ML20215K912
| ML20215K912 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Shoreham |
| Issue date: | 11/26/1986 |
| From: | Barbash M CITIZENS TO REPLACE LILCO |
| To: | Margulies M Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20213F109 | List:
|
| References | |
| NUDOCS 8706250485 | |
| Download: ML20215K912 (1) | |
Text
{{#Wiki_filter:.-., - ..r. g CITIZENS TO. REPLACE LILCO 265 WEST MAIN STREET. P.O. DRAWER 0. BABYLON. N.Y. I1702 / $16-6694236 t uTEERING COMMITTEE J Maurwe Barbash. Cheermen Elasne Benson ] Nora Bredes Leon Camno 9dl Chaleff Frazer Dougherty Dan Gluck j,"[',d,,C*'d*h""* November 26, 1986 Jak Gretnbaum Kathenne Hesvtude .i Jak Hohenberger Joseph Kaufman Nawy Kelley $8 $uom, Judge Morton B. Margulies m waam Marran. $r. Administrative Judge @,N"c;"*,, Atomic Safety & Licensing Board anhur umse U.S. Nuclear Regulator' Commission y g"pf,"' Washington 0.C. 20555 s 7 AQlhony Prudenu N 5haS*
Dear Judge Margulies:
1 Ales $aeddevi j Judah B. Sneddon 6 Roeert 5nyda I note that my November 16th letter to you has been E"e'wM circulated and entered into the Shoreham/ Emergency Planning proceeding. Actually, the intent of the letter q C.DrisoRv COMMITTEE was to elicit a response from you. A r .Chai,s 5enator Kenneth Lavalke 0e",*,sYo',"7,"e$ sgabus You carry the title of " JUDGE", and as such, bear the L e gorWam Prest respon3{biljty of mak[ng dgc[gjong jn g fg[r and [mpgrt[gl j $"g l",d,", H, manner. If that be the cases I would ask you once again y g s-Le,.imm as to you opinion of the fairness of the Current Shoreham j senmor Cusar Trwo 1icensing proceedings. 1 5enator James Lack 1 AssGmelyman Arthur Kremer t Ammoiyme waam B.ancm. k Please do not think me presumptuous in asking this cuestion. $",$*,$ ",,Nj,"',' To whom can a citizen turn on this matters if not to a judge. Ammmyman loan sehen May I hear from you. Assemblyman Lewis Yevolt Aswmblyman Joseph Samwki Ammmywoman Barna raion Respectfully, j Asa$mblywoman May Nes burger commym man Gerdt Lipschuu CITIZENS TO REPLACE LILCO Anem6fywo Thomas Barrasa C.amy un am w Lesiasor Rose Care:appa .1 Legislator Donald Allarove Lesislator Joseph Rano twsaior Gaard Giase Legista or Muhael D' Andre Lesimor earwk Maouy Maurice Barbash 4 ,l Lemm 5im Ensieri:M Chairman Legislator Seven Levy Lgstator John Foley Legisamor Jane Devme i Lysimor sondra M. Bachety Legalator Tony Bullock Lestatator PNhp No6an. Jr. nID Tewo Beards: smuhrown supervisor Paanch Vecchio Counctiman Bradley Harns Counctiman Mwhed Lanurone j Councilman Eusene Cannaisto Councilman Michael Sulhvan 3 0'****** Supemsor H' entwita Acampora 8'ayw, Gilbert Hanse Sourhold Oto, $,MmW p'8nk umhy M Counedman Gene Gerrard g,,fj, Councilman Donald Zimmer "g"Y Trustee Victoria Scael Counolman Anthony Losquadro Counctiwoman Jean Cochran Trusm Gayle Lanenow Truste'e E'l"l Tarpun 8^e4 *8 8 M , 9,aa,haa an Councilman James Senondeure luire,dre I*#" Trusm Wilham Lesitange, Jr. LadenAurr, Super"wso' tend Councilman Jona LaMura r Jeffrey Semes 3,,,3,,,,,,,,, Trustee Maithew Senatore Trustee Doug mms N r/e//cma Con Theodore Alpert Couno man Kennah Lewis Trustee Lmda sendienski Trustee Frank Burke Counalwoman Patrwis Neumann vor:A Nemowud Trusree Gerasd Preiser Coundiman George $4svropoulos 34,,, y,ff, Coundiman Antomo Gil. Sr. Town Clerk John Devanzo Orten scech Mayor Lowed Kane. M.D. Vill.tw Mayor Thomas Schwars Een Nempron y,,,3,,,,,,g,,,, Coundiman Patnch Trunzo Idi Norpor Trustee Barbara Brunner Robert Morgan. Jr' Courwdman Randy Parsons Mayor George Butts, Jr. Trustee Marvm Friedman 0"ay'o'r S"tanley C'ohen h
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Counotwoman Jobette Edwards A m#?v'l'e Nred of rAr Narbor M Courwtiman Pm Hammerle Truvee Peter Casserly Trusm Rosen White Hvarmsson Glen Cove Trustee Glenn Wilhams Otiwrs en Sowervnor John O'Nedl Counsdman Joseph Cuna sette rarre Supervisor Bruce Nyman 1 n h Counciman James Gaushran renport Mayor %ncent Bowe 1,y ,gl Adrion Truslev James Clark act/ port p,,,,4,,,,gg.,;, sgl y Councdman wnham Delcol East Nempron Mayor Frank Trotia. Jr. Carol Berman ~ p,,,rc,mf Edwin Sherfdl. Jr. Trustee Roger Terret Former $me Senator 1 %pemsor Josepa Janunki Guer Ant prear T'usm Edwm Horsley James Morso. SC Dir.. Houung Counctimen Rooert P'he Mayor Allan Guuack Greenport Joan Schere. C unwl, DEC Counciman John Lompardi Esec, Asst. stavo, Edeard Hall Trustee Gad Horton Trustee Bruce F eld 1 raunalman i our lhwneni Trusm Jean (etenrw Truuer David Kanell Tnierce Cchy Leuer r C ounutman hier Prusmow45 Ttustee ItoNrt. Rosesarten Trusies Wdham laentein faen nf Eau Hampnm 8706250485 870622,- PDR COMMS NRCC
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UTll FAf; "[I,i f U l 17 .,. / 'o, UNITED STATES l3 NUCLEAR REGULATORY COMMISSION c w AsHINGTON, D. C. 20066 (. I.r ,i l s = f.!- November 21, 1986 00(KETED mc e. ] CHAIRMAN '86 CEC -8 All :13 crr i CCC SEPNED DEC -81986 The Honorable Edward J. Markey, Chairman Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States House of Representatives Washington, D.C. 20515
Dear Mr. Chairman:
c Enclosed are responses to questions and documents you requested. in your October 28, 1986 letter.concerning reconstitution of the Shoreham Licensing Board for emergency planning exercise issues. H Sincerely, M 4. Lando W. 2 r .l
Enclosures:
As Stated d
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cc: Rep. Carlos Moorhead i l /. e t-t 6 4 J m u i
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!E ' " jaw,3*^_ m:A' ';",g U.S. HOUSE OF REPRESENTATIVES g uic l? %,"*,,,f**,5 ', R i.*l % % ' & SUBCOMMITTEE ON ENERGY CONSERVATION iI 8" *"'an AND POWER U".;=,*o o=' c,7,,o,,,,,* AJ m ia. c oui or TH COMMITTEE ON ENERGY ANO COMMERCF f "~ mm WASHINGTON, DC 20515 October 28, 1986 Bonorable Lando W. Zech, Jr. Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Washington, D.C. 20555 Dear Mr. Chairman I am writing to you because I am deeply troubled by Judge B. Paul Cotter's recent decision to reconstitute the Shoreham Licensing Board by removing two of its three members. I. {l' understand that their sudden removal comes without advance' notification of any of the parties or even a request for their views on the question, and has occurred with no reasonable explanation other than vague and perhaps contradictory references to " scheduling difficulties" and avoidance of " undue delay" about which no specific information has been supplied. - As you know, the change in the compocition of this' Licensing Board comes at a critical time in the Shoreham licensing process. The questions surrounding the issuance of this license have become l' a major issue regarding the rightful roles of state and local' governments in the emergency planning process. If public confidence in the NRC and the regulatory process is to be maintained, it is absolutely crucial that the Commission handle these matters in a manner that is unquestionably beyond r.eproach. Only a few weeks ago, in my letter of October 9 to you requesting that the Commission def er any action on a low-power license for the Seabrook nuclear plant until all emergency planning issues have been fully and completely resolved, I urged you to be mindful of the perceptions of State and local governments and the public. Now those State and local governments and the public are conf ronted with yet another challenge to the credibility of the NRC's regulatory process. This recent action at Shoreham can only further increase the public's skepticism about whether the licensing process is being conducted with even a minimal concern for f airness and public saf ety. g In order to f acilitate this correspondence I have sent directly to Judge Cotter a letter enumerating those questions pertaining to him, a copy of which is attached for your convenience and information.
L En y. e t The ' Honorable Lando W. Zech, Jr. e - L Page 2 E. October 28, 1986 b So that the Subcommittee may better understand this recent action to' reconstitute the Shoreham Licensing Board, please provi6e answers to the following questions by November 4,1986. Please note that for the purpose of this request, the word 1 " record" or " document" includes but is not limited to all handwritten or typed communications, documents, draf ts, memoranda, letters, notes, " route slips," briefing and appointment logs, word processing recordings and audio tapes. The word " communicate" refers to all documents (as per the above) and/or verbal ] communications including but not limited to all conversations 1 between any two or more persons,. including all meetings, telephone calls, and all documents (per the above) exchanged between or among two or more persons. To the extent that any records cannot J be provided or have been destroyed, please identity whether or not such documents existed, in whose files they existed, the reasons why such records are unavailable, and, if destroyed, who destroyed them and/or ordered their destruction. For example, such records which are unavailable should be identified by title, author, date, ) etc. 1. With ref erence to Judge Cotter's October 7,1986 " NOTICE OF RECONSTITUTION OF BOARD" (hereinaf ter " NOTICE"): Did you or any Commissioner or any member. of any Commissioners' staff (s) communicate with Judge Cotter prior to October 7 regarding either the NOTICE or reconstituting the Shoreham Board? If so, please identify the persons, date, time, circumstance, substance of the communication, and provide all records pertaining thereto. 2. Prior to October 7, did you or any member of your staff communicate with Judge Cotter or any other Commissioner or member of the Commissioners' staff (s) regarding the removal ~ of Judge d Kline and/or Judge Margulies from the Licensing Board? If so, please 1dentify the persons, date, time, circumstance, substance N of the communication, and provide all records pertaining thereto. 3. On October 17, 1986 Judge Cotter wrote to' Herbert H. Brown, Esq. regarding his issuance of the October.17, 1986 " NOTICE OF RECONSTITUTION OF BOARD: CL ARIF.ICATION" (hereinafter 1 " CLARIFICATION"). In that letter Judge Cotter stated that "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 timelv manner by a. H single board....The reconstitution will assure that all issues can be heard thoroughly without undue delay-(emphasis added)." q (a) Did you or any Commissioner or any member of the Commissioners' staffs communicate with Judge-Cotter c verbally or in writing between October 7 and October 17 regarding either the CLARIFICATION and/or reconstituting ~ the Shoreham Board and/or replacing Judges Kline and/or Margulies? If so, please identify the persons, date, time, circumstance, substance of the communication, and provide all records pertaining thereto. e m a 4 = 4 m ,w e
L H 4 r p The Honorable Lando W. Zech, Jr. , t? Page 3 I I Cctobe r 28, 1986' q e. si (b) Have you, any member of your staff, or any other Commissioner or NRC staf f member ever communicated to Judge Cotter or any member of any Licensing Board a target date and/or dates by which the Shoreham Licensing Boards should issue-a decision? If so, please explain why, and inform the Subcommittee who participated in such communications, the date of the communication, the target date or dates specified, the substance of the communication, and provide all records pertaining thereto. R (c) Have you, any member of your staff, or any other d Commissioner or member of any Commissiontes' staff ever-communicated to Judge Cotter or any member-of any j Shoreham Licensing Board that it should complete its [ deliberations and/or issue a decision."in a timely-manner" and/or without " undue delay?" If-so, (i) please il explain why, and inform the Subcommittee who participated il in such communications, the date of the communication,. 4l' the target date or. dates specified, the substance of the communication, and provide all records pertaining thereto; '(ii) What.is meant by1the phrases "a timely manner" and/or "without undue delay"? (iii) What precisely would constitute "an untimely manner" or " undue . p delay?" (d) Does the Commission believe that it has a responsibility 1 to-expedite licensing? If so, why? Is it expected that j reconstituting the Board will expedite the hearing j process and/or the licensing process? If so, how?' Why y does the Commission feel that.such expedition is E necessary or desireable? 5. On the subjects of reconstituting the' Board.and/or replacing Judges Kline and/or Margulics and/or expediting the licensing process for Shoreham, please provide a complete chronology and description of all communications and records, including but not limited to meetings, discussions, telephone calls, and conversations of any kind, between (a) Judge Cotter and either yourself and/or any.other Commissioner and/or any member of the Commissioners' staff (s); i (b) NRC Staff and Judge Cotter, including but not limited to the Office of the Genera 1' Counsel and Office'of the i Executive Director for Operations; and (c) Yourself and any employee of (i) the White House, (ii) the Department of Energy, (iii) Federal Emergency Management Agency (FEMA), or (iv) any party to the Shoreham proceeding. t ....,g.2, .n y. ,y .....g, ^
l t j The Honorable Lando W. Zech, Jr. l } Page 4 ] October 28, 1986 i Please provide all records pertaining to such communications. j i C. On Octcber 3,1986, the Board made several rulings regarding l the emergency planning issues at Shoreham. Did you or any other Commissioner or any member of any Commissioner's staff discuss or communicate in writing regarding the October 3 Board rulings or hearing and/or possible reconstitution of the Board with each j other or NRC Staff or any employee of the White House, DOE, FEMA, l or any party to the Shoreham proceeding? If so, please specify i the per son (s), time, place, type of communication, and substance j thereof. Please provide all records pertaining to such communication. i 7. Please provide to the Subcomm!.ttee all records pertaining to the October 7 " NOTICE" and the October 17' " CLARIFICATION" of which j any Commissioner, Commissioners' staf f member, or member of the NRC Staff is aware, whether or not such records are now in your or their possession. 8. Please provide to the Subcommittee all records of which any Commissioner, member of the Commissioners' staff, or member of the l NRC Staff is aware pertaining to any " schedule conflict" pertaining to the Shoreham litigation on the part of Judge Kline j or Judge Margulies. l 1 4 Please explain why the alleged scheduling conflicts do not affect Judge Shon. Please provide all documents pertinent to his schedule. i J 9. When did you first learn that-there were " schedule conflicts" that might require reconstitution of the Shoreham Board? How and 1 from whom did you learn of such " schedule conflicts?" Please i specify the date, circumstances of the communication, and provide i ~ j all records pertaining thereto. Thank you for your prompt attention to this matter. I look forward to your responses by November 4,1986. j Sincerely, .h ebby Edward J. Marke() 1 i Chai rman al1 Euclosure j 3 1 l L j
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. sown o omoeA, usenioAn OF THE COMMITTEE ON ENERGY AND COM38MCF [ u ,,en o, t WASHINGTON, OC 20515 October 28, 1986 i l N Honorable Lando W. Zech, Jr. Chai rman U.S. Nuclear Regulatory Commission 1717 H Street, N. W. Washington, D.C. 20555
Dear Mr. Chairman:
q
'v' I am writing to you because I am deeply troubled by Judge B.
Paul Cotter's recent decision to reconstitute the Shoreham Licensing Board by removing cwo of its three members.
I understand that their sudden removal comes without advance notification of any of the parties or even a request for their views on the question, and has occurred with no reasonable explanation other than vague and perhaps contradictory references-g to " scheduling difficulties" and avoidance of " undue delay" about d
which no specific information has been supplied.
j As you know, the change in the composition of this Licensing
)
Board comes at a critical time in the Shoreham licensing ~ process.
The questions surrounding the issuance of this license have become a major issue regarding the rightful roles of state and local n
governments in the emergency planning process.
If public q
J affect Judge Shon.
Please provide all documents pertinen1 to his-schedule.
9.
When did you first learn that there were " schedule conflicts" that might require reconstitution of the Shoreham Board?
Bow and
'f rom whom did you learn of such " schedule conflicts?"
Please l'
ns specify the date, circumstances of the communication, and provide
)
all records per.taining thereto.
Thank you for your prompt attention to this matter.
I look forward to your responses by November 4, 1986.
Sincerely,
'i Edward J. Marke()
Ch ai rman it Enclosure 4
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RESPONSES TO QUESTIONS
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RESPONSES TO CONGRESSMAN MARKEY'S QUESTIONS
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OF OCTOBER 28, 1986 i
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QUESTION 1.
WITH REFERENCE TO JUDGE COTTER'S OCTOBER 7, 1986' i
[
" NOTICE OF RECONSTITUTION OF BOARD" (HEREINAFTER i
" NOTICE"):
DID YOU OR ANY COMMISSIONER OR ANY i.
MEMBER OF ANY COMMISSIONERS' STAFF (S) COMMUNICATE WITH JUDGE COTTER PRIOR TO OCTOBER 7 REGARDING EITHER THE NOTICE OR RECONSTITUTING THE SHOREHAM
]
)
BOARD?
IF SO, PLEASE IDENTIFY THE PERSONS, DATE,
~ h TIME, CIRCUMSTANCE, SUBSTANCE OF THE COMMUNICA-TION, AND PROVIDE ALL RECORDS PERTAINING THERETO.
ANSWER.
)
NONE OF THE COMMISSIONERS OR MEMBERS OF THEIR STAFFS COMMUNICATED-L n
WITH JUDGE COTTER PRIOR TO OCTOBER 7 REGARDING EITHER TH'E n.?'N OCTOBER 7, 1986 " NOTICE OF RECONSTITUTION OF BOARD" OR
)
RECONSTITUTING THE SHOREHAM BOARD, 9
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QUESTION 2.
PRIOR TO OCTOBER 7, DID YOU OR ANY MEMBER OF YOUR d
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STAFF COMMUNICATE WITH JUDGE COTTER OR ANY 'OTHER v.
i COMMISSIONER OR MEMBER OF THE COMMISSIONERS' 4
STAFF (S) REGARDING THE REMOVAL OF JUDGE KLINE l
AND/OR JUDGE MARGULIES FROM THE LICENSING BOARD?
i i
IF SO, PLEASE IDENTIFY THE PERSONS, DATE, TIME,
]
CIRCUMSTANCE, SUBSTANCE OF THE COMMUNI, CATION, AND PROVIDE ALL RECORDS PERTAINING THERETO.
ANSWER.
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PRIOR TO OCTOBER 7, NEITHER I NOR ANY MEMBER OF MY STAFF COMMUNICATED WITH JUDGE COTTER, ANOTHER COMMISSIONER, OR A MEM5ER 1
0F ANY OTHER COMMISSIONER'S STAFF REGARDING' REMOVAL OF JUDGE-KLINE AND/OR JUDGE MARGULIES FROM THE LICENSING BOARD.
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l QUESTION 3.
ON OCTOBER 17, 1986. JUDGE COTTER WROTE TO HERBERT l
D.
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[
H. BROWN, ESQ. REGARDING HIS' ISSUANCE OF THE OCTOBER 17, 1986 " NOTICE OF RECONSTITUTION.0F 1
q BOARD:
CLARIFICATION" (HEREINAFTER I
)
" CLARIFICATION").
IN THAT LETTER JUDGE COTTER
)
STATED THAT "IT WAS MY DETERMINATION, IN CONSULTA-TION WITH MEMBERS 0F THE EXIS. TING BOARD, THAT THE EXPANDING EMERGENCY PLANNING-RELATED SHOREHAM
,.i CASES COULD NOT REASONABLY BE HANDLED _I_N. A TIMELY N
MANNER BY A SINGLE BOARD....THE RECONSTITUTION q
-p WILL ASSURE THAT ALL ISSUES CAN BE HEARD THOR-l
)
OUGHLY WITHOU_T UNDUE DELAY (EMPHASIS ADDED."
O u
(A).DID YOU OR ANY COMMISSIONER OR ANY MEMBER OF THE' '
COMMISSIONERS' STAFFS COMMUNICATE WITS JUDGE COTTER VERBALLY OR IN WRITING BETWEEN OCTOBER 7 1
AND OCTOBER 17 REGARDING EITHER THE. CLARIFICATION AND/OR RECONSTITUTING THE SHOREHAM BOARD AND/0R w
s!
h REPLACING JUDGES KLINE AND/OR MARGULIES?
IF.SO,
'j PLEASE IDENTIFY THE PERSONS, DATE, TIME, CIRCUM-STANCE, SUBSTANCE OF THE COMMUNICATION, AND PROVIDE ALL. RECORDS PERTAINING THERETO.
~
ANSWER.
NONE OF THE COMMISSIONERS NOR MEMBERS OF THEIR STAFFS COMMUNICATED WITH JUDGE COTTER VERBALLY OR IN WRITING BETWEEN 2
9 I
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.o OCTOBER 7 AND OCTOBER 17 REGARDING EITHER THE CLARIFICATION f:'
AND/OR RECONSTITUTING THE SHOREHAM. BOARD AND/OR REPLACING JUDGES
)
KLINE AND/OR MARGULIES, 1
(B)
HAVE YOU, OR ANY MEMBER OF YOUR STAFF, OR ANY OTHER COMMISSIONER OR NRC STAFF MEMBER EVER l
COMMUNI.CATED TO JUDGE COTTER OR ANY MEMBER OF ANY l
LICENSING BOARD A TARGET DATE AND/0R DATES BY
]
WHICH THE SHOREHAM LICENSING BOARDS SHOULD ISSUE A DECISION 7 IF S0, PLEASE EXPLAIN WHY., AND INFORM.
m 1,)
THE SUBCOMMITTEE WHO PARTICIPATED IN SUCH COMMUNI-CATIONS, THE DATE OF'THE COMMUNICATION, THE TARGET.
DATE'OR DATES SPECIFIED, THE SUBSTANCE OF THE COMMUNICATION, AND PROVIDE ALL RECORDS PERTAINING
~
THERETO.
