ML20108D875

Newspaper Article Re Facility Emergency Plan.External Memorandum Opinion & Order Encl

ML20108D875
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/22/1984
From:	Wald M NEW YORK TIMES
To:
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ML20108D868	List: ML20108D875
References
FOIA-84-323 PR-840422, NUDOCS 8412130452
Download: ML20108D875 (11)

Text

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ity to take seQt steps %s activating in the eres of Shorthant.. which is 55 emergency sirenz, directing traffic, tu'.les east of Manhattan om the North

! tomtg staHed. cars arid onseing mes. ShomMMn$ arid.

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• Y * ".sagec to be sent on the Emergency The en:npan3 has inagiatinalterna-arcadcart System. tive equipment to p:ovia. emergency l

TE!ESaN 'M &o g M Witnout an emergency plan, Shore- power. But ths.t did not presvam a trans.

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.. ..-- ham cannot seceive a full operaGag 11 mission line faHure freem causing a blackout at thesitelaF1 weekend.

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~hghgrffhef)( % conse freen the N.R.C. Themhe

quirementfor Hannsing.

The develop.accelerated ment hearing;s, of an whethr.e Shoreham a;hould be al.

to deter-emergency plan

.y y '** i The eat of Suffolk County, lowed a low power licenom for testiang.

Is ma,Nttg art OTf where plam a deustd,has refuse enscheduldabeginen Tuesday.On to pa Friday. however, SuffoDt Cfounty nled a pw.rticipate- cand in f-themecreation of such reaana wim me N ame- neSa=r 1

ToSaveShoreham

• shar*nmera of the reactor, which is riow estimated Commissmo asking for a edelay, saying to cost H.2 bGlion. Governor Cuomo the hearings had been spcheouled so

• hasy that the state, which does 4 abmptly that it had not hasti time to pro-~*

. ByMATIMEWL.WALD havethe alauthority toimplement d* pareits case. , .

e ' sommen neue- versta== plan, will not impose one plan oc theJ One staff enemberorthe'iDepam

> - WASHINGTON, Apr021-The Fg. county, casting doubt on the futurs pf- of Energy, in his notes ma an AprH 4 IDeetingwithofficialsfrountheFederal - '

1. eral Departmem W Energy is involved the80lkmegswattreactor.

ll TheEventualResponsibHity,

• j k in totense negotistions aimed at saving t Emergency . hiamaganum Agesicy..

#! The Nuclear %egulatory Commis- noted that a meeting was>due soon be..

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] c.eShoreham land, according p documer,ts obtained sien, the agency that licensecj nuclear A ri antonLongis-  : tween the l heads of those owe agenciu, i

! . 1 Plants and instituted the requirement; and wrote: "Important fior A.ucc ta l

l by's House sebcommittee. for emergency planning after the. know this so the*/ don't stkrow in 11.e

. The dep.rtment, according m 2ese ~ Three., Mile Islans accid 9nt in March towel. April 2711neofcredittdue."

d.icanents, is seeking a way tw 2e 1979, ik the body that w:p eventually Spedal%dEmes

} Federal Government to lend its legal leave to decide whet.her the steps taken

. h.ae credt ,, refierred to is a .

j 6 d:sthonty to the lang Island Lighting at Shorsham are adequr.te to protect t11110oolnained a p, g [g, g g

!' l Company's plan for the company to public safety.The commission has al. ,

' ready decided that emergency plan- l

. ! .e.va,cuate evemaanaccMent. the area around the plant in .Nine e souMile sho,e Puint,2,tauinlg,lo Scdthe N Yg .

' .The Lilco enmT,ency plan recendi %,,y, County ~

Ulco is which hundinC de lsfear a pa; aga =inedd f-a oeer New

' inli York State utilities. That; Moan, calient a h,

falMd an ekaluttion by the FederalGewernment tecauce of technica' prob- } dm Mcesing h constacamannancetrust,"iscomlag lems and goes* ions about the legal ac. d a puce authuy a g

1. ramda udrebecumee Linco v:.n.

