ML20215L242
| ML20215L242 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Shoreham |
| Issue date: | 12/07/1984 |
| From: | Labua R SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20213F109 | List:
|
| References | |
| OL-4, NUDOCS 8706250613 | |
| Download: ML20215L242 (1) | |
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COUNTY OF SUFFOL
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COUNTY LEGISLATURE OFFICE Or SECRE.iw 1
moesnr L. LA suA DeCKETING & SERM.'
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- LEQlSLATOR.1STM DesTntCT gg CAST NORTMPORT. N. Y. I 17 9 i
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ME M.E.
December 7, 1984.
1 PU.LJC WORetS COMMrMEE
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P1 NANCE & INSURANCE COMMITTEE J
EOuCATiOM e vov7M CoMMTTEE j
PARMS RECREATICas e CULTURAL AFFAl#$ COMMfTTEE TRANSPORTATION. ECONOMIC DEVELOPMENT
& PLANMissG COMMrTTEE NvMAN.ERviCa. CO TTEE c.
.m-p gc Commissioners U.S. Nuclear Regulatory Commission, 1717 H Street, N. W.,
Was hingto n, D. C.
20555.
sEiiE DE0131984 Dear Commissioners s As a Suf fotk County Legista. tor representing the interests of ~ 1.3 i
mittion people,1 am mos.t disappointed in the decisions reached by your augas.t body regarding.the' Shoreham Nuclear Power S.tation.
1.t is most unusual,.to say the Least, that a utility be' granted a 1
Low power License in fottr phases, without precluded approvat for a fatt power License.
The reactor core will be con.taminated by the four phase Low power
. testing, so what.is.to be done if a f utt power License is no.t granted due to the absence of an approved emergency evacua. tion plant Who wilt be responsible for the costs of decommissioningt
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1 respectf ully request that the NRC permi.t Suf f olk County.to pres eni aur orat arguments against the issuance of a low power License for Shoreham.
We have main.tained a posi. tion which is in.the best interests of the people who ha.ve elec.ted us.
We ask.tha.t you offer the same opportunity.
Very truty yours,.
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RLL/cl Robert L.
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Mr. Nunzio P=11=dino, Chaizman j
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Dear Mr. @4m:
1J.!y As the Cmrity LW=1= tor representing the district in wtz.cr. he Shcre.m ' elm:
d Power Plant is located, I urge the M*1aar Regulatcry Carf.ss=. to Ope.~ its
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'4=14harations on the Iery; Island Lighting Campany's applica _:.cr. fcr 4 icw p>,er license to the public i.n order to provide full public sc:.:n..y':o the 2 trier -
Regulatory M =mirri's del.iberations.
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Siis is a time when it is appwiate to recall that the :20'.; po ers were delegated to them by the people through their elected represe.:. auves. A..ecriw.,
j l tre people have a right to see how their responsibilitus c:,c. they hwe delecated
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Please take this request i.n the rpirit of th_ ph:
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.3, Ver/ tr.tly yours,
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am a Suffolk County legislator, and I demand that the NRC hold an al argu* ant 'n '.'ne
>reham low power proceeding so that the interests of the ci*.i:en';.. Suffolk Lrty cm fully represented before you.
1 tviously, the Conurission has considered a low power license only when there has been '
3 i outstanding issues which could preclude the issuance of a full power licenu.
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3reham case, as you are aware, the emergency preparedness contentions remain unresolved. '
I br such circumstances, how can the Comission grant a los power 11c 2nse fsr Shcrene?
e can the Commission contemplate this matter in the absence of a public proceeding?.
3reham is too incortant a case for the NRC to gi ve the paoole :f Sf'clk County a.ytm ng is than the fullest and fairest opportunities to present ; Pet r case.
Dere u no
- eptable reason for the NRC to deny Suffolk County. the -ight t: cresent ar. oral.
- l Jument against the issuance of a low power license for 3horeha-Sincereie m
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f' Hon. Nunzio J. Palladino, Chairmen Nuclear Regulatory Commission 1717 H Street, NW Washington, DC 20555
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Dear Mr. Palladino:
As the Representative of the First Congressional District of New York, 1
I am writing to you on an issue of great importance to my constituents.
In my District, as you know, there is great concern over the Shoreham Nuclear Power Plant Licensing Process, and in particular, the question J
of whether a utility should be permitted to proceed to phases three j
and four of low power testing before the issue of emergency planning j
is fully resolved.
1 I believe that the NRC should exercise extreme caution in its upcoming consideration of the next steps in low power testing of t.e Shoreham facility. The next two phases of low power testing shou:. not proceed until the remaining issue of ematgency planning has been fully s
r considered by the Commission.
Mr. Chairman, I have tried to maintain a fair and balanced approach to this important and controversial issue. My view of.the Shoreham question has always been that the plant shovid not be licensed to operate until j
all safety issues have been fully resolved. I have always felt that the regulatory process should be completed in a manner that is fair to all parties.
Questions remain over the legal and practical implementation of an emergency preparedness plan.' Therefore, I believe that the wisest course would be one that would not allow the contamination of the reactor before it is certain that the plant can meet the requirements for a full operating license.
j As you know, both the President and Energy Secretary Hodel have indicated
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that they do not favor the imposition of federal authority over the objections of state and local governments regarding the adequacy of-j l.,
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Hon. Nunzio J. Palladino December 3, 1984 Page Two.
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emergency preparedness plans.
Enclosed please find their c.orrespondence I
co me on this topic.
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ifr. Chairman, the Shoreham situation can be resolved constructively if there is greater cooperation between all parties. K4eping this in mind, I do not believe that the level of testing of Shoreham should 6
proceed further until the issue of emergency planning is clarified.
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-j With best regards, I am j
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Sine r ly yours, i
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k'ILLIAM CARNEY, M.C.
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,. h THE SECRETARY OF ENERG' u
WASHINGTON. D C 20545 October 2, 1984 l
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l Honorable Willi m Carney
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House of Representatives Nashington, D. C.
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Dear Bill:
I want to take this wtunity to update you en our activities regarding the' 1
Shoreh m nuclear power plant. As we assured you last spring and at other times J
when we discussed the concerns of the citizens of Iorg Island regarding Shorehm,
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the Department of Energy does not favor the imposition of Federal Governmnt authority over the objections of any state ard local government in matters regarding the adequacy of an energency evacuation plan for a nuclear power plant such as shoreham.
i Our position is clear. 'Ihe Reagan Administration has always had faith in the
-l ability of American citizens and local ~ elected officials to handle the problems which confront then directly. As one of Iong -Island's most myle and vigorous q
elected officials, your advim and counsel regarding energy and ecs.ucnic policies.
J which affect the future of your constituents have been extremely valuable to j
President Reagan and ne. As I antioned to you earlier this year when yet.1 brought
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in industrial, labor, and Goverrrnent leaders of the First District to visit with 4
me, you have been a vigorrus advocate of the interests of Iong Island, especially in behalf of Brookhaven National la): oratory and other Federal facilities.
a I look forward to your continued wise counsel at these and other issues in the l
years ahead.
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1 IMAI.D PAUL HODEL W'
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Dear bill:
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1 want rce to knew ci m) apprecintion for ycur 3
i continuine centributict:s to and support for my Acn.inis tri. t i on.
Your leadership and courage bl.ve
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.I wf. h C.V6 beer, determin:nc f r.eters ir the progresF made in the lart :t:w years.
,e on a n.atter of particular concern td you and that l
people cf Eastern icrg Island,. I wish. to repeat Secretary Hedc1'c assurance to you thet this Administration does not favor the imposition of Federal Government authority over the objections-cf state and 1ccal governments in matters regarding the adequacy of an emergency evccuation such as Shcreham.
plan for a nuclear power plant Your ccncern f or the saf ety' of the people of Lcng Island is parcncurt and shared by the Secretary and me.
I'1cok'forwcrd; Thank you egain for your support.
to scrking with rcu in the years ahead.
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masungt=,a.c. 2osts December 1, 1984 1,
,y Honorable Nunzio J. Palladino 4
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Chairman NGelear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20055 On' November 21, the NRC authorized the isadance to LIi.CO of, licenses'tc load fuel and perform cold criticality. testing of the Shoreham plant.
My understanding is that the Commission.will soon consider whether to permit i
'ILCO to undertake low power testing of Shoreham.
I am writing to inform l
you'of my opposition to the issuance of a low power license for Shoreham~
As you know, 'both the State of New York and the County of Suffolk' are opposing the low power testing of Shorebam.
Their position is that it is unjustified to contaminate Shoreham and incur the attendant large costs while there is such. great uncertainty as to 'whether the plant should ev'er i permitted to operate at commercial power levels given existing barriers to 3
e.ffective emergency preparadnass on. Long Isla.nd.
In light.of thisrI-l t
request'.that the commission (1) explain how it could possibly be in the j
pubil.c interest for the Commission to licence Shoreham for low power testir at this time, and (2) advise me whether the Commission has performed any analyses of the costs and benefits of is' suing a low power license at'this j
time, and if so, I would like to see copies of such analyses.
At the very' least, I ask tht you immediately grant the request of New York State and Suffolk County to present their views in oral arguments before the Commission.
The Commission-should welcome the. opportunity to. hear and to
- iscuss the views of'those concierned. governments.,.
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- The Com @ nion should.c'onsider all of the implications ~on the public interest of uiLCO's request to contaminate Shoreham through low power.
testing.
Governor Cuomo's.Shoreham Commission ' found that electricity in.tl amount represented by Shorehamzwill not be needed for_'at.least a decade.
Given this absence.of time pressure, why should the Commission even considi t'he question whether to issue a low power lisense uhtil_the emergency
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prep.aredness issue is finally settled?
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CONTACT
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Nunzio 7. Palladino, Chairman U. S. Nuclear Regulatory Commission
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Dear Mr. Palladino:
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the Shoreham Nuclear Power. Station.
Given yesterday s NRC licensing Board recommendation that the Long Island
.j Lighting Company be given approval to 'oegin low-power testing I
must again voice my strongest objections to such NRC approval, e
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Major questions still remain unresolved with respect:
to full-power' licensing of the Shoreham facility.
The most important of the unresolved questions concern evacuation planning and the emergency diesel. generators.
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~As you are well aware, Suffolk County and the State (V
of New York have determined, based upon the best j
available
- evidence, that the development of an emergency response plan to assure -the safety of Long, cliAIREAN-tW44Lnd in the event of a nuclear accident at Shoreham is an impossibility.
This was not an arbitrary. and capricious
- finding, as NRC actions would'
- suggest, 6 f G 54.h i @ a sincere effort on the part of the governments
- l of Suffolk County and the State to serve the public interest by protecting ~he public safety.
You would be ill-advised to dismiss the intent o t-the commitment of the county and state with regard gg n ci to this-issue.
As Three Mile. Island has
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accidents do and can happen. It is a real and instant c,
- @ ' threat, one which we. do not take. lightly and neither Lj g
should the NRC.
There is, to put it. quite
- simply, a
serious legal M
question as to the status of an evacuation plan which 3
is neither sanctioned nor participated in by the county g%,
or state.
Both the President and the Secretary of ka Energy have
- stated, and I quote from a letter from 3
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.... this Ad=inistration does 1
not - f avor the imposition of Federal Governc:ent Authority 1
over the objections of state. and local governments in matters regardin the adequacy of an emergency evacuation plan...." g However, as if the evacuation problem were not enough by itself, LILCO has also been unable to show ' that 1
its emergency diesel generators can meet NRC s.afety q'
requirements.
In gooc conscience how can the' NRC license'a plant when the facility does not meet safety requirements imposed by the NRC itself.
Ali I find it absolutely mind-boggling that t,he NRC would j
compromise the physical safety of the pedple of Long i
Island for the economic safety of a utility.
Public f.
safety cannot and must not be compromised.
The ramifications involved with licensing Shoreham
,.5 before these questions are resolved could have a
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j profound negative impact upon Suffolk County.
The V granting of a low-power license will allow LILCO to J1 g
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- .oad nuclear fuel and to begin the nuclear chain reaction, with absolutely no assurance that full-ponte
,,5 licensing will be permitted.
Or, has that decision been made already?
In my estimation, the pivotal question is whether s
Shoreham will be granted a
low-power license.
If I'm afraid that we on Long Island will be presented so, with a
fait
- accompli, and a. nuclear reactor which:
is neither wanted nor needed will be imposed upon us.
It has always been my belief that the NRC (formally
'the Atomic Energy Commission) was created on behalf j
L'l of the public's safety and welfare.
- Instead,
.the NRC has become a
captive of the nuclear industry.
'i You have the power and authority to change that.
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'n the public interest and reject the.rge i
ASLB recommendations of approval ' for a low-power license for Shoreham.
These vital issues must be addressed before any licen is granted, on nse and reason dictates no less se S
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October 1, 1984 4
CHAIRMAN j
i I Mr. George J. Hochbrueckner l
Member'of the Assembly H i P.O. Box T Port Jefferson Station, NY 11776
Dear Assemblyman Hochbrueckner:
3 In your letter of May 22, 1984, you asked me to disqualify myself from any further activity in the decisionmaking p.rocess.concerning the Shoreham proceeding.
i On June 5, 1984, Suffolk County and the State of New York, parties-l to the Shoreham licensing proceeding, filed a " Request for Recusal i
and, Alternatively, Motion for Disqualification."
The request asked that I recuse myself'from participating in the Shoreham l
proceeding.
A response to the points raised in your letter would
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have been inappropriate while the June 5 request remained pending.
On September 21, 1984, in response to the June 5 request, I made a' j
decision not to recuse myself.
A copy o'f my decision is a-ttached for your information.
Sincerely, J
1 Nunzio J. Palladino a*
Enclosure.
As stated
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In the Matter of LONG ISLAND LIGHTING COMPANY
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Introduction On June 5,1984, counsel for Suffolk County and the State of New York,
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parties to the Shoreham operating license proceeding, filed a " Request for' Recusaland, Alternatively,MotionforDisqualification"inwhiciithey alleged improper intervention on my part in the conduct of.that proceeding.
The request asked that I recuse myself from participating in the Shoreham proceeding. The events which underlie the Suffolk/New York request I described in detail on May 17, 1984, in Congressional testimony,1.a copy of
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which I appended to ray June 20 Memorandum to the Parties, and which I incorporate by reference here.
I shall discuss those events further in section II.B of this memorandum.
On June 18, 1984, the applicant, Long Island Lighting Company (LILCO),
filed a response to the Suffolk/New York request. On' June 20, in my t
{ Hearings before the Subcommittee on Energy and Environment, Committee
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]3 on Interior and Insular Affairs, U.S. House of Representatives, May 17, 1984.
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2 Memorandum to the Parties, I requested the comments of the NRC staff on the i
request, and I also stated my decision not to participate in any Commission deliberations on adjudicatory' matters in the Shoreham proceeding until such time as I made e decision on the recusal request. The NRC staff filed its respons'. on July 12, 1984.2 I have studied all the filings and have given them careful cansideration.
I have also had the benefit of the accounts of underlying events provided by Judges Miller, Bright, Johnson and Cotter in their
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l responses to recusal requests. Those responses are part of the public i
record of this proceeding.
My conclusion is that I see nothing in the filings of the parties, or
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in the underlying facts, which demonstrates that I should take myself out j
of the proceeding.
I'therefore consider it my obligation to resume my adjudicatory functions in this case.
I recognize that I could have decided to recuse myself from this t
proceeding as' a matter of discretion.
I cannot deny that the preparation i
of a detailed response to the recusal request has been a time-consuming
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burden, at a time when the Corrrnission's health and safety responsibilities q
have demanded continuing attention. Moreover, it may be argued that to j
recuse myself would remove the shadow of doubt in some persons' minds about tne propriety of the Shoreham proceeding, and perhaps thereby obviate some legal challenges to the ultimete outcome of the proceeding, whatever that outcome may be.
2I have also received the amicus curiae brief of the Atomic Industrial jf ;;
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3 To my mind, such considerations could not justify my recusing myself from this case.
First of all, I believe firmly that the responsibilities B
of a Comissioner are not optional. On the contrary, they are duties owed to the public in thorny and time-consuming cases as well as in easy ones.-
1 Indeed, it is in controversial cases in which it is most incumbent on Comissioners to take a stand and make the difficult decisions that are the essence of a Comissioner's job.
Second, once the facts are set forth, and various misstatements of
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fact in the recusal request are pointed out, as is done;in Section II.B. I do not believe that a reasonable observer would continue to entertain doubts about.my impartiality. Moreover, under the present circumstances, for me to recuse rnyself would not relieve public doubt but rather increase i
3 it, by appearing to give credence to an accusation that aims baseless
-]
charges of impropriety not just at me, but also'at a variety of licensing board judges, NRC staff members, Comission lawyers, and other public servants, who have earned no such aspersions on their integrity.
Finally, for me to recuse rnyself would ' set a precedent that could
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seriously damage the ability of any NRC Chairman, now o'r in the future, to -
stay on top of the Comission's work, to monitor the agency's activities.
and assure that the staff and the Commission discharge their responsibil-
.ities in-an efficier t and timely fashion. My recusal could be-seen as support for'a position I consider unsound and destructive of the agency's
..1 effectiveness - namely, that for a Chairman to exercise the managerialt t,
functions mandated under the Energy Reorganization'Act and the NRC Reorganization Plan of 1980 is both illegal and improper.
