARCH 27 MY OFFICE GAVE A COPY OF THE DRAFT ORDER TO OGC, WHICH WAS PREPARING A PAPER ON OPTIONS FOR COMMISSION ACTION IN SHOREHAM.
1 4
l-k APPOINTMENT OF THE MILLER BOARD AS STATED IN MY EARLIER TESTIMONY, ON MARCH 30, 1984 JUDGE COTTER APPOINTED A NEW LICENSING BOARD, WITH JUDGE MARSHALL MILLER THE PRESIDING OFFICER, TO CONSIDER LILC0'S LOW POWER MOTION.
IN HIS ORDER ESTABLISHING THE NEW BOARD, JUDGE COTTER STATED THAT HE HAD BEEN ADVISED BY THE EXISTING SHOREHAM BOARD THAT TWO OF ITS MEMBERS WERE HEAVILY COMMITTED TO WORK ON ANOTHER OPERATING LICENSE PROCEEDING.
A COPY OF JUD~GE COTTER'S APPOINTMENT ORDER WAS PROVIDED TO ALL COMMISSIONER,S.
JUDGE COTTER INFORMED MY OFFICE, BEFORE MAKING THE APPOINTMENT, THAT THE DECISION WAS HIS OWN AND THAT ITS BASIS WAS THE QUESTIONABLE AVAILABILITY OF THE PREEXISTING BOARD'S PERSONNEL.
HOWEVER, SUCH ACTION WAS CONSISTENT WITH MY EXPRESSED CONCERN THAT WE'USE OUR RESOURCES AS EFFICIENTLY AS POSSIBLE TO PROVIDE THE PARTIES REASONABLY PROMPT RESOLUTION OF THE ISSUES.
I BELIEVE THAT JUDGE COTTER'S ACTION WAS CONSISTENT WITH COMMISSION POLICY TO ELIMINATE UNWARRANTED DELAY.
~
O 13 l
APRIL 2 AND april 4 MEMORANDA ON APRIL 2, I ALONG WITH MY FELLOW COMMISSIONERS RECEIVED FROM THE GENERAL COUNSEL A MEMORANDUM, PREPARED AT MY REQUEST, DISCUSSING POSSIBLE MEANS FOR COMMISSION ACTION TO EXPEDITE THE LOW POWER PROCEEDING.
THE COMMISSION PROVIDED A COPY OF THAT 4
MEMORANDUM TO THE HOUSE INTERIOR COMMITTEE IN EXECUTIVE SESSION ON MAY 2, 1984.
THE MEMORANDUM DESCRIBED SEVERAL OPTIONS FOR COMMISSION CONSIDERATION, INASMUCH AS NO REFERENCE WAS MADE IN THE APRIL 2 MEMORANDUM TO JUDGE COTTER'S DRAFT ORDER, ON APRIL 4 I CIRCULATED TO MY FELLOW COMMISSIONERS AND TO THE GENERAL COUNSEL THE DRAFT ORDER OF MARCH 23, TOGETHER WITH THE ONE-PAGE WORKING PAPER OF MARCH 22.
IN MY COVER MEMORANDUM, I MENTIONED THAT FURTHER ACTION ON THIS l
OR ANY CTHER DRAFT ORDER WILL DEPEND ON THE NATURE OF COMMISSIONER COMMENTS ON OGC'S APRIL 2 MEMORANDUM.
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IN MY VIEW, NEITHER MY MEMORANDUM OF APRIL 4, NOR THE GENERAL s
COUNSEL'S MEMORANDUM OF, APRIL
, CONSTITUTED ANY ATTEMPT TO MANIPULATE THE 0UTCOME OF THE PROCEEDING, OR SUGGESTED ANY JUDGEMENT AS TO THE TECHNICAL MERITS OF THE SHOREHAM CASE.
IN THE ABSENCE OF OBJECTIONS TO THE APRIL 4 MEMORANDUM, INCLUDING ANY FROM THE MANY LAWYERS WHO RECEIVED IT, I HAD NO REASON TO BELIEVE THAT ANYONE WOULD SUPPOSE THAT ANY IMPROPRIETY HAD BEEN i
COMMITTED BY THE ACTIONS COVERED IN THE APRIL 4 MEMORANDUM.
FURTHER, I HAD NO REASON TO BELIEVE THAT ANY COMMISSIONER THOUGHT I HAD OVERSTEPPED MY ROLE AS CHAIRMAN AT THAT TIME.
IF ANY COMMISSIONER HAD BELIEVED THAT THE APRIL 4 MEMORANDUM WAS IMPROPER, OR OTHERWISE SAN ANY IMPROPRIETY IN MY EXPLORATION OF MEANS '0F EXPEDITI'NG THE DECISIONAL PROCESS, 1 BELIEVE IT WAS INCUMBENT ON THAT PERSON TO SPEAK UP AS S00N AS POSSIBLE, 50 THAT THE COMMISSION MIGHT CONSIDER PROMPTLY THE NEED FOR ACTION TO
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ADDRESS ANY ALLEGED COMPROMISE IN THE INTEGRITY OF THE PROCEEDING.
