ML20213E812
| ML20213E812 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/07/1986 |
| From: | Brown H KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Cotter B Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1449 OL-5, NUDOCS 8611130296 | |
| Download: ML20213E812 (4) | |
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i4m isseo0 BRAIM November 7, 1986 BY TELECOPIER e
Administrative Judge B. Paul Cotter, Jr., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland Re:
NRC Docket No. 50-322-OL-5 (EP Exercise)
Dear Judge Cotter:
In furtherance of the Government's concerns with respect to reconstitution of the post-exercise litigation Board, this is in response to the letter to you dated October 30, 1986, from LILCO's counsel.
1.
In issuing your October 7 Notice that removed Judges Margulies and Kline from the Board, you acted in the capacity of either Judge or administrator.
If as Judge, you made factual findings without having requested the views of the affected parties; particularly, the Governments.
If as administrator, you abused your discretion by providing no basis for an action disruptive of the ongoing litigation and at odds with the Commission's directive in CLI-86-11.
In either case, the appropriate remedy, as stated in the Governments' earlier letters and motion, is for you to rescind the Notice, set forth any facts which you have reason to believe create " schedule conflicts" for the Margulies Board, and request the views of the affected parties before determining whether and, if so, how to act.
2.
Your assignment of the Margulies Board to the post-exercise litigation was at the specific directive of the Commission in CLI-86-11.
That directive remains in effect.
_Moreover, the rationale on which the Commission based its directive was LILCO's request that the Margulies Board preside in order to take advantage of that Board's " knowledge" of the
" mammoth record."
No party objected to LILCO's request.
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7-KIRKPATRICK & LOCKHART Administrative Judge B.
Paul Cotter, Jr.,
Chairman November 7, 1986 Page 2 proposal now to reconstitute the Margulies Board properly requires the action of the Commission itself, preceded by notice to the parties and an opportunity for the parties to submit their views.
3.
Entirely aside from the procedures you used, the Governments consider your removal of Judges Margulies and Kline unjustifiable on the merits.
Any suggestion that the post-exercise litigation is new or in an early stage is grossly misleading if used to rationalize the removal of Judges Margulies and Kline.
While the proceeding was instituted by the Commission last June, the substance of each and every element of the proceeding is fundamentally related to issues decided by the Margulies Board following hearings that began in 1983.
The Margulies Board presided over litigation of the same emergency plan that is now the subject of the post-exercise litigation.
To suggest that the experience and familiarity of the Margulies Board with the previous proceeding is irrelevant to the post-exercise litigation is a distortion.
Indeed, in asking the Commission to appoint the Margulies Board to preside, LILCO explicitly pointed to the Margulies Board's " knowledge" of the
" mammoth record" in the proceeding.
4.
LILCO's letter implies -- with no support or explanation
-- that LILCO would have suffered prejudice if the Margulies Board had not been reconstituted.
First, this is mere self-serving speculation by LILCO.
Second, it is not LILCO, but the Governments, that are prejudiced by your reconstitution of the Board.
Indeed, it is clear now that one result of your removal of Judges Margulies and Kline is to prevent those Judges from ruling on the objections that were filed to their rulings on contentions.
There is no legitimate reason for the same Judges who reviewed more than 650 pages of contention-related pleadings to be precluded from responding to the objections to their own rulings.
Surely, no one is in a better position to know the issues, bases, and intent of the rulings than the Judges who ruled.
Moreover, no conceivable " schedule conflict" could prevent these Judges from being able to so rule:
ruling on the objections does not require Judges Margulies and Kline to be in two places at the same time or to comprehend new and complex materials of large proportions.
The new Judges, on the other hand, have no such background, no " knowledge" of the " mammoth record."
They must begin from the start, licensed by your action to second-guess the intent of the Margulies Board under the highly unusual circumstances of the October 7 Notice.
y i
KIRKPATRICK & LOCKHART Administrative Judge B.
Paul Cotter, Jr., Chairman November 7, 1986 Page 3 5.
Your October 7 action remains unexplained.
This
~
unfortunately fuels suspicion that the Governments are revisiting the debacle that ensued after you abruptly appointed the Miller Board in 1984.
As tha Governments have explained in their earlier letters to you, there are parallels between your action now and in 1984.
Indeed, your October 31 letter to Congressman Markey, received via the service list, expresses your refusal even to disclose straightforward facts.
Your citation there of the fourth Morgan case exacerbates the matter, because Morgan did not even involve oversight by a Congressional Committee.
- Surely, a court decision dealing with a judge's deliberative process cannot be cited as relevant to a Congressional Committee's oversight of what you describe as being " simply a routine administrative action."
6.
LILCO's letter states that the post-exercise litigation
. shows prospects of taking the full time of a quorum of that Board.
." (Emphasis added.)
These carefully chosen words imply a radical notion.
Indeed, they suggest that LILCO views the reconstitution of the Margulies Board as not only removing Judges Margulies and Kline, but also as setting the stage for the part-time employment of Judge Shon on the two Shoreham Boards.
The Governments have no idea what may be planned for the Shoreham proceeding by NRC tacticians behind the scenes.
However, the Governments would object to any procedure that deviates from the norm, and a licensing board established for the purpose of providing only cosmetic conformance with the standard practice of having three full-time Judges surely is such a deviation.
7.
LILCO embellishes its letter with the single-minded plea that Shoreham become a " specially" expedited proceeding.
Such a cry for favoritism is what brought about the 1984 debacle that resulted in a court order restraining the NRC's last " specially" expedited proceeding when the Miller Board, at LILCO's behest, denied the Governments' procedural rights.
Shoreham is, first and' foremost, a serious contested proceeding in which the Governments' rights are no less equal than LILCO's.
- Clearly, everyone knows that LILCO wants a license to operate Shoreham, preferably fast and without concern for the Governments' or, indeed, the public's interests.
The Governments, on the other hand, want the NRC to follow lawful standards and procedures; if so, the license will be denied.
The Governments are here entitled to fair play, and they expect to be afforded fair play without repeatedly having to seek the intervention of the courts.
Accordingly, the Governments reiterate their request that you rescind the Notice reconstituting the Margulies Board.
If there l
W 1
KIRKPATRICK & LOCKHART s
Administrative Judge B. Paul Cotter, Jr., Chairman November 7, 1986 Page 4 is a " schedule conflict" or other problem you perceive, the Governments request that you proceed by so notifying the parties and seeking their views as to how best to deal with the problem.
Sincerely,
.,A B
Herbert H. Brown cc:
Service List l
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