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In Section II of this memorandum, I describe my reasons for finding that the Suffolk-County /New York State disqualification request failsion j
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g its merits to demonstrate that I have committed any impropriety in this proceeding, either in reality or appearance.
In Section III, I describe my
.i reasons for finding that the disqualification request, in addition to being devoid of merit, is so flagrantly untimely and so barren of any excuse for
~
its untimeliness as to warrant its rejection on that basis as well.
II. Sumary and Analysis of the Suffolk County /New York State Disqualification Reouest The June ~S,1984 disqualification request filed by Suffolk County and New York State bases its claim of impropriety on a number of allegations, strung together into what purports to be a chain of cause and effect.
The gist of Suffolk/New Ydrk's claim is that as of March 16,1984, it was entirely settled, as a result of a February 22 Licensing Board decision, 1
that no 1cw power license could be issued to Shoreham until hearings had t
1 been completed on the contentions related to diesel generators. According 1
to Suffolk/New York, I then intervened personally'(apparently in response
(
to an approach by LILCO's Cha.irman) to bring about the following: major violations of the rules against g parte contacts; a complete reversal of position by the NRC staff on the diesels issue; the replacement _of the Licensing Board with a new, more pliant Licensing Board, with " scheduling conflicts" cited as a pretext; and finally, a decision favoring LILCO from the new Licensing Board.
The Suffolk County /New York State filing paints a lurid picture of a large number of public servants, including licensing board judges,'the General Counsel and his deputy, and a variety of NRC staff officials, al1 ~
j
~bl yl seemingly ready and willing at my behest to violate solemn obligations q
D 5
under the law.
Read superficially, or by one without knowleoge of the facts, the indictment may seem damning inceed; but closer reading, and a review of the facts, reveal that. inaccuracies and misrepresentations
.j penneate the Suffolk/New York filing.
It is appropriate, therefore, to look at Suffolk/New York's claims in some detail, for on examination it becomes apparent that the claimed " chain of impropriety"3 is a fiction, founded on a seriously distorted account of the status of the proceeding as it stood in mid-March, 1984.
A.
Sumary of the Suffolk County /New York State Allegations i
The Suffolk County /New York State allegations may be summarized as J
follows:
1) that as of March 16, 1984, the issue of the Shoreham TDI diesels' had been " settled"4 by a February 22, 1984 Licensing Board order holding that litigation of the diesel issue must precede any grant of a license to operate Shoreham at low power; the NRC staff had taken the
" unequivocal position"5 that the diesel issue had to be resolved prior to any low power licensing of Shoreham; LILCO "had not appealed from'or sought reconsideration of" the Board's February 22 ruling;6 and "nothing-in the 3Request, p. 32, 4
. at 4.
M.atp.8.
O
,h H.atp.11.
d
k b
6 public record suggested"7 that LILCO would propose any other avenue for l;
obtaining a low power license short of full litigation of the diesel generator issue.
3 2) that on February 24, Newsday reported that LILCO's Chairman, William J. Catacosinos, had met with the Commissioners; on March 9, in a x
letter to LILC0 shareholders, Dr. Catacosinos stated his b'elief that "there now seems a greater understanding among federal, state and county officials of the crisis the company faces;" the notes taken by Judge Cotter at the e
March 16 meeting include the statement "Says will go bankrupt if 12/84 I.D.
[ Initial Decision of Licensing Board];" and the " greater understanding" of federal officials to which Dr. Catacosinos referred was thus making itself felt in the March.16 meeting through the office of the NRC Chairman.8 j
3) that on March 16, 1984, I met with the Executive Director for Operations, the General Counsel, the Deputy General Counsel, the Atomic Safety and Licensing Board Panel Chairman, the Exocutive Legal Director,
]
other staff officials, and my own personal staff, and in violation of the NRC's ex, parte rules, discussed the merits of the Shoreham licensing i
proceeding.
4) that after March 16, I had further discussions with my staff and the Executive Director for Operations on the subject of licensing delays at Shoreham.9 b
i 71d. at p.14.
f a
O 1
Id. at 10-11.
^
9Id. at 17.
f
s t
-7 1
5) that on March 20, 1984, I circulated to the other Comis-sioners a memorandum which (a) " purported to report"10 on the March 16 I
meeting, but failed to mention that ideas for expediting the Shoreham
,l proceeding were discussed; (b) proposed that the Comission consider a proposal, which I had asked the Office of General Counsel to develop, for expedited hearings on the diesel issue or other proposals for low power l
operation of Shoreham; (c) included a projected Licensing Board ' decision date of December 1984 (absent Commission intervention), while failing to l
report "that the ' delay' estimate for Shoreham was based on LILCO's estimate, not the NRC's, and that the staff disagreed with LILCO's estimate;"11 and (d) specifically requested that the NRC staff, a party in the Shoreham proceeding, respond to the memorandum and prepare a paper outlining steps to deal with the supposed delays.
j I
6) that on the same day, March 20, LILCO filed an "unprecedent-ed proposal" making " essentially the same arguments for a low power license h
that the Brenner Board had previously rejected,"12 and asking neither for a waiver of, nor an exemption from, General Design Criterion 17.
(
7) that on March 22, my legal assistant read to Judge Cotter over the telephone a " working paper", prepared in my office, which dealt with LILCO's March 20 request and inaccurately represented that it was the i
10M.atp.15.
IIM.at16, gj 12
.I_d.
?b
4 8
Connission's wish to have the matter litigated and decided by May 9, 1984.13 8) that Judge Cotter responded on the following day, March 23, with a proposed Commission order which:
(a) provided for expedited consid-eration of LILCO's motion and a decision on the merits, and thus " prejudged the very question at issue: whether LILCO's proposal was a challenge to GDC 17 that had to be rejected outright;"14 (b) proposed to replace the Brenner Board, "which on February 22, 1984, had dealt LILC0 a setback,...
four days before the Brenner Board advised Judge Cotter that it had a j
potential schedule conflict due to the judges' involvement in the Limerick proceeding;"15 and (c) proposed, in light of LILC0's " enormous financial investment," a schedule for Board action which Judge Cotter himself -
i described as " brutally tight" and " definitely not recommended."16 9) that the NRC staff responded to LILC0's motion with'an
]
" abrupt and complete reversal"17 (emphasis in the original) of its prior position on low power operation.
10) that even if Judge Cotter's March 30 appointment of a new I
Licensing Board (chaired by Judge Miller) to " hear and decide" LILCO's low I
power motion was, as claimed, his own idea, that idea was developed at my request, I was informed prior to the appointment, and moreover, Judge 13M.at17-18.
14M.at19.
,e
- H.
(Emphasis in original.)
16
_Id.
II M.at22.
q e
1 y
r g
Cotter's notes " reveal that there was ' concern' with Judge Brenner" expressed at the March 16 meeting.18
- 11) that on March 30, the same day that the Miller Licensing Board was established, it " decided to expedite the proceeding"19 -- before it had had time to review the pleadings and the recoro and make a " reasoned and independent judgment"20 whether to expedite the proceeding.
- 12) that after oral argument on April 4 on the LILCO motion (including argument on the issue of "whether there was a basis to expedite the proceeding"),21 the Miller Board on April 6 " adopted the position urged by the Staff in its March 30 filing and by Judge Cotter in his March 23 draft order,"22 by ruling that LILCO could operate Shoreham without onsite power, provided that safety findings suggested by the NRC staff were made.
The Miller Board's April 6 decision, according to Suffolk/N'ew York thus "provided the' final link in the chain which began at the Chainnan's March
]
16 meeting;"23 moreover, in deciding to expedite consideration of LILCO's motion, it took a position consistent with that of my office's working paper, the staff, and Judge Cotter's draft order of March 23, and it
(
adopted time frames with a " striking similarity" to those in Judge Cotter's 1
18
~
M.at24.
19,Id. at 25.
20 Id.
21 1_d. at 27.
22Id.
M.
h I
9
i 10
,. draft order.
The foregoing demonstrates, according to Suffolk/New-York,.
,)
that the March 16 meeting was:
[a]planningsessiontofigureouthowtogetaroundthelawful-3, rulings of the Brenner Board.
Its purpose was improper; its discussion was improper; and the actions of NRC-personnel.that g
followed it were improper.
Each of these personnel acted as.s-d, office on March 16.gpropriety that comenced in the Chairman's link in a chain of 1 l B.
Analysis of the Suffolk County /New York State Allegations i
in the preceding section of this memorandum, I described in a 12-paragraph summary the essentials of the assertions and allegations made by.
L Suffolk County and New York State in their disqualification request.
In the section which follows I will use the same-format to respond, paragraph l
by paragraph, to Suffolk/New York's substantially inaccuratefaccount.
1)
Centra,1 to the allegations of Suffolk County and the State j
R of New York is their seriously misleading description of the status of the Shoreham proceeding as of March 16.'
Contrary to their assertions,. the '
Brenner Board's February 22 order had not " settled" the diesel issue; the l
('
staff had not declared that resolution of the diesel issue must precede low-power operation; a LILCO low power proposal was expected by-the parties, including Suffolk County, and the Board had not foreclosed.the grant of a low power license to Shoreham. As'I shall describe below,'the Suffolk/New.
York account is wholly at odds with reality, as reflected in the statements 3
on the public record of Suffolk's own counsel, Judge Brenner, and others.
a.<
e.
d.
-i 24 il Id. at 32.
/,,A sq q
q.
N
-.~ ~
.r n
1
. ( s:
11 What' the Brenner' Board ruled, in its orally delivered order of February 22, 1984, was that a license based on " reasonable assurance
)
.1
{
that the TDI diesel generators can reliably be depended upon" was not j
possible without first litigating contentions'related to the diesel 4
generators.25 The-Board's order (which included responses to clarifying-questions posed by counsel), made clear that though operation could not be J
authorized on the submissions then before the Board, LILCO would not be precluded from filing a proposal for allowing operation under a theory'that '
did not involve reliance on the TDI diesels.
Judge Brenner stated that the-Board's ruling "would not preclude LILCO from proposing other methods by l
which LILC0 believes the standards of 50.57(c) could be met, short of litigation of Cc tentions 1,'2, and 3 [the diesel generator contentions) on the merits. Or possibly seeking some sort of waiver under 2.758 or other 4
i procedures." TR 21,616.
l The Board was emphatic that it was "up to LILC0" to develop and submit such a proposal. TR 21,617. With regard to the nature of such
-l a proposal, the Board comented that "while someone could imagine different
(
things in combina' tion,+,e do not know what is feasible or what LILCO would seek to propos,e." TR 21,617. When LILCO's counsel sought reassurance that "the Board is not foreclosing other ways to low power?", Judge Brenner replied, "That's right but you are, going to have to propose something...."
TR 21,631. To a further question whether the Board's order might preclude a particular type of proposal, Judge Brenner replied, "No, it does not i;
i 25 s
I Transc ipt of tM Conferance of the Parties, February 22, 1984, at
- p. 21,617. Refe'.ences to this transcript, which forms part of the record of the operating license proceeding, will hereinafter he indicated by "TR".
-f h!
a b
.m
a 12 preclude anything..It is solely based on what was before us...."
TR 21,631.
Thus it is simply not true that the Brenner Board's February 22 1
Order had " settled" the issue of the need for an onsite emergency power 7J' l
source, or the schedule for a possible decision on low power operation.
t Likewise, it is flatly inaccurate of Suffolk/New York to j
j t 1 claim that "as of Feoruary 22, the NRC sta.ff had t! ken the unequivocal i
position" that resolution of the diesel issues was necessarily a prerequi-.
site to issuance of a icw puwer license. The transcript of the 4
)
February 22, 1984 Conferen:e of the Parties makes clear that while the i
- 1 staff believed that what LILC0 had proposed.as of that date was insuffi-i i
cient, it had not ruled out the possibility that LILC0 could nevertheless-l satisfy the regulatory requirements for low power operation. Staff counsel stated explicitly that it was "quite possible" that "they [LILC0] do not need diesels at all." TR 21,513. He added that staff could' not, however,'
make such detenninations until it received a formal submission from LILCO, and that "we want to see what LILC0 gives us." M. Staff counsel told that Board that it was "very difficult to answer your questions until we 4
!' (
get that submission from LILCO." H.
The context makes plain that staff was fully expecting LILCO to file such a submission.
The staff was not the only party expecting such a submission:
from LILCO, and saying so on the public record.
Suffolk/New York's claim 1
that "[nlothing in the public record suggested that LILCO would file such a proposal"d is belied by the statements on the public record of Suffolk's
)'
):
26 j}
Request, p. 7.
ue
'*!J 96
~
O C
13 i
a 3
e own counsel. At the February 22 Conference of Parties, Mr. Alan Dynner, coun<el for Suffolk County, stated:
So what is being asked here, by LILCO's proposal, which it will d
l apparently -- it'intsnds to makelometime in the near fuEre --
to have inadequate desilii for loFpower ope'retion.
(Enpasis
]
added.) TR 21,521.
.l 1
1 Even more striking, in view of Suf.'o'.k/Naw York's condemna-tion of the procedures follouedin this case,' is the following statement, alsobyMr.Dynner,inthegameconference:
f 3
i The County's pointio'f view, we would expect that such a j
j proposal by LILCO,,1f it wishes to make it in the proper context, YI,Rh, (Emphasisadded.) TR N l would involve a separate ' proceeding.
.s 9
A i ;'a r
More?over, when the LILCO motion was filed, Suffolk County, s
,\\
j in its'." Preliminary, liews on Scheduling Regarding LILCO's New Motion,"
filed March 26,'15k4n noied that the Board's February 22 order "did not I
)
t pieclude LILCO.from later fiiing a proposal to obtain a lokpower license
(
for Shoreham without rSlying upon the EDGs [emergegy diesel generators]."
(
(EmphasisintEtoriginal.)27 Suffolk described the motion as'"the type of t'
i proposal which thissBoard envisioned to require art entirely separate l'
collateral proceeding."28 This further underscores that Suffolk foresaw l
both a LILCO low power proposal and the need for a separate proceeding.
ay i, !
- )
27"Suffolk C ntyjsPre,1f5naryViewsonSchedulingRegardingL1LCO's New Motion," at l';
w.
3 n
o jf 20 j
!d_. at 3.
- (
f I
a n
f
- s. ',
s,
a..
. _.. a.
?
14 The Suffolk/New York charges against me are thus based on i
what the public record shows to be a seriously distorted account of where the proceeding stood on March 16, 1984.
The accusation that I intervened in March' to alter a " settled" Board decision on operation of Shoreham is q
belied by a public record which makes clear that already in February, the Board and the parties regarded the question of low power operation as far from settled. The charge that in March I. brought about a " complete l
reversal" of the staff's position is belied by a public record which 3
demonstrates that already in February, the staff was open-minded on the 1
question of low power operation of Shoreham. The assertion that there was nothing in th9 public record to suggest that LILCO would seek early approval of low power operation is belied by a public record which.shows i
that already in February, Suffolk County's own counsel was expecting such-a motion to be filed shortly.
Although an understanding of these distortions is sufficient i
by itself to make the bulk of the charges agains't me evaporate, I think it important to proceed through a systematic analysis of the rest of the
(
Suffolk/New York claims, in order to make fully clear that I.have comitted no improprieties, and that I have in no way prejudged the issues in the Shoreham proceeding.
f 2)
The Suffnik/New York account of the meeting with Dr. Catacosinos is also misleading. Dr. Catacosinos paid a brief get-acquainted call on all of the Comissioners on February 23.
Dr. Catacosinos did not discuss any aspect of.the Shoreham proceeding with a
i
's
-#p y1 S
N 6
e 15 l
l me, nor did he discuss LILCO's financial difficulties, in our approximately I
five-minute conversation.29 l
Suffolk/New York's charge that Dr. Catacosinos' March 9,
)
1984 letter to LILCO stockholders is evidence that he had influenced me in j
favor of Shoreham is frivolous.
(That letter, according to Suffolk/fiew York, asserted that " federal, state, and county" officials showed " greater understanding" of LILCO's problems.) Although Suffolk/New York are' correct in stating that a February 24, 1984 Newsday article reported that Dr. Catacosinos had net with the Commissioners, they omit to mention the l
title of the article:
"Three Senators Offer Measures to Help LILCO Out of.
}
Crisis."
(The article also described a meeting between Dr. Catecosinos and,
the Secretary of Energy, and a letter from Dr. Catacosinos _to the Secretary i
l 29In a recent search of my files, responding to a Freedom of Infonnation Act appeal, a follow-up letter from Dr, Catacosinos was found.
I reproduce it in its entirety:
I February 28, 1984
Dear Chairman Palladino:
(
i I am writing to express my appreciation for your taking the time to meet with me on Thursday.
As you are aware, the vast majority of LILCO's current problems are related, either directly or indirectly, to the future of our Shoreham Nuclear Power Station.
As I am sure is obvious, our highest priority is-to operate a safe, reliable and efficient power station, and to do so as soon as is consistent with appropriate safety considerations.