- ANSWER, h
i NONE OF THE COMMISSIONERS, NOR MEMBERS OF MY STAFF, NOR RC STAFF MEMBERS HAVE EVER COMMUNICATED TO JUDGE CCTTER OR ANY MEMBER OF ANY LICENSING BOARD A TARGET DATE AND/OR DATES BY WHICH THE SHOR$ HAM LICENSING BOARDS SHOULD ISSUE A DECISION. ] N (C) HAVE YOU, ANY MEMBER OF YOUR STAFF, OR ANY OTHER COMMISSIONER OR MEMBER OF ANY COMMISSIONERS' STA'FF EVER COMMU'NICATED TO JUDGE COTTER OR ANY MEMBER OF ANY SHOREHAM LICENSING BOARD THAT IT SHOULD .c
I 1 l l \\ h; [ h COMPLETE ITS DELIBEEATIONS AND/OR ISSUE A DECISION i [ "IN A TIMELY MANNER".AND/OR'WITHOUT " UNDUE DELAY?" 'I IF SO, (I) PLEASE EXPLAIN WHY, AND INFORM THE SUBCOMMITTEE WHO PART.ICIPATED IN SUCH COMMUNICA-l l TIONS, THE.DATE OF THE COMMUNICATION, THE: TARGET .t F DATE OR DATES SPECIFIED, THE SUBSTANCE OF THE '1 COMMUNICATION, AND PROVIDE ALL RECORDS PERTAINING I' THERET0; (II) WHAT IS MEANT BY THE PHRASES ,l "A TIMELY MANNER" AND/OR "WITHOUT UNDUE DELAY?" L i (III) WHAT PRECISELY WOULD CONSTITUTE "AN UNTIMELY cq 1 v MANNER" OR " UNDUE DELAY?" 'l . k, ANSWER. f1
- l NONE OF 'HE COMMISS10NERS NOR MEMBERS OF THEIR STAFFS.,
COMMUNICATED TO JUDGE COTTER OR ANY MEMBER OF ANY SHOREHAM u LICENSING BOARD THAT IT SHOULD COMPLETE ITS DELIBERATIONS AND/0R [ ISSUE A DECISION "IN A TIMELY MANNER".AND/OR WITHOUT " UNDUE ) DELAY." THE COMMISSION, HOWEVER, IN CLI-86-ll DIRECTED THE LICENSING , BOARD TO " EXPEDITE THE HEARING TO THE MAXIMUM EXTENT CONSISTENT WITH FAIRNESS TO THE PARTIES,,,." LONG ISLAND LIGHTING COMPANY., q l 23 NRC 577, 582, CLI-86-11 (JUNE 5, 1986). IN ISSUING ITS DIRECTIVE, THE COMMISSION ACTED IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE CT (APA), AND COMMISSION POLICY STATE. O MENTS AND REGULATIONS CONCERNING ADJUDICATORY AND. LICENSING [ 'j [! LI! l 4 .1
s ~,- L g: ll 6 PROCEEDINGS. .AS A GENERAL PRO, POSITION, THE COMMISSION AND ITS d 4Wg-t 5 'i i SUBORDINATE ADJUDICATORY TRIBUNALS ARE RESP'ONSIBLE UNDER THE APA d -f FOR ENSURING THE CONCLUSION OF MATTERS BROUGHT BEFORE THEM WITHIN ] i' A " REASONABLE TIME" WITH DUE REGARD FOR THE " CONVENIENCE AND I NECESSITY OF THE PARTIES." SEE 5 U.S.C. 554(B), 555(B), 558(C), 706(1). CONSISTENT WITH THE APA, COMMISSION POLICY STATEMENTS AND REGULATIONS ENCOURAGE LICENSING BOARDS TO CONDUCT THEIR I PROCEEDINGS EXPEDITIOUSLY AND EFFICIENTLY. SEE STATEMENT OF POLICY ON CONDUCT OF LICENSING PROCEEDINGS, 13 NRC 452, CLI-81-8, t l (MAY 20, 1981); STATEMENT OF GENERAL POLICY AND PROCEDURE: C' CONDUCT OF PROCEEDINGS FOR THE ISSUANCE OF CONSTRUCTION PERMITS j AND OPERATING LICENSES FOR PRODUCTION AND UTILIZATION FACILITIES ,y FOR WHICH A HEAfING IS REQUIRED UNDER SECTION 189A 0F THE. ATOMIC j .1 ENERGY ACT OF ' 4, AS AMENDED, 10 C.F.R. PART 2, APP. A, 1.(B),' O o AND V., PPS. 120, 121i AND 123. THEDIRECTIVEIN_CO-86-11DID NOTHING MORE THAN REQUIRP A TIMELY RESOLUTION OF ISSUES REGARDING THE EMERGENCY PLANNING EXERCISE, CONSISTENT WITH THE APA AND COMMISSION POLICIES AND REGULATIONS. h c.3 - v + q (D) DOES THE COMMISSION BELIEVE THAT IT HAS A RESPONSIBILITY TO EXPEDITE LICENSING? IF SO, ~ WHY? IS IT EXPECTED THAT RECONSTITUTING THE BOARD [. WILL EXPEDITE THE HEARING PROCESS AND/OR THE LICENSING PROCESS? IF SO, HOW? WHY DOES THE h i COMMISSION FEEL THAT SUCH EXPEDITION IS NECESSARY p I OR DESIRABLE? O p m B +
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i ..E .'l ANSWER. e n f c b SEE ANSWER 3(c). THE COMMISSION DOES NOT KNOW WHETHER t - t,. RECONSTITUTING THE BOARD WILL EXPEDITE THE HEARING AND/OR 1} LICENSING PROCESS. .k I b ii, t a s t l V 4 I w l.1 . 1 .\\ ' %] . jj i n i,; if ik j - )J s' j. 1
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9 b E 6 QUESTION 5. ON THE SUBJECTS OF RECONSTITUTING THE BOARD AND/OR hiv if REPLACING JUDGES KLINE AND/OR MARGULIES AND/OR EXPEDITING.THE LICENSING PROCESS FOR SHOREHAM, PLEASE PROVIDE A COMPLETE CHRONOLOGY AND DESCRIP-TION OF ALL COMMUNICATIONS AND RECORDS, INCLUDING S Y BUT NOT LIMITED T0' MEETINGS, DISCUSSIONS, TELE- ] .l PHONE CALLS, AND CONVERSATIONS OF ANY KIND, N BETWEEN l (A) JUDGE COTTER AND'EITHER YOURSELF AND/OR ANY OTHER L._.) COMMISSIONER AND/OR ANY MEMBER OF THE COMMISSIONERS' STAFF (S)J ( L ANSWER.' n NONE OF THE COMMISSIONERS NOR THEIR STAFFS HAD ANY COMMUNICATIONS, MEETINGS, DISCUSSIONS, TELEPHONE CALLS, OR CONVERSATIONS WITH JUDGE COTTER ON THE SUBJECTS OF RECONSTITUTING ) THE BOARD AND/OR REPLACING JUDGES KLINE'AND/OR MARGULIES AND/OR-EXPEDITING THE LICENSING PROCESS FOR SHOREHAM. THE COMMISSION AS A WHOLE, HOWEYER, DID DIRECT "THE BOARD TO EXPEDITE THE HEARING TO THE MAXIMUM EXTENT CONSISTENT WITH FAIRNESS TO THE PARTIES"'IN !TS PUBLISHED MEMORANDUM.AND ORDER IN LONG ISLAND LIGHTING COMPANY, 23 NRC 577, 582, CLI-86-11 (JUNE 6, 1986). L u 9 y l4 e e,
y_ j t I f'; (B) NRC STAFF AND JUDGE COTTER, INCLUDING BUT NOT w;,, [ LIMITED TO THE OFFICE OF THE GENERAL COUNSEL AND f 0FFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS 1 i L, E ANSWER. u 3 I'AM AWARE OF ONLY LIMITED COMMDNICATION BETWEEN JUDGE COTTER AND THE NRC STAFF ON THE SUBJECT OF RECONSTITUTING THE BOARD. ON* b g d OCTOBER 22, 1986, MR. DAVID PRESTEMON OF THE LICENSING BOARD STAFF. TELEPHONED MR. MICHAEL BLUME, AN ATTORNEY IN THE OFFICE OF d THE GENERAL COUNSEL (OGC), TO NOTIFY lHIM OF RECEIPT OF THE [ o INTERVENORS' OCTOBER 22, 1986 " NOTION FOR RESCISSION OF... j RECONSTITUTION OF BOARD." ALSO, AROUND OCTOBER 23, 1986, ( ~ l MR. PRE'STEMON TELEPHONED MR. BERNARD BORDENICK, NRC STAFF COUNSEL, INQUIRING AS TO WHETHER.THE STAFF WOULD BE' RESPONDING.TO THE' MOTION. MR. BORDENICK RESPONDED AFFIRMAT!YELY, AND ON i OCTOBER 24, 1986, HE TRANSMITTED A LETTER'TO JUDGE COTTER, WITH COPIE3 TO ALL PARTIES ON THE SHOREHAM SERVICE LIST, RESPONDING TO q m H 'O INTERVENORS' " MOTION FOR h SCISSION" (SEE. ATTACHMENT). STAFF F COUNSEL PREPARED AND TRANSMITTED THE LETTER SUBSEQUENT TO ISSU-
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~ ANCE OF JUDGE COTTER'S OCTOBER 7 " NOTICE" AND OCTOBER 2/ i " CLARIFICATION." TO MY KNOWLEDGE, THERE HAVE BEEN NO OTHER ',] COMMUNICATIONS BETWEEN.NRC STAFF, INCLUDING'BUT NOT' LIMITED TO j' [ OGC AND THE OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS, AND T JUDGE COTTER ON THE SUBJECTS OF RECONSTITUTING THE BOARD AND/OR REPLACING JUDGES KLINE AN'D/OR MARGULIES AND/OR EXPEDITING.THE l LICENSING PROCESS FOR SHOREHAM. 4 / ,w-w t u s ua m
9 [f: (C) YOURSELF AND ANY EMPLOYEE OF (I) THE WHITE HOUSE, (II) THE DEPARTMENT'0F ENERGY, (III) FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), OR (IV) ANY. PARTY TO THE SHOREHAM PROCEEDING, e t
- ANSWER, i
y I HAVE HAD NO COMMUNICATIONS, DISCUSSIONS, TELEPHONE CALLS, OR u . CONVERSATIONS-WITH ANY EMPLOYEE OF THE WHITE HOUSE, THE ll .) DEPARTMENT OF ENERGY (DOE), THE FEDERAL EMERGENCY. MANAGEMENT 4 h .O s.. / AGENCY (FEMA), OR ANY PARTY TO THE SHOREHAM PROCEEDING ON THE ,0 SUBJECTS OF RECONSTITUTING THE BOARD AND/OR REPLACING JUDGES ,i KLINE AND/OR MARGULIES AND/OR EXPEDITING-THE LICENSING PROCESS FOR SHOREHAM. ii o .i aj l aa n q e e St r h' i I.' 9 0 f
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f.[ ~ ty Y'6 QUESTION'6. ON OCTOBER 3, 1986,;THE BOARD MADE SEVERAL RULINGS l Lp
- P REGARDING THE EMERGENCY PLANNING ISSUES AT
[ SHOREHAM. DID YOU OR ANY OTHER COMMISSIONER OR ANY MEMBER OF ANY.' COMMISSIONER'S STAFF DISCUSS OR COMMUNICATE IN WRITING REGARDING.THE OCTOBER 3 L BOARD RULINGS OR HEARING'AND/OR POSSIBLE RECONSTI. TUTION OF-THE BOARD WITH EACH OTHER OR NRC STAFF OR ANY EMPLOYEE OF THE WHITE HOUSE, DOE, FEMA,.OR ANY PARTY TO THE SHOREHAM PROCEEDING 7 IF~SO, PLEASE SPECIFY THE PERSON (S), TIME, PLA.CE, TYPE OF-j i ' O'# COMMUNICATION, AND SUBSTANCE THEREOF. PLEASE h PROVIDE ALL RECORDS PERTAINING TO SUCH g
- l ll COMMUNICATION.
N ANSWER. NONE OF THE COMMISSIONERS NOR THEIR STAFFS DI'SCUSSED OR' COMMUNICATED IN WRITING WITH EACH OTHER OR NRC STAFF OR ANYJ i' -EMPLOYEE OF THE WHITE HOUSE, DOE, FEMA, OR ANY PARTY TO.THE. p SHOREHAM PROCEEDING REGARDING THE OCTOBER 3 BOARD RULINGS OR HEARING AND/0R POSSIBLE RECONSTITUTION OF THE BOARD. 1
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q l QUJSTION 7. PLEASE PROVIDE TO THE SUBCOMMITTEE ALL RECORDS .p' PERTAINING TO THE OCTOBER 7:" NOTICE" AND THE OCTOBER 17 " CLARIFICATION" 0F WHICH ANY COMMISSIONER, COMMISSIONERS' STAFF MEMBER, OR l I MEMBER OF THE NRC STAFF IS AWARE, WHETHER OR NOT l s SUCH RECORDS ARE NOW IN YOUR OR THEIR. POSSESSION. .l _ l ANSWER 4 I HAVE ATTACHED ALL RELEVANT RECORDS. E , d N a 'i .j
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..v .s Fi ( ; f.:. QUESTION 8'. PLEASE PROVIDE TO THE SUBCOMMITTEE ALL RECORDS 0F [ w 9 4-( F WHICH ANY COMMISS!0NE8, MEMBER OF THE .c COMMISSIONERS' STAFF, OR MEMBER OF THE NRC STAFF I s )3 IS AWARE PERTAINING TO ANY " SCHEDULE CONFLICT" PERTAINING TO THE SHOREHAM LITIGATION.ON THE PART. H OF JUDGE KLINE OR JUDGE MARGULIES. 1 1 d PLEASE' EXPLAIN WHY THE ALLEGED SCHEDULING CONF,LICTS DO NOT AFFECT JUDGE.SHON', PLEASE PROVIDE'ALL DOCUMENTS PERTINENT TO HIS SCH:i.'JULE. t q. 7,, T ANSWER. U .] i' D I HAVE ATTACHED ALL~ RELEVANT RECORDSi '}!NE. COMMISSIONERS, THEIR h STAFFS,ANDTHENRC$TAFFDONOTKNONWHYTHE"ALLEG$DSCHEDULING-N y CONFLICTS" DO NOT AFFECT JUDGE Slf)N.., C ( QI G ..\\. t n l ,v) 7 r ./ '+ i i (> s. t [ ;% >.,A t ( \\ z }\\ c y, o. .\\ ~ 4 y g c 'El ,) ) lq } t
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+.. i. \\ z, y 3 i o T' QUESTION 9. WHEN DID Y00-FIRST LEARN THAT.THERE WERE " SCHEDULE (.. I f.,h CdNFLICTS" THAT MIGHT REQUIRE RECONSTITUTION OF t. THE SHOREHAM BOARD? HOW AND FROM WHOM DID YOU LEARN OF SUCH "$CHEDULE CONFLICTS?" PLEASE SPECij:Y'THE DATE, CIRCUMSTANCES OF THE COMMUNICA-TION, AND PROVIDE ALL RECORDS PERTAINING THERETO. L
- ANSWER, u
ON OCTOBER 24,:1986,,I FIRST LEARNED'0F THE SCHEDULE CONFLICTS .t -g a t,'; ! REFERENCED IN THE OCTOBER 7 " NOTICE, W N MY LEGAL ASSISTANT, MR JOSEPH GRAY, ORALLY ADVISED ME 0F THE' RECEIPT AND SUBSTANCE h u 0F THE SUFFOLK COUNTY LEGISLATURE'S OCTOBER 17, 1986 LETTER TO. THE COMMISSIONERS ON THE RECONSTITUTION.
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c' ' f h / { d jf .I f* e 1 e t e o 0 ? I o .I ATTACHMENTS i, m, I s e 4 . ll 1 'l o .1 '1 i 1 1 6 \\ ' .* l I 11 e. ' e% i i :
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\\ l MI' ATTACHMENTS S, 1. CLI-86-11 W 2. Notice of. Reconstitution of Board, 10/7/86 ) 3. Letter to Judge Cotter from Senator D'Amato, 10/14/86 't 4. Letter to Judge Cotter from counsel for Suffolk County (Brown), 10/14/86 5. Letter to bhairman Zech from Senator D'Amato, 10/15/86 6. Letter to counsel for Suffolk County (Brown) from Judge Cotter, 10/17/86 7. Notice of Reconstitution of Board: Clarification, 10/17/86 y
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Letter to Senator D'Amato from Judge Cotter, 10/17/86 9. Letter to Comissioners from Presiding Officer Blass, Suffolk County
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Legislature, 10/17/86 10, Letter to Judge Cotter from counsel for Suffolk County (Brown), 10/22/86 y q
- 11. Motion for Rescission of " Notice of Reconstitution of Board" and Subsequent " Clarification and Motion for Expedited Consideration.
r 10/22/86
- 12. Letter to Judge Cotter from NRC Staff Counsel Bordenick, 10/24/86
- 13. Briefing Outline, 10/28/86
- 14. Letter to Judge Cotter from Congressman Markey. 10/28/86 h
- 15. Letter to Chairman Zech from Congressman Markey, 10/28/86 a
- 16. Sense of the Legislature Objecting to the Recent Removal of Two Judges from the Nuclear Regulatory Comission-Licensing Panel, 10/28/86
- 17. LILCO's Opposition to " Motion for Rescission... and for Expedited Consideration," 10/30/86 18.
Letter from Judge Cotter to Congressman Markey, 10/31/86
- 19. Letter from counsel for Suffolk County (Brown) to Judge Cotter,11/7/86 -
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- 20. Memorandum and Order (ASLBP),11/7/86
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1 t-1 'I i:. J f:, Cite sa 23 NRC 577 (1986) CU.8611 i l E. UNrfED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Nunalo J. PaHadino, Chairman Thomas M. Roberts James K. Asseletine Frederlek M. Semthel Lando W. Zooh, Jr. 1 P l In the Matter of Docket No.50 322 0L 3 LONG ISLAND UGNTING - COMPANY (Shoreham Nuclear Power Station, Unit 1) June 6,1986 The Commission (1) directs the appointment of a licensing board for 'l lmmediate initiation of a hearing on the emergency plan exercise results; (2) offers guidance on the timing of summary disposition motions; and j ^ (3) offers guidance on the standard for admissibility of contentions con-1, cerning emergency exercise results. 8 The Commission continues the Appeal Board's stay of the remand in 3 ALAB 832 (23 NRC 135 (1986)), instructing the Licensing Board not to initiate proceedings on the ren.and issueruntil the Commission com- ,) 'pletes its review of ALAB 832. 3 The Commission is in the process of reviewing the " realism" and "im-materiality" issues of ALAB 818 (22 NRC 651 (1985)) and expects to j issue shortly a decision on those issues. e s j RULES OF PRA,CTICE:
SUMMARY
DISPOSITION Commission rules provide that summary disposition motions may be filed "within such time as may be fixed by the presiding officerq 10 C.F.R. $ 2.749(a). The rules further provide that if essential facts are i 577 s J 1 t I
1 -sj (m ~ i .i 'i l ^ not available for response to the motion, the Board may deny it or make j i such other order as is appropriate.10 C.F.R. { 2.749(c). ? RULES OF PRACTICE:
SUMMARY
DISPOSITION Intervenors are not necessarily entitled to discovery to oppose sum-mary disposition of their contentions. First they must show that discov-ery is necessary and is likely to produce evidence supporting the exisj g ence of a genuine issue of material fact. l r I EMERGENCY PLANNING: PREDICTIVE FINDINGS - (' Under Commission regulations and practice, Staff review of exercise. t results is consistent with the predictive nature of emtraency planning, I and is restricted to determining whether the exercise revealed any defi. ciencies which preclude a finding of reasonable assurance that protectiv r IT measures can and will be taken, i.e., fundamental fla?s in the plan. (/ Since only fundamental flaws are. material licensing issues, hearings on* the exercise results may be restricted to those issues. EMERGENCY PLANNING: PREDICTIVE FINDINGS The Commission's rule change in respwse to the. court's decision in Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C. Cir,198 emphasizes the predictive nature of cert. denied.105 S. Ct. 815 (1985), emergency planning findings. See 47 Fed. Reg. 30,232 (July 13,198 50 Fed. Reg.19,323 (May 8,1985). l RULES OF PRACTICEt CONTENTIONS (ADMISSIBILITY Imposition of an admir.sibility requirement that intervenors' conten- >l l tions must demonstrate fundamental. flaws in the emergency plan has ll the potential to require premature evidentiary decisions. What is re-q quired is that intervenors' contentions satisfy the specificity and other re-I quirements of 10 C.F.R. 5 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in applicapt's plan, and (2) providing } bases for the contentions which, if shown to be true, would demonstrate q.; fundamental flaws in the plan. M ~ E ~ d' s l p.a -e., .w
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i Imake MEMORANDUM AND ORDER Now pending before us in the Shoreham emergency planning adjudica-tion are three related matters: (1) petitions for review of ALAB 832 sum-(23 NRC 135), a March 26,1986 Appeal Board decision reversing and iscov-remanding on a number of issues, but directing the Licensing Board to t axist. delay remand proceedings; (2) motions from LILCO and Intervenors concerning litigation of emergency planning exercise results; and (3) pe-q titions for review of ALAB 818 (22 NRC 651 (1985)). N In sum, we direct continued deferral of the ALAB 832 remand, and I immediate initiation of the exercise hearing to consider evidence which 1 i 8'f*'8* l Intervenors might wish to offer to show that there is a fundamental flaw
- anning, n the LILCO emergency plan. Further, the Commission is now review-u g defi-1 ng ALAB 818, and expects to issue shortly a decision on the realism
,q ]! and immateriality issues. i mason 1 1. ALAB 832 r The Appeal Board in ALAB 832 reversed and remanded to 'the Licens-ing Board on a number of issues, but directed the Licensing Board to i s aion in hold the remand in abeyance until the Commission provided instrue. t1984), tions. No party has requested initiation of the remand pending Commis-sion review of ALAB 832, and thus we direct the Licensing Board to areof j continue to defer the remand proceedings until further order of the ' il982); Commission. Pending petitions for review of ALAb 832 will be rd-dressed by the Commission in the near future. If the Commission 3 decides that further hearings are required on any of the issues considered m in ALAB-832, the Commission will so direct the Licensing Board. I 36100-3 II. MOTIONS CONCERNING LITIGATION OF EMERGENCY PLANNING EXERCISE RESULTS d nercise In a motion dated March 7,1986, SLfrolk County, New York State, q, g. gt, 1 and the Town of Southampton (the Governments or Intervenors) asked the Commission to advise the parties to this proceeding of their proce-dural responsibilities concerning further hearings on emergency planning issues. Intervenors ask the Commission to make clear (1) that there should be no proceedings on the results of the February 13,1986 Shore-ham emergency exercise until after FEMA issues its evaluation of the exercise; (2) that the filing of contentions on the exercise should await 579 4 An'+aM .,wg s.g ._a. a.aa .-.m
l 1 \\ \\ l .t; 1 .l ,p. because the Shoreham d the issuance of FEMA's report; and (3) that 4 i i n'by Licensing and Appeal Boards have upheld the G i nd that
- j denying'LILCO's application for an operating lice is upon i
LILCO's emergency plan is fatally defective, the bu l LILCO, and not the Governments, to initiate; j r [ In a pleading of March i ments by Intervenors, and further submitted its own i board to cond. uct the Commission to immediately appoint a licensngd which l i proceedings on the exercise, preferab 5 ILCO asks the l b n litigated Commission to instruct the Board: to admit only contentions which could not have ee i [ demon. at some earlier time, and which, a 1 t .l l t lj to conduct an expedited proceeding; f whose pur-j to schedule an immediate Prehearing Con erence f ll onten. pose will be to determine schedules for the fil -l j .tions other than those which muFEMA re rN tions which ,h - to permit the filing of a second round of conten FEMA d quesu; ,~ could not have been filed prior 1 h issuance - to bar discovery against FEMA personnel prior to t i f of FEMA's exercise report so as to expedite FEMA's report on the exercise.the NRC Staff re G.evern. D i the ments' motion and to LILCO's mo On March 24, 1986, d h ir 'l bj ting to the ap-response to LILCO's motion on March 24 While no l pointment of a licensing board, the Governments f m the Com. other proposals on the ground that bj i ns to d its. report, thus mooting some of th them. ly the re. ]'o t l maining questions. b: Iln support of this standard ULCo cites both E 105 s. CL 815 0911), and a e ass n. NAC. US F.2d 1437 (D.C. Cir.1984), crrr. dannd. ,decimen in Carooms fewer a LW& Ca. (sheston Hams Nuc (19tJL 580 E
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I l l l i s j h (1) The proposal to use " threshold piesding" and summary l l 3rcham disposition prior to discovery to exclude contentions which do tion by not demonstrate, as pleaded, a fundamental defect la the I .ad that emergency plan 3upon The Governments assert that this suggestion is defective on three i first, that the Commission's contention pleading regulations re-i e argu. j counts: gesting quire adequate specificity and basis, and the use of the fundamental flaw p l criterion is a departure from the regulations that can be implemented ll enduct M817 only by rulemaking; second, that by this proposal LILCO is allegedly at. i tempting to require merits decisions at the contention pleading stage, as th* j contrary to settled Commission precedent; snd third, that the use of lI i summary disposition prior to discovery is legally unsupported, based on (I liigated an erroneous Licensing Board reading of UCS v. NRC, supra note 1. hon
- j We disagree with the proposition that restriction of any emergency I
planning exercise hearings requested by Intervenors to " fundamental a put* I flaws" ret uires rulemaking or is otherwise inappropriate. In the pream- =n-1 bie to tse ruie reviewed by the UCS court, and in our ruie change re - sponding to the court's decision, we emphasized the predictive nature of ufthe a emergency planning findings. See 47 Fed. Reg. 30,232 Uuly 13,1982); i j M f 50 Fed. Reg.19,323 (May 8,1985). The court never questioned this 4 concept. The court also observed that there was nothing to prevent the
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illMA Commission from excluding from exercise litiga' tion any issue which ' s was not material to licensing decisions. See 735 F.2d at 1447-48. Under i mance our regulations and practice, Staff review of exercise results is consistent sea of l with the predictive nature of emergency planning, and is restricted to i determining if the exercise revealed any deficiencies which preclude a , m-finding of reasonable assurance that protective measures can and wl!! be e "I ** taken, i.e., fundenental flaws in the plan. Since only fundamental flaws .m W their are material ikensing issues, the hearing'may be restricted to those s d. ik:P-issues. U However, we agree with Intervenors'second point, that the wording to the of LILCO's proposal to exclude contentions which do not demonstrate ICom-tes to 1 fundamental flaws in the emergency plan, has tHe potential to require premature evidentiary decisions. We remedy that possible defect by aulits directing the Board to admit only those Intervenor contentions which 'k re. satisfy. the specificity and other requirements of 10 C.F.R. 5 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan, and (2) by providing bases for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the plan. Intervenors' third point is that summary disposition prior to discovery %.g is legally defe:tive. Our rules provide that summary disposition motions 7 581 e 5 e '*****N 6% emmpe ..e.. -= 1
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p' F 7 may be filed "within such time as may be fixed by t 10 s C.F.R. 2.749(a). The rules further provide that if [' not avsjtable for response to the motion, the Board m such other order as is appropriate.10 I i tion of their contentions. First, they must convince the B covery is necessary and likely to produce evidence su i s ence of a genuine issue of material fact. These rules shou l ) for this proceeding. Other LILCO Proposals -[ (2) LILCO also proposes that the exercise proceeding be the Board which previously heard Shoreham emergen L s Licensing Board Panet: ! N. We direct the Chastman of the Atomic Safety they are available Fur-L 3 / to reappoint the members of the earlier Board tuer, the Board is to expedite the hearing to the maximum sistent with fairness to the parties, and to issue its ~ b .l completion of the proceeding.2 ~ III. REVIEW OF ALAB 818 As noted above, we previously deferred review of A now plan to proceed initially with review of the so " immateriality" issues in ALAB 818. We will take up and preemption issues at some future date.T mitted ext'ensive papers on the " realism" and " dressed in ALAB 818, and we see no need for further L INTERVENORS' NOTION OF JUNE 3,1986 t IV. The June 3,1986 Suffolk County, State of New Y Southampton Supplement to Motion for NRC to Es Procedures is denied. The motion' asks N i review of the February 13 exercise violated FEMA's i requiring a public meeting. The Commission defers I. .tation of its own procedural rules. We perceive no harm hstor IThe Board and the parte should keep in mind d oreen sws evidentiary haannoi B. Y 582 g ^e___ = 4 s.
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s l l tl s, i.- .v. Cy ker." from this denial of their motion, u the issues raised by the exercise will be aired in the adjudicatien we initit:e today, B. are uke Commissioner Asselstine approved in part and disapproved in part.
- rve.
His separate views are attached.
- esi-It is so ORDERED.