MAY 2 REPORT TO CONGRESS ON APRIL 24, 1984 THE COMMISSION MET ON LICENSING DELAYS IN PUBLIC SESSION.
FOLLOWING THAT MEETING A QUARTERLY REPORT WAS SENT TO THE CONGRESS.
THE REPORT, DATED MAY 2, PROJECTED A TOTAL LICENSING DELAY OF 17 MONTHS: 2 MONTHS FOR SHOREHAM, 5 MONTHS FOR LIMERICK, 7 MONTHS FOR COMANCHE PEAK, 1 MONTH FOR WATERFORD, AND 2 MONTHS FOR BYRON.
THE REPORT ALSO STATED THAT THE ADDITIONAL TIME IT WILL TAKE TO COMPLETE THE NECESSARY REVIEWS AND THE POTENTIAL FOR FURTHER LITIGATION OF FINANCIAL QUALIFICATION ISSUES.AT' INDIVIDUAL HEARINGS COULD RESULT IN SIGNIFICANT ADDITIONAL DELAYS, I WOULD LIKE TO NOTE THAT THE 2 MONTH DELAY PROJECTED FOR SHOREHAM WAS REDUCED FROM THE PREVIOUS 9 MONTH ESTIMATE ON THE
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=- --- - - - - - - - - - - - - - - - -
00 IS PRESUMPTION THAT A DECISION AUTHORIZING LOW POWER OFERATION IN EARLY JUNE, 1984 WOULD BE POSSIBLE.
HOWEVER, THAT DATE NOW 4
APPEARS HIGHLY UNLIKELY.
CLOSING REMARKS THIS COMPLETES THE HISTORY FOR MY ROLE IN THE SHOREHAM PROCEEDING, EXCEPT FOR MY PARTICIPATION IN THE COMMISSION ACTIONS DESCRIBED IN MY EARLIER TESTIMONY.
UNQUESTIONABLY, I TRIED'TO BRINE S0!!E MEASURE OF EFFICIENCY AND EXPEDITION TO THIS PROTRACTED LICENSING PROCEEDING, AS I HAVE ATTEMPTED TO BRING GREATER EFFICIENCY AND EXPEDITION TO THE AGENCY AS A WHOLE.
I FT.'JLD BE FAILING IN MY DUTY TO THE PUBLIC IF I DID NOT, IN MY CAPACITY AS CHAIRMAN OF THE AGENCY, DO JUST THAT.
PEOPLE SOMETIMES FORGET THAT, IN A MULTI-MEMBER COMMISSION, ULTIMATELY THE RESPONSIBILITY FOR INITIATING ACTION RESTS WITH THE CHAIRMAN.
AND IT RIGHTLY SHOULD REST WITH THE CHAIRMAN, AS THE NRC REORGANIZATION PLAN MAKES CLEAR, SUBJECT TO
29 THE CONSTRAINTS FIRST, THAT THE CHAIRMAN'S ACTIONS BE CONSISTENT WITH THE POLICIES OF THE COMMISSION, AND SECOND THAT THE CHAIRMAN BRING TO THE COMMISSION'S ATTENTION MATTERS THAT BEAR UPON THE COMMISSION'S FUNCTIONS.
I BELIEVE THAT MUCH OF WHAT IS AT ISSUE HERE GOES TO THE HEART OF THE ABILITY OF THE CHAIRMAN OF THE NRC TO PERFJRM HIS FUNCTIONS IN THE MANNER WHICH THE NRC REORGANIZATION PLAN MANDATED.
I SUBMIT THAT NO NRC CHAIRMAN CAN AFFORD TO STAND BACK AND SIMPLY OBSERVE THE AGENCY'S FUNCTIONING WITH ALOOF DETACHMENT.
HE MUST BE INVOLVED IN ASSURING THAT THE AGENCY IS RUNNING EFFICIENTLY.
HE MUST BE ASSURING THAT THE AGENCY'S 3,300-PERSON STAFF IS PERFORMING ITS FUNCTIONS SOUNDLY AND EXPEDITIOUSLY, HE MUST BE
. KEEPING HIMSELF INFORMED, THROUGH THE NRC STAFF, OF THE STATUS OF ALL IMPORTANT MATTERS PENDING BEFORE THE AGENCY.
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_O I DO NOT SUBSCRIBE TO THE VIEW THAT, WHEN WE ARE TALKING ABOUT ADJUDICATORY ACTIVITIES, THE COMMISSION AND ITS CHAIRMAN MUST AT ONCE' ABANDON ANY CONCERN FOR EFFICIENCY AND TIMELINESS.
LIKE ANY JUDGE, WE HAVE A LEGITIMATE INTEREST IN THE EFFICIENT RUNNING OF THE ADJUDICATORY PROCESS.
I THINK IT'S MORE THAN JUST AN INTEREST; IT'S ALSO AN OBLIGATION.
I BELIEVE PARTIES DESERVE PROMPT ATTENTION TO THE ISSUES THEY RAISE, AND I AM REMINDED OF THE STATEMENT THAT " JUSTICE DELAYED IS JUSTICE DENIED."