Sincerely,
/s/ W. J. Catacosinos I understand that identical letters were received by at least three other Corresissioners.
I regard this letter as no more than a courtesy note.
3 i
4
i 16 of the Treasury, seeking relief from prtvisions of the tax laws.) Thus at least three " federal offichis" (U.S. Senators) were on record as support-ing relief for LILC0's financial difficulties, and the inference which Suffolk/New York seek to draw -- that the mention of " federal officials" was a reference to me -- is without foundation.
Finally, the fact that I was concerned, as I readily acknowledged in my testimony before Congress,30 lest NRC's failure to make timely decisions be the cause of Shoreham's going under, is hardly evidence j
of improper communications from anyone. LILCO's financial difficulties with Shoreham were common knowledge, discussed in Congressional hearings i
and amply covered in the press.31 My desire to assure that NRC processes
{
be timely and efficient was not a prejudgment as to what the outcome of the Shoreham proceeding should be.
3)
My March 16, 1984 meeting with the Executive Director.for Operations, the General Counsel, the Deputy General Counsel, the Executive
~
Legal Director, Judge Cotter, and others, was a meeting to discuss the licensing status of a number of plants, in advance of a Congressional
(
hearing at which I expected to be asked questions aboui delays in the licensing process.
As I stated in my Congressional testimony, the March 16 meeting had its origin in a meeting held the previous day with representa-tives of the Office of Policy Evaluation (OPE) and the Office of General 30Testimeny, p. 5, p. 11.
31The Newsday article cited in the Suffolk/New York request is one example:
"Three Senators Offer Measures to Help u LCO Out of Crisis,"
Feb. 24, 1984.
,4 4
rj q
17 Counsel (0GC)todiscusspotentiallicensingdelaysatanumberof l
facilities..At that March 15 meeting, there was a consensus that these
)
)
I delays warranted a broader discussion, to include the Executive Director
.j for Operations and his staff, the General Counsel and his deputy, and the Chairman of the Atomic Safety and Licensing Boaro Panel.32 It should be
) -
'1 noted that, as I described in my testimony, Congress has repeatedly made i1 1
clear its disapproval of unwarranted licensing delays, and that, under Section 2(b) of NRC Reorganization Plan No.1 of 1980, the Chairman is the -
" principal executive officer of the Commission,... responsible to the Commission for assuring that the Executive Director for Operations and the a ;1 staff of the Connission... are responsive to the requirements of the.
Commission in the perfomance of its functions."33 Thus to the extent that
)
licensing delays at various plants might be attributable to the NRC staff's performance of its functions, it was my responsibility to identify defici-encies and see that they were addressed.
At the March 16 meeting, the status of Shoreham was of particular interest to me, since a week before, on March 9, the Executive
(
Director for Operations had informed the Comission that, based on the l
licensee's estimates,34 alicensingdelayofninemonthswaspro[ected..
~
32 Testimony, pp. 8-9.
3345 Fed. Reg. 40561(1980)'.
),
34The staff.also provides the Comissioners with _ weekly memoranda on-
]
the status of plants under construction in which both. licensees' e'stimated completion dates and the staff's estimated completion dates are included.
j-The weekly memorandum of March 6,1984 -indicated that the staff projected a construction completion date for Shoreham two months later than LILCO's -
estimate. Under either estimate, the gap between facility completion and a y
[ Footnote Continued] '~
./
, M eg 8
O
p; q
]
{
18 i
whereas the Commiss' ion had informed the Congress as recently as January 25, j
ll 1984, also based on the licensee's estimates, that no licensing delay was I
projected for Shoreham.
(The other plant for which the March 9 memorandum j
t i
f projected a licensing delay was Limerick.)
l
!l In the portion of the meeting that dealt with Shoreham,
,l there was no violation of the g parte rules, because there was no discus-sion of the merits of the issues in controversy; rather, the discussion was
+
1 of status, scheduling, and of the procedures by which the proceeding might i
o 1 be moved alono..
d As I stated in my testimony, there was discussion --
initiated, I believe, by OGC -- of the possibility of holding.an expedited j
hearing on the question of low power operation or Shoreham.
I would. note A
that the Executive. Legal Director recalls that he pointed out, during that discussion, that the same Board chairman who was presiding over the
.i t
Shoreham operating license proceeding was also presiding over another active case.35 (That case was Limerick.)
It is worth stressing that none
(
of the lawyers present indicated any,e_x, parte problems with any part of:the 1
discussion.
~
4)
With regard to further discussions of Shoreham, after the meeting on March 16, I had a number of discussions with my personal staff
[FootnoteContinued]
a decision on operation was substantial. The April 24, 1984 memorandum which Suffolk/New York cite was part of this series. All these memoranda were
~
j addressed to all Commissioners.
35Joint Affidavit of William J. Dircks and Guy H. Cunningham, III, f,
- p. 3.
g 3
l l
~.
I 19 i
of the problem of delays at Shoreham and elsewhere.
I recall only one l
conversation, perhaps two or three minutes long, in which I discussed Shoreham at all with anyone from the NRC staff. That conversation took place on March 21, after the Executive Director for Operations and I l
1 i
returned from a Congressional hearing.
Mr. Dircks, Mr. Norman Haller (my
')
s Executive Assistant), and I were present.
I recall Mr. Dircks comenting,
~
in essence, that the problem of delay at Shoreham was not within the j
l staff's power to correct, but was now a matter for the Comission and the j
Boards to resolve.
I recall no discussion of the merits of the issues in j
the proceeding in this very brief exchange.
I 5)
There is no validity to the suggestion that my March 20 memorandum concealed anything from my fellow Comissioners, or that it presented misleading information of any kind. The memorandum reported to
-l the Comissioners that I had held a status and scheduling meeting on i
March 16 with the " staff, 0GC, OPE, and Tony Cotter" to discuss actual and l
potential delays at Shoreham, Limerick, and other plants. 'The memorandum also stated that I had asked the Office of General Counsel to provide a
(
paper to the Comission "soon" on a proposal for expediting the Shoreham-proceeding.
In context, it was implicit that my reqLest to OGC h'ad been made at the March 16 meeting, and that our discussion included considera-
. tion of how scheduling changes might reduce or avert actual and potential delays. Certainly I did not seek to conceal the substance of the meeting from my colleagues.
Suffolk/New York's claim that my memorandum of March 20 to the other Comissioners failed to report "that the ' delay' estimate for i
Shoreham was based on LILCO's estimate, not the NRC's, and that the Staff
.;f I
l disagreed with LILCO's estimate," is without merit.
First, the other
[.._....-....~_....
......___..o p..
{:
20 Comissioners already knew that the nine-month delay esticate came from i
LILCO, since the estimate appeared in a March 9 memorandum, addressed to all Comissioners, in which the E00 stated explicitly:
"Therefore, based f
2-on the' applicant's estimate, there will be a nine-month licensing delay."
j (Emphasisadded.) Likewise, the staff's April 24 memorandum (discussed in footnote 34, above) was also addressed to all Comissioners. Thus the i
suggestion that in my March 20 memorandum I withheld relevant infonnation
'from my fellow Comissioners is.without foundation, since I knew that they i
l' were receiving the same staff memoranda I was receiving.
4 6)
It is hard to square Suffolk/New York's claim that the LILC0' motion made " essentially the same arguments for a low power license that the Brenner Board had previously rejected" with Suffolk's March 26, 1984 filing before the Licensing Board, in which it stated:
I The Motion is a voluminous, new proposal for low power operation of Shoreham, bas'ed upon complex technical factual information and novel lecal arguments never before presented to the County or this Boarc (Emphasis added.)"'
I Suffolk County further stated:
- l
\\
The LILCO Motion obviously is an entirely new and radical change fggm LILCO's initial application for a low power license.
1 i;
w 3
i-36 Request at 16.'_
l 37"Suffolk County's Prelimincry Views on Scheduling Regarding LILCO's 1
New Motion," at.2.
j 38 [.. at 11.
Id a
w.
p y.
21 There is no merit in Suffolk/New York's apparent belief that it is highly significant that the LILCO motion sought neither a waiver under 10 CFR 2.758 nor an exemption under 10 CFR 50.12(a), in proposing a l
legal theory for low power operation.
Suffolk/New York neglect to mention i
two crucial points.
First, it was never assumed by the Brenner Board or the parties that the only pathways LILCO might propose were those.two i
I regulations.
Suffolk. County itself recognized that the.LILCO propos.al.
j 1
i might take any of various forms. Once again, the proof of this is to be i
found in the words of Suffolk's own counsel, who at the February 22
- .3 i
Conference of the Parties said:
,.i i
From the. County's point of view we can, of course, object to any motion they wish to file for a waiver of regulations, or a change '
in the FSAR, or waiver of specifications,~or a motion to procedd 4
3 to obtain a lcw power license on the grounds, as I understand the i
argument, that diesels which have not been proven to be~ reliable can nevertheless be used in a low power license because the.
demands and requirements for public safety may be less. TR
)
.i 21,517.
l Judge Brenner's statements in the same Conference of the Parties, cited 1
above under II.B.1, also indicate that the Board had not decided what i
procedural form LILCO's motion would be required to take.
Suffolk/New York also fail to mention that the particular legal theory advanced by LILCO was rejected by me and all other Comis-(
stoners when we addressed its merits in our order of May 16, 1984.
1 i
7)
The charge that my legal assistant incorrectly purported to speak for the Comission as a whole, in talking'with Judge Cotter,:is f-.
baseless. 4an he read'the draft " working paper" to Ju'dge Cotter onL
[
q March 22. he was not. purporting to represent'the views of the-Commission, ji, 4
but rather was seeking' to obtain Judge' Cotter's reaction' to a possible 3
4
_..__..._u.._,
j 22 9
approach that I might propose for Commission consideration. Judge Cotter's public statement of August 1,1984, confinns that he was under no misappre-hension on this point.39
{
8)
With regard to Suffolk/New York's assertions regarding l]1 Judge Cotter's draft order of March 23, the followino coments are in
',4 3
order:
(a) Judge Cotter's draft order was drafted by him on h.is own initiative, not mine, and he has discussed it in his response to the b
request for his disqualification. There is, therefore,.no need for me to o
n discuss it in any detail here.
I would add, however, that I did not read.
- i Judge Cotter's order as prejudging the factual issues (i.e., the safety of the plant if operated as proposed by LILCO) or the legal issue of whether satisfactory resolutidn of the factual issues would permit a' low power
> ~
license for Shoreham.
(b). The Suffolk County /New York State request suggests that 1
Judge Cotter could not have learned of the potential scheduling conflict l
between the Shoreham and Limerick boards until four days after his March 23 draft order; in fact, his awareness of that scheduling conflict appears f
plainly in, the March 23 document itself. On page 8, under the heading "Some Considerations," Judge Cotter stated that the Shoreham and Limerick i
Licensing Boards were among seven Boards "comitted to hearings or partial or initial decision writing in April and May." 40
~
4 j
39Statement of 6. Paul Cotter, Jr., p. 6.
40Judge Cotter, in his August I statement, states that he had been monitoring the Shoreham-Limerick scheduling conflict since around September j-
-m
[FootnoteContinued]
q
.e
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l 23 (c) Again, Judge Cotter is in a better position than I to respond to criticisms of the March 23 draft order, and he has done so in l
his statement of August 1.
I sent the draft order to the Office of General Counsel for its evaluation on March 27.
Soon thereafter 41 Judge Cotter i
advised my office and OGC that he was considering the appointment of a new board to act o'n the LILC0 motion, in view of the scheduling conflict between the Shoreham and Limerick boards, and ca March 30, a new board was establishad.
l 9)
Contrary to the Suffolk/New York assertion, the position taken by the NRC staff in response to the LILC0 motion was not only not an
" abrupt and complete reversal" of the staff's previous position, it was no't a reversal at all. What is more, Suffolk counsel knows this. As indicated
]
under (1) above, the staff told the Licensing Board on February 22 that it would respond to any specific LILC0 motion when such a motion was filed, and that it did not rule out the possibility of low power operation with no diesels available.
Suffolk counsel's awareness of the staff's position is a matter of record.. In the Conference of the Parties on February 22, Mr. Dynner, counsel for Suffolk County, referred to the staff's position:-
We do not know of cases where diesels have been waived or as Mr.
Reis [NRC staff counsel) has said, where diesels may not even be require <' at all. Maybe there are such cases out there and mayEe LILCO v 11T cite them when they make their proposal, if they make their sroposal.... I think our responses will have to wait and see what LILC0 comes up with and if they come-up with something,
[FootnoteContinued]
1983, and had been checking periodically with Judge Brenner, who was Chainnan of both boards.
4.1. Judge Cotter's statement indicates that he advised my legal assistant of his intention in this regard on March 28, 1984 1
3
.e
24 we will have our experts look at it and we will be in a position to respond.
(Emphasisadded.) TR 21,549-50.
I To this Judge Brenner commented:
"You sound a lot like the staff on that answer." TR 21,550.
- 10) With regard to Suffolk/New York's assertions regarding Judge Cotter's order of March 30 (which established a new Licensin'g Board, empowered to act on LILCO's motion), the following coments are appropriate. Judge Cotter has explained in his August 1 statement that he believed that a failure to act by him would mean the g facto denial by the agency of the request for expeditious treatment.42 It does not appear to me that Judge Cotter's order, which aimed at making it possible for the NRC,
to act on the motion expeditiously, in any sense prejudged whether the motion should'be grant'ed on its merits. Moreover, as noted above, Suffolk I
i County had stated at the February 22 Conference of the Parties its expecta.
tion that the LILC0 motion would entail a separate proceeding. TR 21,518.
The decision to appoint the new board was Judge Cotter's.
The idea was not developed at my request, but it was certainly consistent with my view that the Shoreham proceeding should be handled-with efficiency and expedition. My office was informed by Judge Cotter of his iritent to appoint a new Board, and I see nothing inappropriate about his so informing j
me.
I l
42Judge Cotter's statement indicates that he based this judgment on two factors: an expression of doubt by Mr. Reamer of my office that the Comissioners could take action on the LILC0 motion sooner than April 5 or April 12, and verification by the Brenner Board that its scheduling
?
commitments made it unable to consider the motion.
Statement of B; Paul 7,
Cotter, Jr., p. 8.
>jfj i
q dj
^:1
~
t 25 Finally, I recall no one at any time suggesting that the i
substance of Judge Brenner's decisions was or should be a reason for creating a new Board. Also, the Executiv6 Legal Director recalls pointing
'3 j
out at the March 16 meeting that the Shoreham licensing proceeding and another active case were both assigned to the same board chairman (Judge Brenner).4 J
- 11) The fact that the " Notice of Oral Arguments" was issued the same day that the Miller Board was established does not support, as Suffolk
)
s County and New York State imply, an inference of improper influence or of prejudgment in favor of an expedited proceeding. As I read the Miller Board's order of March 30, 1964, it was not, as Suffolk County and New York,
Stat'e claim, a decision to " expedite the proceeding," but rather a decision to receive filings and hear oral argument on issues raised by the motion.
Indeed, the title of the order is " Notice of Oral Arguments.'
~
Where'a motion requests that a proceeding be expedited, it t
is no more improper for a board to. schedule a prompt oral argument on that motion than it is for a court to schedule prompt argument on a request for emergency relief.
In neither case has the decisionmaker thereby shown a prejudice in favor of the motion itself.
^
In the present case, one of the issues raised by the motion was the
. scheduling of any proceeding.
Indeed, the County and State concede as much, for they note in their request that one of the issues argued on April 4 was "whether there was a basis to expedite the proceeding."44 5
l i
43Dircks & Cunningham Affidavit, p. 3.
I 44Request, p. 27.-
_[
f4 73 m
i
26
- 12) Contrary to Suffolk/New York's claim, the Miller Board's April 6 decision was not the product of any " chain of impropriety" insti-
[
gated by me at the March 16 meeting or elsewhere.
It is certainly true that at the March 16 meeting I expressed the view that the Shoreham proceeding should be handled with efficiency and expedition, but I was not 1
prejudging the issues in controversy.
My office's working paper was a
?,
s i further expression of my interest in expedition, but again it prejudged nothing.
I had occasion to address the question of prejudgment of the
.)
Shoreham proceeding in response to a March 28, 1984 letter from Chainnan Edward Markey of the Subcomittee on Oversight and Investigations of the Comittee on Interior and Insular Affairs.