Ss. tist-For the Commission sate S AMUEL J. CHILK l 3 Secretary of the Commission Dated at Washington, D.C., ~ this 6th day of June 1986. lut- ~ SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I I agree with that portion of this Order which directs the initiation of a-1 hearing on the results of the exercise of the emergency plan for Shore- ') ham. I also agree with the decision to continue to defer review of the issues in ALAB 832. However, I do not agree with the procedural guld. ,y, ance provided to the Licensing Board in this order. I see no reason to set .g any pleading requirements beyond those already existing in the Commis-j 4 I sion's regulations. g iul. 3'! e ? I tue Ws i' o pt. an N 4 583 9 6 _.._am
c yJ) .1/, XHCi : UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION P '86 0CT -8 P 3 :04 3 LONG ISLAND LIGHTING COMPANY j(((.g., ,, ;-]* B R /*~ - Shoreham Nuclear Power Station, Unit 1 (EPExercise) SERVED OCT -81986 (Docket No. 50-322-OL-5) s [ASLBPNo. 86-534-01-OL] .l .g ..l NOTICE OF RECONSTITUTION OF BOARD. p ,1 . ' l ^ O Pursuant to the authority contained in 10 CFR ll 2.721 and ~~ 2.721(b), the Atomic. Safety and Licensing Board for Long Island Lighting * ,[ ) Company (Shoreham Nuclear Power Station, Unit 1), Oceket No. 50-322-OL-5, is hereby reconstituted by appointing Administrative ' udge, U J John'H Frye, III, in place of_ Administrative Judge Morton B. Margulies " and Administrative Judge Oscar H. Paris in place of Administrative ' Judge Jerry R. Kline because of schedule conflicts. Administrative Judge John i p,[ H Frye is appointed Chaiman of the'Bo'ard. l 1 s As reconstituted, the Bo'ard '.is comprised of the following Administrative Judges: j John H Frye, III, Chairman Oscar H. Paris Frederick J. Shon %"$$$cd $kARM,, n 5R 9 a D3 62:
l j 2 i F,ii i +. All correspondence, documents and 'other material shall be filed j with the Board in accordance with 10 CFR 9 2.701 (1980). The addresses i of the new Board members are: I. Administrative Judge John H Frye, III, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Administrative Judge Oscar H. Paris j Atomic Safety and Licensing Board O, U.S. Nuclear Regulatory Comission 49 ,/ Washington, D.C. 20555 5 i / /4 MC ) 1 B. Paul Cotter, Jr. /. Chief Adainistrative Judge q Atomic Safety and Licensing j Board Panel Issued at Bethesda, Maryland, y this 7th day of October, 1986. >- s. ) 1 a I i I 4 I il } q ua l l-. n1
un 0.%To't a '""'"i**""' ' _ 1.. m m.m. [ 6mv'astf taas a o uo 1 g g =A _. g== U.S. HOUSE OF REPRESENTATIVES o- ): ^*" R *",u*u" 3'*A" "*E emu a SUBCOMMITTEE ON ENERGY CONSERVATION q o ljlll'l'6"o=tu. imoneema';,*$,,,,,, anoman ,AND POWER +1 m a e on OF THE COMMITTEE ON ENERGY AND COMMERCE u,,,,,- WASHINGTON, OC 20515 October 28, 1986 1 1 ~ Administrative Judge B. Paul cotter, Jr. j Chairman Atomic Safety and Licensing Board Panel a U.-S. Nuclear Regulatory Commission q,2 4350 East-West Highway ' i' Bethesda, Maryland 20814
Dear Judge Cotter:
I ~ am deeply troubled by your decision to reconstitute the Shoreham Licensing Board by removing two of its three members Judges Morton Margulies and Jerry Kline. This decision has i sparked outrage among State and. local government of ficials. Their replacement at this critical time in the Shoreham licensing L process would mean that the exte'nsive knowledge of the _ issues that they have gained over the lengthy proceedings of the past months will not be brought to bear on matters of vital importance to all parties and to the public. t In order to assist the Subcommittee to dete-emine whether to n ,Vi hold a hearing on this matter, please provide answers to the E following questions by November 4,1986. Please note that for the purpose of this request, the word " record" or " document" includes all handwritten or typed communications, documents, draf ts, memoranda,. notes, " route slips," briefing and appointment logs, word processing recordings and audio tapes. The word " discussion (s)" includes all conversations.between any two or more persons, including all meetings, telephone calls, and so'forth. To the extent that any person asked to provide records is aware of such records that are not in their possession or have been destroyed or for other reason cannot be provided, please identify whether or not such documents existed, in whose files they existed, the reasons why such records are unavailable, and, if destroyed,- who destroyed them and' or / ordered their destruction. For example, such records 'which are unavailable should be identified by title, author, date, etc. .I' Y fy, _HM u d v s -i
' Judge B. Paul Cotter, Jr. ^ I Page 2 October.28, 1986 p};.,-.< With regard to the October 7 " NOTICE dF RECONSTITUTION OF 1. BOARD" (hereinafter " NOTICE") and the October 17 " NOTICE OF RECONSTITUTION OF BOARD: CLARIFICATION" (hereinafter " CLARIFICATION"), please provide to the Subcommittee all records pertaining to (a) the NOTICE, (b) the CLARIFICATION, and (c) the ~ reconstitution of the Shoreham Board. 2. With ref erence to your October 7,1986 NOTICE: (a) What are the " schedule conflicts" to which you refer? (b) Why is it believed that such " schedule conflicts" may be alleviated by replacing Judges Margulies and Kline? .(c) When did you first learn that there were " schedule conflicts" that might require reconstitution of the .7 Shoreham Board? How and f rom whom was this information .L Q.! communicated? (d) Who first' suggested that these " schedule conflicts" mig'ht be alleviated by reconst;ituting the Board?. When?. L Please Erovide to the Subcommittee all records pertaining i (e) to any schedule conflict" in the Shoreham litigation on f the part of Judge Kline or. Judge Margulies, and all ~ records pertaining to a reconstitution of the Shoreham Boards as a way to alleviate such conflicts., 3. Was your first communication with Judges Margulies and/or Kline regarding scheduling difficulties and/or replacing either or both of them and/or reconstituting the Board initiated by you, by either Margulies and/or Kline, or by a third party? Please provide the date, time, persons participating, substance of the -s tg communication, and all records pertaining thereto. 4.. Prior to October 7, 1986,.did you discuss or participate in any written or verbal communications regarding (a) the removal of Judges Margulies and Kline and/or (b) the reconstitution of the Board with any of the parties or with Chairman sech or with any other NRC Commissioner or with any member of the Commissioners' staff (s) or the NRC staf f or with any Administrative Judge? If so, please provide a detailed chronology specifying the date, with whom you communicated, names of other percons present or participating, substance of the communication, and provide any records pertaining to such communication. o 5. With regard to the October 17, 1986 CLARIFICATION: Between October 7 and October 17, did you discuss or--participate in any. written or verbal communications regarding (a) the. removal of Judges Margulies and Kline, (b) the reconstitution of the Board, and/or (c) the form or content of the CLARIFICATION with any of the parties or with Chairman Zech or with any other NRC Commissioner or member of the Commissioners staff (s) or member of thf. NRC Staf f ? If so, please provide a detailed chronology c c p
. Judge B. Paul Cotter, Jr. I -Page 3 y October 28, 1986 h ' specifying the date, with whom you communicated, names of other persons present or participating, the substance of the communication, and provi'; any records pertaining to such communication. 6. On October 17, 1986 you wrote to Herbert H. Brown, Esq. regarding your issuance of the October 17, 1986 " NOTICE OF RECONSTITUTION OF BOARD: CLARIFICATION." In that letter you stated that "It was my determination, in consultation with the members of the existing Board, that the expanding emergency
- planning-related Shortham cases could not reasonably be handled in 3 timelv manner by a single board.'...The reconstitution will 1
assure that all issues can be heard thoroughly without undue delav 1 (emphasis added)." (a) What is meant by the phrases "a timely manner" and /~N "without undue delay"? What precisely would constitute g "an untimely manner" or " undue delay?* Has the Board or t s , any of its members e'stablished a target date for issuing a decision? If so, (i) what was this target date or dates, (ii) when was such a date established, (iii) by whom, and (iv) for what reason (s)? (b) Do you and/or the Board believe that it has a responsibility to expedite licensing? If so, why? Is it expected that reconstituting the Board will expedite the L hearing process and/or the licensing process?. If so, how? Why does the Board feel that such expedition is necessary or desireable? 7. With regard to the reconstitution of the Board and/or expediting the licensing process for Shoreham and/or removing Judges Kline and/or Margulies f rom the Board, p' lease provide a complete chronology and description of all communications, t s .N' including but not limited to meetings, discussions, documents, telephone calls, and conversations of any kind, between yourself and/or Judge Kline and/or Judge Margulies and/or Judge Frye and/or Judge Paris ands ta) Chairman zech; (b) Any other NRC Commissioner (s); (c) NRC Staff, including but n&t limited to any member of the Commissioners' staffs, the office of the General Counsel, and the Office of the Executive Director for Operations; i and (d) Any employee of (1) the White House, (ii) the Department of Energy, (iii) Federal Emergency Management Agency (FEMA), or (iv) any party to the Shoreham proceedings. Please provide all records pertaining to such communications. 8. On October 3,1986, the Board made several rulings regarding the emergency planning issues at Shoreham. Ab any time did either you or any of the other Judges discuss or communicate-regarding- .u m
iludg& B. Paul Cotter, Jr. i Page 4 hs. October 28, 1986 tp :. y the October 3 Board rulings or heading andhor possible J reconstitution of the Board with each other or any NRC t l Commissioner or Commissioners' staf f or NRC Staff or any employee of the White House, DOE, or FEMA? If so, please'specify the-pe r so n (s), date, place, type of communication, and substance thereof. Please provide all records pertaining to such communication. 9. Why did you leave Juhn Frederick Shon to serve on the j original Board and the ne. Board? What factors went into the i decision to remove -Judges Kline and Margulies f rom the original o" Board and leave Judge Shon? Did either Judge Kline or Judge Margulies request that-the original Board be reconstituted? Please provide a chronology of such communications describing the persons involved, dates, place, substance of the communication, and all records pertaining thereto. [ O -n Thank you for your prompt attention to this matter. I look n forward to receiving your responses by November 4,1986. q ,,~ Sincerely, [ m,- Edward J. Marke Chairman u h
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^ }% Mited 16tates J5cnate p WA$hlNOTON, DC 20010 16 (Et 16 P1:00 p ( AfO M :.".':..... ( UCEN$ LNG 59 4 i AN october 14, 1986 i 1 I Paul Cotter, Jr. ( The Honorahlo B. Chairman Atomic' Safety and Licensing Board Panel Nuclear Regulatory Commission 7 1717 H Street, N.W. Washington,.D.C. 20555 . lq fess .i i De'ar Chairman Cottei ~ u I am writing rEgarding your decision. announced todays to. ll " reconstitute" the Atomic Safety and Licensing Board panel f considering the Shoreham case by replacing Judge Margulies and Judge Kline. I i utove th'ia decision is an insult to every person who presente' nestimony to the Board during.the recent public. hearings and the official pre-hearing conference on Shoreham. 1 Those who testified did so in full belief that they'were reaching the right people -- the judges who would decide on 9 Shoreham licensing issues. Insteadi your. decision means that two-thirds of the judges involved in' the final decision will not h have participated in these hearings. r'1 L \\_/ This is even more outrageous in light of the~ fact'that f" have not heard an adequate exple. nation for this decision.= -If it-was simply a " scheduling"' problem, I would: suggest that the. seriousness of this issue should take precedence over virtually every other issue the panel has on its. agenda. Otherwise,. this is simply another example of the.NRC's lack of commitment to'the safety of the residents of Long Island. i. If you deetde.to proceed with this change, it :is imperative F that all those wnc presented testimony to Judge.Margulies and Judge Kline in recent hearings on Long Island be permitted to i re-present these statements to their replacements. ;It also is 2 L imperative that these replacements certify that they hav.e read. s I the tens of' thousands of pages of evidence and testimony and' legal decisions that have been compiled:in the nearly'five-year history o'f the Shoreham casa.. .4i g a== m61121 ' p6k'"d60cK' 05000 311 V EDR e n-a n .w
l l t - 1 1 The Honorable B. Paul Cotter, Jr. l )f.: october 14, 1986 p. Page Two ) I believe that the residents of Long Island deserve a full explanation of why this change has been proposed. I also ask that you arrange that, if this change is implemented, all i members of the ASLB involved in licensing Shoreham be presented with the fbil testimony presented to Judges Margulies~and.Kline. 1 I look forward to hearing from you on this matter. I Sincerely, i Alf a M. D'Amato [' O. Unite States Senator l' ll e n = e + e p s s *. O e t. e m m
r I // '6 l : KIRKPATRlCK & LOCKHART i IW M SI7.E!r.N T, i t TASH:NCrCN. C.C. ::US ,:y 5:ms r.g: H ,e
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namen i:::3 a9: w ..ya, p 71' fA a.ac:09 H7N '.1 Ma 57::Kt'. C. tr '.1 na:em a:a a: :n .g ex :g. p i.:. m HER3ERT H. N.cTN c:n <nas g:, F sua.un:: ".. -, m:, inox October 14, 1986 j l 1 k TEI.ECOPY Administrative Judge S. paul Cotter, Jr., Chairman l Atomic Safety and Licensing Board Pane' U.S. Nuclear Regulatory Commission y A. 4350 Iast West Highway Bethesda, Maryland / v 3 Re: NRC Docket No. 50-322-OL-S (EP Exercise) g d Dear Judge Cotte"* 4 I am writing on behalf of Suffolk County and with authori:ation to write also for the governments of New York State and the Town of Southampton (" Governments"). ~ This past weekend, counsel received your " Notice of Reconstitution of Board," dated October 7, 1986, which for the
- l stated reason of " schedule conflicts" removed Judges Margulies and Kline from the Shoreham post-exercise litigation and replaced them with Judges Trye and Paris.
The Governments respectfully request that /cu particularlize the " schedule conflicts," explain ,',_.'\\ the circumstances that promoted the Notice, and identifv the V factors you considered in deciding to remove Judges Margulies and Klino. In particular, the Governments would appreciate-learning whether, in making your decision, you were aware: 1 that in CLI-86-11, the Commission had specifically " directed" that if available the Margulies Beard preside over the post-exercise litigation? / ., r s ar ncj, c50ME - p s ppg = G Osb3 l e m. m
l j t .i ' KIRKPAT?dCK & LOCKMART NP 'j f .f Administrative Judge B. Paul Cotter, Jr. e October 14, 1986 Page 2 1 i 2. that in order to benefit from the " knowledge" the Margulies Board previously gained on emergency preparedness issues and the Board's familiarity with the " mammoth ~ record," the Applicant had specifically d requested that the Ma?gulies Board preside H over the post-exercise litigation; and no
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other party objected? ,h 3. that in the post-exercise proceeding, the-Margulies Board had. presided over two prehearing conferenc'es of counsel, read and [
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considered hundreds of pages of substantive .J! ) pleadings concereing issues to be litigated, ruled on motions and numerous ~ contentions following oral arguments of counsel, and fixed a pre-hearing discovery schedule? !l 1 4. that the Margulies Board had personally
- l heard three full days of oral limited appearance statements in Suffolk and Nassau Counties at which hundreds of' members of the public and scores cf government officials and.
community leaders presented their views on 'the pending issues? 5. that any party to this proceeding might p view the reconstitution of the Licensing h Board as prejudicial or otherwise adverse to
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, _s qj the public interest? 4 The Goverr.ments would appreciate being advised as to the consideration and weight you gave each of these. factors. By having presided over the critical early stages of the post-exercise litigation, as well as having participated in the H e,arlier emergency prepareccess decisions, Judges'Margulies and Kline became educated as to the evidence of record, the~ facts at issue, and the relationship of those facts to the ultimate legal questions. While 6he Governments have cbjected strongly to
- l certain rulings of the Margulies Board and have appealed these~
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rulings, the fact it that Judges Margulies and Kline have a f. familiarity with the record in this proceeding that cannot be
- r duplicated by new Judges.
Indeed, the removal of' Judges Margulies and Kline will have the potential to cause an immediate adverse impact on the post-exercise proceeding, because the new Judges will require time to learn the relevant history of the_ p e f. e im -
KLRKPATFdCK k LOCKHART p t b {' Administrative Judge 3. Paul Cotter, Jr. October 14, 1986 i Page 3 f l unprecedented emergency preparedness issues at Shereham -- more than four years of NRC and court proceedings and thousands of l pages of materials concerning the first " utility plan" -- before q they are in a position to act knowledgably in their new capacity, j Even after familiarizing themselves, the new Judges will never l realize the benefit of having participated in earlier decisions 1 concerning emergency preparedness or having heard the testimony of the public and government officials at the limited appearance sessions. In short, the Governments submit that the Notice ti reconstituting the Margulies Board should be rescinded. Whatever -s. considerations led you to issus the Notice should be re-evcluated in light of the prejudicial and otherwise adverse effects that 'l reconstitution of the Board has on the parties and public in thi's ,) unique proceeding. Putting new Judges into the Shoreham il proceeding at this time denies the Governments a fair and adequate hearing board. fn the event you perceive any scheduling conflicts among Board members, the Shoreham proceeding should take priority. Any
- I conflicts should be resolved so as to preserve the origi,nal
- l membership of the Margulies Board and the base of critical
{ background and familiarity these Judges have with the singular pending issuer.. At this stage of'the proceeding, these is no . legitimate reason to have any emergency preparedness issue heard i or decided by any Board other than the Margulies Board. The Shoreham proceeding is not commonplace in any of its j/ dimensions, and it ic,not a case in which Licensing Board members can be viewed as being fungible. It is, to the Governments, inexplicable that your major decision to recenstitute the sitting Licensing Eoard -- a matter affecting the very structure of Shoreham proceeding -- was made by you without prior notice to the parties or even a request for their views. The Governments accordingly submit that the only appropricta course is for you to reconstitute the Margulies Board and to permit the Shoreham proceeding to move forward in acccrdance with SRC regulations and without further interfesence. Sinearelv, l~ i, derbers h. B_cwn cc: Service List (LILCO and SRC Staff Telecopied) \\ l
w.: cast v c avAtc '[ Ms 'oss y J q Enitti states senate j c WASHINGTON, DC 20610 F. } l s ?' F i October 15, 1986 f i l i The Htnorable Lando W. Zech, Jr. j Chairman i Nuclear Regulatory Commission 1717 H Street, NW j Washington, D.C. 20555
Dear Chairman Zech:
I am outraged by the recent decision by Judge,B. Paul Cotter, i Jr., Chairman of the Atomic Safety and Lic to Q remove Judges Margulies and Kline f rom th(ene d r; **= d Panel, s' Shoreh ost-exercise l litigation and replace them with Judges Frya oud so 12. d This decision demonstrates' great disdain for the legitimate concerns and feelings of all those who testified before Judges l Margulies and Kline in the recent limited appearance ' statements.in. 1 Nassau 'and Suf folk Counties. Hundreds of members oof the public and scores of government of ficials and community leaders presented ' their views on issues'important to the local communityr a H This is not an isolated example of the NRC's lack of commitment to the safety of the residents of Long Island. In 1984, Judge Cotter removed the Board considering_the issue of.the l diesel generators at Shoreham, the Brenner Board, and replaced.it with the Miller Board. This, combined with subsequent issuance of 1 . (_. ') a. draconian schedule that denied the Constitutional = rights of New ? 4d York State and Suffolk County, made it necessary-for the State of l New York and Suffolk County to obtain an injunction in Federal i court against the NRC's actions. The handling of the February 13 evacuation drill, and the NRC's lack of consideration of my contentions submitted on September 2 6, 19 86, ' are two more - exaz@les of a pattern of behavior which seems to indicate the NRC's determination to license.Shoreham at any cost. I am writing, therefore, to request that you immediately convene an open, public meeting of the Nuclear Regulatory Commission, and that'I be. permitted to speak to the' Commission with respect to the following questions: 1. What were the specificJreasons for the reconstitution of this panel? If scheduling conflicts were present, does the Commission veiw these conflicts as more important than the safety issues involved with Shoreham? s ^>/r
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The Honorable Lando W. Zech, Jr. , October 15, 1986 Page 2 J. .f. 2. How will the Commission ensure.that any replacements on the ^ panel will have the full input of the tens of thousands of pages of documentation and. hundreds of witnesses who have testified regarding Shoreham to date? Moreover, is it reasonable to have decision-makers on issues as important as the licensing of nuclear power plants makes their decisions without having been involved in the important process of taking public tertimony from those most concerned with the decision? 3. Is this reconstitution of the panel in.any way prejudicial or otherwise adv,erse to the public interest? Has the NRC ever previously taken such an action betwaen the pre-hearing conference and the licensing hearing on any other licensing procedure? j I realize that the NRC must consider legal constraints on issues before the commission which are subject to litigation. However,. because this particular action is not under litigation, I , f Ny believe that an open session, along with a complete transcript, is ,,j appropriate.. This meeting must be held as soon as possible and-members of the pub 2.ic must be permitted to attend. I look forward - r ~ to hearing from you promptly on this issue. Sincerely, [. / b A ons D'Amato U States Senator I ADien-d cc: The Honorable Frederick M. Bernthal The Honorable Thomas M. Roberts TN The Honorable James K. Asselstine y_) The Honorable Kenneth Carr e t 5 8 e f ? L u .m. . -m
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//h UNITED STATES ~ ' ' t E NUCLEAR REGULATORY COMMISSION .3 ATOMIC SAFETY AND LICENslNG eOARO PANEL {v ,/ NJg'; 5, nimuovon. o.c. mu 0 o i ? October 17, 1986 5 001' 20 P3 M3 'l 0FFr.:, w-t 'l 00Cn bh.. ' N.I 1 SP A ND Herbert H. Brown, Esquire Kirkpatrick & Lockhart l 1900 M Street, N.W. Washington, D.C. 20036 as OCT 201986 D(ar Mr. Brown: This is in response to your letter of October 14, 1986 concerning the reconstitution of the Licensing Board in the emergency planning exercise phase of the Shoreham proceeding. To eliminate confusion as to the scope of the reconstitution, I am issuing the enclosed " Notice of i Reconstitution of Board: Clarification." s It was sty determination. in consultation with the mesbers of the existing Board, that the expanding emergency planning-related Shoreham cases could not reasonably be handled in a timely menner 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 quiti.. Tlatted. f.; The reconstitution will assure that all issues can be heard 'l thoroughly without undue delay. I am sure you will' agree that' achieving .l this ob,jective is in the best interests of all parties to the Shoreham proceeding. [ Sincerely. [ 0 . Paul cotter, J. Chief Administrative Judge - Enclosure
- Service List - Shoreham/ Emergency Planning,* Docket No. 50-322-OL-3 Shoreham/EP Exercise Docket No. 50-322-OL-5 e
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y-j. UNITED STATES OF AMERICA f NUCLEAR REGULATORY COMISSION . e q L LONG ISLAND LIGHTING COMPANY l Shoreham Nuclear Power Station Unit 1 (EP Exercise) (DocketNo.50-322-OL-5) H [ASLBPNo. 86-534-01-OL] NOTICE OF RECONSTITUTION OF BOARD: CLARIFICATION By notice dated October 7, 1986, the Atomic Safety and Licensing
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Board presiding in Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),'DocketNo.50-322-OL-5wasreconstituted. Because of I I the multiple issues pending in this proceeding, there has been some ~ confusion as to the intended scope of the reconstitution. \\ ~ This is to clarify that the reconstituted Board comprised of John H Frye, III, Chairman; Oscar H. Paris; and Frederick J.'Shon will preside 'l only in the proceedings related to the emergency planning exercise. ll d[h which are being heard under Docket No. 50-322-OL-5 (Emergency Planning ^ Eiereise). These proceedings were initiated pursuant to Comission order,CLI-86-11,23NRC577(1986). [ The Board comprised.of Morton B. Margulies, Chairman; Jerry R. Kline; and Frederick J. Shon will continue to preside in all.other t.. f. proceedings pertaining 'to emergency planning for the Shoreham Nuclear n I Power Station, 'which are being heard under Docket No. 50-322-OL-3 O f $ O l l. * - m+tvsa - 9p. .a:
[:, ! cp y-(Emergency Planning). These include issues remanded by the Comission i in CLI-86-13, 23 NRC (July 24,1986) and by the, Atomic Safety and l Licensing Appeal Board in ALAB-832, 23 NRC 135 (1986) and ALAB-847, 23 { NRC (September 19,1986). L 4 o ~. "B. P&ul Cotter, Jr.// ChiefAdministrativFJudge Atomic Safety and Licensing q Board Panel -' il { Issued at Bethesda, Maryland, this 17th day of October,1986. !I r.
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4)f rs atou 5 / \\ UNITED STATES M ' ~ j NUCLEAR REGULATORY COMMISSION //6 p y e 0 5-je ATOMIC SAFETY AND LICENstNo SoARO PANEL y W ASHINGTON. D.C. 20688 n October 17, 1986 5 .1 4 [ TS.e Honorable Alfonse M. D'Amato United States Senator i Washington, D.C. 20510
Dear Senator D' Amato:
. This is in response to your letter of October 14, 1986 concerning .I the reconstitution of the Atomic Safety and Licensing Board presiding in '] p the emergency planning exercise segment of the Shoreham proceeding. h First, let me say that there seems to have been some confusion as to the scope of the proceedings affected by the reconstitution. This'is understandable given the number of issues pending in the Shoreham case. Consequently, I have submitted a clarification of the Notice of Reconstitution for publication in the Federal Register. A copy is 'j enclosed. - As you will note,. Judges Margulies, Kline and Shon will continue to ' N preside over the bulk of the emergency planning issues in Shoreham, including all matters that have been the subject.of extensive prior litigation. The reconstituted Board of Judges Frye, Paris and Shon will preside only in the proceedings related to the emergency planning i exercise. Hearings on this issue were instituted pursuant to a. June 6, i 1986 Commission order and do not involve " tens of thousands of pages .. cogiled in the nearly five-year history of the Shoreham case." Last week, Judge Margulies advised me that it was his Board's osinion upon completing the admission of issues in the exercise case, tiat all pendin proceedings in Shoreham could not be heard in anything o like a fashion by a single Board. - For that reason, I established recons ituted Board to handle the newer, less developed emergency planning exercise hearing. i In complex NRC proceedings, seg gation of specific hearin issues t for consideration by sepa' rate licens$g boards has been a nonna case i management procedure for many years. In Sh'oreham itself, emergency slanning was assigned to a separate board long before-the original board D j tad completed consideration of other safety and environmental issues.- "F Similarly, the Seabrook proceeding in New Hagshire is 'being handled by H 'two licensing boards. 1 l h (_ ' V A C4 V I i /( ' h ^- jf, -<( -~ .)
== d(' / 'i L' Honorable Alfonse M. D' Amato 2 October 17, 1986
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h-p -{ ? My sole concern in respondng to the excessive workload created by. the expanding Shoreham emergency planning proceeding was to assure that all issues are heard fully without unnecessary delay. I believe it is i that comitment to whien the residents of Long Island are entitled. Sincere Y B. Paul Cotter, r. Chief Administrative Judge Enclosure 11 m' ) cc: Service List - Shoreham/ Emergency Planning, Docket No. 50-322-OL-3 Shoreham/EP Exercise, Docket No. 50-322-OL-5 i .l ' 1 .l ,7 u ~ 4' ( 6 1..
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r m n,,,; {,v. d, ' 4; o .e..h i <,J ;f t. n p g7......,,,., [Q @,2cpj,-$ ~ 7- ], COUNTY OF-SUFFOLK 00 b':. I O t N ya '86 007 22 P4 37 l COUNTY LEGISLATURE f hfIli.. GREOCRV J. st.A SS 00CO i.*:. f: , l enseone omcen. 6e_w L a I October 17.1986 'fi 8 t . Mr. Lando W. Zech. Jr.. Chairman L Commissioner James K. Asselstine
- Commissioner Frederick M.'Bernthal Commissioner Thomas M. Roberts.
Commissioner Kenneth M. Carr 7m 4 United States Nuclear Regulatory Commission - f' i 1717 H Street. N.W. Washington. O.C. 20555 - d N Re: NRC Licoru/ing Board Membere g Gentlemen:. In late September of. this year, the Nuclear Regulatory Commission held a series of hearings in Suffolk County for the purpose of allowing. local citizens ' - ~ O an opportunity ta voice their thoughts and concerns with regard.to the licensing of the Shoreham Nuclear Power Plant. I believe this localrinput provi'ded those ~ judges who were present,: with a valuable perspective of the area's stance. on the continued efforts to proceed with full-power licensing procedures for operation ' of the plant. t i Earlier this week, it was announced that. the. Commission had replaced two ../ ) of the three judges on a liconalng board that last year concluded that the Long lstand Lighting Company lacked the authority' :to implement its emergency _ evacuation plan for the Ghoreham Power Plant. ' Additionally, those same two judges participated in and benefitted from the local hearings referred to above. inasmuch as 'the local hearings were designed to provide the people who must ~ ultimately decide upon a critical aspect of the Ilcensing of a; nuclear plant, with' i. personal contact and Information from area residents. I believe the newly' appointed judges are abilgsted to conduct such'pubile. hearings so that they: too can benefit f rom this process. I realize the inconvenience to the Commission through 'the delay that may be caused by scheduling a second' series of hearings, but if. decision 7 making.is, '/ 'g ' l. ' ,.) ' :;.1., L., s::.....' J 9 d' ' H i.lI '.4 1i : S . ss en seo.4ces 6soessatuas evi6ciso. vstem4=s usuomiA6 aiowmay e wavesavos. msw voa.c s ites. e ' E m % ' ! GoLV G) G Q 6 = & p>p e ~
i l' Page Two - Nuclear Rogulseory Commission October 17,1985 ,1 b. u n: - 1 i to be reflective of both a private utility's position and that of those it has chosen l to serve, then the judges who are to make these decisions must afford themselves the opportunity to listen and learn from the people of Suffolk County. q Sincerely. i^ a Gregory J. Blase Presiding Officer Suffolk County Legislature I'* GJB/gb cc: Senator Daniel Patrick Moynihan ] Senator Alfonse O't.mato L Congressman William Carney q Congressman Robert J. Mrazak- ) Congressman Thomas J. Downey Chairman John H, Frye - Atomic Safety G Licensing Board Oscar H. Paris - Atomic Safety G Licensing Beard Frederick J. Shen - Atomic Safety G Lice;- ig Board ,j .,~s, 'b u f j e r
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~ A: /3-3O KIRKPATRICK & LOCKHART $? 1900 M ST7.EET N W. WASHINCToN. D C. :00M nn, peoffoN MCg c -., narrow. m oza g<,. +: mam:ma aan en mo ..' m a 1423 MjcxgLL AvgNyg =>c - - y as act a m t October 22, 1986 in ouvu iumse l t HERBDT H. BROWN 0if,,,, tr7savnex.PA suu aanes m s 00Ch.r *- r nyy b.'- ; ' [ BY HAND N i d Administrative Judge B. Paul Cotter, Jr., Chairman L Atomic Safety and Licensing Board Panel .j U.S. Nuclear Regu.atory Commission i-4350 East West Highway .i Bethesda, Maryland 20814 d q 1 Re: NRC Docket No. 50-322-OL-5 (EP Exercisie) ,} .id
Dear Judge Cotter:
0 I am writing on behalf of Suffolk County and with authori-
- j zation of the State of New York and the Town of Southampton
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(" Governments"). Year letter of October 17 is unresponsive to' the Govern- !l ~ ments' letter of October 14, failing even to address the specific questions and requests set forth therein. The Governments are y entitled to,(1) a full explanation of the " schedule conflicts" of Judges Margulies and Kline that you claim required you to remove
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these judges from the Shoreham post-exercise litigation Board and l (2) rescission of your Notice which removed the judges.- Accord-ingly, enclosed is a motion of the Governments fc rescission of y ) your October 7 " Notice of Reconstitution of Board and your~ H s October i7 " Notice of Reconstitution of Board: Clarification." The Governments request expedited consideration of this. motion. g The Governments object to your removal of Judges Margulics and Kline from the Board conducting the Shoreham post-exercise litigation for the followin; principal reasons. First, your action was arbitrary. Ju'dges 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. 0 Comtaission has nc,t reversed its directive, and no party has .t called for t he removal of Judges Margulies and Kline. E ), a u ^ 2 " C ; ; ; ;,1 0 2 2 Uno ADOCK 05000322 a g FDR 7 a 1 f DJt0 ~
t - " KIRKPATRICK & LOCKHART Administrative Judge B. Paul Cotter, Jr.,' Chairman b(5 October 22, 1986. h Page 2 Second, the familiarity with the record and issues that j Judge? Margulies and Kline have gained by participating in the j earlier phase of the emergency planning proceeding and in the i 1 pre-hearing phase of the pres'ent litigation cannot be duplicated by new judges. As the Applicant stated and the' Commission recog-nized, these are the judges with " knowledge" of the " mammoth record" in this proceeding. 'l Third, your Notice and Clarification are without-foundatien 1 and fail even to identify, let alone explain, the " schedule conflicts" that required removal of Judges Margulies and Kline. j Moreover, you fail to explain why Judge Shon remains on the Board 4 2'S free of " schedule conflicts" while his similarly situated col- / leagues, Judges Margulies and Kline, must be removed. . ~ - Fourth, you acted to remove Judges Margulies and Kline widh-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 o judges, whose legal interests are not at issue in this proceed-i ing, you chose to ignore the interests of the parties themselves. Fifth, the Governments perceive no conceivable benefit to th'e public safety from your action. Indeed, the Governments ' ' / ^3 submit that you cannot po.snt to any way in which the conduct of u ,e 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 crder set the stage for the later denial to the Governments of a fair nearing. 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. O Again, as in 1984, you acted on October 7 without the Governments having even a hint that action by you was being considered; and you fai'.ed to explain your action then and now. In 1984, and again this time, your action came af ter major rulings of the Licensing Board: then the Brenner Board's rejection of LILCO's scheme to operate at. low power without ~_
_ =. KRKPATRICK & LOCKHART ) 1 h Administrative Judge B. Paul Cotter, Jr., Chairman 9-October 22, 1986 i {." Page 3 j l 3 l 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 o were' removed before they could rule on Objections which LILCO and
- j 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 n in the Shoreham proceeding requires concern.. In light of this, !1 "') and in order to deal forthrightly with the present circums'tances, . [ './ the Governments are available to meet with you, any of your 'l [ 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 d l solution. It-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 !I independent interests.which are relevant, important,'and worthy [ of your careful consideration. Very truly yours, 7 ,;) Herbert H.. Brown [ i HHB: sir cc: Service List U 1 8 F 'I t lg r . A s? -I, ,i .a..n-.~.~..~..