JUST AS A JUDGE MAY BE INTERESTED IN SEE.ING CASES MOVED ALONG, MY CONCERN FOR EXPEDITION IMPLIES NO JUDGMENT WHATSOEVER AS TO THE MERITS OF A PARTICULAR CASE.
I INTEND TO MAKE ANY DECISION ON ANY REQUEST FOR A LICENSE FOR SHOREHAM ON THE ADJUDICATORY RECORD WHICH WILL BE PRESENTED TO US.
I HAVE NOT PREJUDGED THE ISSUES IN DISPUTE IN THIS PROCEEDING.
I DO NOT PLAN TO RECUSE MYSELF FROM IT BECAUSE I HAVE NEITHER.
PREJUDGED THE MERIT $'0F THE CASE NOR HAVE I COMMITTED ANY
__,j
< o 22 IMPROPRIETIES OF WHICH I AM AWARE.
ON THE CONTRARY, I BELIEVE THAT MY EFFORTS REFLECT MY DETERMINATION TO DISCHARGE MY DUTIES TO THE PUBLIC, THE CONGRESS, AND THE COMMISSIONERS WITH COMPETENCE AND INTEGRITY.
d AS A RESULT OF ACCUSATIONS MADE IN LETTERS FROM MEMBERS OF CONGRESS ON SHOREHAM, WHICH ACCUSATIONS ARE BEING AIRED TODAY, A CLOUD HAS BEEN CAST OVER THE CHAIRMAN'S AUTHORITY TO MONITOR THE STATUS OF LICENSING CASES, COLLE,CT THE FACTS SURROUNDING THE STATUS, AND BRING THEM TO THE ATTENTION OF THE COMMISSION.
I BELIEVE THAT THIS CLOUD MUST BE LIFTED BECAUSE IT IS IN DIRECT CONTRADICTION TO THE RESPECTIVE ROLES ASSIGNED TO THE CHAIRMAN
~
AND THE COMMISSION BY THE NRC REORGANIZATION PLAN OF 1980.
I ALSO BELIEVE IT SHOULD BE LIFTED IN ORDER TO ENSURE THE COMMISSION'S ABILITY TO DO ITS BUSINESS IN A TIMELY FASHION.
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22 MR.. CHAIRMAN AND MEMBERS OF THE COMMITTEE, I WOULD LIKE TO CLOSE ~
WITH THE FOLLOWING OBSERVATIONS.
I BELIEVE THIS NATION IS AT A CROSSROADS WITH RESPECT TO ITS ABILITY TO BRING NEW NUCLEAR POWER PLANTS INTO OPERATION.
I BELIEVE THAT THE AMERICAN PEOPLE ARE ENTITLED TO HAVE DECISIONS ON NEW NUCLEAR PLANTS MADE ON THE MERITS OF THE ISSUES INVOLVED
-- NOT MADE BY DEFAULT THROUGH GOVERNMENTAL INEFFICIENCY.
WE OWE THE PUBLIC SOUND SAFETY DECISION,S; WE ALSO OWE THE NATION EFFICIENCY IN OUR PROCESSES.
THAT IS WHERE MY EFFORTS HAVE BEEN DIRECTED.
SINCE I HAVE BEEN CHAIRMAN, CONGRESSIONAL DIRECTION AS WELL AS COMMISSION POLICY HAVE SENT A CLEAR SIGNAL.THAT IT IS IN THE PUBLIC' INTEREST TO MAKE LICENSING DECISIONS ON NUCLEAR POWER PLANTS EXP DITIOUSLY, SO LONG AS THEY ARE SAFE.
I SUBMIT THAT 15
p.
0 o THE CONGRESS OR THE COMMISSION WISH TO CHANGE THAT SIGNAL, THEN THE CONGRESSIONAL DIRECTION AND POLICY SHOULD BE CHANGED.
I WILL NOW ANSWER ANY QUESTIONS YOU MAY HAVE, S
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INTRODUCTION....................................
1 II. LEGAL STANDARDS FOR RECUSAL.....................
1
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III. THE JOINT REQUEST FOR RECUSAL...................
3
~
IV.
CONCLUSION......................
12 ATFIDAVIT e
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TABLE OF AUTHORITIES-e pag STATUTES e e a;
28 USC i 144..........................................
3
'28 USC i 455..........................................
3 t'
REGULATIONS 10 C.F.R. I 2.704 c................................. 'l 10 C.F.R.~ f 2.780 a..................................
7 JUDICIAL AUTHORITY Cinderella Finishing School v. FTC, 425 F.tu 583 ( D. C. C i r. 19 70 )................................
3 COMMISSION PRECIDENT Houston Lighting & Power Co. (South Texas Project, Units-1 and 2), CLI-82-9, 15 NRC 1363 (1982)........
2,3 Long Island Lighting Co. (Shoreham Nuclear Power I
Station, Unit No. 1), CLI-84-8, 19 NRC
( May 16, 19 8 4 )......................................
8,12 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-6, 11 NRC 411 l
(1980)..............................................