In that letter, Chairman Markey asserted that my March 20 memorandum had prejudged the merits of the Shoreham proceeding, and urged me to retract my suggestions for expediting' the proceeding; otherwise, he said, it was " imperative" that I recuse I
myself from it altogether.45 In my reply, dated April 5, I said:
I have not prejudged the merits of the Shoreham licensing I
proceeding in any respect, nor does my March 20, 1984 merorandum contain any suggestion that I have prejudged it, in reality or in appearance. My recomendation that the Comission consider-options for an expedited hearing on the diesel problem, so that a low power decision might be, possible, implies no judgment how the diesel generator problem should be resolved. Moreover, to assume 1
that there will be a resolution of the emergency planning issue says nothing about how that issue might be resolved:
the issue could be resolved either in granting or denying the Shoreham license.
j f
I 45This letter was one of several in which Chairman Markey took i-exception to particular actions related to the Shoreham proceeding. See also Chairman Markey's letters of April 12, April 24, and May 10, 1984.
j ka
27 The Administrative Procedure Act (APA) requires that agency licensing proceedings be conducted both with due regard for the rights of all the parties and completed "within a reasonable i
time." Since the Comission has supervisory responsibility over all of its adjudications, it is entirely in keeping with the q
spirit of the APA that I, as Chairman, suggest measures designed to assure that the Comission complies with both these statutory j
requirements. That is all that my March 20, 1984' memorandum attempts to do.
l
)
Finally, it must be pointed out that for Suffolk County and the State of New York, the history described in their request ends on l
April 6, 1984. This is perhaps understandable, for when the April 6 order
{
cc.me before me on the merits, on May 16, 1984, I voted to reject its legal
)
holding.
j l
In sum, the theory advanced by the Suffolt County /New York State disqualification request does not hold water. The individua.1 elements of,
~
the supposed " chain of impropriety" turn out on examination to be flawed by misstatements, errors, and omissions. Joining them into a." chain" only compounds and magnifies the distortions of fact and interpretation.
I do not believe. that I comitted any impropriety, nor do I believe that a reasonable observer, once acquainted with the actual facts, which are a matter of record, would question my impartiality in this proceeding.
l Accordingly, I find that the legal standards for recusal from Comission proceedings, which follow the statutory standards, have not been met.46 1
46 i
The standard applicable in the federal courts, and applied by the NRC as well, is that a judge shall disqualify himself in any proceeding (a).
-in which "his impartiality may reasonably be questioned." 28 U.S.C. 5 455 The courts have made clear.that this is an objective standard. One court i
has said that a judge faced with a disqualification request should consider 1
[ Footnote Continued] '
j 4 1 1
A-
.a.-..
. ~........ - )
J 28 That is not to say that an observer who did not know the facts, and' who was not aware of.the circumstances, might not be swayed by the mass of O
allegations in the disqualification request, if that observer were to
. accept those allegations at face value. But the standard for disqualifica-tion is not how artfully a motion can distort the public record; rather, the standard relates to, reality, and to the perception of reality by an informed, disinterested, reasonable observer.
I recognize that the argument may be made that merely by filing their request, Suffolk County and the State of New York have created' sufficient uncertainty that public. concerns for the' integrity of the process might suggest my voluntarily recusing myself.
I reject that approach. First,.
t I believe any such uncertainty is removed when one examines the actual' record. Moreover, thd public has an interest in knowing that the decision -
makers who make crucial health and safety decisions are persons of integrity, and that they appreciate the importance' of the duties they owe Under th'se circumstances, to recuse myself could appear to to the public.
e give credence not only to the charges against me, but also to unwarranted I
and unfounded accusations directed at a large number of individuals --
licensing board judges, NRC staff members,'and other NRC. personnel -- whom I consider to be persons of dedication and integrity. This I will not do.
[FootnoteContinued)
"how his participation in a given case looks to the average person on'the street;... disqualification should-follow if the reasonable man', were he to know all. the circumstances, would haroor doubts about the judge's 1
impartiality." Potashnick v. Port City Construction Co., 609 F.2d 1101 1
(5th Cir.), cert, denteo, 449 U.S. 820-(1980). See also Hall v. Small Business Administration, 695 F.2d 175~(1983);' Houston Lighting and Power
' cf(
Company (South Texas Project, Units 1 and 2),'Cl.I-82-9, 15 NRC 1363, 1365-67(1982); Cinderella Career and Finishing Schools v. FTC, 425 F.2d:
~f 583 (D.C. Cir. 1970).-
,e, 1
lq
4 29 i
In my view, the public has every reason for confidence in the integrity and devotion to duty under the law of the men and women who make the decisions affecting the public's health and safety in the field of nuclear energy.
For the reasons stated above, I decline to recuse myself from this proceeding.
III. Timeliness P
In the preceding section of this memorandum, I have explained my reasons for determining that the allegations in the Suffolk County /New York-State reque'st do not, on their merits, warrant my recusal from the Shoreham '
proceeding. Although it is therefore not strictly necessary for the dispo-sition of this request that I go on to consider whether the request was timely, I do so because I strongly believe that.the issue deserves public i
airing. For in my view, the timing of the Suffolk/New York request regret-tably presents all too vivid an example of the t'ype of problems which Congress and the courts have sought to prevent through the requirement that I
recusal requests be timely filed.
2 The recusal request before me was submitted on June 5, 1984, by-counsel for Suffolk County and the Governor of New York.
It was presented as a formal filing in the Shoreham. adjudication, and as such, was served on all the parties. Once it was filed, I withdrew temporarily from Commission deliberations and decisions concerning Shoreham. Under the circumstances,-
I thought it appropriate that I adoress and resolve the question of my 34 m
~
~
...a q
,4 30 recusal before participating in further Comission consideration of Shoreham-related matters.47 1
The Suffolk County /New York State request came 55 days after the Suffolk County Executive, Peter F. Cohalan, wrote to me on April 11, 1984,
.) i to protest what he termed my " personal intervention in the Shoreham licens-ing proceeding," which in his view had resulted in a " mockery of due S'
process." It is worth examining that letter in some detail, since in virtually every particular -- save only the request for my recusal or j
disqualification -- it prefigures the femal recusal request which came 55
,4
~.\\
days later. Mr. Cohalan's letter cited, among other things: my March 20
.E 3
memorandum to the Commissioners on licensing delays; my March 16 meeting l
with NRC staff members, Judge Cotter, and others; Judge Cotter's order of March 30, establishing a new Licensing Board under Judge Miller; the April 6 order of the Miller Board; the alleged change of position on the diesel issue by the NRC staff; my meeting with the LILC0 Board Chairman; l
and my purported intent to " aid LILCO's efforts to gain ace'ess to Wall i
Street money markets."
i Mr. Cohalan characterized my actions in the following terms:
[
l 4
Mr. Chaiman, the inevitable inference to be drawn from these events is that your meeting with LILCO's Board Chaiman, your expression of interest to " expedite" the Shoreham proceeding when meeting with Mr. Cotter and t(1e NRC Staff on March 16, and your March 20 memorandum proposing " expedited" treatment of LILCO's low power license request signalled the Licensing Board Judges and the Staff to shift gears; they were now to rush forward and r
47See my Memorandum to the Parties, June 19, 1984.
In the interval j
between the filing of the recusal request and the issuance of that-j Memorandum, I abstained from participating in the only Shoreham-related matter to come before the Comission.
See Order of June 8,1984 (separate Ih' statement).
vR l
._.... ~ ___... _..._..._.. _ __.
_ _.. _ _ _. _:._,.j t
31 issue a low power license for Shoreham, despite the effect this would have on the concerns for safety expressed by Suffolk County.
and New York State. The Licensing Board and Staff in turn, took i
your signal as a marching order.. And without any justification, 1]
they " expedited" the Shoreham proceeding so faithfully that the Board is now poised to issue a low power license for Shoreham....
1 i
.: J Mr. Cohalan's letter, which was not served by him on the parties to i
i the Shoreham proceeding,48 did not request my recusal or disqualification;
'l 1
rather, it requested that I and my fellow Commissioners take action to j
l l
disestablish the Miller Licensing Board, and to direct the staff and the 1
- ijl i
Licensing Board that the Shoreham proceeding should not be expedited except l
under specified circumstances.
'il 1i I do not find any substantial difference between the allegations in f
the June 5 recusal request and those in Mr. Cohalan's letter, sent 55 days earlier. To be sure, the June 5 request includes references.to a few f
t l
documents, notably Judge Cotter's notes, which were not in the possession j
i of Suffolk County and New York State in early April. But even if one were I
to accept the Suffolk County /New York State interpretation 'of those docu-l 1
ments (which interpretation I reject), they would serve merely to support l
l the same allegations, about the same events, which Mr. Cohalan had made in t
I his April 11 letter.
There can be no doubt that the attorneys for Suffolk County and New
. York State had obtained by April all the information they needed to form the basis of a disqualification motion, since on April 23, they asked the 3
United States District Court for the District of Columbia to disqualify me, j
i 48In accordance with procedures for handling g parte comunications, 2
the letter was placed in the Shoreham docket file and served on the parties 4'
by the NRC's Docketing and Service Branch.
y
.,,,,m._
b 32 i
~
as well as Judges Miller, Bright, Johnson, and Cotter, from the Shoreham pmceeding.49 In their amended complaint, filed April 26, 1984, they made etsentially the same allegations contained in Mr. Cohalan's letter of' April 11.
In its response, the NRC pointed out that altaugh the Comis-4 ston's regulations explicitly provide for the filing of disqualification.
1 motions (at10CFR2.704(c)),SuffolkCountyandtheStateofNewYorkhad I
not even attempted to invoke the prescribed procedure.50 l
Despite having the correct procedural course pointed out to them by this NRC filing, counsel for Suffolk County and the State of New York continued to stay their hand. Meanwhile, the. i]eputy County Eiecutive of Suffolk County, Frank R. Jones, wrote to the Comissioners on April 27, renewing the April 11 request and adding a request for-the disqualification.
]
(or alternatively, the voluntary recusal) of Judges Miller, Bright, Johnson, and Cotter, and of me.51 The letter, which urged promp.tness on
)
i the Comission "in the strongest possible terms," stated:
"As a. follow-up I
1 to this request, on which the County urges prompt Comission action, the County's counsel have been instructed to serve on the named individuals additional formal papers." (Emphasisadded).
It thus appears that counsel's delay in filing the~ disqualification
~
l request -- a delay for which no explanation has even been offered -- was 49Cuomo, et al. v. USNRC, et al., Civil Action No. 84-1264..The court's temporary restraining orcer, issued April 25, 1984, hinged on scheduling matters, and did not address the disqualification request.
50Memorandum in Support of Defendants' Motion to Dismiss the. Complaint.
(April 27,1984), at 15, fn.1.
51Copies of this letter, unlike the Apri 11 letter; were sent by M-Suffolk County to the other parties to the proceeding.
j
- j 3
4
l e,
'O 33 more than mere dawdling.
It seems also to have been contrary to the instructions of Suffolk County officials, who recognized that additional
)
i i
formal filings by counsel were required. Not until almost six weeks after l
the date of Mr. Jones' letter was the formal request for my disqualifica-I tion filed; almost eight weeks passed before the disqualification of Judges i
Miller, Bright, Johnson, and Cotter was requested.
It is well established in the case law on the timeliness of disqual-l l
ification motions that such requests must be filed at the earliest moment i
after the moving party obtains knowledge of the facts demonstrating a basis for disqualification. United States v. Patrick, 542 F.2d 381, 390 (7th
.!.I
'1 i
Cir. 1976), cert. den. 430 U.S. 931 (1977); Duffield v. Charleston Area Medical Center, 503 F.2d 512, 515-16 (4th Cir.1974).
i in assessing whether a disqualification request is timely, reviewing courts look not only at the period of time which elapsed between the' receipt of the underlying information and the filing of the request; they i
also consider what if anything was going on during' that period in the trial j
l or administrative proceeding et issue. Where trial has not begun, or is in I
abeyance, a lengthy delay in filing may do little or no practical harm, but where a proceeding is actively underway, with issues actually being decided by the decisionmaker whose participation is challenged, even a short delay
.may be destructive.
Courts are most disposed to find a disqualification motion' untimely when it appears that the moving party obtained the information forming the basis for its motion but then held back while it speculated on whether the decisionmaker was likely to decide the case in its favor. This is especi-3 ally true where the moving party has filed motions with the court or agency
.r7 that gave it the opportunity to "sampl[e] the temper of the court before 9
w s
s, 34 i
deciding whether or not to file" a claim'of bias.52.Peckham v. Ronrico
,l Corp., 288 F.2d 841', 843 (1st Cir.1961). As the U.S. Court of Appeals for i
the Third Circuit wrote in Smith v. fanyo, 585 F.2d 83 (1978):
i The judicial process can hardly tolerate the practice of a i
litigant with knowledge of circumstances suggesting possible bias
)
or prejudice holding back, while calling upon the court for hopefully favorable rulings, and then seeking recusal when they are not forthcoming.
585 F.2d at 86.
l In such situations, requiring timeliness is not mere procedural 1
l nit-picking. On the contrary, it is a matter of preserving the integrity I
of the adjudication. Without watchfulness on the part of courts and l
agencies, cynical litigants could use disqualification motions to manipu-late the outcome of the judicial or administrative process. As one court f
)
has put it:
I It may be said, of course, that it is inconsistent with the-interests of justice in most cases to reject any motion purely on i
the basis of procedural technicalities. But our courts have long l
1 recognized that in this sensitive area of claimed partiality on
]
the part of a Judge, strict construction of the statutory provi-sions is essential to prevent abuse and to insure the orderly functioning of the jud~icial system. Bumpus v. Uniroyal Tire Co.,
385F.Supp.711,713(1974).
l The tardiness of Suffolk County and the State of New York in filing their disqualification motion might be more excusable if the proceeding had been in an inactive phase during the 55-day period from Mr. Cohalan's 52Courts also scrutinize carefully any claim by a moving party that the motion's untimeliness should be excused because evidence forming the basis of the motion developed cumulatively.
In such cases, courts will be particularly strict in assuring that the motion was filed at the earliest possible moment after the necessary information was obtained. Duplan Corp.
... i
- v. Deering Milliken, Inc., 400 F. Supp. 497, 510 (1975).
43 i 3]p s
i s
1
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1..
I 35 letter of April 11 to the June 5 date of the motion. This was hardly the case. On the contrary, during that period Shoreham was the subject of intense activity before the Comission.
Between those dates, the Com.is-sion met 13 times to discuss the Shoreham proceeding.
No other single -
7 topic was.the subject of so many meetings during that period.
Those meetings included: an April 23 discussion, lasting almost three hours, of whether the Licensing Board's disposition of substantive and procedural issues in the low power proceeding warranted involvement at that time by the Comissioners; discussions on April 26 and April 27 of a
- J,
proposed Conunission order in the proceeding; an April 30 meeting to affinn I
such an order; oral argument before the Comission on May 7, involving both '
substantive and procedural issues; Commission discussions on May 9 and 10 t
of the issues which had been in dispute at the May 7 argument; two meetings on May 10 and a third on May 16 to review a draft Commission order address-ing those issues; a May 16 meeting to affirm the order; a discussion on i
May 22 of substantive issues certified to the Commission by the Appeal Board; and on May 31, a meeting to affirm a Commission order on those t
l l
certified questions.
l All of those 13 meetings involved, directly or indirectly, considera-tion of views and proposals submitted by Suffolk County and the State of
.New York. The most striking example is the oral argument held before the Comission on May 7, 1984.53 At oral argument, the substantive legal issue of the applicability of the General Design Criteria to LILCO's proposal to i
.t The order setting forth the issues for decision and scheduling the 53
]
oral argument was issued on April 30, 1984.-
ne
36 operate Shoreham a't low power was central; procedural issues (notably the scheduling issue, which is at the heart of the disqualification motion)
,j
?
were also addressed by the parties.
One might imagine that Suffolk County and the State of New York would have been reluctant to have these crucially important issues argued before, and adjudicated by, a decisionmaker whom' they considered to.be biased against them. Yet the formal objection to my participation remained in I
counsel's hip pocket.
In their 42-page pre-argument submission, dated-
]
9 i
May 4,1984, Suffolk County and the State of New York did not even mention i
i the issue of my disqualification, although that filing did state Suffolk i
County's view that Judges Miller, Bright, and Johnson should be replaced in '
the event that further hearings were ordered.
At oral argument, counsel for Suffolk County and the State said not a word on the subject of my disqualification or recusal. Nor did the County or the State mention the issue in their joint supplemental filing, submitted on May 10, 1984. Only after the Comission issued its decision,54 by a 3-2 vote in which I formed
~
part of the majority on the question of whether to disestablish the Miller I
Board, did the County and the State see fit to revive the issue, and'at last bring their accusations of impropriety into the adjudicatory proceeding.
With the proceeding in so active a phase, and with Comissioners meeting so frequently on issues in dispute, it was especially essential for
,-l the County and the State to file their disqualification request expeditiously. As I mentioned earlier, when the formal request for my i.
.h
?
54CLI-84-8 (May 16, 1984).
/
J em
--.._.-_._.__._._-_.._:__s
-. -.. - - ~
i s
- l.* ' #
37 q
I disqualification or recusal finally arrived, I withdrew from consideration i
of adjudicatory matters related to Shoreham pending my decision on the request.
If, as early as April, Suffolk County and the State of New York
- ]
sincerely believed my conduct to have been so improper as to destroy the procedural integrity of this proceeding, then it is beyond my comprehension that for almost two months, they should have permitted me to participate in meeting after meeting, deliberation after deliberation, and decision after q
decision, when at any time they could have brought the disqualification j
t 1
issue to a head through a single filing.
.l 1
Uncer these circumstances, I find the Suffolk County /fiew York State
- 1 l
reauest to be untimely, and seriously so.
To do otherwise would be a disservice to the Commission anc its processes, since it would serve notice l
on litigants that the Commission's processes may be' abused with impunity.