)Ml .,c 5 i p i::. o $~ f'- 00CKETED 'RHFC .j October , b8 l UNITED STATES OF AMERICA ffM ' NUCLEAR REGULATORY COMMISSION 'l Before the Chief' Administrative Judge, Atomic Safety and Licensina' Board Panel -] 1 t. .~ ) In the Matter of ) ) .LONG ISLAND LIGHTING COMPANY- ) Docket No. 50-322-OL-5 i' () .) (EP Exercise)~ I. U (Shoreham Nuclear Power Station, ) '!y Unit 1) ) q ) n ll l MOTION FOR. RESCISSION OF " NOTICE OF RECONSTITUTION OF BOARD" " AND SUBSEQUENT " CLARIFICATION" AND MOTIC.1 FOR EXPEDITED' "l CONSIDERATION By." Notice of' Reconstitution of Board," dated October 7, ^ .;f 1986, and~" Clarification" thereto, dated.. October 17, 1986', the I.y) Chief dministrative 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, 6 : the Governments object to the " Notice of-Reconstitution of. Board" .i and the " Clarification" and move that'the Notice and;
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Clarification be rescinded.
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.-~. S 0 r L v u f,: The Governments also move the Chief Administrative Judge to consider the instant motion on an expedited basis. To this end, 1 the Governments are available to meet in open session with the Chief Administrative Judge for the purpose of addressing any 1 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 I. Backcround F ) ,,/ On March 13, 1986, LILCO requested the Commission to n establish a Licensing Board to preside over post-exercise [ litigation and asked specifically, if feasibic, that the Board be I composed of the same Judges who had presided over the earlier y emergency planning litigation, and thus who had gained " knowledge" of the " mammoth record," 1,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, ,, T\\y} if available, be re-established to preside.1 Because t,he Margulies Board members were available, the Chief Administ.rative Judge on June 10 issued a Notice re-establishing'the Margulies Board. Since that time, the Margulies Board has conductrJ the normal course of prehearing activities. The Board held two 1 prehearing conferences (July 8 and September 24) and several d e J l "We direct the Chairman of the Atomic l Safety and Licensing 1 Board Panel to reappoint.the memberc of the earljer Board if they j are available." 23 NRC at 582. l i; x
.1 .y p, p. 3-p !l
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y 'I telephone conference calls with counsel, read and considered f hundredsaof pages of pleadings concerning issues to be litigated, {q ruled on motions and numerous contentions following oral q arguments of counsel, and fixed a prenearing discovery schedule. ) Moreover, on September 23,'25, and 26, the Margulies Board I conducted limited appearance sessions at three'Long Island i locations _(Hauppauge, Riverhead, and Mineola) at whics hundreds ' lI,) e f of members of.the public and scores of government ~ officials and } . q) ':.: r E,;. community leaders presented their views-on the pending issues. l' 3 The Governments are unaware of any member of'the Margulies'
- l Board having stated that the Board or any of-its members have.
'4 schedule conflicts of the sort.that require' recor.atitution of the; ) .i Board. Nevertheless,,on October 7, the Chief' Admin'istrative [1 s Judge issued a " Notice of' Reconstitution of Board," which l replaced Judges Margulies and-Kline with new' Judges. The' reason. j o stated by the Chief AdministrativelJudge'for this ?ction'was {j
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" schedule conflicts." The conflicts were neither' identified nor ~I 1 k ,,) explained. On October 14, counsel 'for the Governments advised the Chief l ^ Admihistrative Judge that the Governments object to the removal of Judges Margulies and Kline,' and urged that "the only t t-1( appropriate course is f'or you to reconstitute the Margulies Board 'i and to permit the Shoreham proceeding to moveLforward in 3[.: accordance with NRC regulations and without further interference."- The Governments alsoyrequested't'he Chief. ~ da i, af. -. it 1 .m. m
.i j e ' /,. t ] ~ } f. y f. 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, s J 1986, p. 3, copy attached. The Chief Administrative Judge's L l reply, dated October 17, neither responded to the Governments' l questions nor identified or explained any " schedule conflicts" of Judges Margulies and Kline. Instead, he stated: Ls It was my determination, in consultation J. ' t._; / with the members of the existing Board, that the expanding emergency planning-related- ) Shoreham cases could not' reasonably be handled J 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 1 hearings have yet been conducted, and in which the record is still quite limited. ,j The Chief Administrative Judge enclosed with his letter a " Clarification" of the October 7 " Notice of Reconstitution of f Board" that made clear the Margulies' Board would be. removed from .rs [. 3 -/ the post-exercise litigation, but would continue to preside over other Shoreham-related litigation. Judge S, hon was designated to serve on both Boards. II. Discussion The Chief Administrative Judge has not identified, let alone explained, any " schedule conflicts" that require the removal of~ 1 ( Judges Margulies and Kline from the post-exercise litigation 4 c Board. To the best of the Governments' knowledge, there is no such conflict and, even if there were, there.vould be no z; 'h we
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. p-juscifiable basis, absent reconsideration by the Commission of C1 m3-11, 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 3e no rational .J 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 3 j litigation when schedule conflicts have arisen, the Judges and l1 i 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, thete is not even the slightest suggestion.of any conflict in. j this proceeding that would justify:the abrupt removal of two 4 Judges who have been presiding in the normal. course. Even if such an extraordinary situation,were to arise,'the parti.es to the q proceeding -- whose interests are being: litigated -- and not. merely the Board, should be consulted before-any solution is 1 considered.3 d e ~ 2 This is essential because potentia 1' conflicts inv~olving other Shoreham-related matters. affect not only the Judges,: but - 4 the parties, their counsel, and.their witnesses as well.: d 'o 3 .The Governments are.particularly concerned because: they d recall that.in March 1984, the Chief. Administrative Judge abruptly issued an orderLremoving theLBrenner Board from the 'i Shoreham diesel litigation and replaced it.with the Miller' Board ? L + _ma..-. a_.
'r '-s i a: s I W ; / n (f ? _f The only. appropriate remedy now is for the Chief Administrative Jud'ge 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 j 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 to the attention of the parties and together they should forge a y solution.. If, in the unlikely event a schedule conf.lict of y h 'd t-extraordinary proportions arises, the Judges and. parties should assess the conflict and seek a mutually satisfactory solution. j' under circumstances that later led to.the impairment-of the Governments' ability to prepare for trial and protect their interest 3. The Governments strenuously objected.to'this action, d but the B3ard and Commission refused to nodify'it. Ultimately,
- j the Governments obtained a restraining order from the U.S.
j District Court that caused the Commission to consider more o meaningfully the Governments' rights. ti In the present circumstances, the Governments are concerned 0' r3 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,. 1 even in reply to the specific-request of the Governments' j counsel, the Chief Administrative Judge has failed to explain his actio n*, In short, the Governments are co'ncerned-that just as there 'i preved 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 r:onsiderable 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.
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r .i h g-, t j? Under no circumstance should the Chief Administrative Judge t. privately consult with anyone concerning a matter of such importance to the Governments and then, by fiat, change the
- 4 status que 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-U ~ 0 exercise litigation to be a serious proceeding of great .; )y c, importance to the public's u lfares an opportunity to obtain a j conclusive denial of LILCO's efforts to license Shoreham.. The h h Governments have a right to due process and to open and fair. l' decisionmaking on the record, even when that-involves actions of.
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- the Chief Administratiye Judge. In this instance, the-h I Governa.ents are not trying to select who should judge th'eir case. Instead, they are insisting that they not be denied the sitting; s l decisionmakers whose knowledge of the matters.at issue is !1 3 undeniably <better than anyone else's and whose presence on the d 3 Board was at the direction of the Commission following the ~~ ,1 unopposed request of the Applicant. The action of the Chief Administrative Judge in abruptly removing Judges Margulies and Kline was arbitrary. ' The Chief l; y Administrative Judge did'act identify any " schedule conflicts"' h that justify his action; he has not explained why the parties U s.+ !l were denied timely knowledge of " schedule' conflicts;" he-has not h p c ~ explsined why the Commission's directive to appoint the Margulies h .y e 6 ? n .._.__.L__..
9 i e, .{-. I f Board should no longer apply, nor indeed where he gets the power i to, reverse the Commission's directive; he has not explained how j I Judge Shon can have no " schedule conflicts" while Judge Shon's f-similarly situated colleagues on the Board are excessively J 7 burdened with " schedule conflicts;" he has not explained how it
- l could possibly benefit the public safety by removing Judges
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Margulies and Kline from litigation of the very contentions which they admitted, and the scope of which they tailored for hearing; . ll A) -l he has not explained how it could possibly be efficient to relegate Judges Margulies'and K1'ine to a remand docket where i nothing has yet happened, while taking them from the docket they have guided since June; he has not addressed whether secret plan's'
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H are under way at the NRC -- as was the case in 1984 -- to impose p ,1 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 !j ,' ), questions and requests of the Governments. s. Accordingly, the' Governments move the Chief Administrative Judge to remedy the present prejudicial situation that has resuited 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 b. n D '. e 9 4 h ' e f" e
9 ~t e' !kA !, 1P' ( b. J I [ October 17, 1986. The present situation does not comport with i the Governments' due process rights. l d J' Respectfully submitted, Martin Bradley'Ashare i Suffolk County _ Attorney ~! Building 158 North County Complex t Veterans Memorial Highway Hauppauge, New York 11788 i ll_ s H6rbert H. Brown C Lawrence C. Lanpher ll Karla J. Letsche-Kirkpatrick & Lockhart 1900 M Street, N.W. 'i Washington, D.C. 20036 ( Attorneys for.Suffolk County ~ U f -L. .A Fabian G. Palomino 9 .. f ~?', Richard J. Zahnleuter ' 's./ Special. Counsel to the Governor of'New York State ~ Executive Chamber- 'l Two World' Trade' Center l New York, New York 10047 ~ Attorney for Governor Mar.io M. t Cuomo and the State of New York i-1: 'u .l' H I i 4 l
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I .i g j c 1 1 - h 10 - w V: j 1 I I / AM(j Stephen B..Latham d i Twomey, Latham &.Shea q P.O. Box 398 33 West Second Streut Riverhead, New York 11901 Attorney for the Town of Southampton 4 d ^ . s 'l y ) . ll .a 8 i 11 -l e ,1 4 k ., - s, o 9 4 e F
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4 7 I a p R l 7.^ - / lM.wif L ' i. b '* October 22; S d6-l- - p. -UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-OFF:. 'c Before the Chief Administrative Judge, 00CKUj,...,.- /M ' Atomic Safety and Licensina Board Panel WO, ' l -i e I N r 1 ) In'the Matter of ) i ) LONG.. ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 ) (EP Exercise) ) ' ' 't O (Shoreham Nuclear Power Station, ,;j Unit 1) ) j- ) ) r ) CERTIFICATE OF SERVICE j I hereby certify thati copies of the LETTER TO ADMINISTRATIVE-e JUDGE B. PAUL COTTER, JR., CHAIRMAN and MOTION FOR RESCISSION OF' " NOTICE CF 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 ! P.L') John H. Frye, III, Chairman Admin. Judge.B. Paul Cotter, Jr.' Atomic Safety and Licensing Board Atomic Safety and. Licensing Boarc. U.S. Nuclear Regulatory Commission Panel 4350 East West Highway U.S. Nuclear. Regulatory.Commissic Bethesda, Maryland 20814 4350 East West Highway Bethesda, Maryland 20814 Dr. Oscar H. Paris Mr. Frederick J. Shon. i Atomic Safety and: Licensing Board Atomic Safety and Licensing Boarc-U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissic Washington, D.C. 20555 Washington,'D.C.- 20555 w 1 ,..n.s.' .n. .,n. ~ .,1. r - e. ^ _s,,..
,..-) e t. W '$U . Morton B. Margulies,-Esq. Dr. Jerry R. Kline 1 [P Atomic Safety and Licensing Board-Atomic Safety and Licensing Board U.S.. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissior?l 0 Washington, D.C. 20555' Wachington, D.C. 20555 Lando W. Zech, Jr., Chairman Comm.-James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory'Commissior Room 1113 Room 1136 1717 H Street, N. W. - 1717 H Street, N.W. Wishington, D.C. 20555 Washington, D.C. 20555 Comm. Frederick M. Brinthal Comm. Kenneth M. Carr U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissior' Room 1156 1717 H Street, N.W. ] 1717 H Street, N.W. Washington, D.C. 20555 1 Washington, D.C. 20555 h Comm.~ Thomas M. Roberts William C. Parler, Esq. r~g U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissior;: ,/ Room 1103 10th Floor 'J 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 g 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 7^N. Veterans Memorial Highway (,,7 Hauppauge', New York 11788 l Mr. L. F. Britt Stephen B. Latham,.Esq. Long Island Lighting Company Twomey, Latham & Shea 1 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, j Executive Director Office of the Secretary 3 Shoreham Opponents Coalition. U.S. Nuclear Regulatory Comm. 195 East Main Street 1717 H Street, N.W. j Smithtown, New York ' 11787 Washington, D.C. 20555 r a t. i e g.,w' @. g '= r- -9 4
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4 e..p g e e. b ,Wr %pe q w g4.p5 g.
b ) D Mary Gundrum, Esq. Hon. Peter Cohalan
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f5 New York State Department of Law Suffolk County Executive q 2 World Trade Center, Rm. 4614 H. Lee Dennison Building ll j New York, New York 10047 Veterans Memorial Highway -r Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K-P.O.. Box 231 l San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq. j Suffolk County Attorney .Special Counsel to the Governor .] Bldg. 1*S8 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol ]o Hauppauge, New York 11788 Albany, New York 12224 ] Mr. Jay Dunkleburger Mr. Stuart Diamond h
- s New York State Energy Office Business / Financial
.:) } Agency Building 2 NEW YORK TIMES IJ1 Empire State Plaza 229 W. 43rd Street tl . Albany, New York 12223. New York, New York 10036' j David A. Brownlee, Esq. Bernard M. Bordenick, Esq.* j' Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commissior i 1500 0,11ver Building Washington, D.C. 20555 ') Pittsburgh, Pennsylvania 15222 l-Mr. Philip McIntire o Federal Emergency Management Agency 'j 26 Federal Plaza New York, New York 10278
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p "l I ) By Hand Herbert H. Bro.wn By Federal Express KIRKPATRICK & LOCKHART 1900LM Street,'N.W. Suite 800 Washington, D.C. 20036 Date: October 22, 1986 e e = _t
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j 1 l ,r dCIC [ 40 'o, UNITED STATES [ E 'i NUCLEAR REGULATORY COMMISSION l P '3* E W ASHING ton, o. C. 20655 y [ <o o ( {! % l W,o# OCT 2. 41%6 B. Paul cotter, Jr., Esq. Chief Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of LONG ISLAND LIGIITING COMPANY (Shoreham Nuclear Power Station, Unit 1) Docket No. 50-322-OL-5 (EP Exercise) ,)
Dear Judge Cotter:
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? ! We are in receipt of the October 22, 1986 motion of the Intersanors in . li ._.N this' proceeding seeking rescission of your recent decision reconstituting the v Licensing Board for the emergency planning exercise hearings in the. Shoreham proceeding. In this motion the Intervenors express certain concerns regarding this action. Specifically, the Intervenors assert that the, Chief Administrative Judge has identified no schedule conflicts necessitating this action and thus "there is no rational explanation for the... action." Motion at 5. The Staff for its part can appreciate certain of the Intervenors' .I initial apprehensions, however, on balance we do not believe that the motion', ] is well grounded. )j a As we understand the issues, the three controlling concerns in any decision to reconstitute the Board hearing the emergency planning issues is to 4 insure that: (1) the Commission's desire that there be continuity between any
- j newly appointed Board and the Board that previously considered and resolved
'] the earlier emergency planning contentions be accommodated; (ii) the concerns previously expressed by the public in their limited appearance statements are { fully understood and appreciated by any newly appointed Board; and (iii) the
- j Commission's mandate that the exercise hearing be expedited is fully complied
h }) with. As to the first two ccncerns, the continued presence of Judge Shon on both Boards and the existence of a complete transcript of all limited sppearance statements offered in the exercise proceeding would appear to
- l provide the necessary continuity.
And as to the last consideration, while wa
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are not ' privy to all the factors that went into the decision to reconstitute the s! Board, We can only presume that the directive of the Comtoission was a key ~i element. Accordingly, given these factors, the Staff does not perceive a D basis for joining the Interven. ors' pending appilcation. Sincerely, i & m/ M / b. Bernard M. Bordenick Counsel for NRC Staff H cc: F 'rvice List Si1E;is.P.* oe+121 P tA. RoccK OScoo32.2. U. PDR 'i = L
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OVERVIEW e t m at i / . s
SUMMARY
OF PLANTS WITHIN NEXT. YEAR ~ ,,i, ~ SELECTED PLANTS FOR DISCU3SION. .l .e. ( v)- n e 6 D S 9 4 i. i e' q 8 m a t / Vu p l 1 N E
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SiiOREHAM SIGNIFICANT ISSUES g y i _1. SCHEDULE AN OPERATING LICENSE (PERMITTING FUEL LOADING AND OPERATION TO 24 KWT) WAS ISSUED ON DECEMBER 7, 1984. COLD CRITICALITY L TESTING WAS COMPLETED Oh FEBRUARY 17, 1985. FIVE PERCENT LICENSE WAS ISSUED ON JULY 3, 1985. LOW POWER TESTING IS ' COMPLETE. 2. FULL POWER LICENSE ISSUES ] (') REMAINING ISSUE CONCERNS EMERGENCY PLANNING; USING THE 0 '~ LICENSEE'S PLAN REQUIRES RESOLUTION OF LEGAL AUTHORITY l '.II QUESTIONS AND LITIGATION OF THE EXERCISE. i 3. INSPECTIONS ~ NORMAL INSPECTION OF LICENSEE'S OPERATIONS IS C0NTINUING. 4. HEARINGS l THE ONLY REMAINING ISSUES TO BE LITIGATED RELATE TO OFF-SITE j) EMERGENCY PLANNING. ON APRIL 17 AND AUGUST 26, 1985, THE LICENSING BOARD ISSUED DECISIONS ON OFF-SITE EMERGENCY PLANNING (EP) ISSUES, HOLDING THAT LILCO HAS FAILED..T0 DEMONSTRATE REASONABLE ASSURANCE O THAT ADEGUATE PROTECTIVE MEASURES CAN AND WILL BE'TAKEN IN THE EVENT OF A RADIOLOGICAL EMERGENCY, FOR TWO FUNDAMENTAL REASONS: (1) LILCO'S LACK OF LEGAL. AUTHORITY.T0.-IMPLEMENT -ITS OFF-SITE. PLAN, AND (2) THE STATE AND COUNTY'S OPPOSITION i TO THE PLAN RENDERS IT IMPOSSIBLE TO KNOW WHETHER L'ILCO'S' PLAN COULD BE EFFECTIVELY IMPLEMENTED: THE LICENSING BOARD' ORDERED THAT AN OPERATING LICENSE SHALL,NOT BE' ISSUED TO-n. 4 ,,a. .67+.,~ m. a.,a c. 4 n = , + -.
I [ SHOREHAM SIGNIFICANT ISSUES (CONT'D) fl LILCO. THESE DECISIONS WERE APPEALED TO THE APPEAL BOARD, ,.I WHICH RENDERED A DECISION ON'0CTOBER 18, 1985 (ALAB 818) UPHOLDING THE' LICENSING BOARD ON THE' LEGAL AUTHORITY QUESTION. i ON MARCH 26, 1986, THE APPEAL BOARD ISSUED.A DECISION GENERALLY' s AFFIRMING THE LICENSING BOARD'S DETERMINATION THAT THE LILCO PLAN WAS TECHNICALLY ADEQUATE (ALAB-832). HOWEVER, THE BOARD L REMANDED FOUR. ISSUES.TO THE LICENSING BOARI) INVOLVING THE L SIZE'0F THE PLUME EXPOSURE _ PATHWAY EPZ, SCH00LBUS DRIVER ROLE-u CONFLICT, PLANNING'FOR HOSPITALS, AND THE ADEQUACY OF THE RELOCATION FACILITY, THE APPEAL BOARD INSTRUCTED THE ASLB 10 u TAKE NO ACTION ON THE REMAND PENDING NOTIFICATION BY.THE m mf COMMISSION. '0N JUNE 6, 1986, THE COMMISSION ISSUED AN ORDER. / FOR ASLB TO BEGIN HEARINGS ON THE EMERGENCY PLANNING EXERCISE,, / HELD ON FEBRUARY 13, 1986. THE-INTERVENORS SUBMITTED 50 [ CONTENTIONS ON AUGUST 1, 1986. BY ORDER OF OCTOBER 3, 1986, THE LICENSING BOARD ADhlTTED 14 CONTENTIONS IN WHOLE OR IN a PART. HEARINGS.ARE SCHEDULED TO START THE WEEK'0F FEBRUARYf ] 2, 1987. ON' JULY 24,~1986, THE. COMMISSION ISSUED AN ORDER (CLI-86-13) CONCERNING THE APPEAL WITH RESPECT TO ALAB-818. THE COMMISSION REMANDED COR FURTHER CONSIDERATION-BY THE LICENSING BOARD THE ADEQUACY'0F THE EP, ASSUMING THAT THE-6 ,'o GOVERNMENT AGENCIES WILL PARTICIPATE AND ADOPT THE LILCO PLAN d IN THE EVENT OF A EHOREHAM EMERGENCY, I.E. THE " REALISM" ARGUMENT. ON SEPTEMBER 19, 1986, THE COMMISSION DECIDED TO REVIEW THE= ISSUES RELATED'TO EPZ SIZE AND EVACUATION.0F HOSPITALS AND LIFTED THE STAY OF OTHER REMAND PROCEEDINGS OF ALAB-832. ON REVIEW 0F LILCO's APPEAL 0N THE THREE ISSUES HELDIltABEYANCEBY,ALAB-832,THE4PPEALSBOARDONSEPTEMBER 19, 1986, (ALAB-847) REMANDED FOR RECONSIDERATION BY THE ASLB TWO 0F THE ISSMS, WHILE RULING ON THE THIRD ISSUE IN.LILC0's FAVOR. L IN ADDITION, NASSAU COUNTY, RADIO STATION WALK AND THE NASSAU COUNTY RED CROSS RECENTLY WITHDREW THEIR COMMITMENTS TO PARTICIPATE AS PART Of THE SHOREHAM EMERGENCY PLAN. e = ) s
.a ; - SHOREHAM SIGH FICANT-ISSUES-(CONT'D) b v .I-5. ALLEGATIONS [ { SEVEN ALLEGATIONS UNDER REVIEW'. k 6. Q1. .g [, THREE MATTERS UNDER REVIEW, .d 7. OTHER 5 i ,G 'ON JULY 3, 1986 THE NEW YORK STATE LEGISLATURE PASSED A I!1 BILL, WHICH GOVERNOR CUOMO LATER SIGNED, CREATING THE LONG ISI,AND POWER AUTHORITY, THE NEW AGENCY IS INSTRUCTED TO ~ ' BEGIN NEGOTIATIONS WITH THE LONG ISLAND LIGHTING COMPANY CONCERNING A FRIENDLY TAKE0VER OF LILCO. IF LILCO DOES NOTL 'I ACCEPT;THE OFFER, THE NEW POWER. AUTHORITY IS INSTRUCTED BY THE LEGISLATION TO' INSTIGATE CONDEMNATION PROCEEDINGS.. THE LEGISLATION PR0HIBITS THE AGENCY'FROM CONSTRUCTING.OR OPERATING A NUCLEAR POWER PLANT IN ITS SERVICE AREA.IT d ALSO PROHIBITS LILCO FROM RECOVERING ANY'0F THE COST OF ? SHOREHAM FROM THE RATEPAYERS-IF THE PLANT IS-NOTl:IN COMMERCIAL; -C OPERATION BY DECEMBER 1, 1988. [ e
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p g,'= M",;=, te,,, suscOMMITTEE ON ENEROY CONSERVADON ggenaarg aemme AND POWER OF M ] COMMITTEE ON ENERGY AND COMMERCE WASHINGTON, DC 20$18 1 October 28, 1986 ll 1 Administrative-Judge B. Paul cotter, Jr. Chairman Atomic Safety and Licensing Board Panel t .m. U.S. Nuclear Regulatory Commission Q/ 4350 East-West Eighway Bethesda, Maryland 20814 3 Dear Judge Cot *1es I an deeply. troubled by your decision to reconstitute the Shoreham Licensing Board by removing two of its three members -- Judges Morton Margulies and Jerry Kline. This decision has, sparked outrage among state and. local government' officials. Thei r ) replacement at this critical time in the shorehas licensing process would mean that the extensive knowledge of the issues that they have gained over the lengthy' proceedings of the past months i will not be brought to bear on matters of vital importance to.all
- I parties and to the public.
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- <-)
hold a hearing on this matter, please provide answers to the In order to, assist the subcommittee to determine whether to '/ following questions by November 4,1986. Please not'e that for the purpose' of this request, the word " record" or ' document" includes all handwritten or typed communications, documents,. drafts, memoranda, notes, ' route slips,' briefing and appointmefit logs, word processing-recordings i and audio tapes. The' word " discussion (s)" includes all conversations between any two or more persons, including all N acetings, telephone calls, and so forth. To the extent that any-person asked to provide records is aware of such records t hat are not in their possession or have been ' destroyed or for other reason cennot be provided, please identify whether or not such documents-existed, in whose files they existed, the reasons why such records are unavailable, and,'if destroyed,- who destroyed them and/or ordered their destruction. For example, such records which-'are unavailable should be identified by title, author, date, etc. l, 4 I - "!!OOO;M o61031 'I run avuu 0:00022 V lG PDR U(f . D.:
A, ^ ac . Judge B. Paul Cot 2er, Jr. ,Page 2 h, October 28, 1986 {l t y, 1. With regard to the October 7 ' NOTICE OF RECONSTITUTION OF BOARD" (hereinafter ' NOTICE *) and the October 17 ' NOTICE OF RECONSTITUTION OF BOARD: CLARIFICATION" (hereinafter u
- CLARIFICATION'), please provide to the Subcommittee all records pertaining to (a) the NOTICE, (b) the CLARIFICATION, and (c)' the reconstitution of the Shoreham Board.