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,htan thonty d Lilco einployees a take swps{lcleA'*"'"IIIIII*

emergencythatwould esually e

• Mr., Mar construction Dannes k.ey, that utGities with pour credit r -

atestis awhose whl- subco *t

takenbypuMic.safetyofficials. has been investigating the issue of ings sometimes tnc to herrow anom.'"-[ l l emergency planmag for more than a &G.n,L s to tinancial empants. Con: a. '

u . 1eekingSolutionbyFriday year, sam only diekcal and state gov.

nia Me im ng ww p,fo

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l emnents had the police powers neces. at high rates, so they seelk lastmas' i *yhe'documens indicate that the sary a manage a nuclear emagencY have a haak guarantae 15:e loan, r.r.d

c Energy Department,wtiich favors the plan. "The Federal Government does have the imenst rate setmenorem to

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i operation of Shoreham, is weeking e not beve the legal authority to imple-

• develop some solution by Friday,wtwn unentLilco's plan,"hesaid, the bank's credit uting, met the u%

1 n Lilcofacesamejernancialhurdle.' Mr. Markey said the Department of ty's. In eachmage,the stuisty pays n i: e to the bank. - r

} ,Thedepartmenthas been engagedin Energy and other agencies were look InLDco's case . consortHum of ab ut i*I riterusive co nultations with the Fed- ing for a solution that they cguld an. 18 banks - the aimm refusW w i . as.1EmergeieyManagernent Agency, nounce before Friday to snake opera.

give detaus - was forsnesi to guart . .

t tion of the plant seem knore likely and tee loans totaling $500 anilHon, wl:ich . l i thr White House and LDco since theIinduce htvestors to resurne lendial,Lilcousedtopsyits18permentshareofs i

-I beganingof thismondi,thedocumerits money to Linco. He called th effori Nine Mue Point 2. But sta Janua j, gI show* It is not. clear from th.e docu.1and nosubstance. .

f t "alismoks Lilco defauhed en its partnere. p

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MemoFromthe Secretary agreement with the other mallities, nv. ,

, '* spents which party .initiated the' discus- . .

stopped saaking constrisction pay.

.The Secretary of Energy, Donak ments for Nine Mile. Under the terras g .tius. Access to the documents was pro

• Paul Hodel wrote a memo to his staf of the tru' , that defatdt allows the il gg,

• vk4d by the Department of Energy to in April 1983 favoring resolution of th' haaks to dammad Adl auguayment on i i; the. staff of House Interior Cornmittee's emergency planning daspute at Shora A,prH27 . . . I t Subceenmittee en Oversight and Inves- ham and a sirnilar dispete een b A spokerman forillao, Kenneth J.  !

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! g} gig:.tions. Representative Edward J. progress over the lndian Point reactors Simons, said in a teleptmone interview in Westchetw. He said tM espute Friday that the compan=y would have i

i i(W P3 Mctley h chal Democrat of Massachusetts, d me' subcommittee, should be *resolved because not operat* no commet si Gee N a* on hs aMI,

' whicli has jurisdictian over.the Nuclear 1

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pasbel that  ;

f; ~;gab.Q,{. TheM8287 papers include handwritten suvim *ereas. ' He also cued *&e tors have rec-ntly vehused to land it potem%i thmat to time viabihty of the money becstase of Ge uncertalmy i

. tv notes en interagency meetings, inter

• nuclearpowerind:stry." atmtShorel o  ;

. *j nalineanorandens andlaters beween The effort by the Departsnent of Whether att c5*==8==tef the trust will '

attes. be worked

$am . the discuss the possibility that hgin el Energycomes astheN.R.C eccelerated hearings is about on the reac. m out is nnt clamar. When asked about the prospects, Chase Manhat I

=ther Departrimot of Energy or he tor's remaining tecimical problem: the &c lead bankinthe trust, issued a  ;

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Ernerge4y Marmgespant Asocy - failurt of its daepel genwators, and the sentence statement: "We are work! I

, which is charged with esordinating the usuhing lack of an emergency power enanextensionof the Agiril27date,a

• Federal response to reJiation erne- isomte en the site in case of a simul we are kpeful d gathg R."'!k bak I

gencies j saneous teactor shoulown and blackoutdi eclined to comment fuuthor.

