ML20093K849
| ML20093K849 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Shoreham |
| Issue date: | 05/10/1984 |
| From: | Markey E HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| To: | Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML20093C457 | List: |
| References | |
| NUDOCS 8407310213 | |
| Download: ML20093K849 (5) | |
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.The Honorahle Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N7W.
Washington, D.C..
20555
Dear Mr. Chafrman:
In my March 28,1984, April 12, 1984 and April 24, 1984 letters, I have expressed concern about the appearance of-i=proprfery created by your administrative involvement in the Shoreham licensing proceeding.
In response to my suggestion that you consider recusing
'yourself f om voting on' the low power or full power license for Shoreham, you have responded that you have not prejudged the merits of the proceeding in any respect.
- However, informatiot obtained in the course of the Subco==ittee's investigation--particulatly your April 4, 1984 memorandum to the other Commissioners--strengthens the appearance that your actions have influenced the course of the proceeding.
Therefore,1 believe you should explain in detail why. you should not recuse yourself froc any further decision-caking role in the Shoreham proceeding.
On March 16, 1984, you met with T. Paul Cotter, Chief l
Administrative Judge of the Atomic Safety and Licensing Board
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(AS13) panel, other Commission offices and the Nuclear Regulatory Commission (NRC) staff.
According to your April 4, 1984 memorandu: "some preliminary ideas regarding expediting the.Shoreham hearing were discussed" at this meeting.
I believe that it was inappropriate for the Chairman of the NRC to have discussed expediting the proceeding without the other l
Com=issioners present.
The matter is further complicated because the NRC staff, a party to the proceeding, was present l
and :he views of all other parties were not sought.
Your March 20, 1984 memorandum to the other Co=:issioners l
regarding perceived " licensing delays" recommended that the l
Cc==ission consider proposals to er.pedite the Shoreha=
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The B horable Nunzio J. PSiladtoo May 10,.1984 Page Two w
proceeding.
Unlike other memoranda on this subj een, you did not mark this memorandum fo "T
- 4 ed Distribution" and it was widely circulated.
Hence, it is reasonable to conclude that you intended for the. licensing judges and the NRC staff to become aware of your view tha: the Shoreham proceeding should be expedited.
In this context, the NRC staff's rudden reversal;of its previously held p'protion en a key issueLILC0" position could osi S M
' relevantTtio the proceeding to a' reasonably be seen by an objective observer as an effort to comply with yours expressed wishes.
As I mentioned in a previous letter, I believe you have mischaracterfzed the delay at Shoreham as a " licensing delay" since the current delay is not attributahle to the NRC's licensing process.
The delay is not a licensing delay ner se, but rather, is attributable to the lack of a qualified source of on-site power at Shoreham.
To be sure, Willia: J. Dircks, J'.
Executive' Director for Operations, ha.s informed my staff that the nine month delay cited by you as a reason ~to expedite the Shoreham proceeding is based on the licensee's projection.
An April 24, 1984 internal memorandum fro: T.A. Rehm, Assistant for Oper.ations, to the Commission, reveals that the NRC staff does not agree with LILCO's estimated' construction completion date.
Hence, it appears that there are no tecognizably valid reasons behind your efforts to expedite the Shoreha=
proceeding.
Judge Cotter. informed my staff that your legal assistant called him on Mardh 22, 1984, and read him a " working paper" drafted by your office relating to Shoreham.
The " working paper'!, a preliminary document, was attached to your April 4, 1984 memorandum and states :
The EDO has recently provided the Com=ission an assessment for Shoreham that proj ects a nine-month licensing delay due to, I a= told, the Shoreham
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Licensing Board's requirecent to litigate the diesel-generator question before allowing operation at low power.
The Commission would like this matter litigated on an expedited basis with a target date of receiving the Board's decision on this catter by May 9,1984, i
Would you please look in:o what steps are recuired to meet such a date and infort the Co::ission on i
these steps as soon as possible, but not later than March 30, 1984.
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The HNoEmble Nunzio J. Palladino May 10, 1984 Page Three i
For planning purposes, you could assume the following steps:
-- A two week staff review of the proposal by LILC0;
-- A one week discovery period;
-- A two week period for. filing testimony and
. holding a hearing;
" A two week period to issue the Board's decision.
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Final Commission guidance on the expedited hearing on this matter would be based on your submittal and follow-up discussions.
If you have any questions, please let me know.
According to Judge Cotter this working paper was sent to him by your staff and he expressed his comments by writing a draft order which he sent to your office on March 23, 1984.
You supplied it to the other Commissioners as an attachment to your April 4, 1984 memorandum in which you indicate you forwarded it to 'the Office of General Counsel (OGC) 'on March 27, 1984.
Judge Cotter's draf t order, written in response to your interest in this case, if approved by the Commission, would have directed him to appoint a new licensing board to convene an expedited heating on LILCO's motion.