2. With ref erence to your ' October 7,1986 NOTICE: I (a) What are the " schedule conflicts
- to which you refer?
l u (b) Why is it believed that such " schedule conflicts' may be alleviated by replacing Judges Margulies and Kline? (c) When did you first learn that there were ' schedule conflicts' that might require reconstitution of the _.'T Shoreham Board? How and f rom whom was this.information l \\/ communicated?. (d) Who first suggested that these " schedule conflicts * ~ sight be alleviated by reconstituting _the Board?. When? Please grovide to the Subcommittee all records pertaining (e) to any schedule conflict" in the Shoreham litigation on the part of Judge Kline or Judge Margulies, and all h records pertaining to a reconstitution of the Shorehis H Boards as a way to alleviate such conflicts. 3. Was your first evanunication with Judges Margulies and/or Kline regarding scheduling.difficultier and/or replacing eithat or o both of them and/or reconstituting the Board initiated by you, by either Margulies and/or Kline, or by a third party? Pleas ( provide the date, time, persons participating, -substance of the l7< ';N._ ) communication, and all records pertaining thereto. 4. Prior to October 7,1986, did you discuss or participate in any written or verbal communications regarding (a) the removal of the reconstitution of the Judges Margulies and Kline~and/or (b) Board with any of the parties or with Chairman Zech or.with any other NRC Commissioner or with any member of.the commissioners' staff (s) or the NRC staf f or with any Administrative Judge? If so, please provida a detailed chronology specifying the date, with whom you communicated, names of other persons present or participating, substance of the communication, and provide any records pertaining to such communication. 5. With regard to the October 17,.1986 CLARIFICATION: Between October 7 and October 17, did you discuss or participate in any written or verbal communications regarding (a) the removal of Judges Margulies and Kline, (b) the reconstitution of the Board, and/or (c) the form or content of the-CLARIFICATION with any of. the parties or with Chairman Zech or with.an Commissioner or member-of the Commissioners'y other NRC staf f (s) or member of the NRC 'Staf f ? If so, please provide 's detailed chronology w.r.- ee . + * < m--
== .e / . Judge B. Paul Cotter, Jr. e Page 3 M; October 28, 1986
- l j-specifying the date, with whom 9ou communicated, names of other persor" present or participating, the substance of the communication, and provide any records pertaining to such t
communication. 6. On October 17, 1986 you wrote to Herbert 5. Brown, Esq. regarding your issuance of the October 17, 1986
- NOTICE OF RECONSTITUTION OF BOARD:
CLARIFICATICM.* In that letter you stated that 'It was my determination, in consultation with the members of the existing Board, that the expanding emergency planning-related shorehas cases could not reasonably be handled in .4 fdatlE RAnnat by a single board....The reconstitution will assure that all issues can be heard thoroughly Xi.tih2E.ti unshia stalAX-(emphasis added)." .1 (a) What is meant by the phrases "a timely manner' and i "without undue dela{'? What precise 1 or.' undue delay?{ would constitute ,s -) "an untimely manner sas the Board or j a.y of its aesbers established a target date for issuing a decision? If so, (i) what was this target date or dates, (11) when was such a date established, l (iii) by whom, and (iv) for what reason (s)? (b) Do you and/or the Board believe that it has a responsibility to expedite. licensing? If so, why? Is it expected that reconstituting the Board will expedite the hearing process and/or the licensing proce,ss? If so', t how? Why does the Board feel that such expedition is necessary or desireable? 7. With regard to the reconstitution of the Board and/or expediting the licensing process for Shoreham and/or removing Judges Kline and/or Margulies f rom the Board, please provide a ..'N -( ) complete chronolo g and description of all communications,
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including but not limited to meetings, discussions, documents., telephone calls, and conversations of any kind, between yourself and/or Judge Kline and/or Judge Margulies and/or Judge Frye and/or Judge Paris and (a) Chairman sech; (b) Any other NRC Commissioner (s); l (c) NRC Staff, including but not limited to any member of the Commissioners' staffs, the office of the General Counsel, and the office of the Executive Director for Operations; t and (d) Any employee of (i) the White House, '(11) the Department - of Energy, (iii) Federal Emergency Management Agency-(FEMA), or (.iv) any party to the Shorehan proceedings. v Please provide all re:ords pertaining to such communications. 8. On October 3,1986, the Board made several rulings. regarding the emergency planning issues at Shorehame At any time did either you or any of the other Judges discuss or communicate regarding ,J t [ . =.... .. ~ .1
i ^ t ,Judgo B. Paul Cotter, Jr. ( :'< l ', Page 4 j( October 28, 1986 ) Q the October 3 Board rulings or hearing and/or possible F E reconstitution of the Board with each other or any NRC i Commissioner or Consissioners' staff or NRC Staff or any employee 1 of the White House, DOE, or FEMA? If so, please specify the per son (s), date, place, type of communication, and substance. f thereof. Please provide all records pertaining to such communication. 9. Why did you leave Judge Frederick Shon to serve on the original Board and the new Board? What f actors went into the decision to remove Judges Kline and Margulies f rom the original Board and leave Jud;e Shon? Did either Judge Kline or Judge Margulies rguest that the original Board be reconstituted? ) Please provide a chronology of such communications describing the persons involved, dates, place, substance of the communication, j and a'11 records pertaining thereto. >5 Thank you for your prompt attention to this matter. I look forward to receiving your responses by November 4,1986. Sincerely, h 1M,_2 - j - Edward J. Mark chairman b t i,. u e- .. +... -.. -
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===,y,*,a, U.S. HOUSE OF REPRESENTATIVES y o= j {: ' E,,,,,,y,, _au."r"im_a"s r"s'e"w'*vom SU8 COMMITTEE N ENERGY CONSERVATION l m".= oWi'a"'"'!!n c o, mg i. an omcun COMMITTEE ON ENERGY AND COMMERCF j u cs a WASHINGTON, DC 20515 p October 28, 1986 I Honorable Lando W. Zech, Jr. Chairman U.S. Nuclear Regulatory Commission 1717 E Street, N.W. Washington, D.C. 20555 t ,A
Dear'Mr. Chairman:
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o I am writing to you because I am deeply troubled by Judge B. Paul Cotter's recent decision to reconstitute the Shoreham l Licensing Board by removing two of its three members. I understand that their sudden removal comes without advance notification of any of the parties or even a request for their 'l views on the question, and has occurred with no reasonable explanation other than vague and perhaps contradictory references 2 to ' scheduling difficulties" and avoidance of " undue ' delay" about which no.' specific information has been supplied. As you know, the change in the composition of this Licensing Board comes at a critical time in the Shoreham licensing process. The questions surrounding the issuance of this license have become a major issue regarding the rightful roles of state and local w governments in the emergency planning process. If public !.3) confidence in the NRC and the regulatory process is to be maintained, it is absolutely crucial that the Commission handle these matters in a manner that is unquestionably beyond reproach. ~ Only a few weeks ago, in my letter of October 9 to you t requesting that the commission defer any action on a low-power license for the Seabrook nuclear plant until all emergency planning issues have been ' ully and completely resolved, I urged f you to be mindful of the perceptions of State and local governments and the public. Now those State and local governments and the public are conf ronted with-yet another challenge to the credibility of the NRC's regulatory - process. This recent action j. at Shoreham can only further increase the public's skepticism about whether the licensing process is being conducted with even a y minimal concern for f airness and public safety. In order to 'f acilitate this correspondence I have sent I, directly to Judge Cotter a letter enumeratilng those questions j< pertaining to him, a copy of which is attached.for your g convenience and information. r %lnIin %,i.r u z a
~< The sonorable Lando W. Zech, Jr. [ Page 2 i t October 28, 1986 p: So that the Subcommittee may better understand this recent action to reconstitute the Shoreham Licensing Board, please provide answers to the following questions by November 4,1986. Please' note that for the purpose of this request, the word " record" or " document" includes but is not limited to all handwritten or typed communications, documents, draf ts, memoranda, letters, notes, " route slips," briefing and appointment logs, word processing recordings and audio tapes. The word " communicate" refers to all documents (as per the above) and/or verbal communications including but not limited to all conversations between any two or more persons, including all meetings, telephone calls, and all documents (per the above) exchanged between or among two or more persons. To the extent that any records cannot be provided or have been destroyed, please identify whether or not ~ such documents existed, in whqse. files they existed, the reasons 'D why such records are unavailable, and, if destroyed, who destroyed 'l ws> them and/or ordered their destruction. For example, such records. which are unavailable should be identified by title, author, date, etc. j 1. With ref erence to Judge Cotter's October 7,1986 " NOTICE OF RECONSTITUTION OF BOARD" (hereinaf ter " NOTICE"): Did you or any Commisaloner or any member of any Commissioners' staff (s) communicate with Judge Cotter prior to October 7 regarding either the NOTICE or reconstituting the Shoreham Board? If so,,please identify the persons, date, time, circumstance, substance of the communication, and provide all records pertaining thereto. 2. Prior to October 7, did you or any member of your staff communicate with Judge Cotter or any other Commissioner or member of the Commissioners' staff (s) regarding the removal of Judge e } Kline and/or Judge Margulies from the Licensing Board? If so, ' _/ please identif the persons, date, time, circumstance, substance !i of the 6 mmuni ation, and provide all records pertaining,thereto. L 3. On October 17, 1986 Judge Cotter wrote to Herbert H.
- Brown,
-l Esq. regarding his issuance of the October 17, 1986 " NOTICE OF RECONSTITUTION OF BOARD: CLARIFICATION" (hereinafter " CLARIFICATION"). In that. letter Judge Cotter stated that "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 iD A timelv manner by a single board....The reconstitution will assure that all issues can be heard thoroughly without undue delav (emphasis added)." t (a) Did you or any Commissioner or any member of the Commissioners' staffs communicate with Judge Cotter verbally or in writing between October 7 and October 17 regarding either the CLARIFICATION and/or reconstituting the Shoreham Board and/or replacing ' Judges Kline and/or Margulies? If so, please identify the' persons, date, time, circumstance, subst ance of the communication, and provide all records pertaining thereto.
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-The Honorable Lando W. Zech, Jr. y Page'3 i -f October 28, 1986 (b) Have you, any member _of your staff, or any other le Commissioner or NRC staff member ever communicated to Jydge Cotter or any member of any Licensing Board a target date and/or dates by which the Shoreham Licensing Boards should issue a decision? If so, please explain why, and inform the Subcommittee who participated in such communications, the date of the communication, the target date or dates specified, the substance of the communication, and provide all records pertaining 1 thereto. (c) Have you, any member of your staff, or any other . Commissioner or member of any Commissioners' staff ever communicated to Judge Cotter or any member of any , ~s Shoreham Licensing Board that it should complete its "') deliberations And/or issue a decision "in a timely J: ;, manner" and/or without " undue delay?" If so, (i) please explain why, and inform the. Subcommittee who participated in such communications, the date of the communication, the target date or dates specified, the substance of the communication, and provide all records pertaining. .thereto; (ii) What is meant by the phrases "a timely manner" and/or "without undue delay"? (iii) What i precisely would constitute "an untimely manner" or " undue-delay?" (d) Does the Commission believe that it has a responsibility to expedite licensing? If so, why? Is it expected that reconstituting the Board will expedite the hearing process ahd/or the licensing process?- If so. how?'.Why 1 does the Commission feel that such expedition is ,,S necessary or desireable? .) 5. On the subjects of reconstituting the Board and/or replacing Judges Kline and/or Margulies and/or expediting the licensir.g process for Shortham, please provide a complete chronology and description of all communications and records, including but not limited to meetings, discussions, telephone calls, and conversations of any kind, between (a) Judge Cotter and either yourself and/or any other Commissioner and/or any member of the Commissioners' staff (s); (b) NRC Staff and Judge Cotter, including but not limited to the Office of the General Counsel and Office of the Executive Director for Operations; and-(c) Yourself and any employee of (i) the White House, (ii) the Department of Energy, (iii) Federal Emergency Management-Agency (FEMA), or.(iv) any phrty to the Shoreham proceeding. =..
I The Honorable Laddo W. 3ech, Jr. Paga 4 October 28, 1986 !!-p CF Please provide all records pertaining to such communications. I 6. On October 3, 1986, th the emergency planning iss.e Board made several rulings regarding ues at Shoreham. Did you or any other Commissioner or any member of any Commissioner's staff discuss or communicate in writing regarding the October 3 Board rulings or. hearing and/or possible reconstitution of the Board with each other or NRC Staff or any employee of the White House, DOE, FEMA, or any party to the Shoreham proceeding? If so, please specify the person (s), time, place, type of communication, and substance thereof. Please provide all records pertaining to such communication. 7. Please provide to the Subcommittee all records pertaining to the october 7 " NOTICE" and the October-17 " CLARIFICATION" of which any Commissioner, commissioners' staf f member, or member of the NRC Staff is aware, whether or not such records are now in your or their possession. I 8. Please provide to the Subcommittee all records of which any Commissioner, member of the Commissioners' staff, or member of the NRC Staff is aware pertaining to any " schedule conflict" pertaining to the shoreham litigation on the part of Judge Kline - ' or Judge Margulies. Please explain why the alleged scheduling conflicts do' not affect Judge Shon. Please provide all documents pert'inent'to his i schedule. 9. When did you first learn that there were " schedule conflicts" that might require reconstitution of the Shoreham Board? How and from whom did you learn of such " schedule conflicts?" Please-specify the date, circumstances of the communication, and~ provide all records pertaining thereto. aj) Thank you for your prompt attention to this matter. I look t forward to your responses by November 4,1986. Sincerely, Y Marke()% Edward J. Ch a'i rman Enclosure b i-il
OFFICE OF THE COUNTY LEGISLATURE N M# couvry or suncu v6; b
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I -) 2C Y '86 NOV -6 A8 :25 ~ t + t GFF,u. ~ 'I ACQUEUNE P. FARREU. ' ~j,. J. Mise osevry.68== g; ;f.1T (*.'.***. U 3 p, e.* O d* 8 J22 JOHN CHARUK PROD. & UTIL FAC....r. " " ~ 88 pvt 7 c'*** SERED NOV -61986 i TO: All Interested Farties FROM: Jacqueline P. Farrell Chief Deputy Clerk OATE: October 30.1985 U Attached please find. SENSE OF THE LEGISLATURE OBJECTING TO THE RECENT I REMOVAL OF TWO JUDGES FROM THE NUCLEAR REGULATORY COMMISSION LICENSING PANEL. which was passed by majority vote on October 28. 1986. (Sense #79) n d u CJ N cc: Individual members of the Nuclear Regulatory Commission w ( k ) i 8 e h %mir 9p. x LEGesbA7ynt su Leseec vtTRAANS MEMORIAL McGMwAY a MAUPPAUGE. NEW YOR. I 1784 e (S l el 340 4C7; x 34-
SENSE 70 Introduced by Lsgisictor Levy 10/28/80 SENSE OF THE LEGISLATURE OBJECTING TO THE RECENT REMOVAL OF TWO JUDGES FROM THE h( NUCLEAR REGULATORY COMMISSION LICENSING PANEL. l WHEREAS. the Nuclear Regulatory Commission is empowered by the United States: Congress to determine whether an operating license may be issued for a nuclear power-plant, and WHEREAS, it is the centention of the Suffolk County Legislature and the Governce of the State of New York, that evacuation from densely populated and geographically unique Long Island is impossible in the event of a radiological accident at the Shoreham Nuclear Power Plant, and WHEREAS. approximately 80 % of the residents of Suffolk County copose the licensing of Shereham, and WHEREAS, on February 13, 1986 the Long Island Lighting Company conducted an H evacuation drill which this Legislature considers a "f arce" and a " sham", and .,i '../ WHEREAS, in September of 1985 the Nuclear Regulatory Commission conducted three hearings on Long Island consisting of 23 hours of testimony from over 90 residents expressing their wish that the plant remain closed, and 'i WHEREAS, within a month of these hearings, the N.R.C. had the audacity and the tetnerity to remove from the Shoreham licensing process two of the three' judges who took the time to listen to the emotional, elaborate and imperative testimony at these hearings, now, therefore, be it RESOLVEO, t. hat the Suffolk County Legislature hereby finds such action repulsive, callous and insulting to the members of the Legislature and the people of Long Island who took the time to express their concern to these judges and underscores our belief that the Nuclear Regulatory Commission is attempting to " stack the deck" to issue LILCO an operating license despite the fact that the flaws within the plant, the inadequacy of the LILCO evacuation plan and the impossibility of evacuation, eve'rwhelmingly support C) the denial of such licensing, and be it further ~J RESOLVEO, that this Legislature requests that these judges so removed, be reinstated on the panel that will determine the adequacy of the LILCO evacuation plan, and be it further RESOLVEO, that should reinstatement not be granted, this Legislature requests that the people of Long Island be given an opportunity to address these newly appointed members of the N.R.C. here on Long Island within the reasonaDie date of their appointment, ~ and be it further RESOLVEO, that the Clerk of the Legislature forward a copy of this resolution to each individual member of the Nuclear Regulatory Commission. Cate:
0 v ( UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Ogfgyre I- % NOV -3 All :32 Before the Chief Administrative Judge, Atomic Safety and Licensing Board Panel 7Ocb : ;, In the Matter of ) ) Docket No. 50-322-OL-5 LONG ISLAND LIGHTING COMPANY ) (EP Exercise) i ) Docket No. 50-322-OL-3 'i (Shoreham Nuclear Power Station. ) (Emergency Planning) Unit 1) ) LILCO'S OPPOSITION TO " MOTION FOR ,m RESCISSION... AND FOR EXPEDITED CONSIDERATION" ,1 ) i Intervenors' motion for rescission should be denied for the following reasons,, ll i.1 whien are elaborated upon in more detail in an attached letter of even date from q .I Donald P. Irwin to B. Paul Cotter, Jr.: ,l .i jl 1. The forum requested by the motion is not one recognized for formal adjudi-catory functions by the Commission's regulations, and thus the motion is not, as such, l
- l properly filed.
2. The matter is one committed to agency discretion. .m) 3. The action taken by the Notice of Reconstitution and now complained of .s was (a) to expand the membership of Boards treating emergency planning matters in two related dockets, and (b) to preserve continuity of membership on the Boards in the two dockets. Failure to expand the Board resources with jurisdiction over these issues would have substantially delayed their resolution with no offsetting benefit in the quali-ty of decision-making, resulting in severe financial prejudice to LILCO and in prejudice to the public interest in reasonably prompt agency decision-making. Alteration of the Leaavsv112 861030 m ]OP ^000n vavvg2 pl ~ 1
t .g. f panel hearing the still developing "-5" proceeding, rather than that of the more mature and complex "-3" proceeding, minimizes any dislocation inherent in remedying the oth-e erwise unavoidable delay prejudice problem. Retention of a common member on both Boards further develos continuity and minimizes overell prejudice. 5. No party has a vested interest in the composition of any Licensing Board. Intervenors have not shown any prejudice to their legally cognizable interests. The motion should be denied. Respectfully submitted, f , m, -. d Donald P. Irwin Counsel for Long Island Lighting Company o Hunton & Williams 707 East Main Street [ P.O. Box 1535 Richmond, Virginia 23212 + DATED: October 30,1986
Attachment:
Letter, Donald P. Irwin to B. Paul Cotter, Jr., October 30,1986. g \\1 3 1 t e '.,/ i' e t-4 e m e., w
BY TELECOPIER ..s y p 'E UNTON & WII.I.IA.M S . vo7 t,ast Mme sva.sv P.o. som esas ....w....w.. R2cawewo. vsaorw A eoaae i ,-"~r!!!"..* 1.;'.* *. m...~.. = o.... co 'n* *~*0.*f. *.* ' %*
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.. 1 !." "... ..a.g..".g,..j,...... .. u.... J.*,.."..'.?.*..., ........T. ~.,f..*c. "". ".... October 30' 1986 ""07.*.!!".":*t!,'fl?*' ..a............... ....e,...w ... 8357 Administrative Judge B. Paul Cotter, Jr., Chairman Atomic Safety and ucensing Board Panel U.S. Nuclear Regulatory Commission U 4350 East-West Highway Bethesda, Maryland 20814 Long Island Lighting Company 0 Shoreham Nuclear Power Station, Unit 1 L (Docket No. 50-322-OL-5)(EP Exercise) I (Docket No. 50-322-OL-3)(Emerrency Planning) 4 !l
Dear Judge Cotter:
u E Mr. Brown's October 22 letter and motion seek again to reclamor the October 7 h Notice of Reconstitution, which expands the composition of the Ucensing Board panelq h dealing with emergency planning issues in two related dockets in the Shoreham case.1/ They raise issues that are inherently within the discretion of the administering agency,
- l and not within the scope of issues available to conventional litigation. Nevertheless, U
since the relief they request would, it granted, affect ULCO's interests in the li Shoreham emergency planning proceedings, ULCO responds here to them. I o L i" ') U 1/ Mr. Brown's letter and motion seek to rehash essentially the same issues raised h earlier by him in an October 14 letter (except for his misapprehension about the com-position of the "-3" panel, which was resolved by the October 17 clarification Ntice). There have been two distinct emergency planning dockets at Shoreham since tne. Com-mission's issuance of CU-86-11 on June 6: the "-3" proceeding which encompasses all emergency planning issues except those specifically related to the February 13, 1986 offsite emergency planning exercise, and the "-5" proceeding set up to hear issues spe-cifically relating to the exercise.. The membership of the Boards hearing both sets of G issues waJ. until the October 7 Notice of Reconstitution, identical (Morton Margulies, Esq., Chairman, and Dr. Jerry Kline and Mr. Frederick Shon, technical members). The 1 sole effect of the Notice was to substitute into the "-5" Board two new members, L Messrs. Frye and Paris, for two present members, Messrs. Margulies and Kline. Messrs, y Margulies and Kilne remain on the generai-jurisdiction N3" Board, however, and Mr. y i. Shon, the third member of both Boards, remains on both. i f ffg C 'PDR
[ HUNTON & WILLIAMS l ~ ). f Administrative Judge B. Paul Cotter, Jr. v October 30,1986 Page 2 g .t LILCO obviously has no information about the exact process or details leading 'to the Notice of Reconstitution. Still, that Notice seems plainly intended to accomplish one important function: applying enough decisional manpower - Licensing Board re-sources - to avoid foreciosing the possibility of completing two proceedings, each of them complex and one of them ordered by the Commiminn to be specially expedited, within a practical time frame. Action to fulfill this funetion is not only sensible in light of the agency's basic obligation to conduct procean within a reasonable time i frame: it was practically compelled by a combination of the Commission's order to ex-pedite one of these proceedings (the "-5" docket), and the rapid accretion of issues, at l! Intervenors' instance, in both cf them. j The Notice of Reconstitution is also consistent with past practice in this case, j G which has involved both rotation of Board membership and simultaneous proceedings / before different panels on related issues. In addition, it was taken at an appropriate m time - early in the expedited proceeding -- and done in a fashion which preserves con-tinuity of Board membershi,.. These matters, which are treated more specifically im. I' mediately below, suggest that the Order of Reconstitution was soundly within the ambit l of reasonable administrative discretion. + 1.1 The Notice of Reconstitution, or its equivalent, would have been necessar'y i in any event in order to keep the overall Shoreham emergency planning proceeding' - from bogging down interminably. On June 6,1986, when the "-5" docket was opened by CLI-86-11 to hear exercise-related issues on a specially expedited basis, there were no issues cctively pending before the general-Jurisdiction "-3" panel. Given their general familiarity with emergency planning issues, it made good sense for the existing "-3" Board to take on the t-related exercise issues.2/ In the months since, two sets of developments have made D ) ~ 2/ LILCO initially proposed, in March 1986, that the "-3" Board's experience be har-nessed if it were convenient, for the "-5" proceeding. However, Mr. Brown flatly mis-leads in attempting to couple LILCO with any particular configuration of licensing board or boards. His citation to LILCO's proposal that the "-3" Board preside over the exercis'e litigation omits material f acts: (1) that LILCO's request was in the content of an overall request for expedited litigation of the exercise (in the course of which the Margulies-Kline-Shon Board was requested if available):(2) that LILCO made its request on March 13,1986, over 7 montbs ago;(3) that at that time neither the Chernobyl acci- 'f dent nor Nassau County's subsequent reversal of position on the Coliseum nor WALK radio's subsequent reversal of position on EBS participation had occurred; (4) that ALAB-832, with its various remand issues, had not yet been issued: and (5) that, as a re-1 sult, there was at that time no significant amount of further trial-levellitigation. inevi-1- table in the "-3" docket. N (footnote continued) won -e u
EtysToy & WILLuxs k [" Administrative Judge B. Paul Cotter, Jr. c t" October 30,1986 I Page 3 (f-1 that determination, which was stiu practical at the time announced, considerably less .i so. First, a wide range of issues has been reopened or introduced for the first time be-fore the "-3" Board.2/ Second, Intervenors have filed an extremely broad gauged set of f contentions in the "-5" docket: and the scope of issues admitted by the "-5" Board for utigation in its October 3,1986 Prehearing Conference Order includes most of the is-suas desired by Intervenors to be litigated. Thus, that proceeding shows prospects of ,i taking the full time of a quorum of that Board. ? n The Notice of Reconstitution, issued ordy 4 days af ter the Prehearing Conference d in the "-5" docket, responds vigorously and alertly to this obvious litigative logjam. j 2. The manner in which the Board was expanded preserves continuity of expe-j rience. q a Notwithstanding Mr. Brown's suggestion, there remains obvious continuity among the Shoreham emergency planning Boards. The Margulies-Kline-Shon Board (the "-3" il Board) retains jurisdiction over all emergency planning matters except those specifical * !l ly associated with the exercise. Judge Shon remains on both the "-3" Board and on the reconstituted "-5" Board. 'l N n e
- i (continued frem previous page) n Intervening developments, outuned above, have significantly altered this pic-ture. By now, it is already clear that LILCO will need to obtain relief from Paragraph O
IV.T.I of Appendix E to 10 CFR Part 50. which requires that an emergency planning ex-ercise be held within one year before the initial granting of an operating 11 cense to ex- ,3 o ceed 5% of rated power. This regulation, promulgated in 1981,1.1, before the results c ) of exercises became routinely thrown open to litigation by the UCS case,735 F.2d 1437 (D.C. Cir.1984), would otherwise condemn the parties to this proceeding to hold yet another full-scale exercise as a precondition to fun power licensing since, notwith-standing the Commission's order in CLI-86-11 to expedite the "-5" proceeding, evidenti-3 4 ary hearings are not scheduled to begin on the February 13, 1986 exercise until early February 1987. 3/ Without attempting to te exhaustive, these issues include (1) legal-authority is-sues, the realism and marcia11ty arguments (CLI-86-13, July 25,1986): (2) the replace-O ment faciuties for the Nassau Coliseum, which was withdrawn as a reception center by the Nassau County Board of Supervisors following the Chernobyl accident (LILCO Mo-tion to Reopen Record. September 30. 1986): (3) potential issues relating to radio sta-tion WALK..the Red Cross, and availability of congregate care centers (Intervenors' r i Motion to Reopen Record. October'15,1986); and (4) miscellaneous remand issues from A L AB-832. 9 l t
H TJNTON & WILLIAMS i b Administrative Judge B. Paul Cotter, Jr. October 30,1986 Page 4 Further, changes in the composition of Licensing Boards are nothing new: they have occurred throughout this case. Almost 30 members of the Atomic Safety and L1-censing Board panel have rotated through the Boards sitting in the Shorgham operating license case's four principal dockets over the years. In the general offsite emergency planning area alone (the "-3" proceeding), there have been three Board chairmen (Brenner, Laurenson, Margulies). Judge Brenner had rendered important threshold q rulings, including one on a motion to terminate the entire picc;;3ng in view of the op-s position of Suffolk County, before turning over the proaamha to Judge Laurenson in the spring of 1983. _S_ee, LBP-83-21,17 NRC 593 (1983). Judge Laurenson in turn con-ducted the hearings on an issues except the Nassau Coliseum and was on the Board dur-ing the first several months of its worx on a Partial Initial Decision, LBP-85-12, 21 NRC 644 (1985), before being succeeded by Judge Margulies in the spring of 1985. Technical p, experts' membership on the Boards has similarly shittad over timt J By the same token. more than one Board has operated simultaneously in related 1 areas during the course of this proceeding. The most notable example of this was the p appointment of a special additional Board to hear that subset of safety issues relating to the low power license (the "-4" Board, consisting of Judges Miller, Bright and Johnson) and the later succession of its Chairman (Judge James Kelley replaced Judge Miller) to u hear security-related aspects of the low power license. Indeed, at one time during 1983-84, three different. Boards - the general-safety-jurisdiction Board (the "-2" Board), the general-jurisdiction emergency planning Board (the "-3" Board) and the low power license Boarc (the "-4" Board) - were all holding proceedings simultaneously. Nor is Shoreham the only case where multiple Boards have been utilized. 3. The expansion of the Boards was done in a manner consistent with the pub-c Lic interest. Mr. Brown's letter and motion suggest that the Margulies-Kline-Shon Board had mc) acquired such unique and extensive knowledge in the "-5" exercise litigation that any b 1 ~ change in its composition for virtually any reason, would be unjustifiable. Such is not the case: the expansion of the Boards was taken at an early moment af ter the size of the impending litigation and the need for corrective action became plain, minimizes loss of institutional memory, and preserves continuity. Mr. Brown also neglects the ex-istence'of the "-3" proceeding and blinks the f act that delay in either proceeding or both, which would have been inevitable with only one Board, would seriously prejudien LILCO, whose interests are as worthy of consideration as those of his clients. The Margulies-Kline-Shon Board, which remains on the generai-jurisdiction emergency planning issues, has written two lengthy decisions on them, and is well e suited to deal with remanded or reopened issues. By contrast, the exercise proceedin! has only begun to take shape:~ contentions have just been admitted and a general sched-ule set, but forma.1 discovery has just begun (and no disputes on it have yet been heard l, no summary disposition motions have been filed, no testimony has been submitted, and no evidentiary sessions have been held. All of the limited appearance statements 9 g J
.[ H UNTON & WILLI.A.M S f ? h} Administrative Judge B.* Paul Cotter, Jr. E October 30,1988 Page 5 presented to the Board have been made part of the record of the proceeding and are available to all Board m9mbers. In short, had only one Board remained in place, substantial delays in the progress of both the "-3" and '-5" dockets would (tave been inevitable. LILCO, with its invest-ment of nearly five billion dollars in the completed and low-power-tested Shoreham, is so obviously prejudiced by delay that extended discussion is unnecessary. Thus, the question facing the Licensing Board Panel realistically was not whether to modify the Licensing Board stmeture for the "-3" and "-5" proceedings, but g to do it with least disruption. The manner chosen, which modifies a still-young docket and keeps continu-ity of Board membership, appears a reasonable means of minimiring prejudice to all parties.
