ML20206M878

Govts Motion for Reversal of Commission Order of 881109.* Appeal Board Should Be Permitted to Complete Review of Govts Pending Appeal of LBP-88-24.Certificate of Svc Encl

ML20206M878
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/23/1988
From:	Latham S, Chuck Norton, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	NRC COMMISSION (OCM)
References
CON-#488-7558 ALAB-902, LBP-88-24, OL-3, OL-5, NUDOCS 8812020046
Download: ML20206M878 (15)

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'83 N7/ 23 P3 :07 November 23, ligg l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f Before the Commission i

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL .3 / .5 l

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(Shoreham Fuclear Power Station, ) ',

Unit 1) )

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GOVERNMENTS' MOTION FOR REVERSAL OF COMMISSION ORUER OF NOVEMBER 9, 1988  ;

On November 9, 1988, the Commission issued an Order which "directs that the appeals of Suffolk County, the State of New York, and the town (sic) of Southampton ("Governments") from the l Atomic Safety and Licensing Board's decision dismissing them from i the proceeding, LBP-88-24, 28 NRC (1988), be certified to the Commission itself for decision." November 9 Order at 1. In this motion, the Governments demonstrate why the Order must be reversed.

I. The November 9 Order Violates i the Governments' Due Process Rlahts (

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In its November 9 Order, the Commission stated as follows: c The Commission will decide, on appeal, whether l Governments' conduct was such as to warrant ,

l their dismissal from the entire proceeding and i

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whether, if dismissal from the entire proceeding is not warranted, what other sanction, if any, is appropriate.

Order at 1-2. With this announcement of the matter it intends to decide, the Commission has identified a new issue, which was not subject to hearing below, and which the Governments did not address-in their brief on appeal of LBP-88-24.

The Governments have a due process right to a hearing on the charge that any of their conduct may warrant dismissing them from the entire Shoreham proceeding. In addition, before any such proceeding could begin, the Commission must specify precisely the conduct which it intends to examine in making its decision. Absent such specification, the Governments cannot meaningfully or adequately respond to the Commission's charges, or identify and present the evidence necessary to such response.

The Commission also ruled that the Governments have no right to respond to the Commission's new issue, but instead must rest on their brief filed with the Appeal Board which did not address that new issue. At the same time, the Commission permitted both LILCO and the NRC Staff to file briefs with the Commission directly addressing the new issue. Order at 2. The Commission did not even provide the Governments with an oppor-tunity to respond to the briefs to be filed by LILCO and the Staff.

A. The Issue Defined by the Commission Was Never Before the OL-3 Licensino Board The only conduct of the Governments which was subject to 2-

T i hearing before the Gleason Board was the production or non-production of emergency plans during discovery in 1982, in 1983, and in 1988. Thus, the Board stated:

The hearing is going to relate to the  !

production of emergency plans and whether they should have been produced earlier and if they '

have not been produced, what the circumstances were for their non-production. -

Tr. 20932 (Gleason).1/ There was no notice that any other conduct was at issue in the hearing conducted in July 1988; no evidence wac presented concerning other conduct; indeed, the Board repeetedly emphasized the very limited scope of the hearing. Egg Tr. 20871, 20892, 20904, 20924, 20935 (Gleason).

Thus, in the hearing conducted by the Gleason Board, neither the Governments nor any other party presented evidence concerning the Governments' conduct in any proceeding other than the OL-3 proceeding, or even concerning any conduct in the OL-3 proceeding except that relating to the production or non-production of emergency plans. Indeed, the Board ordered that post-hearing filings be "based on the record" of the July 1988 hearing. Tr. 22074 (Gleason).

As a result, there is no evidentiary record concerning any Government conduct except the production or non-production of 1/ The Governments' June 9 Notice that the Board Has Precluded Continuation of the CLI-86-13 Remand, which led to the Gleason Board's announcement that it would sanction the Governments by either dismissing the legal authority contentions or ruling on their merits for LILCO, was filed prior to the Gleason Board's decision to have a hearing on matters relating to the production of the Suffolk County Emergency Operations Plan. The filing of the Governments' Notice was never the subject of any evidence or hearing.

emergency plans in 1982, 1983, and 1988 discovery in the OL-3 l proceeding, upon which the Corrsission could rely or base a  :

decision on the issue defined in tne November 9 Order. In the 1 proceeding before the Glaason Board, the Governments had no t notice, or opportunity to submit evidence, concerning any other  !

alleged Government conduct. As the Governments demonstrated in their October 27 Brief to the Appeal Board,2,/ to the extent that {

any such a:tions or motives are cited to support the decision in l LBP-88-24 to diemies the Governments from the OL-3 proceeding l (as well as ilva. pecceedings pending before other Boards), that i I

decis. n is lacking in basis and constitutes reversible error. j October 27 Brief at 22-38.