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UNITED-STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FILED MARIO M. CUOMO, Governor of  : APR 25 E84 the State of New York, n d

8 JAMES F. DAVEY, Clerk Plaintiffs, y, Civil Action No. 84-1264 UNITED STATES NUCLEAR  :

REGULATORY COMMISSION, -

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Defendants.g  :

MEMORANDUM OPINION Plaintiffs, the Governor of the State of New York and the county of Suffolk, bring this action to enjoin the .

commencement of hearings before an Atomic Safety and i Licensing Board (Licensing Board) of defendant, the U.S.

- Nuclear Regulatory Commission (NRC or the Commission),

concerning the proposed low power operation of the shoreham ,

Nuclear Power Station. The owner of the Shoreham facility, the Long Island Lighting Company (LILCO), intervened as a ,

defendant. The hearing, scheduled to begin on April 24, 1984, is to evaluate LILCO's proposal to operate Shoreham ,

without an onsite emergency electric power system.

On March 20, 1984, LILCO submitted to the NRC its i proposal to operate the Shoreham plant at low power without

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an onsite , electric' power system. The NRC's Chief Administrative Law Judge created a new Licensing Board on, March 30, 1984, to hear and decide LILCO's request. After oral argument, the Licensing Board established on April 6, l 1984, an expedited procedural schedule for the low power license hearings. The schedule provided for discovery from April 6 to April 16, 1984; issuance of an evaluation of the proposal by NRC staff on April 19, 1984; filing of '

i plaintiffs' testimony on April 20, 1984; and the hearing on i

f April 24, 1984. Further, the Licensing Board mandated that the hearing be concluded by May 5,1984. In response to a

plaintiffs' request for reconsideration of its expedited hearing schedule, the Licensing Board, on April 20, 1984, I' refused to alter or vacate its order. Plaintiffs then appealed to the Commission to overturn the expedi-ted schedule, but 'the Commission, on April 23, 1984, refused to j i -

! alter the scheduling order. On the same day, plaintiffs I

filed this action, and the Court heard argument from all l'  !

parties on plaintiff s' application for temporary relief.

J Plaintif fs maintain that the Licensing Board and the l

l Commission have violated procedural due process by f establishing an expedited schedule under which it is  ;

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! impossible for plaintiffs to prepare their case. \

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specifically, plaintiffs assert that seventeen days is insufficient time in whic'h to complete discovery, retain l

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experts, and prepare expert testimony with respect to a  ;

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proposal that has neither been suggested by a license r

applicant nor . evaluated in a licensing proceeding in the .

history of civilian nuclear power generation. Fur ther ,

I plaintiffs argue that the expedited hearing would not have been scheduled but for improper actions of the Chairman of 4 th's. commission and the financial condition of LILCo.

Defendants assert that the Court does not have jurisdiction to issue tamporary. equitable relief in this case because the agency action is not final and plaintif fs' 9

objections can be reviewed following the decision of the Licensing Board. In the alternative, defendants maintain 4

that if a court has jurisdiction, this action would properly be before the Court of Appeals pursuant to 42 U.S.C. .

l 5 2239(a) (1976). In addition, defendants assert that the 1

schedule does not deprive plaintiffs of due process', and irreparable harm would not result from a denial of the requested relief.