I I feel a strong institutional concern -- as opposed to accusations against i
l me personally, which "go with the territory" -- to assure that untimely disqualification motions do not become a device for manipul'ating the NRC's adjudicatory process.
I e
e 4
9 r
3:.
-e
l D "'
?. s ;, '
36 l
IV. Conclusion
. 1 e
For the reasons set forth in this memorandum, the request for recusal is DENIED.
flQ yl'+,,
i s
-NUNZIO J. PALLADINO l
Chairman
- 1
.a 4
1 j
i Dated at Washington, D.C.
this#
day of September, 1984.
~
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6
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i t4 Cite as 20 NRC 1061 (1984)
CLI.84 20*
l I
UNITED STATES OF AMERICA k
NUCLEAR REGULATORY COMMISSION Nunalo J. Palladino, Chairman i
in the Matter of Docket No. 50 322 OL 4 LONG ISLAND LIGHTING COMPANY (shoreham Nuclear Power Station, UrWt 1)
September 21,1984 The Chairman of the NRC, finding that the standards for disqualifica-tion have not been met, denies on the merits and as untimely a motion i
filed by intervenors to the Shoreham licensing proceeding that sought his recusal.
I i
MEMORANDUM I.
INTRODUCTION
.j On June 5,1984, counsel for Suffolk County and the State of New York, parties to the Shoreham operating license proceeding, Gled a
" Request for Recusal and, Alternatively, Motion for Disqualincatio "
v in which they alleged improper intervention on my part in the conduct n
of that proceeding. The request asked that i recuse myself from partici-folk /New York request I described in detail on Maypating in the Shoreha 17,1934, in con-gressional testimony,' a copy of which I appended to my June 20 Memo-g; discuss those events further in { II.B of this Memorandum.randum to the P Ji I
'oecided too late to be pubashed in the september issuancss.
I 4/ fairs. 98 Cong. 2d Sess. MayHeannts Before the Sukomm. on Enery and Ennmament of siw Houw Comm on Inteno 17.1984.
r and inwlar
<O'
' g.y; y.,
1061
,- #m,
5 O'
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an
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s f
i!
board judges, NRC Sta-l On June 18, 1984, the Applicant, Long Island Lighting Company public servants, who havt (LILCO), Gled a resporse to the Suffolk/New York request. On June Finally, for me to rect ;
20, in my Memorandum to the Parties. I requested the comments of the riously damage the abilit NRC Staff on the request, and I also stated my decision not to participate to stay on top of the Cor i in tny Commission deliberations on adjudicatory matters in the Shore.
ties, and assure that the j ham proceeding until such time as I made a decision on the recusal sponsibilities in an effit '
request. The NRC Staff filed its?esponse on July 12, 1984.2 seen as support for a po:
I have studied all the Olings and have given them careful considera.
agency's elTectiveness tion. I have also had the benefit of the accounts of underlying events managerial functions m ;
provided by Judges Miller, Bright, Johnson and Cotter in their respo:
es and the NRC Reorgantz:
to recusal requests. Those responses are part of the public record of this In l 11 of this M 7
proceeding.
the Suffolk County /Nei My conclusion is that I see nothing in the filings of the parties, or in merits to demonstrate the underlying facts, which demonstrates that I should take myself out proceeding, either in re of the proceeding. I therefore consider it my obligation to resume my ad *-
som, for finding that tl judicatory functions in this case.
devoid of merit, is so
^
I recogr'ize that I could have decided to recuse myself from this pro.
for its untimeliness as ti ceeding as a matter of discretion. I cannot deny that the preparation of a detailed response to the recusal request has been a time consuming but-II. SUMMAR' den, at a time when the Commission's health and safety responsibilities have demanded continuing attention. Moreover, it may be argued that COUNTY /NEW YO!
to recuse myself would remove the shadow of doubt in some persons' The June 5,1984 di l
minds about the propriety of the Shoreham proceeding, and perhaps New York State bases
~
',e thereby obviate some legal challenges to the ultimate outcome of the tions, strung 'together proceeding, whatever that outcome may be.
effect. The gist of Su To my mind, such considerations could not justify my recusing myself 1984, it was entirely se from this case. First of all, I believe nrmly that the responsibilities of a decision, that no low-Commissioner are not optional. On the contrary, they are duties owed to hearings had been con the public in thorny and time consuming cases as well as in easy ones.
tors. According to Sul Indeed, it is in controversial cases in which it is most incumbent on parently in response Commissioners to take a stand and make the difficult decisions that are l about the following. 1 the essence of a Commissioner's job.
contacts; a complete t
,n Second, once the facts are set forth, and various misstatements of fact issue; the replacemer
.L in the recusal request are pointed out, as is done in j !!.B, I do not be-Licensing Board, wit lieve that a reasonable observer would continue to entertain doubts Gnally, a decision favt about my impartiality. Moreover, under the present circumstances, for The Suffolk Count
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me to recuse myself would not relieve public doubt but rather increase large number of put-it, by appearing to give credence to an accusation that aims baseless General Counsel and charges of impropriety not just at me, but also at a variety of licensing seemingly ready and under the law. Reac acts, the indictment
~
2 I have also received the omrus curw bnef or the Atomic industnal Forum.
1062 1
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4 burd judges, NRC Staff members, Commission lawyers, and oiber public servants, who have earned no such aspersions on their integrity.
Finally, for me to recuse myself would set a precedent that could a-riously damage the ability of any NRC Chairman, now or in the fumre, to stay on top of the C' mmission's work, to monitor Lt c agency's activi-o i
ties, and assure that the Staff and the Commission discharge their re-s sponsibilities in an efHcient and timely fashion. My recusal coul.1 be seen as support for a position I consider unsound and destructive of the l.
agency's etTectiveness -- namely, that for a Chairman to exercise the managerial functions mandated under the Energy Reorganization Act and the NRC Reorganization Plan of 1980 is both illegal arid improper.
In s II of this Memorandum, I describe my reasons for Gnding that the Suffolk County /New York State disqualification request fails on its merits to demonstrac that I have committed any impropriety in this proceeding, eithe. m reality or appearance. In !!!, I describe my rea-sons for findin,s that the disqualification request, in addition to being a
devoid of merit, is so flagrardly untimely and so barren of any excuse for its untimeliness as to warrant its rejection on that basis as well.
t II.
SUMMARY
AND ANALYSIS OF THE SUFFOLK COUNTY /NEW YORK STATL' DISQUALIFICATION REQUEST b
The June 5,1984 dipualification requkst Gled by'Suffolk County and New York State bases its claim of ingnyiety on a number of allega-tions, strung together into what pup'o:ts to be a chain of cace and effect. The gist of Suffolk/New Ycrk'5 ' claim is that as of March 16, 1984, it was entirely settled, as a ruult of a February 22 Licensing Board f
decision, that no low-power license could be issued e Shoreham until hearings had been completed on the contentions relat:d to diesel genera-tors. According to Suffolk/New York, I then in:ervened personally (ap-parently in response to an approach by LILCO's Chairman) to bring about the following: major violations of the rules against ex parte contacts; a complete reversal of position by the NRC Staff on the diesel issue; the replacement of the Licensing Board with a new, more pliant Licensing Board, with " scheduling conflicts" cited as a pretext; and Gnally, a decision favoring LILCO from the new Licensing Board.
The Suffolk County /New York State filing paints a turid picture of a 3
large number of public servants, including licensing board judges, the General Counsel and his deputy, and a variety of NRC Staff of0cials, all seemingly ready and willing at my behest to vioWe soleran obligations under the law. Read superGcially, or by oei without Armkdge of the facts, the indictment may seem damning inoced; but closer reading, and 1063 i
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4 a review of the facts, reveal. that inaccuracies and misrepresentation:;
violation of the NRC's ex parte rt permeate the Suffolk/New York filing. It is app.ropriate, therefore, to ham licensing proceeding.
look at Suffolk/New York's claims in some detail, for on examination it (4) that after March 16, I ha becomes apparent that the claimed " chain of impropriety") is a fiction, the Executive Director for Opera founded on a seriously distorted account of the status of the proceeding at Shoreham.'
as it stood in mid March 1984.
(5) that on March 20, 1984, ers a memorandum which (a) 7 meeting, but failed to mention t A.
Summary of the Suffolk Counts'/New York State Allegations proceedug were discussed; (b) p The Suffolk County /New York State allegations may be summarized a proposal, which I had asked the as follows:
for expedited hearings on the d (1) that as of March 16, 1984, the issue of the Shorehm TDI die-power operation of Shoreham; (<
sels had been " settled"* by a February 22, 1984 Licensing Board Order decision date of December 198 holding that litigation of the diesel issue must precede any grant of a while failing to report "that the 'c license to operate Shoreham at low power; the NRC Staff had taken the on LILCO's estimate, not the N
" unequivocal position"5 that the diesel issue had to be resolved prior to LILCO's estimate";" and (d) spi any low power licensing of Shoreham; LILCO "had not appealed from a party in the Shoreham proceec
,or sought reconsideration of' the Board's February 22 ruling;6 and prepare a paper outlining steps to "nothing in the public record suggested"? that LILCO would propose (6) that on the same day, M any other avenue for obtaining a low power license short of fulllitigation ed proposal" making "essentiali; of the diesel generator issue.
license that the Brenner Board (2) that on February 24, Newsday reported that LILCO's Chair-neither for a waiver of, nor an ei man, William J. Catacosinos, had met with the Commissioners; on on 17.
4 March 9, in a letter to LILCO shareholders, Dr. Catacosinos stated his (7) that on March 22, my li belief that "there now seems a greater understanding among federal, the telephone a " working pape state and county officials of the crisis the company faces"; the notes with LILCO's March 20 request i
taken by Judge Cotter at the March 16 meeting include the statement the Commission's wish to have t i
"[ slays will go bankrupt if 12/84 I.D. [ Initial Decision of Licensing 9, 1984.8)
Board!"; and the " greater understanding" of federal officials to which (8) that Judge Cotter respc Dr. Catacosinos referred was thus making itself felt in the March 16 with a proposed Commission ori '
meeting through the oftice of the NRC Chairman.*
consideration of LILCO's motior (3) that on March 16, 1984, I met with the Executive Director for
" prejudged the very question at Operations, the General Counsel, the Deputy General Counsel, the a challenge to GDC 17 that had Atomic Safety und Licensing Board Panel Chairman, the Executive i
to replace the Brenner Board, "
Legal Director, other Staff officials, and my own personal staff, and in LILCO a setback,... four days t
3 Request at 32.
l
' /d. at 17.
4/d. at 4.
i 1014. at 15.
514 at 8.
II /d. at 16.
b Id. at \\ \\.
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7/d. at 14.
13 Id. at 1718.
s Id. at 1011.
1414. at 19.
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.wm violation of the NRC's ex parte rules, discussed the merits of the Shore-ham licensing proceeding.
(4) that after March 16. I had further discussions with my staff and the Executive Director for Operations on the subject of licensing delays at Shoreham.'
(S) that on March 20, 1984, I circulated to the other Commission-ers a memorandum which (a) " purported to report"5 on the March 16 meeting, but failed to mention that ideas for expediting the Shoreham proceeding were discussed; (b) proposed that the Commissic. consider l
a proposal, which I had asked the Office of General Counsel to develop, i
for expedited. hearings on the diesel issue or other proposals for low-power operation of Shoreham; (c) included a projected Licensing Board decision date qf December 1984 (absent Commission intervention),
while failing to report "that the ' delay' estimate for Shoreham was based on LILCO's estimate, not the NRC's, and that the staff disagreed with LILCO's estimate";" and (d) specifically requested that the NRC Staff, a party in the Shoreham proceeding, respond to the memorandum and prepare a paper outlining steps to deal with the supposed delays.
(6) that on the same day, March 20, LILCO filed an "unprecedent-ed proposal" making " essentially the same arguments for a low power license that the Brenner Board had previously rejected,"'2 and asking i
neither for a waiver of, nor an exemption from, General Design Criteri-on 17.
(7) that on March 22, my legal assistant read to Judge Cotter over the telephone a " working paper" prepared in my office, which dealt i
with LILCO's March 20 request and inaccurately represented that it was the Commission's wish to have the matter litigated and decided by May 9,1984.0 l
(8) that Judge Cotter responded on the following day, March 23, with a proposed Commission order which; (a) provided for expedited consideration of LILCO's motion and a ducision on the merits, and thus
" prejudged the very question at issue: whether LILCO's proposal was a challenge to GDC 17 that had to be rejected outright";" (b) proposed I
to replace the Brenner Board, "which on February 22, 1984, had dealt LILCO a setback,.. four days before the Brenner Board advised judge n
' Id. at 17.
n N Id. at i $
H Id. at 16.
12 /d.
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U Id. at 19.
t 1065
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Cotter that it had a potential schedule conflict due to the judges' involve-ment in the Limerick proceeding";" and (c) proposed, in light of ny{ Board. tis P"( 1 ]ed (t
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,,9nnel LILCO's " enormous financial investment," a schedule for Board action link in a chain of impropriety that which Judge Cotter himself described as " brutally tight" and " definitely 16.25 4
not recommended."'6 (9) that the NRC 5 aff responded to LILCO's motion with an "ab-B.
Analysis of the Suffolk rupt and complete reversal " (emphasis in the original) of its prior posi-tion on low power operation, in the preceding section of t (10) that even if Judge Cotter's March 30 appointment of a new paragraph summary the essen Licensing Board (chaired by Judge Miller) to " hear and decide" by Suffolk County and New i in the section which follows, !
LILCO's low power motion was, as claimed, his own idea, that idea was developed at my request, I was informed prior to the appointment, and graph by paragraph, to Suffol, '
moreover, Judge Cotter's notes " reveal that there was ' concern' with count.
Judge Brenner" expressed at the March 16 meeting.'s (1) Central to the allega ;
(11) that on March 30, the same day that the Miller Licensing Board New York is their seriously i was established, it " decided to expedite the proceeding"" - before it Shoreham proceeding as of h had had time to review the pleadings and the record and make a "rea-Brenner Board's February 22 the Staff had not declared th soned and independentjudgment"20 whether to expedite the proceeding.
(12) that after oral argument on April 4 on the LILCO motion (in-cede low-power operation;'a ciuding argument on the issue of "whether there was a basis to expedite by the parties, including Suff the proceeding"),28 the Miller Board on April 6 " adopted the position l
closed the grant 'of a low-pow urged by the Staff in its March 30 filing and by Judge Cotter in his below, the Suffolk/New York March 23 draft order,"22 by ruling that LILCO could operate Shoreham reflected in the statements without onsite power, provided that safety findings suggested by the counsel, Judge Brenner, and c NRC Staff were made. The Miller Board's April 6 decision (unpub-What the Brenner Board r lished), according to Suffolk/New York thus "provided the final link in ary 22,1984, was that a licen the chain which began at the Chairman's March 16 meeting";23 moreov-TDI die! generators can re er, in deciding to expedite consideration of LILCO's motion, it took a wiW ; An iigating conten B~ aa mkr (which includ position consistent with that of my office's working paper, the Staff, and o
i Judge Cotter's draft order of March 23, and it adopted time frames with l
by counsel), made clear that a " striking similarity" to those in Judge Cotter's draft order. The forego-on the submissions then befo ing demonstrates, according to Suffolk/New York, that the March 16 ed from filing a proposal for meetir g was:
not involve reliance on the '
Board's ruling "would not pi ods by which LILCO believ i
short of litigation of Conte 18 /d (Emphasis in original.)
Ib IJ.
l' /d. at 22.
'I /d. at 24.
AIJ. at 2$.
24 /d. at 32.
20/d.
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23 Transcript ot the Conference of the transcnpt. which forms par. or the recorc 22Id.
ed by "Tr "
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la) planning session to figure out how to get around the lawful rulings of the Bren.
ner Board. Its purpose was improper; its discussion was improper; and the actions of or NRC personnel that followed it were improper. Each of these personnel acted as a U"
hnk in a chain of impropriety that commenced in the Chairman's ofHce on March
)
- ly is.n B.
Analysis of the Suffolk County /New York State Allegations l
,'s In the preceding section of this Memorandum, I described in a twelve.
paragraph summary the essentials of the assertions and allegations made ew le" by Suffolk County and New York State in their disquatincation request.
l Vd5 in the section which follows, I will use the same format to respond, para-
~
tnd graph by paragraph, to Suffolk/New York's substantially inaccurate ac.
,ith count.
(1) Central to the allegations of Suffolk County and the State of
.trd New York is their seriously misleading description of the status of the
- il Shoreham proceeding as of March 16. Contrary to their assertions, the ea*
Brenner Board's February 22 Order had not " settled" the diesel issue; 13-the Staff had not declared that resolution of the diesel issue must pre-in-cede low power operation; a LILCO low power proposal was expected file by the parties, including Suffolk County, and the Board had not fore-ion closed the grant of a low power license to Shoreham. As I shall describe his below, the Suffolk/New York account is wholly at odds with reality, as
- J -
ia m reflected in the statements on the public record of Suffolk's own t
the counsel, Judge Brenner, and others.
u b-What the Brenner Board ruled, in its orally delivered Order of Febru-( in ary 22,1984, was that a license based on " reasonable assurance that the ov-TDI diesel generators can reliably be depended upon" was not possible
'k a without first litigating contentions related to the diesel generators." The and Board's Order (which included responses to clarifying questions posed vith by counsel), made clear that though operation could not be authorized 80-on the submissions then before the Board, LILCO would not be preclud-16 j
ed from filing a proposal for attowing operation under a theory that did not involve reliance on the TDI diesels. Judge Brenner stated that the 3
Board's ruling "would not preclude LILCO from proposing other meth-ods by which LILCO believes the standards of 50.57(c) could be met, short of litigation of Contentions 1, 2, and 3 (the diesel generator i
UId at 32,
" Transcript or tne Conrerence or the Parties. February 22.1984. at 21.617. Rererences to this transcript, whKh forms part or the record or the operating license proceeding, will herernarter be indicat-ed by "Tr."
