ML20215H891
| ML20215H891 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/22/1986 |
| 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-#486-1231 OL-5, NUDOCS 8610240213 | |
| Download: ML20215H891 (13) | |
Text
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t DOCFETED USNRC October N, $8h U UNITED STATES OF AMERICA 6ff:tT rr NUCLEAR REGULATORY COMMISSION CUD EIl T
Before the Chief Administrative Judge, Atomic Safety and Licensino Board Panel
)
In the Matter of-
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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MOTION FOR RESCISSION OF " NOTICE OF RECONSTITUTION OF BOARD" AND SUBSEQUENT " CLARIFICATION" AND MOTION FOR EXPEDITED CONSIDERATION By " Notice of Reconstitution of Board," dated October 7, 1986, and " Clarification" thereto, dated October 17, 1986, the Chief Administrative Judge removed Judges Margulies and Kline from the Licensing Board established by direction of the Commission to hear the Shoreham post-exercise litigation and replaced them with new judges.
For the reasons set forth below, the Governments object to the " Notice of Reconstitution of Board" and the " Clarification" and move that the Notice and Clarification be rescinded.
8610240213 861022 ADOCK05000gg2 PDR G
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O t The Governments also move the Chief Administrative Judge to consider the instant motion on an expedited basis.
To this end, the Governments are available to meet in open session with the Chief Administrative Judge for the purpose of addressing any problem that may exist concerning the status of the Shoreham proceeding or of the Licensing Board and to aid in forging a solution as may be necessary and appropriate.
I.
Backaround On March 13, 1986, LILCO requested the Commission to establish a Licensing Board to preside over post-exercise litigation and asked specifically, if feasible, that the Board be composed of the same Judges who had presided over the earlier emergency planning litigation, and.thus who had gained
" knowledge" of the " mammoth record,"
i.e.,
the Margulies Board.
No other party objected to this request.
Thereafter, on June 6, in CLI-86-11, the Commission directed that the Margulies Board, if available, be re-established to preside.1 Because the Margulies Board members were available, the Chief Administrative Judge on June 10 issued a Notice re-establishing the Margulies Board.
Since that time, the Margulies Board has conducted the normal course of prehearing activities.
The Board held two prehearing conferences (July 8 and September 24) and several 1
"We direct the Chairman of the Atomic Safety and Licensing Board Panel to reappoint the members of the earlier Board if they are available."
23 NRC at 582.
_.__________J
t telephone conference calls with-counsel, read and considered hundreds.of pages of pleadings concerning issues to be litigated, ruled on motions and numerous contentions following oral arguments of counsel, and fixed a prehearing discovery schedule.
Moreover, on September 23, 25, and 26, the Margulies Board conducted limited appearance sessions at three Long Island locations (Hauppauge, Riverhead, and Mineola) at which hundreds of members of the public and scores of government officials and community leaders presented their views on.the pending issues.
The Governments are unaware of any member of the Margulies Board having stated that the Board or any of its members have schedule conflicts of the sort that require reconstitution of the Board.
Nevertheless, on October 7, the Chief Administrative Judge issued a " Notice of Reconstitution of Board," which replaced Judges Margulies and Kline with new Judges.
The reason stated by the Chief Administrative Judge for this-action was
" schedule conflicts."
The conflicts were neither identified nor explained.
On October 14, counsel for the Governments advised the Chief Administrative Judge that the Governments object to the-removal of Judges Margulies and Kline, and urged that "the only I
appropriate course is for you to reconstitute the Margulies Board and to permit the Shoreham proceeding to move forward in l
accordance with NRC regulations and without further f
interference."
The Governments also requested the Chief
t Administrative Judge to respond to specific questions and to explain why Judges Margulies and Kline were so abruptly removed.
Letter from Herbert H. Brown to B.
Paul Cotter, Jr., October 14, 1986, p.
3, copy attached.