2 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant), Docket Nos. 50-275-0L, 60-323-OL, j
Memurandum to Counsel to the Parties (unreported),
May 29, 1980........................................
13 PublicServiceCo.ofNewHampshire(Seabrookita' tion, Units 1 and 2), ALAB-757,18 NRC 1856 (1983)........
d Puerto Rico Water Resources Authority (North Coast l*
Plant, Uni t 1), ALAB-318, 3 NRC 94 -(1976)...........
8 OTHER AUTHORITY Reorganization Plan No.1 of 1980, 45 Fed. Reg. 40561 (June 16,1980).....................................
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK REQUEST FOR RECUSAL OF CHAIRMAN PALLADINO Robert G. Perlis Counsel for NRC Staff
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July 5, 1984 4
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July 5, 1984 UNITED STATES OF AME7.ICA NUCLEAR REGULATORY COMKISSION DEFORE THE COMMISSION In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-0L-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO SUFFOLK COUNTY AND STATE OF NEW YORK RE00EST FOR RECUSAL OF CRtIRMAN PALLADINO I.
INTRODUCTION On June 5,1984, Suffolk County and the State of New York filed a joint Request 'for Recusal of Chairman Palladino and, in the alternative, moved the Commis..on to disqualify the ChairLan from participating further in this proceeding. The Staff herein files its response to the i
joint Request and Motion.
II.
LEGAL STANDARDS FOR RECUSAL Although 10 C.F.R. 5 2.704(c) pertaining to the recusal of members of the Commission's adjudicatory boards does not explicitly encompass the l
l
bringing of such motions against Comissioners, motions to recuse members of the Comission have been entertained.I/ See Pacific Gas and Electric Company (Diablo Canyon Plant, Units 1 and 2), CLI-80-6,11 NRC 411 (1980).2/
The Commission has determined that licensing board members are governed by the same disqualification standards that apply to federal judges. Houston Lighting and Power Cempany (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982).
Those standards are found
-1/
10 C.F.R. 5 2.704(c) requires a party seeking recusal to submit an affidavit supporting the request.
The purpose of the affidavit requirement is to reduce the likelihood of irresponsible attacks upon the probity or objectivity of those involved in Comission decisions.
Duquesne Light Company (Beaver Valley Station, Units 1 and 2), ALAB-172, 7 AEC 42, 43 (1974). The affidavit re-quirement must be observed even when the motion is founded upon matters in the public record.
Id.
The Joint Request for Recusal was not accompanied by an affidWit and does et comport with 10 C.F.R. s 2.704(c) in this regard.
However, an affidavit was subsequently prepared and served on June 18, 1984, in connection with a motion to disqualify the Licensing Board.
That motion largely had the same predicates as the subject motion.
2/
In the Diablo Canyon proceeding, Comissioners Kennedy and Hendrie both ruled on requests that they recuse themsalves. Significantly, the party requesting recusal in Diablo Canyon moved that the full Comission disqualify the two Comissioners if they opted not to recuse themselves.
The Comission refused this last request, i
noting:
Consistent with the Comission's past practice, and the generally accepted practice of the federal courts and administrative agencies, the Comission has determined that disqualification decisions should reside exclusively with the challenged Canissioner and are not reviewable by the Comission.
. in 28 U.S.C. 55 144 and 455.
Of relevance here is Section 455(a),:which provides:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
This standard, as the Commission has noted, is an objective one:
"whether a reasonable person knowing all the circumstances would be led to 'the conclusion that the judge's impartiality might reasonably be questioned."
South Texas, supra,15 NRC at 1366 (citation omitted).-
-This standard is the one the federal courts have applied tc members of administrative agencies in determining whether they have manifested bias or prejudgment of the facts in any particular matter before their agency.
See Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970).
Thus the issue is whether a reasonable person knowing all the circumstances would be led to the conclusion that i
Chairman Palladino's impartiality in this proceeding might reasonabily be
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questioned.3/
III.
THE JOINT RE00EST FOR RECUSAL The Joint Request for Recusal is based primarily on Chairman Palladino's meeting of March 16, 1984 with various members of the NRC 3/
It is noted that in the Intervenors' formulation of the rule for
~
recusal they ignore the requirement that recusal is not just one where someone may questiun impartiality, but rather whether one knowing all the circumstances would reasonably question impartiality.
See Request at I and 29.
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. staff.
Intervenors conjecture that this meeting not only constituted an impermissible ej! parte contact but also signalled the beginning of an
" initiative" by the Chairman to drastically change the course of the proceeding. ' Thus it is alleged that one could conclude that, at the Chairman's behest, the Staff changed its views on applicable NRC regulatory requirmnems, changes were made in the Licensing Board hearing the case in order to assure a more favorable decision for LILCO, and essentially that the Staff and the Board (and the Chairman as well) agreed to trample the rights of the County anc State in order to give LILC0 an unauthorized license before that company went bankrupt.
Chairman Palladino's involvement in these sinister activities was sufficient, we are told, to warrant the conclusion by a reasonable person that the Chairman might have prejudged the case.