B. The Gleason Board Had No Jurisdiction or Basis to i Consider Dismissing the Governments from Proceedinos Pendina Before Other Boards I

The Gleason Board had no jurisdiction to consider whether the Governments' conduct in producing emergency plans in the OL-3 proceeding, or even the filing of the June 9 Notice, I warranted their dismissal from separate proceedings pending bc* ore other Boards. Lona Island Lichtino Co._ (Shoreham Nuclear [

Power Station, Unit 1), ALAB-902, 28 NRC (Oct. 7, 1988). f t

Indeed, prior to issuance of LBP-88-24, the Gleason Board gave no notice that it intended to consider such an issue.  :

October 27 Brief at 30-31. When LBP-88-24 was issued, that f i

2/ Governments' Brief in Support of Appeal of September 23, 1988 t concluding Initial Decision, October 27, 1988 ("October 27  !

Brief").

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portion which purported to dismiss the Governments from proceedings pending before other Boards was immediately vacated.

ALAB-902. As a result, in their' October 27 Brief, the Govern-ments did not address whether the conduct at issue before the Gleason Board warranted their dismissal from the entire Shoreham proceeding, except to note that Scard's lack of jurisdiction and basis for ruling on such a question.1/ The Commission's November 9 Order is the first notice that a decisionmaker with the authority to rule on the matter actually intends to consider imposing upon the Govetaments the harsh sanction of dismissal as parties from the entire Shoreham proceeding.

C. The Commission Cannot Ignore the Governments' Due Process Richts The November 9 Order violates the Governments' due process rights to know the charges against them, to a hearing with an opportunity to present evidence to counter those charges, and to respond to the charges and positions of the other parties to the proceeding. Specifically:

1. The Governments do not know what "conduct" the Commission intends to examine in deciding the issue announced in the November 9 Order. The Governments have a due process right to know the specifics of the charges against them, and the 1/ With the exception of three sentences stating the Gleason Board's lack of jurisdiction and basis for dismissing the Governments from any but the OL-3 proceeding (agg October 27 Brief at 23-24), the discussion of the dismissal sanction contained in the Governments' October 27 Brief addresses the lack of basis and impropriety of dismissing the Governments from the OL-3 proceedina.

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l Commission is obligated to provide such specification so the Governments can submit an informed and meaningful response. In particular, in the context of sanctions, due process requires that a party "has the right to know the nature of the charges as to which its interests will be adjudicated." Metropolitan Edison Comoany (Threc Mile Island Nuclear Station, Unit No. 1),

LBP-80-17, 11 NRC 893, 897 (1980).

2. To the extent that the Commission intends to examine any rnnduct other than the production of emergency plans during OL-3 discovery in 1982, 1983 and 1988 as to which evidence was permitted below, the Governments have a due orocess right to a hearing, an opportunity to contest charges relating to such conduct, and an opportunity to present evidence in their defense. Egg Rodeway Express, Inc. v. Pipet, 447 U.S. 752, 767 (1980) (Sanctions "should not be assessed lightly or without fair notice and an opportunity for a hearing on the record");

Wylie v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 542 (9th Cir. 1983) (a hearing "best determines the appropriate sanctions while protecting a party'i due process rights"). Indeed, the law requires that the tr!bunal imposing a sanction must specifically identify tne acts which justify the sanction.

Patton v. Aeroiet Ordnance Company, 765 F.2d 604, 608 (6th Cir.

1985) (basis for dismissal as sanction must be fully articu-lated). A hearing is therefore required if the Commission intends to consider the new sanctions issue it has defined.d/

i/ The F.<C has reccgni ;cd the due process requirements of notice (footnote continued) m

3. Since the Commission is considering whether the Governments' condact warrants dismissal from proceedings other than the OL-3 proceeding, a ma t u. . which was never noticed, was never the subject of hearing or evidence, and was not even within the jurisdiction of the Gleason Board, the Governments have a due process right to a hearing on that issue and an opportunity to present evidence concerning their conduct and other facts relating to such proceeding 2. Rodeway Express, 447 U.S. at 767 ; 'Bylie v. 9.3, Rovnolds, 709 F.2d at 592. In fact, the law requires tilat befwtc a tribunal may order dismissal, it must articulate why less severe sanctions are inadequate.