The Chief Administrative Judge's reply, dated October 17, neither responded to the Governments' questions nor identified or explained any " schedule conflicts" of Judges Margulies and Kline.
Instead, he stated:
It was my determination, in consultation with the members of the existing Board, that the expanding emergency planning-related Shoreham cases could not reasonably be handled in a timely manner by a single board.
Accordingly, I established the reconstituted board to preside over the emergency planning exercise proceeding in which no evidentiary hearings have yet been conducted, and in which the record is still quite limited.
The Chief Administrative Judge enclosed with his letter a
" Clarification" of the October 7 " Notice of Reconstitution of Board" that made clear the Margulies Board would be removed from the post-exercise litigation, but would continue to preside over other Shoreham-related litigation.
Judge Shon was designated to serve on both Boards.
II.
Discussion The Chief Administrative Judge has not identified, let alone explained, any "schedulo conflicts" that require the removal of Judges Margulies and Kline from the post-exercise litigation Board.
To the best of the Governments' knowledge, there is no such conflict and, even if there were, there would be no
+ justifiable basis, absent' reconsideration by the Commission of CLI-86-ll, to replace the Margulies Board.
In short, given the directive of the Commission that the Margulies Board preside, the Applicant's unopposed request for that Board to preside, and the failure of the Chief Administrative Judge to identify the existence of any " schedule conflicts," there is no rational explanation for the Chief Administrative Judge's action.
If any schedule conflicts were to arise among the members of the Margulies Board, the appropriate course would be for the conflicts to be made known to the parties.
Previously in this litigation when schedule conflicts have arisen, the Judges and parties have discussed the matter and have attempted to set accommodating ~ schedules.
There is no reason why such openness and discussion should not remain the practice now.2
- Indeed, there is not even the slightest suggestion of any conflict in this proceeding that would justify the abrupt removal of two Judges who have been presiding in the normal course.
Even if such an extraordinary situation were to arise, the parties to the proceeding -- whose interests are being litigated -- and not merely the Board, should be consulted before any solution is considered.3 2
This is essential because potential conflicts involving other Shoreham-related matters affect not only the Judges, but the parties, their counsel, and their witnesses as well.
3 The Governments are particularly concerned because they recall that in March 1984, the Chief Administrative Judge abruptly issued an order removing the Brenner Board from the Shoreham diesel litigation and replaced it with the Miller Board
4 6-i The only appropriate' remedy now is for the Chief Administrative Judge immediately to rescind the October 7 Notice and October 17 Clarification.
If, for whatever reason, a genuine schedule conflict subsequently arises in'this proceeding, the i
Judges and parties should deal with it in the normal course, just as they have done in the past.
Thus, the Judges should bring it t'o the attention of the parties and together they should forge a i
i solution.
If, in the unlikely event a schedule conflict of extraordinary proportions arises, the Judges and parties should assess the conflict and seek a mutually satisfactory solution.
under circumstances that later led to the impairment of the l
Governments' ability to prepare for trial and protect their interests.
The Governments strenuously objected to this action, but.the Board and Commission refused to modify it.
Ultimately, i
the Governments obtained a restraining order from the U.S.
District Court that caused the Commission to consider more meaningfully the Governments' rights.
In the present circumstances, the Governments are concerned that there may be parallels with the 1984 episode.
Again, the Chief Administrative Judge acted abruptly; again there was no forewarning, no notice to the parties that a " schedule conflict" might exist, and no consultation with the parties.
Signifi-cantly, again there was no explanation of the " conflict" and, even in reply to the specific request of the Governments' counsel, the Chief Administrative Judge has failed to explain his action.
In short, the Governments are concerned that just as there proved to be in 1984, behind the scenes at the NRC a secret scenario may be developing, and that the Chief Administrative Judge's Notice is merely the opening'act.
It is therefore of considerable importance that any " plans" being considered privately at the NRC for altering or influencing the ordinary course of litigation in the present proceeding be openly and promptly disclosed.