It is well established that " judicial intervention in i

uncompleted administrative proceedings, as distinguished from f

judicial checking by statutorily-established method of 1

s review, must remain very much the exception rather than the rule." Nader v. Volpe, 466 F.2d 261, 268 (D.C. Cir. 1972).

i i

I I !

See Gulf oil Corp, v. U.S. Department of Eneray, 663 F.2d t ,

296, 312 (D.C. Cir. 1981): Association of National 1

l Advertisers, Inc. v. Federal Trade Commission, 617 F.2d 611, 621-22 (D.C. Cir. 1979). The narrow exception to that rule i

3

is that "a party may bypass established avenues for review within the agency only where the issue in question cannot be ,

! raised from a later order of. the agency, . . . or where the agency has very clearly violated an important constitutional or statutory right." Sterlino Drue Inc. v. Federal Trade Commission, 450 F.2d 698, 710 (D.C. Cir. 1971) (citations omitted). See Fitzoerald v. Bamoton, 467 F.2d 755, 768 (D.C.

l Cir.1972);' Amos Treat & Co. v. securities and Exchance j' Commission, 306 F.2d 260, 267 (D.C. Cir.1962) . Contrary to 4

l defendants' principal argument that Federal Trade Commission 4

v. Standard 011 Co. , 449 U.S. 232 (1980), deprives this court l

i of jurisdiction, that case does not preclude a finding of l jnris' diction if a constitutional right has been violated. In -

contrast to the instant case, plaintiff in Standard Oil did i

not allege any constitutional violations but only statutory violations. 449 U.S. at 235. Standard Oil can also be distinguished' from this case on the same grounds that it was distinguished in Gulf Oil, 663 F.2d at 311. As in Gulf 011, plaintif f s herein do not seek an order requiring withdrawal of LILCO's proposal or challenging the necessity of a hearing on the proposal, but they seek judicial assistance'"in getting the proceeding tried f airly." Id.

To come within the purview of Amos Treat, plaintiffs must demonstrate something more than a mere procedural irregularity, subject to review upon the whole record at the conclusion of the proceeding; the asserted infirmity must be 4

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k fundamental. 306 F.2d at 265; Fitzcerald, 467 F.2d at 769.

Although the exact boundaries of due process are fluid and defy a bright-line test, procedural due process at the very least requires that quasi-judicial proceedings provide a fair hearing. Amos Treat, 30.6 F."2d at 263. With respect to

. agency adjudiciations, due process could be said to mandate

" fair play." 3d. at 264.

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The expedited hearing schedule threatans to make plaintif fs' participation in' the administrative proceeding meaningless because #of the lack of time for effective preparation. Plaintiffs have presented serious allegations of constitutional violations and have sufficiently demonstrated that their allegations may support the Court's s

jurisdiction under the Amos Treat exception. It appears that the discovery period permitted by the Board has precluded plaintiffs from preparing for the' hearing on LILCO's unique and technically complex issue. When parties to an action are not permitted to prepare their case, the fundamental f airness of the administrative process is called into question. As did the Court in Amos Treat, the Court in this case finds that ,

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t elnough has been said to demonstrate the basis for our conclusion that an administrative hearing of such importance and /

vast potential consequences must be' attended, not only with every element of fairness but with the very appearance of complete f airness.

Only thus can the tribunal conducting a quasi-adjudicatory proceeding meet the basic requirements of due process.

o I

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e 306 F.2d at 267.

For relief to issue, the Court must determine that plaintiffs have satisfied the four-fold test for injunctive I relief articulated in Virginia Petroleum Jobbers Association

v. Federal ' Power Commission, 259 F.2d 921, 925 (D.C. Cir.

