ML20214S925
| ML20214S925 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/03/1986 |
| From: | Brown H, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1775 OL-5, NUDOCS 8612080422 | |
| Download: ML20214S925 (11) | |
Text
{{#Wiki_filter:t(776' DOLKETLE December 3, 1986 Ui%C '86 DEC -5 R2 :38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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- S'iti 00Cd Before the Chief Administrative Judge, Atomic Safety and Licensina Board Panel B R A Ni>
) In the Matter of ) ) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 ) (EP Exercise) (Shoreham Nuclear Power Station, ) Unit 1) ) ) MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR RECONSIDERATION OF MEMORANDUM AND ORDER DENYING MOTION TO RESCIND RECONSTITUTION OF LICENSING BOARD By Memorandum and Order issued November 12, 1986, the Chief Administrative Judge denied the Motion of Suffolk County, the State of New York, and the Town of Southampton (" Governments") for rescission of the Chief Administrative Judge's October 7 Notice and October 17 Clarification thereto which reconstituted the post-exercise litigation board by removing and replacing Judges Margulies and Kline. In essence, the Chief Administrative Judge ruled that it was " solely a matter of agency discretion" to remove and replace Judges Margulies and Kline, and that "[ajbsent some evidence of an improper exercise of that discretion, the ~~ 8612030422 861203 PDR ADDCK 05000322 G PDR 1)So3
s decision is simply not open to question." Memorandun and Order,
- p. 6.
Accordingly, claiming a " total absence of any basis," the Chief Administrative Judge denied the Governments' Motion. Contrary to the Chief Administrative Judge's claim, the Governments presented bases for challenging the decision reconstituting the Margulies Board. In particular, the Governments alleged that, despite the discretion held by the Chief Administrative Judge, in this instance he abused his discretion by acting arbitrarily and without rational explanation. In support of their Motion, the Governments specified the elements of the Chief Administrative Judge's abuse of discretion. Thus, at p. 7-8, the Governments' Motion stated: The action of the Chief Administrative Judge in abruptly removing Judges Margulies and Kline was arbitrary. The Chief Administrative Judge did not identify any " schedule conflicts" that justify his action; he has not explained why the parties were denied timely knowledge of " schedule conflicts;" he has not explained why the Commission's directive to appoint the Margulies Board should no longer apply, nor indeed where he gets the power to reverse the Commission's directive; he has not explained how Judge Shon can have no " schedule.-
s ? conflicts" while Judge Shon's similarly situated colleagues on the Board are excessively burdened with " schedule conflicts;" he has not explained how it could possibly benefit the public safety by removing Judges Margulies and Kline from litigation of the very contentions which they admitted, and the scope of which they tailored for hearing; he has not explained how it could possibly be efficient to relegate Judges Margulies and Kline to a remand docket where noting has yet happened, while taking them from the docket they have guided since June; he has not addressed whether secret plans are under way at the NRC -- as was the case in 1984 -- to impose from behind the scenes schedules or other measures that suit the result-oriented interests of parties and persons other than the Governments; and he has not responded to the specific written questions and requests of the Governments.
e The Governments submit that unless the Chief Administrative Judge responds adequately to each of the foregoing points, his decision to reconstitute the Margulies Board will remain an abuse of discretion. 1. The Administrative Procedure Act (APA), NRC regulations, and NRC caselaw require decisionmakers to confront the arguments of the parties, to provide factual bases for their decisions, and to explain the reasons why arguments are accepted or rejected. See Public Service Co. of New Hamoshire (Seabrook Station), 6 NRC 33, 40-42 (1977). Here, the Chief Administrative Judge has failed to confront the arguments of the Governments or to explain his action so that it does not appear unfounded and arbitrary. Instead, the Chief Administrative Judge has issued a Memorandum and Order that, in conclusory fashion and language, sweeps aside the Government's objections. This is not in keeping with his obligations as a decisionmaker. 2. In his October 7 Notice and October 17 Clarification thereto, the Chief Administrative Judge stated that " schedule conflicts" of Judges Margulies and Kline justified replacing these Judges. However, neither in the Notice, the Clarification, nor the November 12 Memorandum and Order does the Chief Administrative Judge identify these " schedule conflicts," explain why they required removal of Judges Margulies and Kline from the litigation these Judges had commenced, or justify barring them from ruling on the Objections to their own Rulings on.