The Governments are entitled to due process and to a fair proceeding in which matters affecting their interests are considered and resolved openly and with their participation.
,I*
I t ;
l Under no circumstance should the Chief Administrative Judge i
privately consult with anyone concerning a matter of such importance to the Governments and then, by flat, change the status quo to the prejudice of the Governments with whom he did not consult.
Elementary fairness -- and due process of law --
demand better than that.
The Governments emphasize that they consider the post-exercise litigation to be a serious proceeding of great importance to the public's welfare:
an opportunity to obtain a conclusive denial of LILCO's efforts to license Shoreham.
The Governments have a right to due process and to open and fair decisionmaking on the record, even when that involves actions of the Chief Administrative Judge.
In this instance, the Governments are not trying to select who should judge their case.
Instead, they are insisting that they not be denied the sitting decisionmakers whose knowledge of the matters at issue is undeniably better than anyone else's and whose presence on the Board was at the direction of the Commission following the i
unopposed request of the Applicant.
The action of the Chief Administrative Judge in abruptly removing Judges Margulies and Kline was arbitrary.
The Chief I
Administrative Judge did not identify any " schedule conflicts"
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that justify his action; he has not explained why the parties were denied timely knowledge of " schedule conflicts;" he has not ex'plained why the Commission's directive to appoint the Margulies
4 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 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 nothing 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.
Accordingly, the' Governments move the Chief Administrative Judge to remedy the present prejudicial situation that has resulted from the removal of Judges Margulies and Kline by rescinding the " Notice of Reconstitution of Board," dated October 7, 1986, and the " Clarification" thereto, dated
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The present situation does not comport with l
the Governments' due process rights.
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Respectfully submitted, 1
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Martin Bradley Ashare l
Suffolk County Attorney l
Building 158 North County
}
Complex i
Veterans Memorial Highway j
Hauppauge, New York 11788 f
l H6rbert H. Brown l
i Lawrence C. Lanpher l
Karla J. Letsche l
Kirkpatrick & Lockhart I
1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Suffolk County l
j,-
f "f^/
e Fabian G. Palomino Richard J.
Zahnleuter Special Counsel to the Governor of New' York State Executive Chamber l
Two World Trade Center New York, New York 10047 Attorney for Governor Mario M.
l Cuomo and the State of New York l
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1.
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W SEWphen B. Latham Twomey, Latham & Shea P.O. Box 398
.33 West Second Street Riverhead, New York 11901 l
l Attorney for the Town of l
Southampton i
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00LKEILD October 22, S3$h UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION OFFICE Ui : -
Before the Chief Administrative Judge, 00CKETite 3.t e/f 0f.
BRANC*
Atomic Safety and Licensino Board Panel
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In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the LETTER TO ADMINISTRATIVE JUDGE B.
PAUL COTTER, JR., CHAIRMAN and MOTION FOR RESCISSION OF
" NOTICE OF RECONSTITUTION OF BOARD" AND SUBSEQUENT "CLARIFICA-TION" AND MOTION FOR EXPEDITED CONSIDERATION have been served on the following this 22nd day of October, 1986 by U.S. mail, first class, except as otherwise noted.
I 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 i
Bethesda, Maryland 20814 4350 East West. Highway l
Bethesda, Maryland 20814 l
Dr. Oscar H.
Paris Mr. Frederick J. Shon l
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
e 1
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.
20555 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 l
Spence W. Perry, Esq.
Anthony F.
Earley, Jr.,
Esq.
I 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 l
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Mary Gundrum, Esq.
Hon. Peter Cohalan New York State Department of Law Suffolk County Executive 2 World Trade Center, Rm. 4614 H.
Lee Dennison Building New York, New York 10047 Veterans Memorial Highway 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 N
By Hand Herbert H.
Brown By Federal Express KIRKPATRICK & LOCKHART 1900 M Street, N.W.
Suite 800 Washington, D.C.
20036 Date:
October 22, 1986 I
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