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So what is being asked here. by L/LCO's contentions) on the merits. Or possibly seeking some sort of waiver to make som< rime in the near future -
under 2.758 or other procedures." Tr. 21,616.
operanon.
The Board was emphatic that it was "up to LILCO" to develop and submit such a proposal. Tr. 21,617. With regard to the nature of such a (Emphas,s added.) Tr. 21,521.
i proposal, the Board commented that "while someone could imagine dif.
Even more striking, in view of ferent things in combination, we do not know what is feasible or what the procedures followed in this cas LILCO would seek to propose." Tr. 21,617. When LILCO's counsel Mr. Dynner, in the same conference sought reassurance that "the Board is not foreclosing other ways to low j
power?" Judge Brenner replied, "[tlhat's right but you are going to have to propose something.... Tr. 21,631. To a further quest,on wishes to make it in the proper context, i
whether the Board's Order might preclude a particular type of proposal, Judge Brenner replied, "[nlo, it does not preclude nything. It is solely (Emphasis added.) Tr. 21,518.
based on what was before us...." Tr. 21,631. Thus tt is simply not true Moreover, when the LILCO m that the Brenner Board's February 22 Order had " settled" the issue of
" Preliminary Views on Schedulin: l the need for an onsite emergency power source, or the schedule for a filed March 26,1984, noted that.tr possible decision on low-power Speration, preclude LILCO from later Bling 'i Likewise, it is flatly inaccurate of Suffolk/New York to claim that "as license for Shoreham without t'elyi of February 22, the NRC staff had taken the unequivocal position" that generators)." (Emphasis in the ori resolution of the diesel issue was necessarily a prerequisite to issuance as "the type of proposal which.th of a low power license. The transcript of the February 22,1984 Confer-tirely separate collateral proceedini ence of the Parties makes clear that while the Staff believed that what folk foresaw both a LILCO lospc a
LILCO had proposed as of that date was insufficient, it had not ruled rate proceeding.
out the possibility that LILCO could nevertheless satisfy the regulatory The Suffolk/New York charge requiremen'ts for low-power operation. Staff counsel stated explicitly the public record shows to be a se that it was "quite possible" that "they (LILCO) do not nee'.asels at proceeding stood on March 16, I all." Tr. 21,513. He added that Staff could not, however, make such in March to alter a " settled" Boari i
determinations until it received a formal submission from LILCO, and belied by a public record which m that "we want to see what LILCO gives us," Id. Staff counsel told that Board and the parties regarded tl i
Board that it was "very difncult to answer your questions until we get far from settled. The' charge that that submission from LILCO." Id. The context makes plain that Staff revers'al" of the Staft's position demonstrates that already in Fet was fully expecting LILCO to fila such a submission.
The Staff was not the only party expecting such a submission from the question of low power opera LILCO, and saying so 'on the public record. Suffolk/New York's claim there was nothing in the public that "[nlothing in the public record suggested that LILCO would file seek early approval of low power such a proposal"26 is belied by the statements on the public record o/Suf-which shows that already in Fe' folk's own counsel. At the February 22 Conference of Parties, Mr. Alan l
was expecting such a motion to b<
Although an understanding o '
Dynner, counsel for Suffolk County, stated:
to make the bulk of the charges tant to proceed through a systerr 27 "surroik County's Prehminary viewi on sch 23 y g 26 Request at 7, 1
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.nd opersoon.
ba lir.
(Emphasis added.) Tr. 21,521.
hat Even more striking, in view of Suffolk/New York's condemnation of iset the procedures followed in this case, is the following statement, also by low Mr. Dynner, in the same conference:
to The County's point of view, we would expect tbit such a proposal by LILCO. ifit
. ion wishes to rnake it in the proper context. wouldinvolve a separate proceeding.
I'lY (Emphasis added.) Tr. 21,518.
- rue Moreover, when the LILCO motion was filed, Suffolk County, in its OI
" Preliminary Views on Scheduling Regarding LILCO's New Motion,"
or a filed March 26,1984, noted that the Board's February 22 Order "did not preclude LILCO from later filing a proposal to obtain a low power "as license for Shoreham without relying upon the EDGs (emergency diesel that generators}." (Emphasis in the original.)" Suffolk described the motion ince as "the type of proposal which this Board envisioned to require an en-tier-tirely separate collateral proceeding."2: This further underscores that Suf.
Ahat folk foresaw both a LILCO low power proposal and the need for a sepa-uled rate proceeding.
'ttory The Suffolk/New York charges against me are thus based on what Cilly the public record shows to be a seriously distorted account of where the is at proceeding stood on March 16, 1984. The accusation that I intervened such in March to alter a " settled" Board decision on operation of Shoreham is and belied by a public record which makes clear that already in February, the that Board and the parties regarded the question of low power operation as
,e get far from settled. The charge that in March I brought about a " complete i
Staff reversal" of the Staff's position is belied by a public record which demonstrates that already in February, the Staff was open-minded on
, from the question of low power operation of Shorebam. The assertion that
- ;laim i
there was nothing in.the public record to suggest that LILCO would
.i file seek early approval of low power operation is belied by a public record TSuf-which shows that already in February. Suffolk County's own counsel Alan was expecting such a motion to be filed shortly.
Although an understanding of these distc.rtions is sufficient by itself 1
1 to make the bulk of the charges against me evaporate, I think it impor-tant to proceed through a systematic analysis of the rest of the Suffolk/
U "Surfolk County's Prehrninary Views on Scheduhng Regarding LILCo's New Monon" at 1.
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6 New York claims, in order to make fully clear that I have committed no improper communications fro improprieties, and that I have in no way prejudged the issues in the with Shoreham were commor Shoreham proceeding.
hearings and amply covered in (2) The Suffolk/New York account of the meeting with Dr. Cataco-processes be timely and emeie sinos is also misleading. Dr. Catacosinos paid a brief get acquainted call outcome of the Shoreham proc on all of the Commissuners on February 23. Dr. Catacosinos did not
'l (3) My March 16, 1984' i I
Operations, the General Coum l discuss any aspect of the Shoreham proceeding with me, nor did he dis.
ecutive Legal Director, Judge cuss LILCO's financial dimculties, in our appnximately 5-minute conversation.2' cuss the licensing status of a n Suffolk/New Yorx's charge that Dr. Catacosinos' March 9,1984 sional hearing at which I expet letter to LILCO stockholders is evidence that he had influenced me in the licensing process.
favor of Shoreham is frivolcus. (That letter, according to Suffolk/New As I stated in my congres
' York, asserted that " federal, state, and county" omcials showed had its origin in a meetit 4 hel !
" greater understarding" of LILCO's problems.) Although Suffolk/New the Omce of Policy Evaluation York are correct in stating that a February 24, 1984 Newsday article (OGC) to discuss potential lic <
reported that Dr. Catacosinos had met with the Commissioners, they that March 15 meeting, there '
omit to mention the title of the article: "Three Senators Offer Meas-ed a broader discussion, to inc,
ures to Help LILCO Out of Crisis." (The article also described a meeting and his staff, the General Col between Dr. Catacosinos and the Secretary of Energy, and a letter from the Atomic Safety and Licens Dr. Catacosinos to the Secretary of the Treasury, seeking relief from pro-as I described in my testimor visions of the tax laws.) Thus at least three " federal omcials" (U.S.
disapproval of unwarranted 11 Senators) were on record as supporting relief for LILCO's financial NRC Reorganization han No dimculties, and the inference which Suffolk/New York seek to draw -
executive officer of the Comn that the mention of "feder?' omcials" was a reference to me - is with-for assuring that the Executis !
out foundation.
the Commission... are respc Finally, the f.1ct that I was concerned, as I readily acknowledged in sion in the performance of my testimony before Congress,20 lest NRC's failure to make timely deci-licensing delays at various I L sions be the cause of Shoreham's going under, is hardly evidence of Staft's performance of its fur '
deficiencies and see that they At the March 16 meeting
' 'ch
( my rites, resp ndmg to a Freedom or Information Act appeal. 4 rollowup letter interest to me, $inCe a Week I '
'" ' ". a"tacosinos was found. I reproduce it in its enurety:
rrom Dr C J
for Operations had informed g February 28,1984
Dear Chairman Palladino:
I am wntmg to empress my appreciation for your taking the time to meet with me on Thursday.
As you are aware.4he vast majority or LILCo's current problems are related, either directly 31 The.Vrwsday article cited in the suff.
Measures to #rta LILCo our o/Cnus Feb or mdirectly. to the future or our Shoreham Nuclear Power stauon.
j Tesumony at 84 As I am sure is obvious. our highest pnority is to operate a sare reliable and efficient power JJ 45 Fed. Reg. 40.561 (1980L stauon, and to do so as soon as is consistent with appropnate safety considerauons.
H The staff also provides the Commissiot smcerely' strucuon in which both heensees' esumati are included. The weekly memorandum t
/s/ W.J.Catacosinos non compleuon date for shoreham 2 m<
( understand that idenucal letters were received by at least three other Commissioners. I regard this gap between facility compleuon and a det letter as no more than a courtesy note-randum which suffolk/New York cite ws:
30 Tesumony at 5. I1.
Commissioners.
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i improper communications from anyone. LILCO's financial dif0culties l
with Shoreham were common knowledge, discussed in congressional hearings and amply covered in the press.)' My desire to assure that NRC processes be timely and efficient was not a prejudgment as to what the outcome of the Shoreham proceeding should be.
(3) My March 16, 1984 meeting with the Executive Director for Operations, the General Counsel, the Deputy General Courtsel, the Ex-ecutive Legal Director, Judge Cotter, and others, was a meeting to dis-cuss the licensing status of a number of plants,in advance of a congres-sional hearing at which I expected to be asked questions about delays in the licensing process.
As I stated in my congressional testimony, the March 16 meeting had its origin in a meeting held the previous day with representatives of the Of0ce of Policy Evaluation (OPE) and the Office of General Counsel i
(OGC: to discuss potential. licensing delays at a number of facilities. At that March 15 meeting, there was a consensus that these delays warrant-ed a broader discussion, to include the Executive Director for Operations l
and his staff, the General Counsel and his deputy, and the Chairman of the Atomic Safety and Licensing Board Panel.211t should be noted that, as I described in my testimony, Congress has repeatedly made clear its disapproval of unwarranted licensing delays, and that, under { 2(b) of NRC Reorganization Plan No. I of 1980, the Chairman is the " principal executive ofGcer of the Commission,,.. responsible to the Commission for assuring that the Executive Director for Operations and the staff of the Commission.. are responsive to the requirements of the Commis-sion in the performance of its functions.")2 Thus to the extent that licensing delays at various plants might be attributable to the NRC Staffs performance of its functions, it was my responsibility to identify denciencies and see that they were addressed.
/
At the March 16 meeting, the status of Shoreham was of particular f
interest to me, since a week before, on March 9, the Executive Director
)
I for Operations had informed the Commission that, based on the Licen-I see's estimates,34 a licensing delay of 9 months was projected, whereas 1
A 1
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11 The Nr sday arucle cited in the surroik/New York request is one example: Threr Senators Offer
}
1 Measwes to Help LILCO Oia ofCersis. Feb. 24. I984.
J2 Tesumony at 8 9.
33 45 Fed. Reg.40.561 (1980).
A 34 The staff also provides the Commissioners with weekly memoranda on the status or plants under con-N urucuon in which both licensees' esumated compleuen dates and the staff s esumated completion dates M/9-are included. The weekly memorandum or March 6. l984, indicated that the starr projected a construe.
non compleuon date ror shoreham 2 months later than LILCo's esumate. Under either esumate, the gap between racility complenon and a decision on operation was substanual. The April 24 1984 memo-
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randum which suffolk/New York cite was part or this senes. All these memoranda were addressed to all
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the Commission had informed the Congress as recently as January 25, discussion included consid 1984, also based on the Licensee's estimates, that no licensing delay was reduce or avert actual and 1 projected for Shoreham. (Th: other plant for which the March 9 memo-conceal the substance of the randum projected a licensing delay was Limerick.)
Suffolk/New York's claii In the portion of the meeting that dealt with Shoreham, there was no other Commissioners faile.
violation of the ex parte rules, because there was no discussion of the Shoreham was based on til merits of the issues in controversy; rather, the discussion was of status, Stati disagreed with LILCi scheduling, and of the procedures by which the proceeding might be other Commissioners alrea moved along, came from LILCO, since th As I stated in my testimony, there was discussion - initiated. I dum, addressed to all Comt believe, by OGC - of the possibility of holding an expedited hearing on ly: "Therefore, based on t the question oflow-power operation of Shoreham. I would note that the month licensing delay. (E Executive Legal Director recalls that he pointed out, during that 24 memorandum (discussed discussion, that the same Board Chairman who was presiding over the Commissioners. Thus the st Shorenam operating license proceeding was also presiding over another I withheld relevant inform'a active case.33 (That case was Limerick.) It is worth stressing that none of out f undation, since 1 knc e la yers present indicated any ex parte problems with any part of the
- y6) 8 har (4) With regard to further discussions of Shoreham, after the meet-mod n mah NssendaW tl ing on March 16, I had a number of discussions with my personal staff that the Brf.nner Board had of the problem of delays at Shoreham and elsewhere. I recall only one 26,1984 filing before the Ltc conversation, perhaps 2 or 3 minutes long, in which I discussed Shore.
ham at all with anyone from the NRC Staff. That conversation took The Motion is a voluminous, based upon complex technical place on March 21, after the Executive Director for Operations and I re-beforepresentedio the couniy or t, turned from a congressional hearing. Mr. Dircks, Mr. Norman Haller I
(my Executive Assistant), and I were present. I recall Mr. Dircks Suffolk County further statec commenting, in essence, that the problem of delay at Shoreham was not within the Staft's power to correct, but was now a matter for the Com.
The LILCO Motion obviously i:
mission and the Boards to resolve. I recall no discussion of the merits of
' ini'i*l *PPh'*u " f0' 8 lo* Po**'
the issues in the proceeding in this very brief exchange.
(5) There is no validity to the suggestion that my March 20 memo.
There is no merit in Su randum concealed anything from my fellow Commissioners, or that it highly significant that the L1 presented misleading information of any kind. The memorandum report, 10 C.F.R. f 2.758 nor an' <
ed to the Commissioners that I had held a status and scheduling meeting proposing a legal theory for on March 16 with the " staff, OGC, OPE, and Tony Cotter" to discuss Elect to mention two crucial actual and potential delays at Shoreham, Limerick, and other plants.
Brenner Board or the partie:
8-The memorandum also stated that I had asked the Office of General p se were those two regulai Counsel to provide a paper to the Commission "soon" on a proposal for the LILCO proposal might expediting the Shoreham proceeding. In context, it was implicit that my request to OGC had been made at the March 16 meeting, and that our 26 geque,,,, i6, 37 "sufrolk County's Prehminary views e 38 /d. at i1.
I 33 Joint AITidavit or William J. Dircks and Guy H. Cunningnam, lit, at 3.
j 1072 1
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3 1
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,A pi l
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i discussion included consideration of how scheduling changes might j-ry 25' reduce or avert actual and potential delays. Certainly I did not seek to D. *"8 conceal the substance of the meeting from my colleagues.
Suffolk/New York's claim that my memorandum of March 20 to the other Commissioners failed to report "that the ' delay' estimate for Shoreham was based on LILCO's estimate, not the NRC's, and that the i of th Staff disagreed with LILCO's estimate," is without merit. First, the st tus, other Commissioners already knew that the 9 month delay estimate
, ght be came from LILCO, since the estimate appeared in a March 9 memoran-dum, addressed to all Commissioners, in which the EDO stated explicit-ly: "Therefore, based on the appl / cant's estimate, there will be a nine-
"3 month licensing delay." (Emphasis added.) Likewise, the Staff's April s
. hat the 24 memorandum (discussed in note 34, above) was also addressed to all g that Commissioners. Thus the suggestion that in my March 20 memorandum i
ver the I withheld relevant information from my fellow Commissioners is with.
out foundation, since I knew that they were receiving the same Staff g
memoranda I was receiving.
. t of the (6) It is hard to square Suffolk/New York's claim that the LILCO motion made " essentially the same arguments for a low power license that the Brenner Board had previously rejected"S with Suffolk's March ial staff 26,1984 filing before the Licensing Board, in which it stated:
. nly one
.. Shore-The Motion is a voluminous, new proposal for low power operation of Shoreham,
)n took based upon complex te:hnical factual information and novellegal arguments never nd I re-before presented to the County or this Board. (Emphasis added.)3' 1 Haller
! Dircks Suffolk County further stated:
' was not
! te Com.