Central to Intervenors' Recusal Request is their characterization of the events leading up to the meeting, the meeting itself, and the events that ensued thereafter.
The description of these events in the Request is filled with misstatements and errors.Al The Staff submits that when the events are viewed properly, Chairman Palladino's impartiality is not called into question by the discussion which took place at that meeting.
4/
To provide an accurate description of the meeting, the Staff has attached the Affidavit of William J. Dircks, Executive Director for Operations and Grr H. Cunningham, III, Executive Legal Director, who were present at the meeting, i
Prior to the meeting, the Intervenors assert that the Licensing Board chaired by Judge Brenner had ruled that no low power license could be granted ' prior to complete litigation of the TDI diesel issue, that the Staff had taken the " unequivocal" position that no low p6wer license could issue prior to resolution of the TDI diesel issue, and that nothing in the public record suggested that LILC0 would file a proposal "to get around tne diesel issue." Request at 8-9, 14.
The Intervenors thus give the impression that prior to March 16th, 'the issue of whether LILCO could receive a low power license in advance of resolution of the TDI con-tentions was closed.
The actual record of this proceeding, however, reveals that the issue of a low power license was far from closed.
Contrary to Intervenors' assertions, neither the Staff nor the Board had precluded issuance of a low power license before litigation of the TDI contentions.
Both the Staff and Board agreed that a low power license based upon confidence in the TDI's could not be authorized prior to litigation of the TDI's.
However, both the Staff and Board recognized that a proposal not relying upon TDI's could be entertained. Thus counsel for the Staff explained:
What we have said is what they [LILC0] have proposed is not sufficient, but we are not ruling out that they [can meet]
the requirements of 50.57(c).
It might even be possible that they do not need diesels at all.
That is quite possible but we don't know and it is very difficult to answer your questions until we get that submission from LILCO.
Tr. 21,513.
Similarly, Judge Brenner, after reiterating his opinion that the TDI's could not warrant low power operation, announced:
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U What we have said so far would no: preclude LILCO from proposing other methods by which LILCO believes the standards of 50.57(c) could be met, short of litigation of Con-l tentions 1, 2, and 3 on the merits.
Or possibly seeking some sort of waiver under 2.758 or other procedures.
But, that is up to LILCO. After giving it thought on our own and listening to the other parties, we agree it is difficult to deal with an abstract proposition.
And while someone could imagine different things in combination, we do not know what is feasible ce what LILC0 would seek to propose.
But whatever LILC0 would propose, it would have to meet our present finding.
That unless we consider Contentions 1, 2, and 3 on the irerits, we do not presently have reasonaole assurance that the TDI diesel generators can reliably be depended upon to start and generate electricity.
Tr. 21,616-17. See also Tr. 21,631-33 (Brenner).
Thus neither the Staff nor Board had taken the unequivocal position prior to March 16th that no low power license could issue before resolution of the TDI contentions.
Indeed the quote cited by the Intervenors in their Request (at p. 8) reveals the true nature of the Board's positior. (as well as the Staff's);
Intervenor's quote Judge Brenner as saying: Based on what we have before us now," no low power license could issue before litigation of the TDI issues.
Clearly neither Judge Brenner nor the Staff had ruled out the possibility of a submittal for low power not relying on the operability of the TDI diesels.
As to the March 16th meeting itself, the Intervenors allege that this meeting involved improper ex parte discussions and complain that neither the State and County nor the other Comissioners were notified of
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the meeting in advance.
Request at 12, 30. As to the fact that neither t
l the other parties (Intervenors negle t to point out that no one from LILC0 was present at the meeting) nor the other Commissioners were I
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present, both the purpose of the meeting, and the role of Chairman must be kept in mind.
Pursuant to the Reorganization Plan No.1 of 1980 (see 45 Fed. Rec. 40561 (June 16, 1980)), the Chairman is the Commission's principal executive officer and is ultimately responsible for overseeing the perfonnance of the Staff.
Surely the mere fact of the principal executive officer of the NRC meeting with his regulatory staf f cannot be taken as evidence of an appearance of impropriety on the part of the Chairman.
Intervenors give the impression that the meeting was called in order to explore ways to provide a low power license for Shoreham.
This is simply not the case.
The meeting was arranged to provide assistance to Chairman Palladino in his preparation for hearings before Congressman Bevill, Chairman of the House Appropriations Committee.
This Committee has been very interested in perceived " licensing delays;" the meeting was designed to provide Chairman Palladino with information on a number of near-term operating license proceedings including, but certainly. at limited to, Shoreham.
Dircks and Cunningham Affidavit, 11 2, 3.
This is not to say that the Chairman is immune from the ejc parte prohibitions of 10 C.F.R. 9 2.780(a).
That Section prohibits an ad-judicatory official, including a Commissioner, from entertaining, and a party from submitting to such an adjudicatory official, "any evidence, explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC."
(Emphasis supplied).
Intervenors charge that two substantive matters for Shoreham were discussed at the March 16th meeting:
scheduling and the need for an -onsite emergency power source.