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) It is a regrettable aspect of Commission proceedings that they can be made so s long and so intricate that total continuity of Licensing Boards is apparently impractica-ble. However, there is inherent discretion in the process to harmonize the needs of lit.,
- 1 Igants and the overall administration of the agency's business. One operative fact is that the entire Board whose involvement in emergency planning proedngs forms the subject of Mr. Brown's letter is still involved in the general emergency planning pro..
ceeding; and that one of its members stiu sits on that portion related to the exercise itself. Another operative f act is that it is intervenors' historic insistence on litigating every available issue in the greatest possible detail which has created the,need for a second Board. LILCO's concern is that the two Boards be able to use their common membership and other available means so as to coordinate their respective tasks effi-ciently, with,the result that they will in f act be able to expedite the long-delayed com-pletion of the "-3" and "-5" emergency planning proceedings. Respectfully sub itted, p ?) Donald P. Irwin Counsel for Long Island Lighting Company 91/730 4 S
L1LCO, Oc8ober 30,1986
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\\ k [ .s.r tir- [ f ^ CERTIFICATE OF SERVICE '86 M)V -3 All :32 { In the Matter of Wi ' 'l l LONG ISLAND LIOHTINO COMPANY INike (Shoreham Nuclear Power Station, Unit 1) Docket No. 50-322-OL-5 (EP Exercise) Docket No. 50-322-OL-3 (Emerrency Planning) I hereby certify that copies of LILCO'S OPPOSITION TO " MOTION FOR RESCISSION... AND FOR EXPEDITED CONSIDERATION" and Letter, Donald P. irwin 'l to B. Paul Cotter, Jr., dated October 30,1986 were served this date upon the following
- l by telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mall, postage prepaid.
,7 ,.) B. Paul Cotter, Jr., Chairman
- Morton B. Margulies, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing H Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 4350 East-West Highway East-West Towers, Rm. 407 Bethesda,' MD 20814 4350 East-West Hwy. Bethesda, MD 20814-John H. Frye. III, Chairman " ~ Atomic Safety and Licensing Dr. Jerry R. Kline ** Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Hwy. East-West Towers, Rm. 427 Bethesda, MD 20814 4350 East-West Hwy. . ',a Bethesda, MD 20814 -) Dr. Oscar H. Paris ** Atomic Safety and Licensing Secretary of the Commission Board Attention Docketing and Service U.S. Nuclear Regulatory Commission Section East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 1717 H Street. N.W. Bethesda MD 20814 Washington. D.C. 20555 Mr. Frederick J. Shon ** Atomic Safety and Licensing Atomic Safety and Licensing Appeal. Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 6. East-West Towers, Rm. 430 4350 East-West Hwy. Atom'1c Safety and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 t n.
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b Bernard M. Bordenick, Esq. ** Stephen B. Latham, Esq. ** h Oreste Russ Pirfo, Esq. Twomey, Latham & Shea [ ,i as Edwin J. Reis Esq.. 33 West Second Street h' U.S. Nuclear Regulatory Commission P.O. Box 298 n 7735 Old Georgetown Road Riverhead, New York 11901 L (to mallroom) i Bethesda, MD 20814 Mr. Philip McIntire ~ ', Federal Emergency Management Herbert H. Brown Esq. ** Agency Lawrence Coe Lanpher, Esq. 26 Federal Plaza 5 Karla J. Letsche, Esq. New York, New York 10278 t Kirkpatrick & Lockhart Eighth Floor Jonathan D. Feinberg, Esq. 1900 M Street, N.W. New York State Department of Washington, D.C. 20036 Public Service, Staff Counsel 3-Three Rockefeller Plaza Fabian G. Palomino. Esq. ** Albany, New York 12223 Special Counsel to the Governor Executive Chamber Ms. Nora Bredes Room 229 Executive Coordinator r] State ' Capitol Shoreham Opponents' Coalition n Albany, New York 12224 195 East Main Street ,f i Smithtown, New York 11787 ll Mary Gundrum, Esq. O Assistant Attorney General Gerald C. Crotty Esq. 120 Broadway Counsel to the Governor i Third Floor, Room 3-116 Executive Chamber New York, New York 10271 State Capitol Albany, New York 12224 Spence W. Perry, Esq. ** William R. Cumming, Esq. Martin Bradley Ashare Esq. Federal Emergency Management Eugene R. Kelly, Esq. Agency Suffolk County Attorney 500 C Street, S.W., Room 840 H. Lee Dennison Building [ Washington, D.C. 20472 Veterans Memorial Highway Hauppauge, New York 11787.
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Mr. Jay Dunkleberger j New York State Energy Office Dr. Monroe Schneider y Agency Building 2 North Shore Committee f Empire State Plaza P.O. Box 231 ~ Albany, New York 12223 Wading River, NY 11792 h Donald P. Irwin ~ Hunton & Williams 707 East Main Street p t, P.O. Box 1535 U Richmond, Virginia 23212 DATED: October 30,1986 e I i 1
!W thlh a e seu p..' b. f t UNITED STATES [~ i S NUCLEAR REGULATORY COMMISSION /Y. f ATOMIC SAFETY AND LICENstNG 80ARO PANEL 3 p j,: ,/ w AsHIN CTON. O.C. 20688 { October 31, 1986 g The Honorable Edward J. Markey U.S. House of Representatives Washington, D.C. 20515 q
Dear Congressman Markey:
Your October 28, 1986 letter concerning the Shoreham proceeding concerns me deeply. I know you, as a lawyer, are well aware of the long standing rule of law that the deliberative processes of adjudicators are protected from any inquiry absent some external evidence of impropriety, particularly in connection with a specific case under active judicial O consideration. As the Supreme Court held in the fourth Morgan opinion, s ... examination of a judge would be destructive of judicial responsi-bility.... Just as a judge cannot be subjected to such scrutiny, so ! the integrity of the administrative process must be equally protected.", y n Your letter inquires into two protected areas: (1)theexerciseof q responsibility as Chief Administrative Judge in assigning judges to a. particular case and (2) the mental processes and deliberations of the ' judges on the Shoreham Board itself. Both of these areas are fully protected from inquiry to preserve the integrity of the adjudicatory process. It would be improper for me to compromise that process at this Comission by responding to inquiries into such areas. Nevertheless, in sympathy with your expression of deep concern. I do want to go so far as to inform you that g reconstitution 'of the [ Shoreham Board on the narrow issue of the emergency exercise was wholly 73 an internal Panel decision made solely in carrying out my responsibility ~j under the Administrative Procedure Act. My decision was not influenced 'r by any other consideration. There were absolutely no comunications, direct or indirect, with anyone outside this office concerning that l decision or the issuance of the October 17, 1986 clarification. As I j noted in g letter to Senator D'Amato (copy enclosed), the reconstitu-i tion was a purely administrative decision made in this case (as well as 1 many others) solely for.the purpose of climinating workload conflietts in ~j order to avoid delay. All parties to the Shoreham proceeding are entitled to a reasonably prompt decision on their concerns at minimal expense. I note also'the well-established principle that judges are fungible (at the NRC within their own expertise), a truism particularly apt at this starting point in the emergency planning exercise proceed-ing. Moreover, as the public record in this case makes patently clear, it is simply not true that the reconstituted bnard will be dealing with a subject as to which the prior board had " extensive knowledge of the W 4
a k V n issues". The proceeding concerning the' emergency planning exercise at Shoreham was initiated pursuant to a Connistion order dated June 6, 1986. Contentions were only recently admitted by order dated October 3, 1986. No hearings have been held, and discovery has just begun. The admitted contentions will, and by law must be decided solely on the basis of evidence and testimony that has yet to be presented. No party to an NRC proceeding should have to wait for a hearing and decision because the judge is tied up in another case if such a delay can be avoided. Since, as you know, the Shoreham proceeding has become the equivalent of four major cases, I deemed it appropriate to expand the judicial manpower hearing those issues so that when each of them is ready it can be heard and decided. In my judgment, not proceedin hear and decide a case when it is ready constitutes undue delay. g to As I'm sure you are aware, the Licensing Panel and each of its o L ,3 boards has a responsibility to avoid delay in the hearing process. In ~ proceedingsG10 CFR Part 2 Tps.Jnd.P.cogadure concerning the conduct of its Statement of General Policy endix AL)the Connission expressed its y intent "that sucn proceedings >e conducted expeditiously" and its L R position that " fairness to all the parties and the obligation of admin-istrative agencies to conduct their functions with efficiency and econog, require that Connission adjudications be conducted without unnecessary delays." See also Statement of Policy on Conduct of Licens inc proceedinos, 13 NRC 452 (CLI 81-8, 1981). Finally, the Commission orcer initiating the exercise proceeding specified that it be expedited. - The Panel is bound to implement the Commission's policy. Recon,stituting the Shoreham emergency planning exercise board will contribute to that objective by providing a total of five judges to share the workload previously handled by three. The purpose of all such reconstitutions is to insure that the parties' disputes are fairly, promptly, and fully adjudicated. E) In closing, let me assure you that your being " deeply troubled" over the reconstitution of the Board hearing one set of issues in the v Shoreham proceeding is at least matched by m own absolute astonishment over the strident reaction from some cuarters to what was simply a routine administrative action. I hope the foregoing satisfies your Concerns. Sincerely, .l h . Paul Cotter, J. Chief Administrative Judge 1: Enclosure. Ltr. to Senator D'Amato -t cc: Shoreham Service Lists l ti
4 i' ( KIRKPATRICK & LOCKHART i: tM. y 1900 M STMET. N W. WASHINoToN D.C. 20016 own nostoH Pt.Act p.D Tsurnows uen eu ao sortes, wA once a m3 mm 7 1424 aAJct2LL AVENUt TEMCCf5A (2c2) 4521052 ugAMt. FL 311H 00$) 1144112 oco ouvta sutustNo HER3ERT H. BROWN PtTTsevmoH.rA tu22 can 4521cos ma m4m November 7, 1986 BY TELECOPIER m Administrative Judge B. Paul Cotter, Jr., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 'l 4350 East West Highway
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Bethesda, Maryland Re: NRC Docket No. 50-322-OL-5 (EP Exercise)
Dear Judge Cotter:
j In furtherance of'the Government's concerns with re.spect 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 1. In issuing your October 7 Notice that removed Judges Margulies and Kline from the Board, you acted in the capadity of either Judge or administrator. If as Judge, you made factual findings without having requested the views of the affected- .l ~' parties; particularly, the Governments. If as administrator, you j 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. A hl / / / ~> p A o /* --. i ~ ' -~ ~,
~ KIRKPATRICK & LOCKHART f Administrative Judge B. Paul Cotter, Jr., Chairman November 7, 1986 j Page 2 I t 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 eside from the procedures you.used, the Governments consider your removal of Judges Margulies and Kline unjustifiable en the merits. Any suggestion that the post-exercise litigation is new or in an early stage is grossly misleading if basd 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 'S proceeding is fuadamentally related to issues decided by the 'i Margulies Board dollowing 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 t.eir own h rulings. Surely, no one is in a better position to know the issues, bases, and intent of the rulings than the Judges who ruled. Morebver, 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 Getober 7 Notice. m
4 s e i 7' KiRKPARICK & LOCKHART E, Y
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Administrative Judge B. Paul Cotter, Jr., Chairman November 7, 1986 ~ ( Page 3 i ! 7 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 f Board in 1984. As the 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." l s' ,6. LILCO's letter states that the post-exercise litigation.. 'L . 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 1 views the reconstitution of the Margulies Board as not only removing Judges Margulies and Kline, but also as setting the two stage for the part-time employment of Judge Shen on the,be Shoreham Boards. The Governments have no idea what may 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.
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7. LILCO embellishes its letter with the single-minded. plea that Shoreham become a " specially" expedited proceeding. Such a cry for f avoritism is what. brought about the 1984 debacle that resul.ted 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 i-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 I hand, want the NRC to follow lawful standards and procedures; if 's o, 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 Marg'ulies Board. If there f l t
} 1 .? ?. ' KIRKPATRICK & LOCKHART j VI 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 m i Herbert H. Brown cc: Service List s ws f t r' + Ny' G 4 e t 4
y h': y, ). 'n rw1 0 t, t I UNITED STATES OF. AMERICA-j NUCLEAR REGULATORY COM4ISSION j BEFORE CHIEF ADMINISTRATIVE JUDGE B. PAUL COTTER, JR. t In the Matter of: SUFFOLK COUNTY AND STATE OF NEW YORK-ASLBP DOCKET NO. MOTION TO RESCIND RECONSTITUTION OF 87-543-01 Misc. BOARD BY CHIEF ADMINISTRATIVE JUDGE COTTER (Shoreham Nuclear Power Station, ,] Unit 1)
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.s i MEMORANDUM AND ORDER - On October 22, 1986, Intervenors Suffolk County and the State of New York filed a paper titled, " Motion for Rescission of ' Notice of Reconstitution of Board' and Subsequent ' Clarification' and Motion for j Expedited Consideration" (the Motion). In this Motion Intervenors object to the Chief Administrative Judge's replacement of two Atomic q ) Safety and Licensing Board Panel judges on a Licensing Board that is hearing one set of issues in a proceeding initiated by the Comnission as part of the Shoreham proceedings and assigned NRC Docket No. 50-322-OL-5. Intervenors,asse,rt that the Chief Administrative Judge is without authority to take the action objected to, that the schedule conflicts stated as the reason for the Board's reconstitution were not explained, and that if schedule conflicts were to arise it would be a matter to be resolved betiteen the judges and the parties. Intervenors 4 &//I I rI r - __ ) l U bN l N'
e r f. ~2- [ cite no legal precedent in support of their motion and do not rely upon any affidavit. The reconstitution of the Board objected to in the Motion pertained to one segment of the Shoreham proceedings which are presently assigned two separate docket numbers, namely 50-322-OL-5 (the "5" docket) and 'j 50-322-01-3 (the "3") docket. The notice of reconstitution was issued October 7, 1986 and a " Clarification" was issued'on October 17, 1986, ii ,3 J The Clarification stated that the reason for the reconstitution was because of the multiple issues pending in the. proceeding. The Clarification. noted that the "5" docket concerned the emergency planning exercise proceeding instituted by the Consnission on June 6.- 1986, 23 NRC 577(CLI-86-11,1986), while the "3" docket concerned all other" issues, namely: (1) the adequacy of the entire emergency plan remanded by the Commission; (2) issues remanded by the Appeal Board; and (3) new. motions l ( to reopen the record on several other issues. The clarification also noted that the two judges replaced in the "5" docket continue to serve on the larger body of issues under the "3" docket number and that one Judge would serve on both dockets. In an October 22, 1986 letter, counsel for the NRC Staff responded that the Motion was not well grounded. Staff asserts its understanding that there are three controlling concerns in subject reconstitution (namely, continuity in Boards, a new Board's understanding and 9
g 3 1 , e f appreciation of prior limited appearance stat.ements by the public, and the Ccamission's mandate that the exercise hearing be expedited). The E Staff found those concerns satisfied. ( On October 30, 1986, LILCO opposed the motion arguing tiiat'the i' ' motion was not properly filed, the matter was one connitted to agency discretion, no prejudice had been shown, and that the appointments would h . avoid delay and resultant financial prejudice to LILCO. LILCO noted <m _) that the manner of Board expansion preserves continuity of experience. f and that the expansion was done in a manner consistent with the public l interest. l h On November 7,1986, Intervenors responded to the LILCO filing renewing its earlier arguments. The only new matter was a reference to a letter written in response to a Congressional inquiry. The letter noted that the areas inquired into were protected and that the 3
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reconstitution was solely an administrative decision.1 t t IThe letter, dated October 31, 1986 from the Chief Administrative Judge to Congressman Markey and served on the parties, stated in pertinent part: h Your letter inquires into two protected areas: (1)the exercise of my responsibility as Chief Administrative Judge in assigning judges to a particular case and (2) the mental processes k and deliberations of the judges on the Shoreham Board itself. Both f, of these areas are fully protected.from inquiry to preserve the integrity of the adjudicatory process. It would be improper for me (Footnote Continued) g 8 em 4 ' I
1 ~ 1 ,. ). y DISCUSSION !r This is at least the second time these Intervenors have filed a f motion which "is anomalous and is devoid of basis or apparent precedent" i. in the Shoreham proceedings. See, Suffolk County and State of New York Motion for Disoualification of Chief Administrative Judge Cotter, 20 NRC 385,at386(LBP-84-29A,1984). Intervenors' position would prevent the i (FootnoteContinued) to compromise that process at this Comission by responding to inquiries into such areas. !l Nevertheless, in sympathy with your expression of deep concern, I do want to go so far as to infom you that my j reconstitution of the Shoreham Board on the narrow issue of the emergency exercise was wholly an internal. Panel decision made ,) solely in carrying out my responsibility under the Administrative ', -l Procedure Act. My decision was not influenced by any other consideration. There were absolutely no communications, direct or indirect, with anyone outside this office concerning that decision or the issuance of the October 17, 1986 clarification. ... the reconstitution was a purely administrative decision made in this l o case (as well as many others) solely for the purpose of eliminating F workload conflicts in order to avoid delay. All parties to the ei
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) Shoreham proceeding are entitled to a reasonably prompt decision on i. their concerns at minimal expense. I note also the well-established principle that judges are fungible (at the NRC within their own expertise), a truism particularly apt at this starting point in the emergency planning exercise proceeding. Moreover, as the public record in this case makes patently clear, it is simply not true that the reconstituted board will be dealing with a subject as to which the prior board had " extensive knowledge of the issues". The proceeding concerning the emergency planning exercise at Shoreham was initiated pursuant to a l Comission order dated June 6,1986. Contentions were only recently admitted by order dated October 3,1986. No hearings have (. been held, and discovery has just begun. The admitted contentions L will, and by law must be decided solely on the basis of evidence and testimony that has yet to be presented. 4 /
"L /-.s iF-( 1 Chief Administrative Judge (also designated Chairman) of the Atomic Safety and Licensing Board Panel from discharging his responsibility to . assign judges so as to provide for the hearing and resolution of controversies ripe for decision. The Chief Administrative Judge is i N charged with appointing Licensing Boards to conduct hearings in the most expeditious manner consistent with due process and fundamental fairness. 10 CFR 9 1.11, 2.704 and Part 2 Appendix A, at p. 120(1986). See also \\ Statement of Policy on Licensing Proceedings, 13 NRC 452 (CLI-81-8, j h 1981). 4 \\ .e The Chief Administrative Judge is also responsible for appointing a new menter to a licensing board when a sitting member becomes t ~ unavai1able, even during g after the hearing. 10CFR52.704(d)(1986).' New England Coalition on Nuclear Pollution v. U.S. Nuclear Regulatory comission, 582 F.2d 87 (1st Cir.1978). The term " unavailable" applies 9 to a variety of situations, the most frequent of which is the need to replace board members when their scheduled obligations to a case conflict either internally in a particular case or with their obligation to another case. Similarly, because of the size and complexity of NRC proceedings, the need to appoint multiple Licensing Boards in the same ~ case is not uncomon. As a matter of good administrative practice, potential conflicts should be anticipated as early as possible in a proceeding to avoid having the parties waste time, effort, and financial t .-4 / e 4
j c j s ^ l f h.- 'l ' g r f. resources.2 In the instant case, the citizens of Long Island and all the parties are entitled to a decision on the merits of the controversy as soon as reasonably possible.3 Ultimately, however, the decision to, reconstitute a board or create a new one in a particular case is solely a matter of agency discrrtion. Absent some evidence of an improper exercise of that discretion, the decision is simply not open to question. Intervenors' Motion offers no g evidence, not even an affidavit. In fact, there is no such evidence. !) ~ \\ In light of the total absence of any basis for the motion, it must be' denied. i ) 2For example, in the last two fiscal years alone, reconstitution t.: has been necessary in 15 instances, and six cases have required multiple ~ Licensing Boards. Since the original Shoreham operating license board i was established in February 1977, 14 of the Panel's' judges have served on,one or more of the case's four principal dockets. 3Intervenors' Motion. refers to limited appearance statements heard by the Licensing Board before reconstitution. Such statements are transcribed and thus are available for review by new judges on a Board. However, it is well est'ablished that limited appearance statements are not evidence and can be taken into account only to the extent they may alert the Licensing Board and the parties to areas where evidence may t need to be adduced. 10 CFR 6 2.715 Part 2. Appendix A, i III(b), Iowa Electric Light & Power Co., 6 AEC 195.196 n. 4 (ALAB-108,1973). S s 9 I
r 1 i .o 1 p),,,. t n 1 P-I b' 5 ~7-x.9 p Y ,l l;- ORDER ? t For all the foregoing reasons, it is this 7th day of November, 1986 . I 1, i ORDERED that the Suffolk County and Stste of New York Motion to i rescind the reconstitution of the Shoreham Board shal' be, and it hereby - 1 w ~ is, denied. D ,4 'A A ' . ; 4 m ~ \\,,,, .,,,.g b l0 B. Ptul Gotters Jr. f..c. Chief Administrative Judge"s. 3, November 7,1986 s s, < Bethesda, Maryland { L 8 e \\ N g,_ 4. 'i ~' se s'% m.e Me 'y _Y E0e e'% i y w i, Yg 3
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L L' -v, , M,*p b ,,(j$5 88%q'.k, . UNITED STATES NUCLEAR REGULATORY COMMISSION y g I W ASHINGTON. D. C. 20555 7. t 4tS %,...../ NOV 181986 '86 NOV 18 P5 94 0FFa.. 00C%i w. : A.m. BRANCH John H. Frye, III, Chairman d Administrative Judge o Atomic Safety and Licensina. Board SERVED NOV 191986 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) Docket No. 50-322-OL-3 (Emergency Planning)
Dear Judge Frye:
In a letter of October 17, 1986, you called to my attention l allegations of purported improprieties in connection with NRC staff counsel reviewing a draft of applicant's answers to contentions concerning the Shoreham emergency planning. j exercise. l Under the NRC's regulations, the NRC staff is given five days after an appitcant responds to contentions filed by an inter-venor to file its answers to those contentions. The reason for this extra time is to " allow the regulatory staff an opportunity to coasider all matters and positions taken by other parties before finalizing its position on various questions presented during a proceeding. The affording of. this opportunity to the staff is considered appropriate in view of its duty to represent the public interest in~ Commission adjudicatory. proceedings and to assure the development of an~ adequate decisional record." 37 Fed. Reg. 15127, 15129 (July 28,1972). since the Commission directed that this proceeding on the Shoreham emergency planning exercise be expedited (CLI-86-11), the staff agreed to file its response to the contentions at the same. time'as the applicant filed its reply. I have been i I advised that staff asked the applicant to supply a draft copy ps of its reply so that staff, in keepino with the spirit of the regulations, could examine both the intervenors' contentions and~the applicant's response. I have'been further advised that, because the contentions were over 160 pages long and.had over 175 subparts, And because applicant's draft was not' received until about two days before the staff's response was i due to be' filed,:the staff prepared a. draft of its response to ~ the contentions-from the contentions alone.without-considering the applicant's: reply. When the applicant's-draft finally _ j_ 4 1 M d AO $ ff h
. - _ = - I " 2 arrived on about August 13, staff compared it with the contentions-to see if any of the positions taken in the staff's draft response should be changed. I am advised that no position which the staff had already recorded in its draft a response was changed as a result of that review. It appears from the above explanation that staff counsel's actions in the present case were consistent with the spirit of the relevant NRC regulations, and that there were no improprieties. However, I recognize the appearance problem that may be created if staff counsel were regularly to review draft applicant filings. Therefore, I am directing attorneys who serve as staff counsel in hearings not to review applicant draft filings in the future without express authorization from the Deputy General Counsel for Hearings and Enforcement. Sincerely, / v lam C. Parler General Counsel e cc: Service List l / h i i i , 1 1 ll .se
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L 2L . J ' ~- g neag g UNITED STATES { [I %[ t a i j NUCLEAR REGULATORY COMMISSION h e ATOMIC SAFETY AND LICENSING BOARD PANEL g4.,,j / W ASHIN G TON,0.C. 20555 'l 0 November 17, 1986 4 0FF :^ 00C3t'_fi, e n-r. MEMORANDUM FOR: Chief, Doc 8eting and Services Branch l SERVED NOV 181986 FROM: Kathaleen Kerr M Secretary to Judge Morton 8. Margulies ) i
SUBJECT:
LONG ISLAND LIGHTING COMPANY ~ j 1 (Shoreham Nuclear Power Station, Unit 1) Docket No. 50-322-OL-3 ..l Please serve the attached letters to the parties in the Shoreham/ Emergency Planning, Docket No. 50-322-0L-3', proceeding. 1. Ltr. dated October 31, 1986 from Isabel S. Norton to Morton B. Margulies; and 2. Ltr. dated November 7, 1986 from Thomas S. Gulotta to Morton B. - Margulies; and 3. Ltr. dated' November 10, 1986 from Maurice Barbash to Morton B. Margulies. l Attachments As Stated i ) ~ b r .$ i f.. d 2
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a o 1 Orrict or Ter PRESIDING SUPERVISOR TOWN OF HEMPsTE AL Town H ALL. H EM Psi s An. N. Y.115 5o THoM As S. GutoTT A November 7, 1986 Passieb.o suecavison Administrative Judges ~ Hon. Morton B. Margolies Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington D.C. 20555 Honorable Administ'rative Judges; I strenuously oppose LILCO's designation of its Bellmore I facility as an evacuation center in its evacuation plan before the U.S. Nuclear Regulatory Commission for the. licensing of the Shoreham nuclear power plant. j 1 LILCO's designation of the Bellmore facility has no basis in law since it is not'part of a radiological. disaster plan prepared and approved by the county in which it is situated as required by the State Executive Law. I Moreover, the designation of these premises for the purposes outlined without prior approval of local zoning authorities would constitute a clear violation of the principle of.home rule and a usurpation of local zoning powers. Further, as Presiding Supervisor of the Town of Hempstead, wherein the Bellmore LILCO facility is located, I am compelled to express my personal opposition to its use as an evacuation center. The Bellmore site is wholly inadequate to respond to the needs and to ensure the i safety and well-being of thousands of designated evacuees and the use of this site as proposed by LILCO, could imperil the health and safety of the residents of the i densely populated surrounding area. I urge the NRC to reject this site in LILCO's proposed evacuation plan based upon its illegal designation and as contrary to the health and safety of our residents. 2 t S nce / h7 m WWQ .) THOMAS S. GULOTTA kas ..n ,n...> -ut-(. m
f s CITIZENS TO REPLACE LILCO 11702 / $16 66942M 265 WEST MAIN STREEr. P.O. DRAWER 0, BABYLON. N.Y. ) November 10. 1986 iTEERING COMMITTEt l Maurwe Barbash. Cheermea Eiaine Benson { Nora Budes uon Campo Bdl Chaleff Judge Morton B, Margulles j Dan Gluck Administrative Judge i l Frazer Dougwty vana,q Gogsehm,q, Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Lou Grasso $"n,Gln""g",',"",4, Washington. D.C. 20666 Jack Hounbeser Joseph Laufman Nancy Kelley
Dear Judge Margulles:
ining uke I recently had the privilege of testifying before you and and sharon Luscome. j Like others who
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testifled. I am deeply disturbed that the panel has now been spilt w Edward McGovera This seems to be just one more effort by the i $',","/,n"p*l,fy' up and reassigned. Nuclear Regulatory Commission to do whatever is nece Nahan Pm $"3,",@d'"" license Shoreham, despite the shortcomings of the evacuation plan. Ain snedden The evidence keeps mounting that we citizens are confronted with a Judith B Sneddon l " N.'o"$y' And, when, we learn that Lynn Nofsiger has ) already received over one-half million dollars from the Long Island
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om D" * ' mo" Lighting Company, our concern turns into paranola.. Surely, there Advisory COMMITTEE l gre people of [ntegrity within the regulatory hierarchy who seNorTenneh tavari, are also becoming uncomfortable with these proceedings. Aswmelyman Paui Harenberg l' [e[$$ Is','ne"P t l" rom what little I knew of you and your fellow judges,1 Supervisor Judah Hope The had begun to hope that you could not be compromised. supemor Marun Lans 'l $'n'a'd/$l'""Trunzo sudden reassignment tended to confirm that belief.If my speculations But now your removal has rendered your integrity immaterial, senator Jame Laek AU"$*nS UImYa*n'e'ni. u.are correct, it is time for some plaln pubile talk on this matter. AssemDlyman RAert Gaffney Yes, it is easy for me to ask someone for bravery when it la his l Assemoiyman Patrick Hafpin Aswmelyman John Schan The fate of whistle l wwmoiyman ums yevoh job and not mine which is on the line. blowers in this country is n u,eceiyman Jowoh s4*k' S I.'y'$ l$".r in continued hope that someone within the regulatory bureaucracy UM.oman G*rdi tipschuiswill sound a call for fairness in the proceedings. Eventually, if Aiwmeiy the Arterlean public's growing apprehension regarding nuclear power ^ " thomas Banaga c ',"*,'[,,, is to be overcome, a return to fatrness must help the nuclear ugmuor Row Caruappa May I have your thoughts on the matter? ugmiaior Donald Aasro" industry itself. he*[$ r$*a[d$7 Legniator Whael D' Andre Legniaior Painck Mahoney ggnceregy, Legniator Leve Eagieeright Legulasor $leven Levy J e e Legniator Sondra M Bachery Mgurleg garhash ugntmor Tony Bullock Legniator Philip Notan. fr. Teen Sourds: soonthroe n suocrmor Pairwk Vewnto g[g Counalman Bradley Harns Enclosure Counalman Whael Lanzarofw Counalinan Eugene Cannataro Councilman Whael Sulinan $dbylon O 08 Soudho,V supermo'#"Henneta Acamcora Supeme Frana Murony Mayor Gdben Hanse l ust Victorta Seiget ~ r (([ [q fq"f f, ch 8"f*/*#4rr m al Z er Counciman Anthony Losquadro Counalwoman Jean Cochran Truute Gayle Laoenow Truute Eli Tarphn C a an n a ia Cousilman James Schondeoare f,f,4, S^d isI8ad I truuee witham userange. Jr. badesaurer Trusen Matthew Sensore g Counciman John LaMura Supen"tsor Jeffrey $4mes i g fy,,,po, Pon /c//crson i g Truun Doug Mens Trustee ' rank Burke Counciman Theodore Alpet C """C'**" K'""'th
