ML20215H902
| ML20215H902 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/22/1986 |
| From: | Brown H KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | Cotter B Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1230 OL-5, NUDOCS 8610240218 | |
| Download: ML20215H902 (3) | |
Text
t M3O KIRKPATRICK & LOCKHART y
1900 M STREET, N W.
WASHINGTON, D C. 200M 000 PNP" ^^C' b
TT.LEPHONE G02) 4524000 97 1928 BRICKELL AVENUE TELECOPIER (202) 4524052 October 22, 1986 na ouvER BUruxNo HERBERT H. BROWN gypg.g g; PtTTSBURCH, PA J5222 corus2ms 00CKETH.u $"TM*,Y.3.
BRANCE BY HAND Administrative Judge B.
Paul Cotter, Jr., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Re:
NRC Docket No. 50-322-OL-5 (EP Exercise)
Dear Judge Cotter:
-I am writing on behalf of Suffolk County and with authori-zation of the-State of New York'and the Town of Southampton.
(" Governments").
Your letter of October 17 is unresponsive to the Govern-ments' letter of October 14, failing even to address the specific questions and requests set forth therein.
The Governments are entitled to (1) a full explanation of the " schedule conflicts" of Judges Margulies and Kline that you claim required you to remove these judges from the Shoreham post-exercise litigation Board and (2) rescission of your Notice which removed the judges.
Accord-ingly, enclosed is a motion of'the Governments for rescission of your October 7 " Notice of Reconstitution of Board" and your October 17 " Notice of Reconstitution of Board:
Clarification."
The Governments request expedited consideration of this motion.
The Governments object to your removal of Judges Margulies and Kline from the Board. conducting the Shoreham post-exercise litigation for the following principal reasons.
First, your action was arbitrary.
Judges Margulies and Kline were appointed by you to the Board following the specific directive of the Commission and the unopposed request of the Applicant.
The m
Commission has not reversed its directive, and no party has called for the' removal of Judges Margulies and Kline.
8610240218 861022 PDR ADOCK 05000322 g
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KIRKPATRICK & LOCKHART Administrative Judge B.
Paul Cotter,.Jr., Chairman October 22, 1986 Page 2 Second, the' familiarity with the record and issues that Judges Margulies'and Kline have gained by participating in the earlier phase of-the emergency planning proceeding and in the pre-hearing phase of the present litigation cannot be duplicated by new j udges.
As the Applicant stated and~the Commission recog-nized, these are the judges with " knowledge" of the " mammoth record" in this proceeding.
Third, your Notice and Clarification are without foundation and fail even to identify,.let alone explain, the " schedule conflicts" that required removal of Judges Margulies and Kline.
Moreover, you fail to explain why Judge Shon remains on the Board free of " schedule conflicts" while his similarly situated col-3 leagues, Judges Margulies and Kline, must be removed.
Fourth, you acted to remove Judges Margulies and Kline with-out informing, or having the judges inform, the parties of even the slightest possibility that undisclosed " schedule conflicts" might prompt the radical act of disrupting the sitting Board.
The Governments are parties in interest to-this proceeding.
They-are therefore entitled to know any " schedule conflicts" that affect their interests as litigants and to participate in formu-lating an appropriate solution.
Though you " consulted" with the judges, whose legal interests are not at issue in this proceed-ing, you chose to ignore the interests of-the parties themselves.
Fifth, the Governments perceive no conceivable benefit to the public safety from your action.
Indeed, the Governments submit that you csnnot point to any way in which the conduct of the post-exercise litigation will be improved by removing two of the three persons best situated to conduct this litigation.
The Governments are concerned for another reason also.
In March 1984, you issued an order reconstituting the licensing board for an earlier phase of the Shoreham proceeding; i e.,
low power diesel litigation.
That order set the stage for the later denial to the Governments of a fair hearing.
Because the NRC would not listen to the Governments' due process objections, the issue escalated until the NRC was finally restrained by Order of the U.S.
District Court.
Again, as in 198"., you acted on October 7 without the Governments having even a hint that action by you was being considered; and you failed to explain your. action then and now.
In 1984, and again this time, your action came after major rulings of the Licensing Board:
then the Brenner Board's rejection of LILCO's scheme to operate at low power without 7
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n KIRKPATRICK & LOCKHART Administrative Judge B. Paul Cotter, Jr., Chairman October 22, 1986-Page 3 qualified diesels; now the Margulies Board's rulings on the Governments' contentions.
Indeed, the Governments are concerned that parallels might be developing to the 1984 episode, where a scenario prejudicial to the Governments' interests was secretly drawn.
While the Governments now make no allegation, there is particularly strong interest whether Judges Margulies and Kline were removed before they could rule on Objections which LILCO and the NRC Staff will file in. response to the Margulies Board'.s rulings on the Governments' contentions.
The Governments are thus concerned because their experience in the Shoreham proceeding requires concern. - In light of this, and in order to deal forthrightly with the present circumstances, the Governments are available to meet-with you, any of your colleagues, and the other parties in open session and to address the status of both the Shoreham litigation and the post-exercise litigation board.
If there is a problem that requires a solu-tion, the Governments wish to participate in formulating the solution. hit is. unsatisfactory for you to make a decision of such significance to the Governments by having " consulted" merely with the members of the Licensing Board.
The Governments have independent interests which are relevant, important, and worthy of your careful consideration.
Very truly yours,
,%W m
Herbert H. Brown HHB: sir cc:
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