The LILCO Motion obviously is an entirely new and radical change from LILCO's inmal appucan n for a low power ucense?
l l nerits of There is no nurit in Suffolk/New York's apparent belief that it is I memo-highly significant that the LILCO motion sought neither a waiver under
$.r that it 10 C.F.R. f 2.758 nor an exemption under 10 C.F.R. f 50.12(a), in
, S n report-proposing a legal theory for low-power operation. Suffolk/New York ne-meeting glect to mention two crucial points. First, it was never assumed by the
) discuss Brenner Board or the parties that the only pathways LILCO might pro-r plants.
p se were those two regulatioris. Suffolk County itself recognized that General the LILCO proposal might take any of various forms. Once again, the i
posal for
. that my that our a nequestaii6.
37 "sufrolk County's Preliminary views on scheduhns Regarditis LILCo's New Monon at 2.
30 id. at li.
1073 i.,
A, 3
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l 6
~
days after his proof of this is to be found in the words of Suffolk's own counsel, who that schedulin at the February 22 Conference of the Parties said:
ment itself. Oc From the County's point of view we can, of course, object to any motion they wish tions," Judge to Glc for a waiver of regulations, or a change in the FSAR, or waiver of specifica.
Licensing Bo_a lions, or a motion to proceed to obtain a low power license on the grounds, as I un-hearings or r derstand the argument, that diesels which have not been proven to be reliable can May.,, y 4
nevertheless be used in a low power license because the demands and requirements (c) Again, Judge '
for public safety may be less.
criticisms of t his statement Tr. 21,517. Judge Brenner's statements in the same Conference of the of General Co Parties, cited above under 11.B.1, also indicate that the Board had not after, Judge:
decided what procedural form LILCO's motion would be required to considering Il take.
LILCO motio Suffolk/New York also fail to mention that the particular legal theory Shoreham an-advanced by LILCO was rejected by me and all other Commissioners when we addressed its merits in our Order of May 16,1984 (CLI 84-8, board was esta (9) Contrary to th 19 NRC 1154).
i (7) The charge that my legal assistant incorrectly purported to by the NRC Staff in re i
speak for the Commission as a whole, in talking with Judge Cotter, is
" abrupt and complete not a reversal at all. %
baseless. When he read the draft " working paper" to Judge Cotter on dicated under (1), abos i
March 22, he was not purporting to represent the views of the Commis.
22 that.it' would respc j
sion, but rather was seeking to obtain Judge Cotter's reaction to a possi.
ble approach that I might propose for Commission consideration. Judge motion was, filed, and t i
Cotter's public statement of August 1,1984, confirms that he was under operation with no dies Staffs position is a ma-no misapprehension on this point."
(8) With regard to Suffolk/New York's assertions regarding Judge February 22, Mr. Dyn i
Cotter's draft order of March 23, the following comments are in order:
Staff's position:
(a) Judge Cotter's draft order was drafted by him on his own initia-we d n iknow reases tive, not mine, and he has discussed it in his response to the request for his disqualification There is, therefore, no need for
[3,,,
,he y
me to discuss it in any detail here. I would add, however, that I they make their proposal
{
(,
did not read Judge Cotter's order as prejudging the factual LILCO comes up with ani look at it and we wili be ir issues (i.e., the safety of the plant if operated as proposed by LILCO) or the legal issue of wheth a ratisfactory resolution of (Emphasis added.) Tr.
the factual issues would permit a low power license for Shore.
"You sound a lot like t i
i ham.
l (b) The Suffolk County /New York State request suggests that i
i I
Judge Cotter could not have learned of the potential scheduling
~
2 conflict between the Shoreham and Limerick Boards until 4
.;,,,,c,,,,,,,,,,,,,,,,,,
I scheduling condict since arour Brenner, who was Chairman or t,
dl Judge Couer's statement indi March 28,1984.
N statement or B. Paul Couer, Jr., at 6.
t 1074 4
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days after his March 23 draft order; in fact, his awareness of that scheduling conRict appears plainly In the March 23 docu-ment itself. On page 8, under the heading "Some Considera-tions," Judge Cotter stated that the Shoreham and Limerick Licensing Boards were among seven Boards " committed to f
hearings or partial or initial decision writing in April and M ay." '*
(c) Again, Judge Cotter is in a better position than I to respond to criticisms of the March 23 draft order, and he has done so in he his statement of August 1. I sent the draft order to the OfRce
- ot of General Counsel for its evaluation on March 27.Soon there-to after, Judge Cotter advised my ofRce and OGC that he was considering the appointment of a new board to act on the cry LILCO motion, in view of the scheduling conflict between the Shoreham and Limerick Boards, and on March 30, a new J
ers
- .5, board was established.
(9) Contrary to the Suffolk/New York assertion, the position taken to by the NRC Staff in response to the LILCO motion was not only not an
,,is
" abrupt and complete reversal" o,f the.Staft's previous position, it was not a reversal at all. What is more, Suffolk counsel knows this. As in-q on
' nis-dicated under (1), above, the Staff told the Licensing Board on February I issi-22 that it would respond to any specinc LILCO motion when such a
!idge motion was Gled, and that it did not rule out the possibility oflow power 1 der operation with no diesels available. Suffolk counsel's awareness of the Staffs position is a matter of record, in the Conference of the Parties on
..idge February 22, Mr. Dynner, counsel for Sudolk County, referred to the j
Staff's position:
'.r:
q titia-We do not know of cases where diesels have been waived or as Mr. Reis (NRC Staff counsell has said, where diesels may not even be reqwred at AIL Maybe there are such d for cases out there and maybe LILCO will cite them when they make their proposal. ir
.hatI they make their proposal... I think our responses will have to wait and see what sclual LlLCO comes up with and if they come up with something, we will have our experts l2dby look at it and we will be in a position to respond.
on of I
(Emphasis added.) Tr. 21,549 50. To this Judge Brenner commented:
- hore, i
"You sound a lot like the staff on that answer." Tr. 21,550.
3 that luling
^
2 WJudge Couer, in his August i statement. states that he had been monitoring the shoreham Limerick scheduling conflict since around September 1983, and had been checking periodwally with Judge I
Brenner, who was Chairman or both boards.
'l judge Cotter's statement indsates that he advised my legal assistant or his intention in this regard on b
i March 28.1984.
f5 ag 1075 g@
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(10) With regard to Suffolk/New York's assertions regarding Judge for emergency relief. Ir Cotter's Order of March 30 (which established a new Licensing Board, shown a prejudice in favc empowered to act on LILCO's motion), the following comments are ap-In the present case, c propriate. Judge Cotter has explained in his August I statement that he scheduling of any procet believed that a failure to act by him would mean the defacto denial by much, for they note in, the agency of the request for expeditious treatment.42 It does not appear April 4 was "whether the to me that Judge Cotter's order, which aimed at making it possible for (12) Contrary to Suf the NRC to act on the motion expeditiously, in any sense prejudged 6 Decision was not the i whether the motion should be granted on its merits. Moreover, as noted by me at the March 16 above, Suffolk County had stated at the February 22 Conference of the the March 16 meeting i n
Parties its expectation that the LILCO motion would entail a separate ing should be handled w judging the issues in co proceeding. Tr. 21,518.
The decision to appoint the new board was Judge Cotter's. The idea ther expression of my was not developed at my request, but it was certainly consistent with my nothing.
view that the Shoreham proceeding should be handled with efficiency I had occasion to. add and expedition. My of0cc was informed by Judge Cotter of his intent to ham proceeding in resp-Edward Markey of the S '
t-appoint a new Board, and I see nothing inappropriate about his so in-the Committee on Inter forming me.
Enally, I recall no one at any time suggesting that the substance of Markey asserted that r merits of the Shoreham Judge Brenner's decisions' was or should be a reason for creating a new 7
Board. Also, the Executive Legal Director recalls pointing out at the tions for expediting the 1
tive" tha't I recuse mys March 16 meeting that the Shoreham licensing proceeding and another 3'
active case were both assigned to the same Board Chairman (Judge 5,Isaid:
i Brenner).43 I have not prei.rdged the (11) The fact that the " Notice of Oral Arguments" was issued the respect, n r d es my Mai sarae day that the Miller Board was established does not support, as Suf.
i folk County and New York State imply, an inference of improper in-n si jon ions \\
h er fluence or of prejudgment in favor of an expedited proceeding. As I read low power decis'on might i
the Miller Board's Order of March 30, 1984, it was not, as Suffolk problem should be resolve 1
the emergency plannins County and New York State claim, a decision to " expedite the proceed.
s tved: the issue could t ing," but rather a decision to receive niings and hear oral argument on issues raised by the motion. Indeed, the title of the order is " Notice of The Administrative Proce 1-Oral Arguments."
be conducted both with t Where a motion requests that a proceeding be expedited, it is no more improper for a board to schedule a prompt oral argument on that
[(',h[,* ababie tim j-u d.
l-motion than it is for a court to schedule prompt argument on a request as chairman, suggest me with both these s atutory randum attempts to do.
an expression or 43 Judge Cotters statement indicates that he based this judgment on two factors; 44 Request at 27.
I doubt by Mr. Reamer or my otTice that the Commissioners could take acnon on the LILCO monon 45 This letter was one or several sooner than April $ of Apnl 12. and verirication by the Brenner Board that its scheduling commitments to the shoreham proceeding. St made it unable to consider the monon. statement of B, Paul Couer. Jr., at 8.
1984.
~
- 4) Dircks & Cunningham Afridavit at i 1076
/
t
[
N 9
i i
i l
i
Judse
. for emergency re e.li f In neither case has the decisionmaker thereby
- Board, shown a prejudice in favor of the motion itself, In the present case, one of the issues raised by the motion was the are ap-
- that he scheduling of any proceeding. Indeed, the County and State concede as q nial by much, for they note in their request that one of the issues argued on April 4 was "whether there was a basis to expedite the proceeding."44 appear ible for (12) Contrary to Suffolk/New York's claim, the Miller Board's April 2 judged 6 Decision was not the product of any " chain of impropriety" instigated s noted by me at the March 16 meeting or elsewhere. It is certainly true that at 2 of the the March 16 meeting i expressed the view that the Shoreham proceed.
,cparate ing should be handled with efficiency and expedition, but I was not pre-judging the issues in controversy. My office's working paper was a fur.
'he idea ther expression of my interest in expt;dition, but again it prejudged
.sith my nothing.
liciency I had occasion to address the question of prejudgment of the Shore-nient to ham proceeding in response to a March 28,1984 letter from Chairman Edward Markey of the Subcommittee on Oversight and Investigations of ts so in-l the Committee on Interior and Insular Affairs. In that letter, Chairman
' tance of Markey asserted that my March 20 memorandum had prejudged the iis a new merits of the Shoreham proceeding, and urged me to retract my sugges.
! it at the tions for expediting the proceeding; otherwise, he said, it was "impera-another live" that I recuse myself from it altogether.45 In my reply, dated April i
i (Judge 5, I said:
I have not prejudged the merits of the Shoreham licensing proceeding in any
. sued the respect, nor does my March 2o,1984 memorandum contain any suggestion that i
. ' g g g, have prejudged it, in reality or in appearance. My recommendation that the Com-roper in-mission consider options for an expedited hearing on the diesel problem, so that a As I read low power decision might be possible, implies no judgcnent how the diesel generator s Suffolk problem should be resolved. Moreover, to assume that there will be a resolution of the emergency planning issue says nothing about how that issue might be re-proceed.
solved: the issue could be resolved either in granting or denying the Shoreham li-g g
cense.
~ Notice of q
The Administrative Procedure Act ( APA) requires that agency licensing proceedings j
be conducted both with due regard for the rights of all the parties and completed.
, it ts no "within a reasonable time." Since the Comrdission has supervisory responsibility
- it on that over all of its adjudications, it is entirely i.- keeping with the spirit or the APA that 1, a request as Chairman, suggest measures designed to assure that the Commission complies with both these statutory requirements. That is all that my March 20.1984 memo-I randum attempts to do.
4,pfession or
" Request at 27.
.lLCo monon 45 This letter was one or several in which Chairman Markey took exception to particular actions related commitments to the Shoreham proceeding. See aho Chairman Markey's letters or Apnl 12. Apnl 24. and May 10.
1984.
1077
_;4 m
hj p,,
M' r
h t
1
- w unwarranted and unfound.
Finally, it must be pointed out that for Suffolk County and the State dividuals - licensing bo of New York, the history described in their request ends on April 6 1984. This is perhaps understandable, for when the April 6 Order came
' NRC personnel - whom before me on the merits, on May 16, 1984, I voted to reject its legal tegrity. This I will not do conndence in the intesti -
holding.
men and women who m:
In sum, the theory advanced by the Suffolk County /New York State and safety in the Geld of n disqualiGcation request does not hold water. The individual elements of For the reasons stated the supposed " chain of impropriety" turn out on examination to be Dawed by misstatements, errors, and omissions. Joining them into a proceeding.
,j
" chain" only compounds and magnifies the distortions of fact and
'j interpretation. I do not believe that I committed any impropriety, nor do j
4 1 believe that a reasonable observer, once acquainted with the actual facts, which are a matter of record, would question my impartiality in in the preceding secti(
this proceeding. Accordingly, i Gnd that the legal standards for recusal reasons for determining from Commission proceedings, which follow the statutory standards, York State request do no have not been met.
Shoreham proceeding. A That is not to say that an observer who did not know the facts, and the disposition of this re i
l who was not aware of the circumstances, might not be swayed by the quest was timely, I do mass of allegations in the disqualification request, if that observer were deserves public airing. I to accept those allegations at face value. But the standard for disqualifica.
York request regrettably tion is not how artfully a motion can distort the public record; rather' problems which Congr t
the standard relates to reality, and to the perception of reality by an through the r'equirement informed, disimerested, reasonable observer.
The recusal reque'st i i recognize that the argument may be made that merely by filing the.ir counsel for Suffo'lk CCa request, Suffolk County and the State of New York have created sufn-sented as a formal filing '
cient uncertainty that public concerns for the integrity of the process served on all the parties might suggest my voluntarily recusing myself. I reject that approach.
Commission deliberatio First, I believe any such uncertainty is removed when one examines the the circumstances, I tho actual record. Moreover, the public has an,nterest,in knowing that the question of my recusal t
decisionrnakers who make. crucial health and safety decisions are persons sideration of Shoreham-of integrity, and that they appreciate the importance of the duties they The Suffolk Countyr owe to the public. Under these circumstances, to recuse myself could
. Suffolk County Executi appear to give credence not only to the charges against me, but also to 1984, to protest what he ham licensing proceedi !
ery of due process." 1 "
since in Virtually every 46 The sundard apphcable in the rederal courts, and applied by the NRC as weli. is that a judge shall dis.
G l
io qualiry himselt in any proceeding in which "his imparuality may reasonably be questioned? 28 U.s C.
or d. Qual.ficat. n - !!
s 455(a). The courts have made clear that this is an objecuve standard. one court has said that a judge r
raced with a disquahricanon request should consider "how his participation in a given case looits to the
.. disquah0 cation should ol ow i the reaso an ble man, were he to linow rl r average perscn on the street; all the circumstartces, would harbor doubts about the judge's imperuality? hrarkmrt r. /bri Cay Con <
47 See my Memorandum to the strueren Co. 609 F.2d 1101 (5th Cir.). cerr. demed. 449 U.S. 820 (1980). See aho Ha# v. Sma# Busmess request and the issuance or tha' l
Admmestronon. 695 F.2d 175 (1983); Houston Leg 4rms and ebwer Co. (south Texas Project. Urnis I and related matter to come berore
- 21. Ct.i 82 9.15 NRC 1363.1365 67 (1982); CuidereIkr Career and rimshmg Schools v. FTC. 425 F.2d statement).
$83 (D C. Cir.1970).
I 3j 1078 l
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M ag,re /
m y
- c..
a j
?
i f
e
a unwarranted and unfounded accusations directed at a large number ofin-dividuals - licensing boar,d judges, NRC Stati mernbers, and other alc 6.
NRC personnel - whom I consider to be persons of dedication and in-tegrity. This I will not do. In my view, the public has every reason for me
- Wal conDdence in the integrity and devotion to duty under the law of the men and women who make the decisions affecting the public's health h.
tale and safety in the Geld of nuclear energy.
For the reasons stated above, I decline to recuse myself from this k'
s of be lo a proceeding.
-and
'd Ill. TIMELINESS
- tual In the preceding section of this memorandum, I have' explained *my Y
reasons for determining that the allegations in the Suffolk County /New
'"8
- uds, York State request do not, on their merits, warrant my recusal from the Shoreham proceeding, Although it is therefore not strictly necessary for the disposition of this request that I go on to consider whether the re-and quest was timely, I do so because I strongly believe that the issue the deserves public airing. For in my view, the timing of the Suffolk/New York request regrettably presents all too vivid an example of the type of
, Lther, roblems which Congress and the courts have sought to prevent l 'Y ""
through the requirement that recusal requests be timely filed.