- 'S Truues Linda Sendienski Counalwoman Patfica Neumann honA Hennpfread Trustee Gerald Preser Song gg Mayor Lowed Kane. M D Counelman George kavroc,culos Town C1ck John Omnio Octen 8eer#
Caustiman Anionio Gil. 5 Pavor Thomas Schwars gg g., M8en: truun Bareara Brunner llacen Mo un. fr 9, gj.,,po,, das dscar Councilman Patnch Trunzo Maw Gewse Buns JL Tmm Manin Nwnan O'" *. O' Counalman Randy Parsons Head of the Heroor M'Y ' S aniey o" hen C A m'Im/l* Counalwnman Jocette Ed*cds Trusste Peter Canerly Truun RohertWhus i h Counciman Pete Hammete Trum Glenn %idianu S#'" 50' Brun Nyman he Con supennor John 0%cli Mayor vincent Bove ' Y[ "j8 $ nunmig,on Counalman Joseph Casun sene terre Councilman James Ga<shran receport c F,ormer As,semblyman .J S Truun James Clark sellpo Mayor Frank Trous. Jr. ,; g,,,,
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Supenuar lowph Janosks Creenport Trunes Brua Field ...M Councilman Roovn Pthe Mayor Allan Gussack fruun Gad Horton Counciman John Lombards Euc. Asu. Mayor Edward Hall Trusen Dawd Kaoeil Trusee Cacny Leuer Town of East Harnpion Counalman Loun Boschetu Trsuse Jean Cetender Trwn William Lieciein q Counciman Victor Pruunowski frustee Roeert Aowgarien kNN 5 l
a t e 4 Ti!E WALL STREET JOURNAL WEDNESDAY. NOVEMBER 5.1986 .i o Power Plants and Powerless People s ( Morton I. Goldtr.an's arrogant Oct.15 land in an emergency. They were told that letter on nuclear plant safety is actually an an evacuation plan need not be considered excellent argument for reform of licensing isntil the final licensing hearing after the I procedures. Mr. Goldman starts by claim. plant was built. They asked other ques-Ing that " states have had the right for nons. such as the possibility of a hydmgen years... to par 4c,lpate dunne the federal explosion. They were told not to worry licensing process...." What n cruel about anything-the experts knew best. So hoax! The right of states and other Inter. much for participation. veners to "part!cipate" has actually been Mr. Goldman then quesdons how states the right to plead before a court with deaf '.. can be expected to provide a sigmft- { ears. For example back in the early 70s. cant contritmtion to the safety manage-during the heanngs on the Shoreham nu. ment of a high-technology nisclear indus-clear plant on [mg Island, Interveners try...." He also notes the tie-in of the 11-raised the problem of evacualmg Long (s. censing issue with elections. This is a repe-tition of the old refrain that wisdom is ex-I clusively in the province of a chosen few. t In fact, he seems to be stating Ulat some issues are beyond public compreheqplon I 2 and. therefor:. should be exempt from the l democratic electoral process. ThJs is exactly what has happened with ' nuclear power. The people who wrote the laws regulaung that industry accompilshed a remarkable feat. First, they stripped lo-calttles of their historic rights of decision concerning health, welfare and asfety. Then, with the Price Anderson Act, they, virtually eliminated the right of everyone r to just compensation for damages. It is a f situation unparalleled in American peace
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Would that the butiding industry, of which I am a member, enjoyed compara-l ble freedoms from the problems of local control of soning, etc, Actually. I would. forgo that pleasant speculation in ex-change for bringing the nuclear indtstry ; back into (ne real world of responsib hty.i accountabdity and the normal Americanl process. btlases Bana4sn Chairman Cittzens to Replace LJlco ) -i } \\ r m ah - t 2 A k
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i Y)+( S NUCLEAR REGULATORY COMMISSION. 3 '(.:d ATOMIC SAFETY AND LICENSING BOARD PANEL k, s [ W ASHINGTON, D.C. 20555 [', S5 NOV 10 P2 :25 November 6, 1986
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- -j l! MEMORANDUM FOR: William L. Clements SERVED NOV 1 0 1986 . ( i Chief, Docketing and Services Brahch FROM: Kathaleen Kerr Secretary to Judge Morton B. Margulies
SUBJECT:
LONG ISLAND LIGHTING COMPANY (ShorehamNuclearPowerStation, Unit 1) Docket No. 50-322-OL-3 4 Please serve the attached letters to the parties in the Shoreham/. Emergency Planning, Docket No. 50-322-0L-3, proceeding. 1. Ltr. dated October 31, 1986 from Louis F. Ferrara to Morton B. Margulies; and 2. Ltr. dated November 2, 1986 from Martin Tuttle to Morton B. Margulies. 1 4 Attachments As Stated 3 'I g 3 4 . :q. 3,#p ~
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L{ L ~.., ? ,~' ' ',y."..., J'a - 3 2 2. c L 3 .cr.. PLAINVIEW-OLD BETHPAGE CENTRAL SCHOOL DISTRICT PL@ VIEW, NEW YORK 11803 9.. 9[*ulr n *:W { A g} '86 NOV 10 P12:57 wois r.,e,,a,e ear.e3oi 60ARD CF EDUCATION Supenntendsat of Schools G nger Ueberman 93748322 Arthur Colver, EAD. President gg* Assistant Supenntendent Anna Goodell OCb k,; Mce Preensent Richard 8urte . October 31, 1986 Michaei sennardo 937.e3o4 Mano Colleluort Assistant Supenntendent for Denise Monshan Personnel and Ocerations -f Norman Moskovatz Mwiem Raved wvian P. Ooremus, Ed.0 937 6322 Assistant Supenntendent ' Nt'ucta Mr. Morton B. Margulies, Chairman Administrative Law Judge Densid a. Giant: 837.ea to The Atomic Safety and Licensing Board Panel p5,'8t*atyp*"atead*at ' l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,I
Dear Mr. Margulies:
It has recently come to my attention that the American Red Cross and the Long Island Lighting Company have designated the / Plainview-Old Bethpage Central School District as a relocation. center in the event of a radiological emergency at the Shoreham Nuclear Power Station. The Plainview-Old Bethpage Central School District has not entered into any agreement either with the American Red Cross or with LILCO to serve as a relocation center or as a decon.tamination and monitoring facility, for a Shoreham emergency. An agreement of this nature would require the approval of the Board of Education. No such request has been made of the Board of Education 4 I in this regard and consequently no such approval has been granted by them. The Plainview-Old Bethpage Central School District has permitted j the American Red Cross to list our District as a mass care shelter, but that listing does not grant the American Red Cross.or LILCO permission to use our facilities, as identified ' above, pursuant to LILCO's proposed plan to deal with a radiological emergency. In view of the' foregoing, as Superintendent of Schools and Chief Executive Officer of the Plainview-Old Bethpage Central School District, I am asking that the name of the Plainview-Old.Bethpage Central School District be deleted from any list that designates the school district as a relocation center in the event of a i radiological emergency at the Shoreham Nuclear Power Station. t Very truly yours, k) Louis F. Ferrara Superintendent of Schools ^ ]3 4 LFF/mrb
cc: Mr. Jerry R. Kline, Licensing Board Panel Member ) Mr. Frederick J. Shon, Licensing Board Panel Member j Mr. Peter Von Berg, Executive Director Nassau County Chapter, American Red Cross Mrs. Elaine Robinson, LILCO Mr. Lando W. Zech, Jr., Chairman, 3 U.S. Nuclear Regulatory Commission Mrs Francis T. Purcell, Nassau County Executive Mr. John R. Dunne, Member, N.Y.S. Senate-Mr. Lewis J. Yevoli, Member, N.Y.S. Assembly 0 2 A s a $) 4 b
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j NUCLEAR REGULATORY COMMISSION "a e ATOMIC SAFETY AND LICENslNG BOARD PANEL 00CKETCO 'NINC [ W ASHIN GTON, D.C. 20555 October 31, 1986 '86 m -3 A9 :44 circ F 2 C C L. r" ' The Honorable Edward J. Markey U.S. House of Representatives SERVED NOV 31986 1 Washington, D.C. 20515
Dear Congressman Markey:
Your October 28, 1986 letter concerning the Shoreham proceeding concerns me deeply. I know you, as a lawyer, are well aware of the long standing rule of law that the deliberative processes of adjudicators are protected from any inquiry absent some external evidence c f impropriety, j particularly in connection with a specific case under actf ve judicial ( consideration. As the Supreme Court held in the fourth Morgan opinion, ... examination of a judge would be destructive of judicial responsi-bility.... Just as a judge cannot be subjected to such scrutiny, so i ) the integrity of the administrative process must be eqt ally protected."~ Your letter inquires into two protected areas: (1)theexerciseof my responsibility as Chief Administrative Judge in assigning judges to a particular case and (2) the mental processes and deliberations of the judges on the Shoreham Board itself. Both of these areas are fully protected from inquiry to preserve the integrity of ths 1:djudicatory process. It would be improper for me to compromise thet process at this Comission by responding to inquiries into such area. Nevertheless, in sympathy with your expression of deep concern I do want to go so far as to inform you that spy reconstitution of the Shoreham Board on the narrow issue of the emergency exercise was wholly an internal Panel decision made solely in carrying out my responsibility under the Administrative Procedure Act. My decision was not influenced by any other consideration. There were absolutely no communications, direct or indirect, with anyone outside this office concerning that decision or the issuance of the October 17, 1986 clarification. As I noted in iny letter to Senator D' Amato (copy enclosed), the reconstitu-tion was a purely administrative decision made in this case (as well as many others) solely for the purpose of eliminating workload conflicts in order to avoid delay. All parties to the Shoreham proceeding are entitled to a reasonably prompt decision on their concerns at minimal expense. I note also the well-established principle that judges are fungible (at the NRC within their own expertise) a truism particularly apt at this starting p'oint in the emergency planning exercise proceed-ing. Moreover, as the public record in this case makes patently clear, it is simply not true that.the reconstituted board will be dealing with a subject as to which the prior board had " extensive knowledge of the i ) j
3 f,< x.e... . issues". The proceeding concerning the emergency planning exercise at Shoreham was initiated pursuant to a Commission order dated June 6, J' 1986. Contentions were only recently admitted by order dated October 3 1986. No. hearings have been held, and discovery has just begun. The admitted contentions will, and by law must be decided solely on the basis of evidence and testimony that has yet to be presented. No party to an NRC proceeding should have to wait for a hearing and decision because the judge is tied up in another case if such a delay can be avoiced. Since, as you know, the Shoreham proceeding has become the equivalent of four major cases, I deemed it appropriate to expand the judicial manpower hearing those issues so that when each of them is - ready it can be heard and decided. In my judgment, not proceeding to hear and decide a case when it is ready constitutes undue delay. I As I'm sure you are aware, the Licensing Panel and each of its boards has a responsibility to avoid delay in the hearing process. In its Statement of General Policy and Procedure concerning the conduct of proceedings (10 CFR Part 2, Appendix A), the Comission expressed its intent "that such proceedings be conducted expeditiously" and its j l position that " fairness to all the parties and the obligation of admin-istrative agencies to conduct their functions with efficiency and - economy, require that Comission adjudications be conducted without unnecessary delays." See also Statement of Policy on Conduct of Licens-ins Proceedings, 13 NRC 452 (CLI 81-8, 1981). Finally, the Comission t orter initiating the exercise proceeding specified that it be expedited. The Panel is bound to implement the Comission's policy. Reconstituting ~ ( the Shoreham emergency planning exercise board will contribut'e to that objective by providing a total of five judges to share the workload previously handled by three. The purpose of all such reconstitutions is to insure that the parties' disputes are fairly, promptly, and fully j adjudicated. l In closing, let me assure you that your being " deeply troubled" over the reconstitution of the Board hearing one set of issues in-the Shoreham proceeding is at least matched by my own absolute astonishment over the strident reaction from some quarters to what was simply a routine administrative action. I hope the foregoing satisfies your Concerns. Sincerely, VI . Paul Cotter, J. Chief Administrative Judge
Enclosure:
Ltr. to Senator D' Amato ec: Shoreham Service Lists 1 O
.a - OFFICE OF THE COUNTY LEGISLATURE COUNTY OF SUFFOLX l [. * *t.$) cx.qn: %M '86 NOV -6 A8 :25 CFFik. JACQUELINE P. FARRELL p. cuiEr oEPUTv et.EMx g;;.';*iT*.T 3 p. 3 2 2."'O d* 8 JOHN CHARUK & ML MC....r. * * ' ' * * * ' ' * ~ oE e etEMx SER'.'ED T'0V -61986 } TO: All Interested Parties FROM: Jacqueline P. Farrell Chief Deputy Clerk l OATE: October 30,1986 ) s l Attached please find. SENSE OF THE LEGISLATURE OBJECTING TO THE RECENT REMOVAL OF TWO JUOGES FROM THE NUCLEAR REGULATORY COMMISSION LICENSING PANEL, which was passed by majority vote on October 28.1986. (Sense 279) cj l cc: Individual members of the Nuclear Regulatory Commission ) %,j.l O ' yf 1 COUNTY CENTEM e MIVEMHEAQ, NEW YCMx f 1901 e (S161544 3300 i LEQlSLATUME BulLDING e VETEMANS MEMOMIAL MtOHW AY a HAUPPAUGE. NEW YCMx i 1764 o (516)360 4073 ~ - 3.t.M-27 4 84
SENSE 79 ..'.. l$troduced by Legislator Levy 10/28/88 SENSE OF THE LEGISLATURE OBJECTING TO THE
- RECENT REMOVAL OF TWO JUDGES FROM THE NUCLEAR REGULATORY COMMISSION LICENSING PANEL.
WHEREAS. the Nuclear Regulatory Commission is empowered by the United States Congress to determine whether an operating license may be issued for a nuclear power plant, and WHEREAS. it is the contention of the Suffolk County Legislature and the Governor of the State of New York, that evacuation from densely populated and geographically unique Long Island is impossible in the event of a radiological accident at the Shoreham Nuclear P,ower Plant, and WHEREAS. approximately 80 % of the residents of Suffolk County oppose the licensing cf Shoreham, and WHEREAS. on February 13. 1986 the Long Island Lighting Ccmpany conducted an evacuation drill which this Legislature considers a " farce" and a " sham", and WHEREAS in September of 1986 the Nuclear '.egulatory Commission conducted three hearings on Long Island consisting of 23 hours of testimony from over 90 residerits expressing their wish that the plant remain closed, and l i WHEREAS. within a month of these hearings the N.R.C. had the audacity and the temerity to remove from the Shoreham licensing process two of the three judges who took the time to listen to the emotional, elaborate and imperative testimony at these hearings. now. therefore. be it RESOLVED. that the Suf folk County Legislature hereby finds such actinn repulsive, callous and insulting to the members of the Legislature and the people of Long Island who took the time to express their concern to these judges and underscores our belief that the Nuclear Regulatory Commission is attempting to " stack the deck" to issue LILCO an operating license despite the fact that the flaws within the plant. the inadequacy of the LILCO evacuation plan and the impcssibility of evacuation, overwhelmingly support the denial of such licensing.*and be it further RESOLVEO. that this Legislature requests that those judges 9o removed, be reinstated on the panel that will determine the adequacy of the LILCO evacuation plan, and be it further RESOLVEO. that should reinstatement not be granted. this Legislature requests that the people of Long Island be given an opportunity to address those newly appointed members of the N.R.C. here on Long Island within the reasonable date of their appointment, and be it further RESOLVEO. that the Clerk of the Legislature forward a copy of this resolution to each individual member of the Nuclear Regulatory Commission. Cate: a5 n Dl m
f UNITED STATES ?.L 7 NUCLEAR REGULATORY COMMISSION W AsHIN GT ON. D.C. 20555 ... r i... October 20, 1986 'i-ssSnrNIv" '86 0CT 20 A9 :25 Fabian G. Palomino GF Fit... w' Special Counsel to the Governor 00CKlil:o '..i"v'IU of the State of New York W h Executive Chamber SERVED OCT 201986 n, 'N or 12224 RE: DOCKET NO. 50-322-OL 'l )
Dear Mr. Palomino:
I have received your October 14,'.986 pleading captioned " Motion of Gove nor Mario M. Cuomo, Represen:ing the State of New York, to Compel Prod action of an Audit Report on Shoreham Personnel and Motion for Expe lited Consideration." Your specific requests were for certain docu ents from the Comission under the Freedom of Information Act (F0IA), for a Comission Order for LILCO to produce certain documents, and for a Comission directive to the NRC staff to explain why an audit report "was returned to LILC0 and not retained in [ staff's] records, and [to] provide a list of any other Shoreham-related documents which were treated similarly." J Motion at 1-2. Section 2.730 of the Comission's rules, under which your " Motion" was filed, governs pleadings submitted in NRC adjudications. See 10 CFR $ 2.700. The Motion, however, does not relate to any issue being ~ considered in the ongoing Shoreham adjudication. Thus, pursuant to 10 CFR $ 2. 772(k), your request is being referred to the NRC staff for appropriate action. Your request under F0IA will be handled by the staff under Part 9 of our regulations. Si cerely., ) .}Q mIe1J. kilk Secretary of the Comission 4,y e ~ ~ l
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,ad'~,% W I [ \\ UNITED STATES F C, j NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY ANo LtCENSING BOARD PANEL j g " y,g j W ASHINGTON, D.C. 20555 October 17, 1986 '86 0CT 20 P3 :43 f[0cNT "S The Honorable Alfonse M. D'Anato United States Senatcr SERVED OCT 20 W Washington, D.C. 20510
Dear Senator D'Amato:
This is in response to your letter of October 14, 1986 concerning the reconstitution of the Atomic Safety and Licensing Board presiding in the emergency planning exercise segment of the Shoreham proceeding. First, let me say that there seems to have been some confusion as to the secpe of the proceedings affected by the reconstitution. This is understandable given the number o.f issues pending in the Shoreham case. Consequently I have submitted a clarification of the Notice of Reconstitution for publication in the Federal Register. A copy is enclosed. As you will note, Judges Margulies, Kline and Shon will continue to preside over the bulk of the emergency planning issues in Shoreham, including all matters that have been the subject of extensive prior litigation. The reconstituted Board of Judges Frye, Paris and Shon will preside only in the proceedings related to the emergency planning exercise. Hearings on this issue were instituted pursuant to a June 6, 1986 Connission order and do not involve " tens of thousands of pages ... compiled in the nearly five-year history of the Shoreham case." Last week, Judge Margulies advis3d me that it was his Board's opinion upon completing the admission of issues in the exercise. case, that all pending proceedings in Shoreham could not be heard in anything like a reasonably timely fashion by a single Board. For that reason, I established the reconstituted Board to handle the newer, less developed emergency planning exercise hearing. In complex NRC proceedings, segregation of specific hearing issues for consideration by separate licensing boards has been a nonnal case management procedure for many years. In Shoreham itself, emergency )lanning was assigned to a separate board long before the original board 1ad completed consideration of other safety and environmental issues. Similarly, the Seabrook proceeding in New Hampshire is being handled by two licensing boards. / q 2(if
-.~ 3 ,2 t Honorable Alfonse M. D' Amato 2 October 17, 1986 My sole concern in respondng to the excessive workload created by the expanding Shoreham emergency planning proceeding was to assure that all issues are heard fully without unnecessary delay. I believe it is that commitrent to which the residents of Long Island are entitled. Sincere .Y . B. Paul Cotter, r. Chief Administrative Judge Enclosure v/ c: Service List - Shoreham/ Emergency Planning, Docket No. 50-322-OL-3 Shoreham/EP Exercise, Docket No. 50-322-OL-5 s e t i f e 3 A
$~7 g 1 ~ i SHOREHAM - WADING RIVER CENTRAL SCHOOL DISTRICT j 5horeham, New York i1749745 istm 929 xw '86 0CT 27 All 58 GlTC.' :: *, t 00CMDim ' i: n Bk;.iw October 17, 1986 stWD w 2 7 1980 Mr. John H. Frye Chairman, Atomic Safety and Licensing Board Nuclear Regulatory Commission Washington, D. C. 20555
Dear Mr. Frye:
As we were unable to attend the recent public hearings held k by the Atomic Safety and Licensing Board of the Nuclear Regulatory Commission on Long Island concerning the ) evacuation plan for the Shoreham Nuclear Power Station, we J are submitting this written testimony. 1 There is on file in the office of the Atomic Safety and Licensing Board a letter dated December 6, 1983, submitted by us, the Shoreham-Wading River Central School District, l and addressed to Lawrence Brenner, then Administrative Judge which states that our district had participated in preliminary planning for an evacuation plan and was prepared to go ahead and continue such planning when the opportunity presented itself. The preliminary planning was at first done in close communication with consultants to Suffolk county but when Suffolk county withdrew from the task of emergency planning the opportunity to coordinate our efforts in an overall plan for the power station did not arise again until the decision was reached to conduct a drill of the plan proposed by Lilco. The Shoreham-Wading River School District did participate in the drill conducted on February 13, 1986 after a series of meetings with representatives from Lilco during which coordination between our plan and the Lilco plan was successfully achievod. The Lilco representatives were attentive to our concerns and' cooperative in addressing them. Since the school district's. participation in the drill involved sending bases over some of the. routes that would be used in the event of an emergency, the district had eprepared maps of each bus route, carefully indicating s / -. i, ~~ we
r ^ ~ streets and directions, which were distributed to the bus company and the drivers. The communication during the drill was excellent and the buses were summoned and followed,the appropriate routes without difficulty. From the school district's point of view, our part in the drill was successful and went off without a hitch. At this time we wish to state that we believe we can safely evacuate the pupils in our care and that an evacuation presents no logistical problems that cannot be overcome with rational planning. Our belief is reinforced by the knowledge that we have enough vehicles and, according to in-district surveys, enough but drivers ~ and staff members willing to be trained as bus drivers to transport all our pupils simultaneously should an emergency occur. Our Superintendent of Schools, Richard R. Doremus, i has testified before the Federal Emergency Management Agency j that we are able to evacuate and are ready to continue to j participate in emergency planning. The objections to an emergency plan are simply being used by those who oppose nuclear power as a means to blocking the ) opening of the power station and, unfortunately, by those who have seized on the issue of an emergency plan in seeking public office. Those who refuse to participate in emergency planning and oppose the licensing of the Shoreham Nuclear Power Station have rallied around the slogan "It is impossible to evacuate Long Island." Much of Long Island, of course, both east and west of Shoreham is more distant from that power station than New York City and a substantial part of the Greater New York metropolitan area are from two nuclear power stations at Indian Point. One wonders then, if the slogan is taken literally why a similar slogan has not been raised about New York City unless, perhaps, state officials have developed an emergency plan which they believe can efficiently evacuate the millions of people in the city. officials have also prophesized the dire consequences to the farmlands of_ eastern Long Island should an accident happen at Shoreham and yet much of the farmland of eastern Long Island lies closer to three nuclear power stations at Millstone, Connecticut than it does to Shoreham. The peculiar geography of Long Island is cited by opponents of emergency planning as an argument that evacuation is impossible. This pecular geography includes a northern half of the ten mile circle around the power station that is all water and, therefore, only the southern half need be evacuated if evacuation were ever to be necessary. The eastern two-thirds of that southern half are very sparsely settled. It is only the western third of that half circle 9 ,s
2 _ 2, n-9 that has any population density. In addition, there is a four-lane divided highway, the William Floyd Parkway, and also two-lane roads such as Randall Road and Wading River-Manorville Road that run directly south from the power station. Approximately eight miles from the power station the William Floyd Parkway crosses the Long Island Expressway, a six lane divided highway which also runs east and west. Two miles south of the Long Island Expressway is the Sunrise Highway (Route 27), a four lane divided highway which also runs east and west. An evacuation could be j carried out along these roads, parkway and highways, l E particularly if all lanes are designated as one way away from the power station. In any case, it is our opinion that the Shoreham-Wading River School District could evacuate in the event of an emergency which required such action to be taken. Sincerely yours, i AL5o PA Albert G. Prodell President, Shoreham-Wading River Board of Education l 1 I I i s 0 l
3e 'J % gnuou ',,A UNITED STATES 2 NUCLEAR REGULATORY COMMISSION e ATOMIC SAFETY AND LICENslNG BOARD PANEL 00CKETED
- l, W ASHINGTON,0.C. 20666 US N 86 0CT 20 N1:28 October 17, 1986 cy n~-
L:- William C. Parler, Esq. General Counsel U.S. Nuclear Regulatory Comission Washington, DC 20555 SERVED OCT 201986 Re: LONG ISLAND LIGHTING COMPANY Shoreham Nuclear Power Station, Unit 1 (EP Exercise) ~ Docket No. 50-322-0L-5
Dear Mr. Parler:
Attached is a limited appearance statement filed by Lou Grasso, Managing Editor, Suffolk Life Newspapers, in the Shoreham proceeding. 1 (Mr. Grasso's oral statement appears at Tr. 16866476, September 25, 1986.) This statement alleges that Staff's conduct in this proceeding is improper in that "... Staff secretly [ received] from LILCO an advance copy of LILCO's brief relating to New York State's, Suffolk County's, and Southhampton's contentions and then repeatedly [ copied] or superficially [ edited] LILCO's positions, and even words.". The statement demands that the " secret relationship" between Staff and LILCO be investigated by this Board, and "... an end to the NRC Staff's cozy and secret ties to LILCO,." Under the schedule adopted by the Board, the brief in question was filed simultaneously with Staff's brief. A similar, although less strident, allegation was made by Suffolk' County, the State of New York, and the Town of Southhampton at~ pp. 2-3 of their August 25, 1985, response to Staff's and LILCO's opposition to their contentions. No admitted contention challenges Staff's role.in this proceeding and the Board has not seen fit to accept the intervenors' invitation to go into it. We bring the allegations of the limited appearance statement to your attention because Mr. Grasso's letter charges Staff counsel, who functions within your office, with improprieties. - Sincerely, JonH r e, I!!, Chairman NI ' TIVE JUDGE [ cc: Service List (w/ enclosure) 4 Lj1 M (
NEWSPAPERS P.O. Box 167, Riverhead, N.Y. 11901 0102 5161369 0800 I October 8. 1986 Morton B. Margulies, Esq. s' Dr. Jerry R. Kline Mr. Frederick J. Shon Administrative Judges Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Dear Administrative Judges:
On September 25th,~1n Riverhead, New York, I testified before you that the NRC Staff and LILCO had grossly damaged the integrity of the Shoreham licensing proceedings. 1 was referring to the recent incident of the NRC Staff secretly receiving from LILC0 an advance copy of LILCO's brief relating to New York State's, Suffolk County's, and Southampton's contentions and then repeatedly copying or superficially editing LILCO's positions, and even words. I emphasize that the NRC Staff did this secretly, while holding itself out as " independent" of LILCO. I attach to this letter examples of the NRC Staff's copying. You should also know, as the two enclosed newspaper articles show, that the N9C Staff has publicly made inconsistent statements about its role with LILC0 in this incident. Last week, an NRC Staff lawyer personally told me, and I quoted him in the enclosed article from Suffolk Life, that the NRC Staff had not obtained an advance copy of LILCO's brief. In Newsday of October 2, however, an NRC Staff counsel was quoted as admitting the opposite: that the NRC Staff had really received I a copy of LILCO's brief three days in advance. My suspicion is that this is not likely to be the complete story. It may even represent a part of a much larger hidden collaboration of 3 the NRC Staff and LILCO. The fact is that I want to know the whole truth. I T The secret relationship of the NRC Staff and LILCO must be fully investigated by the ASLB, and an objective report on the facts arid their implications must be made public. I hereby ask for such an investigation. If the ASLB is unwilling to take up this matter on its own initiative, I shall intervene formally in the Shoreham operatir:g license )roceeding and seek to compel such an investigation by all available legal means. s J) 4 One Of America's Largest Weekly Newspapers ue
.d 1 Morton B. Margulies, Esq. Dr. Jerry R. Kline Mr. Frederick J. Shon October 8, 1986 Page 2 The ASLB should not underestimate how seriously the people of Long Island view the apparent' complicity of the NRC n Staff with LILCO. While we have over tha past few years learned better than to assume that the NRC is fair, or even not strongly biased against our interests, we still expect our public servants, whose salaries we pay, to be candid i and open in dealing with matters that put our lives and safety at risk. As the editor of Suffolk Life, a newspaper l with circulation of more than 330,000 in Suffolk County. and as a person who is in touch with the strong pro-safety, 9 anti-Shoreham, and anti-LILCO feelings of the people who q live here, I can tell you that the public here will not tolerate any NRC behavior that smacks of collusion with l LILCO. The oublic wants all of the facts concerning the NRC Staff relationship to LILCO, and particularly the most recent incident, on the table and open to view. If the 1 I ASLB, permits this serious issue to be swept under the rug, the ASLB itself will be furthering, and hiding, an ongoing impropriety in the relationship of the NRC Staff to LILCO. Finally, there must be an end to the NRC Staff's cozy and secret ties to LILCO. Either the NRC Staff should take itself out of the Shoreham operating license proceeding, or it should openly declare itself to be LILC0's ally and the public's opponent. We do not want to see any longer an NRC Staff that is really working for LILCO while sittin.g in the hearing room with a fake halo over its head that j reads " independent." We want an end to that deception once and for all. Nothing I have written should be viewed as anything personal toward any member of the NRC Staff. My words are intended as purely professional and as a means of objectively getting to the roots of a matter of enormous importance to the people of Suffolk County -- the integrity of the operating license hearings before the ASLB and the truth about the NRC Staff's relationship to LILCO. Certainly the ASLB must share these i same goals. S'ncere j W W Lou Grasso Managing Editor Suffolk Life Newspapers LG:cs s) J 't
- ] Morton B. Margulies, Esq. Dr. Jeffy R. Kline Mr. Frederick J. Shon-October 8, 1986 Page 3 cc: Rep. Edward J. Markey Senator Alphonse M. D' Amato Congressman Thomas J. Downey Congressman Robert J. Mrazek Senator Daniel Patrick Moynihan s. i i / e / e / G. ,/ 2, .Y.