r Contentions. Moreover, in the Memorandum and Order, the Chief Administrative Judge retreats from his earlier characterization of Judges Margulies and Kline having " schedule conflicts." Instead, he now writes generally of "ootential conflicts." Memorandum and Order, p. 5. However, again he does not identify the conflicts or even discuss the facts which support the alleged " potentiality." 3. Assuming, arouendo, that undefined " potential conflicts" exist in the Chief Administrative Judge's view, it defies rationality for such future problems to prevent Judges Margulies and Kline from n2w ruling on the Objections to their own Rulings on Contentions. Indeed, many of the Objections which have been filed raise issues as to what was the Margulies Board's " intent." Surely, no Judges are better suited to know this intent than those whose intent is at issue. The Chief Administrative Judge has not even addressed this matter, let alone provided a rational basis for denying the Margulies Board the opportunity to rule on the Objections. This clearly is arbitrary and an abuse of his discretion. 4. In fact, there was no basis on which the Chief Administrative Judge could have found " schedule conflicts,".or even " potential conflicts," of Judges Margulies and Kline.- The only " schedule" in existence was that for the post-exercise litigation. There was no other " schedule" to conflict with this. While the Chief Administrative Judge at p. 5 of the Memorandum._
and Order writes of " good administrative practice" and the early anticipation of " potential conflicts," the record reveals no such conflicting schedules or potentially conflicting schedules to support his action in preventing Judges Margulies and Kline from ruling on the pending Objections. 5. Finally, Judges Margulies and Kline were in fact not unavailable -- because of death, retirement, other departure from the NRC, or incapacity -- to serve on the post-exercise litigation board. Indeed, it is only because the Chief Administrative Judge removed them that they are not now ruling on the Objections to their Rulings on Contentions. The case cited by the Chief Administrative Judge -- i.e., New England Coalition
- v. NRC, 582 F.2d 87 (1st Cir. 1978) -- involves replacement of a judge who became unavailable because he left the NRC to work for another agency.
In upholding the replacement of this judge, the Court relied on Section 554(d) of the APA, which permits such action when a Board member becomes unavailable "to the agency." Here, Judges Margulies and Kline were not unavailable to the NRC. Indeed, they were in fact as available as Judge Shon to rule on the pending Objections. For the foregoing reasons, the Governments move the Chief Administrative Judge: (1) to reconsider the November 12 Memorandum and Order and accordingly to rescind the October 7 Notice and October 17 Clarification reconstituting the Margulies Board; and. -
(2) to direct the Margulies Board to rule on the Objections which have been filed by the parties to the Margulies Board's October 3 Ruling on Contentions; and (3) to convene a conference of counsel to establish whether there is any schedule problem affecting Shoreham litigation and, if so, to determine how to deal with this problem without prejudicing the rights of any party. Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 terbert H.' Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County s y Fabian G. Palomino / Special Councel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M.
- Cuomo, Governor of the State of New York l
l I < l-
N I r r Stephin B. Latham [ Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the I Town of Southampton Dated: December 3, 1986 4
o O COLKEIED December 3, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE ~!i . J" - Before the Chief Administrative Judge, DOCKEi[{-{g,jg*MA Atomic Safety and Licensing Board Panel ~ ) In the Matter of ) ) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 ) (EP Exercise) (Shoreham Nuclear Power Station, ) Unit 1 ) ) ) CERTIFICATE OF SERVICE I hereby certify that copies of MOTION OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON FOR RECONSIDERATION OF MEMORANDUM AND ORDER DENYING MOTION TO RESCIND RECONSTITUTION OF LICENSING BOARD have been served on the following this 1st day of December, 1986 by U.S. mail, first class, except as otherwise noted. John H. Frye, III, Chairman Admin. Judge B. Paul Cotter, Jr.* Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel 4350 East West Highway U.S. Nuclear Regulatory Commission Bethesda, Maryland 20814 4350 East West Highway Bethesda, Maryland 20814 Dr. Oscar H. Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
o Morton B. Margulies, Esq. Dr. Jerry R. Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Lando W. Zech, Jr., Chairman Comm. James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1113 Room 1136 1717 H Street, N.W. 1717 H Street, N.W. Washington, D.C. 20555 Washington, D.C. 20555 Comm. Frederick M. Bernthal Comm. Kenneth M. Carr U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1156 1717 H Street, N.W. 1717 H Street, N.W. Washington, D.C. 20555 Washington, D.C. 205f5 Comm. Thomas M. Roberts William C. Parler, Esq. U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1103 10th Floor 1717 H Street, N.W. 1717 H Street, N.W. Washington, D.C. 20555 Washington, D.C. 20555 Spence W. Perry, Esq. Anthony F. Earley, Jr., Esq. William R. Cumming, Esq. General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W., Room 840 Hicksville, New York 11801 Washington, D.C. 20472 Mr. William Rogers W. Taylor Reveley, III, Esq.** Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq. Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, 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 1717 H Street, N.W. Smithtown, New York 11787 Washington, D.C. 20555
4 s Mary M. Gundrum, Esq. Hon. Peter Cohalan New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 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 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq. Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036 David A. Brownlee, Esq. Bernard M. Bordenick, Esq.* Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission 1500 Oliver Building Washington, D.C. 20555 Pittsburgh, Pennsylvania 15222 Mr. Philip McIntire Federal Emergency Management Agency 26 Federal Plaza New York, New York 10278 Herbert H. Brown, Esq. KIRKPATRICK & LOCKHART 1900 M Street, N.W. ( Suite 800 l Washington, D.C. 20036 Date: December 3, 1986
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