)
., Request at 4.
Scheduling was certainly discussed during the meeting, but scheduling is a p.mcedural matter, nut a substantive one.
See, eg.,
Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),
ALAB-751, 18 NRC 1356, 1359 n.17 (1983); Puerto Rico Water Resources Authority (North Coast Plant, Unit 1), ALAB-313, 3 NRC 94, 96 (1976).
The question of the need for an onsite emergscy power source was also discussed, but only in a procedural sense. The discussion addressed the scheduling of consideration of a motion expected to be submitted by LILCO dealing with the question of onsite emergency power and low power operation; the discussion was limited to the time needed to consider such a motion.
No discussion of the merits of such a motion mas involved.
Dircks and Cunningham Affidavit,115, 7.
Thus contrary to Intervenors' allegations, no matters subject to the g parte (or separation of functions) rule were discussed.5_/
Finally, Intervenors point to the events that occurred after the March 16th meeting in order to demonstrate that something untoward took place at the meeting.
Here, Intervenors assert that the Staff dra-matically changed its position, a new licensing board was appointed to hear LILC0's Supplemental Low Power License 4plicatian, and expedited procedures were adopted to hear the Applicatian.
Request at 5-6.
All of the above are presumed to have occurred because of the Chairman's allegedly improper conduct at the March 16th meeting.
5/
Intervenors' suggestion that Chairman Palladino prejudged the
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substantive issue of whether an onsite power system is required at.
l low power seems particularly baseless in light of the position taken by the Chairman and the other Combsioners in CLI-84-8 (issued two months after the March 16th meeting) that either strict compliance with GDC 17 or an appropriate exemption was required before a low power license could be grarted.
4
.g-Again, Intervenors have not presented the full picture in their Request.
As the Staff has noted, no improper conduct took. place at the March 16th. meeting. Moreover, as also noted above, the Staff did not change its position; it had consistently taken tue position that if LILCO applied for a low power license without relying on the TDI diesels, the Staff would respond to the merits of such an application.
See "NRL Staff's Response to Suffolk County's Motion to Admit Supplemental Diesel Generator Contentions," February 14, 1984, at 12, n.7; Conference of Parties, February 22, 1984, Tr. 21,513.
Similarly, Intervenors' allegations about the appointment of a new
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licensing board ring hollow.
The gist of this allegation is that the Brenner Board had closed the possibility of a icw power license before full litigation of the TDI issues and that therefore the Brenner Board had to be replaced.
Here, Intervenors point to handwritten notes of Judge Cotter (Chai, nan of the Licensing Board Panel) taken at the March 16th meeting stating " NOTE: Concern re Same Board Chairman."
Request at 5, 19.
The assartion that the licensing board was recon-s'tituted in order to pave the way for issuance of a low pcwer license is both baseless and insulting.
As noted previously (see pp. 5-6, supra), the Brenner Board had not foreclosed the possibility of LILC0 seeking a low power license without relying upon the TDI's.6_/ The 6/
T'o further place the Request in its proper context, it should be pointed out that the Brenner Board issued a mammoth Partial Initial Decision on September 21, 1983; it resolved all issues other than Tb! diesels in favor of authorizing operation.
The record hardly supports the assertion that Judge Brenner was so hostile to the Applicant that he had to be replaced.
}
.. concern associated with Judge Brenner dealt not wi-h his attitude towards low power but rather with his availability; Judge Brenner was then (and is still) involved in another heavily-contested and time-consuming
~ hearing involving the Limerick facility.
As noted, the March 16th meeting included a discussion of scheduling of consideration of a low 1.
power submittal expected from LILCO.
It was clear at that meeting that Judge Brenner's involvement with the Limerick proceeding called hisavailabilityintoquestion.1/ There was simply no discussion at the meeting, either explicit or implicit, of replacing Judge Brenner in' order to appoint a board chairman who would view LILCO's Supplemental Action more favorably.
Dircks and Cunningham Affidavit,16.0/
Finally, we come to the heart of Intervenors' complaint:
the l
expedited scheduling of consideration of LILCO's /gplication.
As noted by the Intervenors (see Request at 12, n.2), the March 16th meeting was convened to discuss potential licensing delays.
Intervenors charge that a delay of nine months was seen for Shoreham and tnat Chairman Palladino was improperly concerned with the questionable financial health of the utility and the possibility that the utility would go bankrupt if it had to wait until the end of the year for a licensing decision.
Request at 10-11, 15, 20, 32. As evidence of Chairman Palladino's concern for i-7/
Intervenors fail to mention that scheduling esnflicts had already_
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caused another licensing board chaired by Judge Laurenson to be constituted to hear the emergency planning issues in Shoreham, i
8/
In this connection, it is also well to note that the Licensing Board appointed to hear the low power license application categorically rejected the County's and State's suggestion that it had been improperly influenced in any way in establishing a schedule for hearing the low power license ap:lication.
Order Denying Intervenors' Motion for Disqualification, June 25, 1984.