Halaco Encineerina Co. v. Castle, 843 F.2d 376, 381 (9th Cir.

1988) (prior to dismissal, a court must consider less severe sanctions, including an explanation of possible and meaningful alternatives). Clearly, a hearing is required if the Commission is to adequately consider alternatives to the ultimate sanction of dismissal.

4. Because the Commission has defined a new issue for decision which the Governments have not addressed in their brief on appeal of LBP-88-24, following notice of the conduct at issue and an opportunity to present evidence, the Governments are entitled (a) to submit a brief to the Commission which addresses the issue defined in the November 9 Order and (b) to respond to (footnote continued from previous page) and a hearing in 10 CFR 5 2.713, the regulation concerning attorney discipline. In particular, this provision provides for notice and an evidentiary hearing. 10 CFR S 2.713; Iqledo_Edlian Catqany (Davis-Besse Nuclear Powet Station, Units 1, 2 and 3),

ALA.-378, 5 NRC 577, 560 (1977).

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briefs submitted on that subject by LILCO and the NRC Staff.

Egg cases cited above.

II. The Commission Abused its Discretion in Precluding the Appeal Board from Ruling on the Governments' Appeal of LBP-88-24 By its November 9 Order, the Commission took the following set of highly unustal actions:

1. In the middle of the briefing period, and after the Appeal Board had already decided a pr '8cn of the Governments' pending appeal, the NRC prohibited tOO appeal Board from deciding another portion of that appeal;1/

2. In announcing the certification of a portion of the pending appeal, the NRC re-defined the issue "on appeal" to be one never addressed in the proceeding below;

3. The NRC announced its decision to consider a new issue after the Appeal Board had decided in the Governments' favor one issue on appeal (ALAB-902) and after the Governments had filed their brief on the remainder of the original appeal, but none-theless made no provision for the Governments to file a new brief to address the newly defined issue, while permitting the other parties to do so.

1/ The Appeal Board bifurcated the Governments' appeal on September 27, 1988, and on October 7, 1988, in ALAB-902, decided the issue of whetner the Gleason Board had jurisdiction to dismiss the Governments from proceedings before other Boards; the briefing on the remainder of the Governments' appeal proceeded, with the Governments' second brief being filed on October 27. LILCO's brief was due December 1 and the Staff's on December 12.

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4. The NRC offered no explanation for any of these actions.

While the Commission and the Appeal Board have the discretion to direct the certification of matters on appeal, that discretion is traditionally exercised sparingly, and only when there is good reason to bypass the important function served by the Appeal Board. This was most recently made clear in this very case in December 1987 when the Appeal Board denied a LILCO certification request related to the 1986 Shoreham exercise. Thus, the Appeal Board stated that neither the novelty of the Licensing Board's orders nor the urgency asserted by LILCO justified the "extraordinary step" of certifying the issue to the Commission without prior Appeal Board decision.

Lona Island Lichtine Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum and Order (unpublished) (Dec. 23, 1986), at 3 n.6.

The Governments and the public they represent are entitled to an explanation of the Commission's action. Even a grant of broad discretion or supervisory authority does not justify such an arbitrary set of actions taken with absolutely no explanation or stated basis.

Parthermore, the issue defined by the Commission for certi-fication to itself does not present questions of regulatory interpretation that only the Commission can decide, or any other matter unique to Commission decisionmaking. Rather, it presents primarily fact issues concerning the Governments' conduct and

s events occurrir g over the many years of the Shoreham proceeding, and legal issues concerning the arbitrariness and lack of basis for the Board's decision to impose sanctions. There is no reason that the Appeal Board could not address such issues in the first instance, nor has the Commission suggested one. These are the types of issues regularly addressed by the Appeal Boards indeed, the Commission does not normally undertake detailed reviews of factual determinations made by subordinate panels.

Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-76-17, 4 NRC 451, 467 (1976). Given the seriousness of the dismissal sanction, this case calls for the most thorough appellate review according to the well-established processes, not an abbreviated, Commission-only process which by-passes the Appeal Board.