'.95 8 ) . See Washington Metropolitan Area Transit commission

v. Boliday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)

[ hereinafter cited as WMATC). The Court must find either t that plaintiffs demonstrated probable success on the merits or presented a " serious' legal question" and the balance of

.the equities favors granting relief. National Association of -

i Farmworkers Organizations v. Marshal, 628 F.2d '604, 616 (D.C.

i Cir. 1980) ; WMATC, 559 F.2d at 8 43-44. The Court'in WMATC

emphasized that the preventive nature of the requested relief

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permitted the court some discretion in finding that plaintiff would succeed on the merits:

An order maintaining the status quo is i ~

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appropriate when a serious legal question is presented, when little if any harm will befal.1 other interested persons or the public and when denial of the order wouldThere inflictis l irreparable injury on the movant.

substantial equity, and n'eed for judicial protection, whether or not movant has shown a mathematical probability of success.

559 F.2d at 844. In thi.s case, plaintiffs have raised serious questions concerning the prcpriety of the decision to f

expedite the hearing on LILCO's proposal to such an extent ,

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! e that interested parties cannot be fairly heard. The underlying reasoning of the Licensing Board has been sufficiently called into question by plaintiffs to sustain

temporary relief if warranted by the other criteria.

! As previously discussed, meaningful participation in l the administrati've proceeding by plaintiffs has been l precluded by the limited discovery period. From the evidence available at this early stage of the case, it appears that

[ the procedural due process rights of plaintiffs have been compromised by the expgfited schedule. If so, such a denial of due process constitutes irreparable harm. Amos Treat, 306 F.2d at 267; Neublein, Inc. v. Federal Trade Commission, 539 F. Supp. 123, 128 (D. Conn. 1982). Granting relief in this

> case will not harm defendants or any other interested party.

No party to this action alleged that any harm would result from staying the commencement of the hearing pending a hearing on the motion of plaintiffs for preliminary l injunction.

The public interest is furthered by a careful and full i adjudication of LILCO's proposal for a low power -license; no l benefit can result from an unfair hearing on this proposal.

t

• With the potential consequences'of the administrative i

decision being so great, the public will be served if I defendants are permitted to adequately prepare their i

l positions concerning LILCO's proposal. Further, the public t

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interest will benefit if the administrative proceeding is conducted fairly.

Since plaintiffs have raised a substantial legal .

question regarding the propriety of the hearing schedule,

- and have demonstrated irreparable injury, and since the balance of the equities favors preserving the status quo pending a determination on the preliminary injunction, the Court will grant the motion of plaintiffs for a temporary restraining order.

An Order consistent with this Memorandum Opinion will issue.

b 6xJJ & M4ett/

. NORMA TOLLOWA ' OHNSON UNITED STATES TRICT JUDGE

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DATED: April 25, 1984 I

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ,

FILED MARIO M. CUOMO,' Governor of a ggg the State of: New York, -

g G. , - -

JAMES F. DAVEY, Clerk

. Plaintiffs, a

v.  : Civil Action No. 84-1264 UNITED STATES NUCLEAR  :

REGULATORY COMMISSION, g g. , a Defendants.

ORDER

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Upon consideration of the Application of plaintiffs for

- a temporary restraining order, and upon consideration of all matters in support and opposition thereto, including oral argument before the Court, it is this 8 4 day of April, 1984, ORDERED that defendant the United States Nuclear  !

Regulatory Commission and defendants Nunzio J. Palladino, Marshall E. Miller , Glenn O. Davis , and Elizabeth B. Johnson be, and they hereby are, jointly and severally restrained and enjoined from further convening, participating in, proceeding with, or authorizing any hearings before the Atomic Safety and Licensing Board pertaining to the supplemental motion of Long Island Lighting Company for a Low Power Operating ,

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a License in the proceeding styled In the Matter of Iono Island Lichtino Company , Docket No. 50-322-) L-4 (Low Power) , or otherwise for a " period of ten (10) days from the date of this order or pending the hearing on the motion of plaintiff for a preliminary injunction, whichever first occurs.

Entered this off M day of April, 1984, at /4 '84 * *> ,

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HOLLOWJVYf JOHNSON

] NORMA UNITED STATES ITISTRICT JUDGE i

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