LILCO's financial condition, the Intervenors cite the Chairman's i
testimony before Congress that he was concerned with "the possibility that if NRC didn't do something Shoreham would go under because of NRC's inability to make timely licensing decisions, and I felt that, whatever happened to Shoreham, I did not want inaction by NRC to be the cause."
Request at 15, ' citing Chairnan Palladino's Testimony before the House of Representatives Subcommittee on Energy and the Environment, May 21, 1984, at Tr. 20.
As we have seen, the great majority of Intervenors' Request for Recusal is based on factual misstatements and events taken out of context.
Intervenor: are correct, however, that Chairman Palladino was concerned with LILCO's financial health and that he sought to expedite the low power proceeding to the extent consistent with sound decision-making.
There is no evidence that, in doing so, he prejudged either the facts or the law of the case. The sole question for recusal is whether a reasonable person, knowing all the circumstances, would be led to the conclusion that Chairman Palladino's impartiality was called into question because he attempted tc assure that delays in the licensing process did not needlessly result in a public utility's bankruptcy.
We believe that there was no indication at the March 16, 1984 meeting that Chairman Palladino had prejudged the issue of whether a license should issue, or that he would not fairly base his decisions in this proceeding on the evidence of record.
The Intervenors would have us believe that it is nonetheless improper to expedite a ruling (not a license) in order to prevent a possibly needless waste of public resources. This flies in the face of
... connon sense.
All that can be said of Chairman Palladino's actions with regard to the March 16 meeting is that, as the chief executive officer of the Commission, he attempted to carry out Commission policy (see Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981))
P.
and assure that delays attributable to the Commission's licensing process were kept to a minimum.
The responsibilities of his office require no less; such actions can hardly be said to give rise to a " reasonable questioning of his impartiality."
CONCLUSION The ultimate decision as to whether the Chairman should recus'e himself must rest with the Chairman himself. As a matter of law, however, for the reasons presented above, the events which transpired at the March 16th meeting do not require that the Joint Request for Recusal be granted. This meeting is the only aspect of the allegations (other than the factual misstatements pointed out above) as to which the Staff has firsthand knowledge.
Only the Chairman and those with whom he consulted can speak directly to the events that occurred subsequent to the March 16th meeting; from what the County and State have provided, those events do not appear to provide a basis for the Chairman to recuse himself.
In sum, the County and State have not demonstrated that recusal is either required or warranted here.
Nonetheless, the Chairman himself must n
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consider all the factors in the case, including the public perception of NRC proceedings, in reaching his decision.El Respectfully submitted,
. /
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/ Dk J.wf Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of July, 1984 e
1 9/
Cf. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-2750L, 50-3230L, Memorandum to Counsel to the Parties (unreported), May 29, 1980, wherein Commissioner Richard T. Kennedy found no legal ~ ground to recuse himself from the proceeding, but decided not to participate in any matter in the proceeding in the one month remaining in his term as (1) no substantive issues would likely arise during that period and 4
(2) he desired to " avoid a fruitless expenditure of litigative resources" on the collateral issue of his disqualification.
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UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
JOINT AFFIDAVIT OF WILLIM J.
DIRCKS AND GUY H. CUNNINGHAM, III Now come William J. Dircks and Guy H. Cunningham, III, and being duly sworn, depose and say as follows-1.
The purpose of this affidavit is to provide factual infonnation concerning the meeting that took place in the Chairman's conference room on March 16, 1984 and which has been cited by New York State and Suffolk County in support of their motion that the Chairman recuse himself from further participation in the Shoreham proceeding. Attendance at this meeting included, in addition to the Chairman and his immediate staff, representatives of the Office of Congressional Affairs, the General Counsel and his Deputy, the Chainnan of the Licensing Board Panel, the Executive Director for Operations, the Director of Nuclear Reactor Regulation, the Executive Legal Director and the Chief Hearing Counsel from OELD, and i
Robert Purple from NRR.
2.
The purpose of the meeting was to assist the Chairman in preparing for the hearings before Congressman Bevill, Chairman of the House Appropriations Comittee, in which it was anticipated that
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_2 questions would be asked about the status of near-tenn operating licenses.
In the past, this Comittee has been critical of what it perceived as licensing delays, and the Chairman had to be prepared to expect hard questions on this subject.
Parenthetically we observe that there have been suggestions that this meeting vas an ex parte session convened by the Chairman for the purpose of discussing Shoreham.
We emphasize that the purpose was not to discuss Shoreham, but to discuss a number of near-term operating licensing actions and that in our view, no impermissible ex parte discussion took place during the meeting.
3.
Mr. Purple went through a number of prepared summary sheets describing the status of several of the plants deemed to be cf concern and highlighted possibly troublesome issues, i.e. items that could cause delay beyond currently projected licensing dates.
The briefings were addressed to status matters.
4.
When the question of Shoreham came up, the discussion turned to the impact of the diesel generator issue.
5.
The Chainnan raised the question, which we understood to be procedural, whether the diesel generator issue had to be resolved prior to low-power operation.
He was informed that the applicant could, but had not yet done so, request low-power authorization pursuant to 10 C.F.R. 5 50.57(c),.and that the applicant would at least have an opportunity to try to make a showing that some resolution short of that which would be required for full-power operation, would justify Iv,,-power operation.