III. Conclusion For the foregoing reasons, the November 9 Orde. must be reversed. The Appeal Board should be permitted to complete its review of the Governments' pending appeal of LBP-88-24. Upon issuance of the Appeal Board's decisions, the Commission can, if circumstances warrant, review the Appeal Board's decisions.

If the Commission does not reverse its order, however, in the alternative it musti

1. Inform the Governments vf precisely what conduct by the Governments the ccmmission intends to examine in deciding s

whether the sanction of dismissing thr. Governments from the entire Shorcham proceeding is warrantec,

2. Provide the Governments with a hearing and an opportunity to prese". evidence on the issue defined by the November 9 Order and the required specification of the conduct at issue;

3. Provide the Governments with an opportunity to brief the issue identified in the November 9 Order and to respond to any briefs filed by LIT,CO or the Staff.

4. ?rovide a clear explanation of why in thia ase it has cast aside the normal appellate review processes.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 g.

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' aria J . Letscht D6vid T. Case Bruce H. Nielson Cecilia L. Norton KIRKPATRICK & LOCKHART 1800 M Stceet, N.W.

South Lobby - 9th Floor Washington. D.C. 20036-5891 Attorneys for Suffolk County 11 -

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Sc/twL/k. & & f&D" Fabian G. PaFomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York

$plw, ) b Y&l+w fdLM tephen B. Latham Twomey, Latham & Shea P. O. Box 398 33 West Second Strnet Riverhead, New York 11901 Attorney for the Town of Southampton

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• i I E I' wc November 23. 1988

'88 MF 23 P 3 :07 UNITED STATES OF AMERICA ., y NUCLEAR REGULATORY COMMISSION < act.

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Before the Commission

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL

)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the GOVERNMENTS' MOTION FOR REVERSAL OF COMMISSION ORDER OF NOVEMBER 9, 1988, dated November 23, 1988, have been served on the following this 23rd day of November 1988 by U.S. mail, first class, ualess otherwise indicated.

Lando W. Zech, Jr., Chairman

• Comm. Kenneth C. Rogers

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Comm. Kenneth M. Carr* Comm. James Curtiss*

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Comm. Thomas M. Roberts

• Christine N. Kohl, Chairman

• U.S. Nuclear Regulatory Commission Atordic Safety and Licensing Washington, D.C. 20555 Appeal, Board U.S. Nuclear Regulatory Come.ission John H. Trye, III, Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dr. Howard A. Wilber* Alan S. Rosenthal*

Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman William C. Parler, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washit.gton, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline William R. Cumming, Esq.

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Dr. Oscar H. Paris Washington, D.C. 20472 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Anthony F. Earley, Jr., Esq.

Washington, D.C. 20556 General Counsel Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 g Ms. Elisabeth Talbbi, Clerk W. Taylor Reveley, III, Esq.**

Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mt. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shorehare. Nuclear Power Station 33 West Second Street North Country Road Ri/erhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street Washington, D.C. 20555 Smithtown, New York 11787 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788

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i MHB Technical Associates Dr. Monroe Schneider .

1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq. Fabian G. Palomino, Esq. l Suffolk County Attorney Special Counsel to the Governor .

Bldg. 158 North County Complex Executive Chamber, Rm. 229 r Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 -

David A. Brown.1.ee, Esq. i Kirkpatrick & Lockhart  !

1500 Oliver Building L Edwin J. Reis, Esq.* Pittsburgh, Pennsylvania 15222 U.S. Nucle &r Regulatory Commission ,

Office of General Counsel Washirgton, D.C. 20555 Mr. Jay Dunkleburger Mr. Stuart Diamond "

New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES i Empire State Plaza 229 W. 43rd Street t Albany, New York 12223 New York, New York 10036 e

Joel Blau, Esq. Mr. Philip McIntire  :

Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency [

Suite 1020 26 Federal Plaza Albany, New York 12210 New York, New York 10278 [

l Mr. Frederick J. Shon Adjudicatory File i Atomic Safety and Licensing Board Atomic Safety and Licensing Board i U.S. Nuclear Regulatory Commission Panel Docket -

i Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 eswc./ CW J w > '% ~

, Lawrence Coe Lanpher /

i(IRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891

• By Hand

• • By Telecopy