, - ~. + ' ^ ' p uaw 'f"(*)"a 3 N_O OE- . t UNITED STATES ,f 'y Wfj NUCLEAR REGULATORY COMMISSION
- {h pf ATOMIC SAFETY ANO LICENSING BOARD PtNEL
.s $, * = C,,r W ASHIN GTON, D.C. 20555 g g,, ( T October 17, 1986 86 0CT 20 P3 :43, ] J ' F Fi.1 1 I w 00CKE M i-Lf-K n;x - The Honorable Alfonse M. D' Amato United States Senator Washington, D.C. 20510 ~ ~ g 3$
Dear Senator D' Amato:
j This is in response to your letter of October 14, 1986 concerning the reconstitution of the Atomic Safety and Licensing Board presiding in the emergency planning exercise segment of the Shoreham proceeding. 1 First, let me say,that there seems to have been some confusion as to the scope of the proceedings affected by the reconstitution. This is understandable given the number of issues pending ln the Shoreham. case. ) Consequently, I hav.e submitted a clarification of the' Notice of_ Reconstitution for publication in the Federal Registe g A copp is' enclosed. As you will note, Judcies Margulies, Kline and Shon will continue to preside over the bulk of the emergency planning issues in Shereh'am, including all matters th'atshave been the subject of extensive prior 3 litigation. The reconstituted Board of Judges Frye Paris and Shon will H g i preside only in the proceedings related to the emergency planning ,j exercise. Hearings on this issue were instituted pursuant to a June 6, 1986 Comission order and' do not involve " tens of thiiusands of pages 1 ... compiled in the nearly five-year history of,the' Shoreham case.",, j Last week, Judge Nargulies advised me that it wa his Boardk i s opinion upon complating the admission of issues in the exercise case, 3 that all pending proceedings in Shoreham could not be heard in anytithg like a reasonably timely' fashion by a single Board. For that rJason,. I established the raconstituted Board to handle the newer, lesCdeveloped emergency planning" exercise hearing. s. ,,. ~ \\ In complex NRC proceedings, segregation of specific hearfog issues for considerattori by separate licensing boards has been a nonnal case a management procedure for many years. In Shoreham itself, emergercy. 31anning was assigned to a separate board long before the original board lad completed consideration of other safety and environmental issues.-. x' Similarly, the Seabrook proceeding in New Hampshire is being handled by two licensing boards. r o q_ q ,x wlGW ~ bn tqff
t t 4 Honorable Alfonse M. D' Amato 2 Octoter 17, 1986 ~ t. My-wie concern in respondng to the excessive workload created by l the expandis>; Shoreham emergency planning proceeding was to assure that I a11' issues are heard fully without unnecessary delay. I believe it is l that coninitment to which the residents of Long Island are entitled. i i Sincere s, .d f B. Paul Cotter, r. Chief Administrative Judge a + Enclosure c: Service List - Shoreham/ Emergency Planning, Docket No. 50-322-OL-3 Shoreham/EP Exercise, Docket No. 50-322-OL-5 ) l s 'f i) ( O i 1 A i O 1 1
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' ' ~ fAnE0 9-l. -3 b 5 1 ROCKY POINT TAXPAYERS CIVIC ASSOCIATION RESOLUTION j ] WHEREAS, the Rocky Point Taxpayer Civic Association has t approximately 200 members, all of whom live within 10 miles of the ql Shoreham nuclear power plant and many of whom have children who attend schoob in the same area; and WHEREAS, this Association, by its (charter], represents the Interests of approximately 25,000 men, women and children who live in the Rocky Point community, as well as the additional people who come into our community for work, recreation, business, school, social or other purposes; and + WHEREAS, the Governments of Suffolk County and the State of New York, after extensive analysis, determined not to adopt or implement any emergency plan for response to a radiological emer-gency at the Shoreham plant and this Association, on behalf of its members, believes that the Governments of Suffolk County and the State of New York have acted responsibly and in furtherance of the interests of the citizens of Long Island in so determining; and WHEREAS, in light of the recent nuclear power accident in the Soviet Union and its devastating effects, this Association is mindful of the potential for, and the dangers associated with, a nuclear power plant accident, and is mindful as well of the necessity of assuring l adequate protection to school children, women of child-bearing age, as well as all other adults, before creating the risk of such an accident by permitting a nuclear power plant to operate; and WHEREAS, the Long Island Lighting Company has prepared an emergency plar. for Shoreham, according to which LILCO employees 1' would perform functions normally performed by duly authorized govern-mental officials, and the proposed LILCO plan has been ruled by the courts to be beyond LILCO's authority to implement; and i 1~ ?i 1j ~l l _j
_. ~. _ u. r i', I l WHEREAS, the Rocky Point' Board of Education has adopted a re:olution concluding that the LILCO plan makes unwarranted and false assumptions and representations about the existence of workable i l f plans _in that district for the early dismissal, sheltering, or evacuation of children from schools during a nuclear accident at the Shoreham plant, and concluding, further, that the Rocky Point School District could not adequately protect the children of that District in the l event of a Shoreham accident; and 1 i WHEREAS, this Association understands that in the event of a Shoreham accident, substantial numbers of school bus drivers as well j as teachers and other school personnel in the Rocky Point District I would have personal and family obilgations and responsibilities which j ) would make them unable or unwilling to remain in school, or to accompany, supervise or transfer school children during an early dis-i missal, sheltering or evacuation from a Shoreham accident; and i WHEREAS, this Association is informed.that in order to protect j i its own employees who are supposed to participate in impleinenting the LILCO plan for Shoreham, that plan prohibits any.LILCO employees' who are women of child-bearing age from accepting any emergency i assignments that require them to be inside the 10-mile emergency planning zone during a Shoreham accident; and ] WHEREAS, this Association is informed and believes that a substantial majority of the school bus drivers who drive the children of its members have stated that they do not agree to drive buses for I purposes of an early dismissal or an evacuation during a Shoreham j emergency; and 'i-WHEREAS, this Association supports the right of school bus drivers, and school personnel and other persons to.make personal i choices and decisions as to their Intended actions during a nuclear accident based upon their personal and individual responsibilities and concerns, and believes that the realities created by such personal decisions must be recognized and acknowledged when evaluating.whether [ j l kl people could be protected in the event of such an accident; and 3
__.7 WHEREAS,~ based upon past experiences with,LILCO, including experiences during the Hurricane Gloria emergency, neither this i Association nor its members have confidence in LILCO, any plan of LILCO, LILCO's ability to protect residents of this community, or LILCO's interest in or commitment to protecting anyone or anything j other than its own economic interests; l NOW THEREFORE BE IT l l RESOLVED, that the Rocky Point Taxpayers Civic Association believes that in the absence of a workable emergency plan that could l be implemented and that would provide adaquate protection to the I men, women and children who live, work in and visit this community, j l I the danger posed by the full power operation of the Shoreham nuclear l plant, as evidenced by the recent nuclear power plant accident in the Soviet Union, should not be permitted; and be it further RESOLVED, that the Rocky Point Taxpayers Civic Association, on behalf of its members, supports the positions taken by the Govern-ments of Suffolk County and the State of New York (1) in opposing l the licensing of the Shoreham plant; (2) in determining that they will I not permit or authorize LILCO to attempt to perform governmental ] functions or 50 implement an illegal and unworkable emergency plan; j (3) in making clear that they would not participate in implementing a LILCO plan for Shoreham; and (4) in making clear that they would not trust or rely upon LILCO for advice or actions relating to pro-tecting the public in the event of a Shoreham accident; and be it further RESOLVED, that this Association supports the efforts of tt.e Long Island business community, the Governments of Suffolk County and the State of Nest York, and the citizens of Long Island, in urging j LILCO to finally face the necessity of abandoning the Shoreham plant, and deal with the economic consequences now, before they become any worse. d q 9 m
l ~ Ar.D OF EDUCATION fdCgn NUMBER dQh--O1 -) " ~ * "" ~ JAuss BANxS PRESIDENT SUPERINTENDENT $((e /, 6([ffi' SYLVIA S. SPRINGh0RN ... JA S.G RARDI VICE PRESIDENT v0t XL t. sis.2ss4310 (3)l,ff{f,f () /CC { ((Cf HENR f BONTEMPI ROBERT L CORN, M O. ASS'T, SUPE RINTENDENT MARK SCHISSLER G EORG E E LEAZER, Jr., Ph.D. TOWN OF GROOKH AVEN
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JO AN ROSENBERG ,86 0CT H N 5 W 3'$ ) KENNETH SEARLES ADMINISTRATIVE OFFICES WILLIAM SELLS 189 NORTH DUNToN AVENUE J RUDY STANG ANELLI EAST PATCHOGUE, NEW YORK 11772 0FFid t j 00CKL'.lw - f.f 4 E w.:. 4 October 9, 1986 ] i The Honorable Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulat;ory. Commission j3 Washington, DC 20555 Dear Mr. Chilks The Board of Education of the South Country Central School District and I are anxious to clarify any possible misunderstandings which may have resulted f rom plans submitted by the Long Island Lighting Company regarding emergency action to be taken in the event of a radiological accident at. the Shoreham nuclear power plant. This school district has never adopted or i agreed to implement any emergency plan to respond to such an accident. To our knowledge, there is no school district in i Suf folk County which has adopted such a plan. I We find it incredulous that you have believed and accepted LILCO's claims that the following conditions are in effect for all school districts within Shoreham's ten-mile " emergency j planning zone": l 1. preparedness is adequate to prot.ect school children in the l event of a Shoreham accident; 1 2. during such an accident, school bus drivers would be available to drive children home or to evacuate them; l 3. teachers and other school personnel and officials would: (a) remain in school, inside the emergency planning zone, to supervise. children during an early dismissal or while they attempt to shelter from radiation; q J [4 Y
The Honorable Samuel J. Chilk Page Two (b) accompany children to buses which would take them through the emergency planning zone to evacuation centers to be located substantial distances away f rom schools; (c) remain with children to supervise them in evacuation centers, and (d) even drive school buses through the emergency planning, zone as part of an early dismissal or an evacuation of i schools. At its meeting last night, the Board of Education adopted a very I brief but cogent resolution which we urge that you take very 4 seriously as you consider any plans to allow LILCO to proceed with its Shoreham project. The resolution reads as follows: 1 RESOLVED, that until such time that the State of New York and the County of Suffolk adopt and approve an implementable emergency response plan for an emergency at the Shoreham nuclear power station, the South Country Board of Education concludes that no operating license should be granted to LILCO for the ~ Shoreham plant and that low power testing should also be prohibited. nce y ames J. Gerardi I uperinter.&,nt of Schools l t /jr CC: see attached list i 1 91 4j .i 1
t a Copies of the letter to the Nuclear Regulatory Commission f rom the South Country School District were sent to.: Tid following legislators: 1 S.C. Executlye Peter Cohalan Congressman William Carney Congreiss. nan Thomas Downey Congressman Robert Mrazek Senator Owen Johnson i Senator James Lack Senator Kenneth LaValle Senator Caesar Trunzo Assemblyman Thomas Barraga Assemblyman John Behan Assemblyman I. William Bianchi Assemblyman Robert Gaffney ] Assemblyman Paul Barenberg Assemblyman Clarence Rappleyea Assemblywoman Toni Rettaliata Assemblyman Joseph Sawicki All Suffolk County School Districts Federal Emergency Management Agency j l 1 e, 'A' 11
e %o, /p UNITED STATES f NUCLEAR REGULATORY COMMISSION 3... udp .um~oro~. o. c. ms. \\,,,,,, / Ju'y " "86 g,,, PROD.& UTIL FAC. (<g g,22,, g[ 3 gic c 3m,. 00cKET NUMBER i BRj Ch v' I sgWED jut,//1h The Honorable Mario M. Cuomo Governor State of New York Executive Chamber Albany, New York 12224 l
Dear Governor Cuomo:
The Comission has received your letter of Jane 26, 1986 requesting .l. increased NRC emergency planning requirements for low-power licensing of ~ ^ j nuclear power reactors, and for a stay of low-power testing at the Shoreham j i Nuclear Power Plant. The Commission hopes to respond to your request shortly, and in the interim is serving your letter on the parties to the Shoreham licensing proceeding. R spectf () i Min. Secretary f the Commiss on cc w/att: service list 4 q O-
. z.- - n ... ~. ..i >3 pa osauq f, t UNITED STATES ^ ,c. S NUCLEAR REGULATORY COMMISSION i 3, - ATOMIC SAFETY AND LICENslNG BOARD PANEL ,j(4:, W ASHINGTON, O C. 20S55 5%..s,, *f '86 0CT -8 P3 :21 1 Si a < j OFFIL:. ; : w, October 7, 1986 Bochtii.%. - v ic t. SRANC l Honorable Tony Bullock SERVED OCT -81986 Member of Suffolk County Legislature 425 County Road 39A, Suite 104 j Southampton, New York 11960 j RE: Shoreham/EP Exercise, Docket No. 50-322-OL-5
Dear Mr. Bullock:
This is in response to your letter of October 2,1986, requesting that a further limited appearance session be held at Riverhead, New q York. The views of in'dividuals, representatives of organizations and i elected officials presented orally and in writing, on September 5,1986 at Riverhead, made for a very comprehensive record of the positions of f 1 the populace. Should additional persons wish to make their views known ~ they can do so by submitting written statements to the Board.. We are sorry that more time cannot be allocated to that phase of j a the proceeding that was held in Riverhead, Hauppauge, and Mineola. Very truly yours, l I Morton B. Margulies, hainnan For the Atomic Safety and l ? Licensing Board cc: Service L.ist i I i i Mi a ~ a _j
.., g - 34 s r s ucy, UNITED STATES f 2 iM NUCLEAR REGULATORY COMMISSION h-ATOMIC SAFETY ANO LICENSING BOARD PANEL 0{,gU j/ W ASHINGTON. O C. 20555 s, '86 007 -9 A9 :23 October 7, 1986 ((Ckbh.8 "i N,8 u n - a.. e ( SERVED OCT -91986 MEMORANDUM FOR: Director Sharon R. Connelly Office of Inspector and Auditor Chairrr.an Morton B. Margulies/n[34\\ FROM: For the Atomic Safety and Licensing Board j In the Matter of Long Island Lighting Com (Shoreham Nuclear Power Station, Unit 1) pany
SUBJECT:
Docket No. 50-322-OL-5 f e On September 25, 1986, at Riverhead, N.Y., limited appearance statements were taken in the above captioned proceeding pursuant to 10 CFR2.715(a). An individual, identifying himself as Ron Stanchfield and as a former quality assurance engineer at the Shoreham Nuclear Power Station, stated he had made charges to two NRC employees, who were j supposed to have a follow-up meeting with him and never dida j j d As you know, the statements are not made under oath and do not constitute evidence. We believe it is a matter that you should be aware of and we send you a copy of the transcript covering the matter for whatever action you may deem to be appropriate. i i Attachment t As Stated Regional Administrator Thomas E. Murley, Region I cc: Service List, w/o attachment i j a p>1eeW l 9ef
~ T e ' i \\ } 16,830 ,5ueW ll LIMITED APPEARANCE STATEME:iT t l 2; OF 3l RON STANCHFIELD 4, MR. STANCHFIELD: Mr. Margulies, Mr. Kline and Mr. 3 Shon, my name is Ron S tanchfield, and I am against the i evacuation plan. I am against the Shoreham Nuclear Power Plant. I 7 And, I'm against the Long Island Lighting Company. j Si I was a former -- 9 (Applause.) i 10 MR. STANCHFIELD: I am a former employee at the l i 11 Shoreham Nuclear Power Station.. I was a Quality Assurance 12 Engineer out there. I have testified in front of the NRC 13, before. l 14 i Before I give my statement, I would like to conclude 15 some business -- or actually include some business to the NRC. l i 16 i When I met Mr. Strosnider and Mr. Esselcoff regarding my 17 l testimony, it was done with the knowledge that we were g'oing i 18, to have a second meeting to discuss my charges. The second I 19 ; meeting never took place. 20 ' They were to provide me with some information, and I 21, I was to exchange some information with them. They never did i 22 ! this. I would like to make sure that this is completed so 23 that the process of the license does not . held up on the 24 basis of any testimony or charges that I have. I think it is sun. iu. 25 an absolute necessity that you make sure that this is done. I
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3uew 1 : I have a statement to make today, and I want you to 4 i 2 i imagine, if you will, that you have given the license to the I 3 i Shoreham Nuclear Power Station and in three or five years from 4 now you hear the following. 5 (Mr. Stanchfield is playing a tape.) ~ 6 MR. STANCHFIELD: Mr. Margulies, Mr. Kline and Mr. 7 Shon, you are at this moment very important to the people of i B Long Island because you will make the judgment on whether or 9 not that evacuation plan will take place. i i 10 I propose to you to also consider a situation three l 11 years from now when, in this very meeting room' there is another 12 public meeting of some sort, and you were here, and such an i 13 accident did take place at the Shoreham plant. I want you to 14 know something. You couldn't go that way, and you couldn't go , i l1 15 that way, and you couldn't go that way. There is water and j I i 16 lwater. You would have to take a boat. Unless you knew some-17 one with a boat, you couldn't go. 18 You couldn't go that way, because they wouldn't leu 19 you. You could only go that way for about 10 miles. And, then 20 you would come to a dead stop. You might go that way if you knew someone with an airplane, but you will come to a dead stop. 211 22 With luck, you might get off of Long Island.
- Well, 23 everybody in here feels the same way.
They are concerned, 24 because they know. They have lived here. They know that s A 1
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1 25 when a truck overturns on the Long Island Expressway and it ' j 4
16,832 l jueW 1 has mayonnaisia and peanut butter, it ties up the Long Island i 2 Expressway for 10 hours. And, they are afraid, and I'm afraid. 3 And this moment that,you have to make that decision, t 4 you are holding the lives of everyone on eastern Long Island 5 in your hands. I urge you strongly not to go with this evacua-l- 6 tion. plan..I urge you strongly to.take the position that you e 7 have and then to turn it into a situation where you say no to 8 LILCO and no to opening up that plant. 9 Thank you very much. I i 10 (Applause.) 11 JUDGE MARGULIES: Mr. Stanchfield, would you please 12 resume your seat a minute? l l i 13 MR. STANCEFIELD: Yes. 14 JUDGE HARGULIES: Your initial comment was rather 15, cryptic. The names you used are unfamiliar to us. Are these i 16 NRC personnel' i i 17 MR. STANCEFIELD: Yes, they are. 18 JUDGE MARGULIES: And, would you tell us who they 19 ; are? I I 20 i MR. STANCHFIELD: Mr. Esselcroff was the Resident NRC 21 Inspector at LILCO at the Shoreham plant. 22 JUCGE MARGULIES: Would you spell that? 23 MR. STANCHFIELD: I don't know how to spell the name. 24 E-s-e-1-c-r-o-t-h, I believe. And, Mr. Jack Strosnider was WW1,lrW. 25 your -- was an official from the King of Prussia, Pennsylvania. d m
.,...-.;~. i 1 16,833 l I i 1 JUDGE MARGCLIES: And you had made a complaint to peg 1 2lthem? i 3 MR. STANCHFIELD: I had two and a half, three hours l i
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of sworn testimony to them, with the full knowledge that we l 1 i I 5 would continue the meeting. And, they never continued the l' 6 meeting. 7 JUDGE MARGULIES: When did you conclude your last 8 meeting? t 9 MR. STANCHFIELD: The last time I talked with them i 10 was over a year ago. 11 JUDGE MARGULIES: Go.uld you be more specific in ) 12 terms of a date? 13 l MR. STANCHFIELD: Perhaps March. Some time in 14 March. l JUDGE MARGULIES: And, is it my understanding that 15 ; i 16 f they were supposed to contact you? l l 1 17: MR. STANCHFIELD: Yes, they were. j 18 ' JUDGE MARGULIES: Okay. Thank you. l i 19 ' MR. STANCHFIELD: Thank you. i 20 j (Applause.) I 21 JUDGE MARGULIES: We have time for one more speaker. 22 Jeff Rim. 23 (No response.) 24 JUDGE MARGULIES: Charles Schaefer. 3 %. ine. d 25 (No response.) -}}