The Chairman then questioned whether such an ap-plication would have to be considered by a hearing board to which he was infonned the answer was yes.
He then inquired how long such a proceeding
., would take, whether it would be as long as c typical hearing? The General Counsel infonned him that in the past the Cearnission has :equested expedited hearings on narrow-issue proceedings.
In fact, the Deputy General Cpunsel cited the example of a hearing that was held and completed in one day.
The Chainnan then asked questions as to whether an expedited hearing '
could be held on a request from LILC0 for a low-power application (which the Staff had infonned him was known to be forthcoming) and the disc' sion turned to a hypothetical reasonably expedited schedule.
Most of the discussion was between the Chairman and the Office of the General Counsel, with occasional input from other participants.
At the conclusion of the discussion, there was consensus that it would be possible to conduct an expedited proceeding in something on the order of six to eight weeks.
The Chairman requested the Office of the General Counsel to prepare a more detailed analysis. of this subject.
6.
The Executive Legal Director pointed out to the Chairman that if consideration were given to such an expedited proceeding, it should be kept in mind that the current Shoreham Licensing Board Chairman was also Chairman of another active case.
No suggestion was made regarding what effect should be given to consideration of this factor.
Specifically, the creation of a new board was not discussed, nor was the removal ef Judge Brenner for tactical (or any other) reasons discussed.
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7.
In our judgment the discussion was entirely procedural and hypothetical, and dealt with the matter of the possible resolution of an issue in a time frame consistent with operation of the plant at or
.a r the date requested by the applicant if the outcome of the proceeding were to favor such a result.
At no time during the meeting was there
~. _. -.
.s any discussion of any substantive matter at issue in the Shoreham '(or any other) proceeding.
No one in the room expressed any prejudgment, nor evinced any indication of having a prejudgment, of what the actual outcome would be. The focus was simply on how quickly the issue could be decided.
/M William i M ircks Subscribed and sworn to before me this 34 day of 1984 Ocfa%rA Notary Public My Comission expires: 7[//f5
/
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Guy H. Cunningham, III Subscribed and sworn to before me this 3 d day of 1984 k
- Notary Public My Commission expires:
7[//M I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-4
)
(Low Power)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SUFFOLX COUNTY AND STATE OF NEW YORK REQUEST FOR RECUSAL OF CHAIRMAN PALLADIN0" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear-Regulatory Comission's internal mail system, this 5th day of July,1984.
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 County Road Washington, D. C.
20555 Mineola, New York 11501 Judge Glenn 0. Bright
- Honorable Peter Cohalan Atomic Safety and Licensing Board Suffolk County Executive U.S. Nuclear Regulatory Comission County Executive /
Washington, D.C.
20555 Legislative Building Veteran's Memorial Highway Judge Elizabeth B. Johnson Hauppauge, New York 11788 Oak Ridge National Laboratory P. O. Box X, Building 3500 Fabian Palomino, Esq.
Oak Ridge, Tennessee 37830 Special Counsel to the Governor Eleanor L. Frucci, Esq.*
Executive Chamber, Room 229 Atomic Safety and Licensing Board State Capitol U. S. Nuclear Regulatory Commission Albany, New York 12224 Washington, D. C.
20555 Alan R. Dynner, Esq.
Docketing and Service section*
Herbert H. Brown, Esq.
Office of the Secretary Lawrence Coe Lanpher, Esq.
U. S. Nuclear Regulatory Commission Kirkpatrick, Leckhart, Hill, Washington, D. C.
20555 Christopher and Phillips 1900 M Street, N. W.
8th Floor 1
Washington, D. C.
20036 i
, ___.-- _ _-.,_..._-___ _-.,.___ _ _ -. -. - _. ~. _ _. _ _ - -... _ _ _
o W. Taylor Reveley, III, Esq.
James DougbErty, Esq.
Anthony F. Earley, Esq.
3045 Porter Street, N. W.
Robert M. Rolfe, Esq.
Washington, D. C.
20008 Hunton and Williams 707 East Main Street Mr. Brian PbCaffrey P.O. Box 1535 Long Island Lighting Company Richmond, Virginia-23212 Shoreham Nu: lear Power Station P.O. Box 61E Mrs Martin Suubert North Country Road c/o Congressman William Carney Wading River, New York 11792 1113 Longworth House Office Building Washington, D. C.
20515 Jay Dunkleberger, Esq.
New York Stzte Energy Off.
Martin Bradley Ashare, Esq.
Agency Buil:ing 2 Suffolk County Attorney Empire Stats Plaza H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11788 Atomic Safear and Licensing Board Pans 1*
Atomic Safety and Licensing U. S. Nucleir Regulatory Commission Appeal Board Panel
- Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Stephen B. Latham, Esq.
Twemey, Latham & Shea 33 West Second Street P.O. Box 398 Riverhead, New York 11901
'?
./$?;bl jN
, i s
lW Robert G. Perlis Counsel for NRC Staff l
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