The introduction.co
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,the draft order states:
O'n March 20, 1984, LILCO filed with the Licensing
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Board a " Supplemental Motion for Low power Operating License."
LILCO has requested the Board either to refer the motion immediately to the Commission for decision or to decide the motion on an e.xpedited basis and to certify its decision to the Commission pursuant to 10 C.F.R. f 2.730(f) (1983).
As discussed below, the Com=ission has reviewed LILCO's motion and has concluded that referral at this time would be inappropriate.
We agree, however, that a decisien on certain issues raised by the Applicant should be expedited to the extent possible consistent with the development of a sound record.
i In the exercise of the Commission's inherent authority over the conduct of our adjudicatory I
proceedings, we hereby grant that portion of LILCO's l
motion that requests an expedited proceeding.
To that end, we direct the Chief Ad=inistrative Judge of the Atomic Safety and Licensing Board Panel, in consideration of the existing schedule and caseload I
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,y The Bonorable Nunzio J. Palladino May 10, 1984 Page Tour of the Panel's members, to appoint an Atomic Safety and Licensing Board to hear and decide LILCO's supplemental motion in accordance with the procedures and schedule outlined below.
Apparently, both you and Judge Cotter had decided that LILCO's request 'for an expedited hearing should be granted prior to
. hearing from and resolving the views of all parties.
I believe that it would have been improper for you or Judge Cotter to have reached a decision about a matter of both procedural and sdbstantive importance in a formal adjudication without consulting with all parties.
Judge Co'eter's draft order raises additional questions of propriety.
The draft order, written by him f or possible Cor=ission use, would have directed him to expedite the hearings and' ap' point a new licensing board.
Similarly, the
" working' paper ouoted to him on March 22,1984 could reasonably have Been ' interpreted by him as a directive to expedite the hearings at the Co==ission's request, although in reality you were acting unilaterally at that time.
On March 30, 1984, Judge Cotter appointed a new licensing board headed by Marsha'll E. Miller (the Miller Board).
In your April 23, 1984 response to me you implied that Judge Cotter had not taken this action as a result of your interest in this case.
You wrote:
As for your comments.regarding the appointment of a sacarate Shor:aham licensing board, Judge Cotter,
. Chairman of the NRC Atomic Safery and Licensing 3 card Panel, informed my office, before making the appointment, that the decision was his own and that its basis was the cuestionable availability of the pre-existing boards personnel.
What you neglected to mention was that your office and Judge Cotter had,apparently planned to expedite the Shoreham proceeding prior to learning of a scheduling conflict with the pre' existing board.
If, indeed, the decision was "his own", I murt conclude that the decision in question was not to expedite the' hearing but rather a decision as to what erocess would be used to set the hearing on a f ast track.
Your explanation of the need to appoint a new board, because of scheduling problems with the old beard, is difficult to understand when Judge Cotter's March 23, 1984 draft order had nade this suggestion prior to hearing from Judge Lawrence Brenner (the previous board's Chair =an) on March 27, 1984.
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..Q The Honorable Nunzio J. Pa.lladino May 10,1984 Page Five i
Your stacament to the Subcommittee, that Judge Co er's decision to appoint a new board to consider LILCO's Supplemental Motion on an expedited basis was "his ove",
appears to have been misleading.
It is clear fro = the documents appended to your April 4,1954 memorandu: that your office had co==unicated your desire to expedite the hearings
, s' prior to when Judge Co::er informed vour office thatdecision was "his own" and prior the
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.on March 27, 1984, I am also ecncerned by the fact : bat the expedi:ed hearing schedule set forth in :he draf: order sent to you by Judge Cotter and the e.chedule proposed by your staff in the
" working paper" appear to be similar beyond coincidence to the actual schedule i= posed by the Miller Board on April 6,1984.
These circumstances also lead me to cuestion whe:her the substancesof either document or your rieus on this mat:er vere communicated to the Miller Board.
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Vnile the ::anscripts of closed Commission mee:ings provided to the Com=ittee in an Execu:ive Session las: veek are relevant to :he issues described in this let:cr, they are not the basis of this letter, nor were they relied upon in the preparation of this letter.
Any correspondence or co==unication addressing those matters vill be prepared separately, iden:ifying the source or sources of information relied upon.
The.unfor:unate but inevitable conclusion that cust be drawn..from this ch'ronology of events !s that you have no:
, maintained the appearance of ar. impar:ial adjudicator.
Because even the appearance of impropriety is unacceptable,1 believe that you must exple.in fully why you should not be i
recused from any future decision-=aki.sg role in this i proceeding.
q, S ince:ely,
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d Edward J. Markey f Chair:an Subco::i :ea on Ne sight and Inves:igations EJM/ tni
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