The recusal request before me was submitted on June 5,1984, by counsel for Suffolk County and the Governor of New York. It was pre-the.ir
' 5" sented as ? formal Gling in the Shoreham adjudication, and as such, was served on a;' the partie.s. Once it was filed, I withdrew temporarily from OC'85 oach.
Commission odiberations and decisions concerning Shoreham. Under
- s the the circumstanc'.s, I thought it appropriate that I address and resolve the at the i
question of my recusal before participating in further Commission con-sideration of Shoreham related matters.47 "5 "8 i
sthey
{
The Suffolk County /New York State request came 55 days after the
, could i
Suffolk County Executive, Peter F. Cohalan, wrote to me on April 11.
s l
1984, to protest what he termed my "personalintervention in the Shore-
, dso to i
ham licensing proceeding," which in his view had resulted in a " mock-ery of due process." It is worth examining that letter in some detail, i
since in virtually every particular - save only the request for my recusal
. hall d
- Njah or disqualiGeation - it prefigures the formal recusal request which came h to the
- io snow
{
j' E
See my Memorandum to the Parties, June 19. 1984. In the interval between the filing or the recusal 4
Gn c#
47 1 Suswss j
request and the issuance or that Memorandum. I abstained rrom participalms in the only shoreham-J i
related r1atter to come berare the Commission. See unpubkshed order or June 8.1984 (separate 1as I and 425 F.2d i.
statementf.
i T#'.
1079 85 hb, g
4
't
(
l L
l
^-
= y
_7 -
I pummmmmmmmmmme ;
i
", 4; the IJnited States District C 55 days later. Mr. Cohalan's letter cited, among other things:
my me, as well as Judges M March 20 memorandum to the Commissioners on licensing delays', my Shoreham proceeding." I i March 16 meeting with NRC Staff members, Judge Cotter, and others; 1984, they made essentiall l Judge Cotter's Order of March 30, establishing a new Licensing Board lan's letter of April 11. L '
under Judge Miller; the April 6 Order of the Miller Board; the alleged though the Commission's change of position on l' e diesel issue by the NRC Staff; my meeting disqualification motions (a
~
h
- y with the LILCO Board Chairman; and my purported intent to " aid the State of New York hai t
LILCO's efforts to gain access to Wall Street money markets."
procedure.S Mr. Cohalan characterized my actions in the following terms:
Despite having the corr E
Mr. Chairman, the inevitable inference to be drawn frorn these events is that your this NRC filing, counsel f meeting with LILCO's Board Chairrnan, your expression of interest to " expedite" continued to stay their ha
.i the Shoreham proceeding when meeting with Mr. Cotter and the NRC Starf on of Suffolk County, Frank a
March 16 and your March 20 memorandum proposing " expedited" treattrient of April 27, renewing the Ap >
e I
LILCO's low power license request signalled the Licensing Board ludges and the 1
qualification (or alternatit Ii Staff to shift gears, they were now to rush forward and issue a low power license for Shorchem, despite the effect this would have on the concerns for safety expressed Bright, Johnson, and C( !
I j-by Suffolk County and New York State. The Licensing Board and Staff, in turn' O.
promptness on the Con' took your signal as a rnarching order. And without any justification, they "expedit-i stated,. oAs a follow up ed" the Shoreham proceeding so faithfully that the Board is now poised to issue a prompt Commission actio 7
low power license for Shoreham, to serve on the named im
~
added).
Mr. Cohalan's letter, which was not served by him on the parties to it thus appears that cout
'=
the Shoreham proceeding,'8 did not request my recusal or disqualifica.
- a delay for which no e tion; rather, it requested that I,and my fellow Commissioners take action to disestablish the Miller Licensing Board, and to direct the Staff j
than mere dawdling. It se tions of Suffolk County c and the Licensing Board that the Shoreham proceeding should not be ex.
filings by counsel were re g
pedited except under specified circumstances.
of Mr. Jones' letter was t I do not find any substantial difference between the allegations in the almost 8 weeks passed June 5 recusal request and those in Mr. Cohalan's letter, sent 55 days Bright, Johnson, and Cott earlier. To be sure, the June 5 request includes references to a few It is well estab'lished in '
documents, notably Judge Cotter's notes, which were not in the posses.
}
f tion motions that such r sion of Suffolk County and New York State in early April. But even if i
after the moving party o i
one were to accept the Suffolk County /New York State interpretation of basis for disqualification.
those documents (which interpretation I reject), they. would serve Cir.1976), cert. denied,4.
merely to support the same allegations, about the same events, which Aledical Center, 503 F.2d :
Mr. Cohalan had made in his April 1i letter.
There can be no doubt that the attorneys for Suffolk County and New i
York State had obtained by April all the information they needed to form the basis of a disqualification motion, since on April 23, they asked
" Cuomo r. NRC. Civil Aggion N 1984, hinged on scheduling matters.
80 Memorandum in support or Def
- n. l.
3 6 Copies or this letter, unlike the.
48 In accordance with procedures for handling ex parte communications, the leuer was placed in the the proceeding.
shoreham docket nie and served on the perties by the NRC's Docketing and service Branch.
?
1080
,4 s
cr;; a 5
f
the United States District Court for the District of Columbia to disqualify l
me, as well as Judges Miller, Bright, Johnson, and Cotter, from the i
Shoreham proceeding." In their amended complaint, Gled April 26, 1984, they made essentially the same allegations contained in Mr. Coha-j
'J lan's letter of Aptil 11. In its response, the NRC pointed out that al-though the Commission's regulations explicitly provide for the Gling of g
disquatincation motions (at 10 C.F.R. 5 2.704(c)), Suffolk County and d
the State of New York had not even attempted to invoke the prescribed procedure.50 Despite having the correct procedural course pointed out to them by this NRC Gling, counspl for Suffolk County and the State of New York continued to stay their hand. Meanwhile, th9 Deputy County Executive of Suffolk County, Frank R. Jones, wrote to the Commissioners on April 27, renewing the April 11 request and adding a request for the dis-qualincation (or alternatively, the voluntary recusal) of Judges Miller, Bright, Johnson, and Cotter, and of me.55 The letter, which urged promptness on the Commission "in the strongest possible terms,"
stated: "As a follow-up to this request, on which the County urges prompt Commission action, the County's counsel have been instructed to serve on the named individuals additionalformal papers" (Emphasis added).
to It thus appears that counsel's delay in Gling the disqaalineation request
. Ja.
a delay for which no explanation has even been offered - was more ike than mere dawdling. It seems also to have been contrary to the instruc.
arr tions of Suffolk County officials, who recognized that addition.al formal x.
filings by counsel were required. Not until almost 6 weeks after the date of Mr. Jones' letter was the formal requst for my disqualiGcation filed; the almost 8 weeks passed before the disqualification of Judges Miller, i
ays rew Bright, Johnson, and Cotter was requested.
It is well established in the case law on the timeliness of disqualinca-ies.
tion motions that such requests must be filed at the earliest moment nif after the moving party obtains knowledge of the facts demonstrating a 3 or basis for disqualification. United States v. Patrick, 542 F.2d 381,390 (7th
- rve Cir.1976), cert, denied,430 U.S. 931 (1977); Duf]7 eld v. Charleston Area tich Medical Center,503 F.2d 512,51516 (4th Cir.1974).
.New J to sked
" Cuomo v. NAC. Civil Action No. 84 1264. The court's temporary restraining order, issued Apnl 23.
~
4 1984, hinged on scheduling matters. and did not address the dtsqualification request.
$0 Memorandum in support or Derendants' Mouon to oismiss the Complaint (Apnl 27, l984), at 15 4
n l.
SI CopteS or this letter, unhke the Apnl ll letter, were sent by sufrolk County to the other parties to in the the proceeding.
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The tardiness of Suffolk County in assessing whether a disqualineation request is timely, reviewing their disqualiGcation motion might courts look not only at the period of time which elapsed between the re.
had been in an inactive phase dun ceipt of the underlying inform $ttion and the filing of the request; they lan's letter of April 11 to the June j also consider what if anything was going on during that period in the the case. On the contrary, during.
trial or administrative proceeding at issue. Where trial has not begun, or of intense activity before the Cc i
is in abeyance, a lengthy delay in filing may do little or no practical Commission met thirteen time j
harm, but where a proceeding is actively under way, with issues actually No other single topic was the sut l being decided by the decisionmaker whose participation is challenged, period.
i even a short delay may be destructive.
Those meetings included:
art Courts are most disposed to Gnd a disqualineation motion untimely hours, of whether the Licensing when it appears that the moving party obtained the information forming'procedural issues in the low powe the basis for its motion but then held back while it speculated on wheth-
. that time by the Commissioners; er the decisionmaker was likely to decide the case in its favor. This is es.
a proposed Commission order in pecially true where the moving party has Gled motions with the court or afGrm such an order; oral argurr agency that gave it the opportunity to "sampl(el the temper of the court involving both substantive and before deciding whether or not to file" a claim of bias.52 Peckham v. Ron-sions on May 9 and 10 of the 1:
rIco Corp., 288 F.2d 841,843 (1st Cir.1961). As the U.S. Court of Ap-May 7 argument; two meetings peals for the Third Circuit wrote in Sm(th v. Danyo,585 F.2d 83 (1978):review a draft Commission orc i
meeting to affirm.the order, s The judicial process can hardly tolerate the practice of a litigant with knowledge of ssues certiGed to the C circumstances suggesting possible bias or prejudice holding back, while calling upon
- 33; t for hopefully favorable rulings, and then seeking recusal when they are All of those thirteen meeting the co eration of views and proposals l
State of New York. The most s 585 F.2d at 86.
In such situations, requiring timeliness is not mere procedural nit.
before the Commission on M picking. On the contrary, it is a matter of preserving the integrity of thestantive legal iss adjudication. Without watchfulness on the part of courts and agencies, LILCO's proposal to operate,
cynical litigants could use disquatincation motions to manipulate the out.
cedural issues (notably the sch j come of the judicial or administrative process. As one court has put it:
disqualification motion) were a One might imagine that Su
!! may be said, of course, that it is inconsistent with the interests of justice in most would have been reluctant t cases to reject any motion purely on the basis of p*ocedural technicalities. But out argued before, and adjudicate' courts have long recognized that in this sensitive area of claimed partiality on the ered to be biased against therr part of a Judge, strict construction of the statutory provisions is essential to prevent g,3 p abuse and to insure the orderly functioning of the judicial system, submission, dated May 4,19 j
Bumpus v. Untroyal Tire Co.,385 F. Supp. 711,713 (1974).
'l York did not even mention that Gling did state Suffolk.
i and Johnson should tse repla 52 Courts also scruumte carefully any claim by a movins party that the mouon's untimehness should be l
-JJ The order setung torth the issues tot excused because evtdence rorming the basis or the monon developed cumulatively. In s"ch cases, courts will be parucularly strict in as.iuring that the motion was Oled at the earliest possible moment arter the necessary informution was otKained. Duplas CorA v. Decruit Mdliksn. rac 400 F. supp. 497.
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- reviewina The tardiness of.Suffolk County and the State of New York in Gling
- n the re-their disqualincation motion might be more excusable if the proceeding test; they had been in an inactive phase during the SS day period from Mr. Coha.
! od in the lan's letter of April 11 to the June 5 date of the motion. This was hardly ibegun,or the case. On the contrary, during that period Shoreham was the subject i i practical of intense activity before the Commission. Between those dates, the
- s actually Commission met thirteen times to discuss the Shoreham proceeding.
No other single topic was the subject of so many meetings during that
.1allenged, period.
untimely
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Those meetings included: an April 23 discussion, lasting almost 3 n forming hours. of whether the Licensing Board's disposition of substantive and on wheth*
procedural issues in the low power proceeding warranted involvement at
, This is es*
that time by the Commissioners; discussions on April 26 and April 27 of ie court or a proposed Commission order in the proceeding; an April 30 meeting to f the court afGrm such an order; oral argument before the Commission on May 7,
! am v. Ron*
involving both substantive and procedural issues; Commission discus-
' 'urt of Ap-sions on May 9 and 10 of the issues which had been in dispute at the
. L(1978):
May 7 argument; two meetings on May 10 and a third on May 16 to review a draft Commission order addressing those issues; a May 16 j
, '* M ee r meeting to afGrm the order; a discussion on May 22 of substantive
'[they$e issues certified to the Commission by the Appeal Board; and on May 31, a
a meeting to afGrm a Commission order on those certified questions.
j All of those thirteen meetings involved, directly or indirectly, consid-8 eration of views and proposals submitted by Suffolk County and the
- edural nit.
State of New York. The most striking example is the oral argument held i grity of the before the Commission on May 7,1984.H At oral argument, the sub.
,d agencies, stantive legal issue of the applicability of the General Design Criteria to ate the out.
LILCO's proposal to operate Shoreham at low power was central; pro-as put it:
cedural issues (notably the scheduling issue, which is at the heart of the disquatincation motion) were also addressed by the parties.
One might imagine that Suffolk County and the State of New ' York j ice in most i es. But our would have been reluctant to have these crucMiy important issues
- ality on the argued before, and adjudicated by, a decisionmaker whom they consid-I'""'
ered to be biased against them. Yet the formal objection to my participa-tion remained in counsel's hip pocket. In their 42 page pre argument submission, dated May 4,1984, Suffolk County and the State of New York did not even mention the issue of my disqualincation, although that Gling did state Suffolk County's view that Judges Miller, ' Bright, and Johnson should be replaced in the event that further hearings were i
ienness shound b.
- y. In such cases, possible moment 400 F. supp. 497 H The order setting tortn the issues (or decuion and scheduling the oral argument was issued on Aprd 30,1984.
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1 ordered. At oral argument, counsel for Suffolk County and the State said not a word on the subject of my disqualification or reeasal. Nor did the County or the State mention the issue in their joint supplemental For the reasons set for niing, submitted on May 10,1984. Only after the Commission issued its is DENIED.
- .j decision," by a 3 2 vote in which I formed'part of the majority on the question of whether to disestablish the Miller Board, did the County and
-I )
i the State see fit to revive the issue, and at last bring their accusations of impropriety into the adjudicatory proceeding e
With the proceeding in so active a phase, and with Commissioners
.l meeting so frequently on issues in dispute, it was especially essential for Dated at Washington, D the County and the State to file their disqualification request expedi-this 21st day of Septemb ttously. As I mentioned earlier, when the formal request for my disquah,-
fication or recusal finally arrived, I withdrew from consideration of adju-dicatory matters related to Shoreham pending my decision on the re-quest. If, as early as April, Suffolk County and the State of New York sincerely believed my conduct to have been so improper as to destroy the procedural integrity of this proceeding, then it is beyond my compre-hension that for almost 2 months, they should have permitted me to par-
- l ticipate in meeting after meeting, deliberation after deliberation, and de-cision after decision, when at any time they could have brought the dis-qualification issue to a head through a single filing.
3 j
Under these circumstances, I find the Suffolk County /New York State request to be untimely, and seriously so. To do otherwise would be a dis-service to the Commission and its processes, since it would serve notice l
on litigants that the Commission's processes may be abused with impu-nity. I feel a strong institutional concern - as opposed to accusations against me personally, which "go with the territory" - to assure that un-timely disqualification motions do not become a device for manipulating the NRC's adjudicatory process.
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.it e IV. CONCLUSION jid tal For the reasons set forth in this memorandum, the request for recusal its is DENIED.
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' of NUNZIO J. PALLADINO Chairman ns for Dated at Washington, D.C.,
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this 21st day of September 1984.
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Q OtSTMICT OFFICE September 11, 1984 n.
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1 Nunzio J.
Pallidino, Chairman Nuclear Regulatory Commission 1717 E Street NW Washington, D.C. 20555
Dear Commissioner Pallidino,
As the matter of a Iow-power license'for the Shoreham NucIsar
~
Power Station will be before you shortly, I hope you will give careful consideratic'n to the implications of your decision.
If a low-power license for the Shoreham Facility I
is granted under, present conditions, you will have set a dangerous precedent with reference to safety of.the public.
1 l
t As I am sure *you are well aware, the Shoreham Plant does j
not have emergency diesel g'anerators which have been approved by the Nuclear Regulatory Comrission.
Allowing LILCO to l
load fuel and begin operations for low-power testing is l
tantamount to sanctioning the
- safety, construction and j
emergeney facilities of the. plant.
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1 I would ask that at a minimum you wquid deJet decision I
upon low-power testing until all safety criteria 'have been met by the utility..
Waiving the rules will do a great
' disservice to' the. residents of Long Island.- 'In addition, questions concerning. the ' emergency evacuation plan have not yet been answered.
There is still censiderable question as to whether such
- a. plan will e"er be adopted for the Shoreham Plant.
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I feel strongly that all the outstanding issues should be resolved before LILCO is permitted low-powei-licens'e.
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I feel that.it is absolutely absurd to allow the utility
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Nunzio J.
Pallidino, Chairman September 11, 1984 l
1 to load the plant with nuclear fuel before a resolution of the remaining issues.
I ask you to act in the public interest and deny LILCO's request for a low-power license for the Shoreham Facility.
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LONG ISLAND LIGHTING COMPANT
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Docket No. (s) 50-322 OL4 m
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(Shoreham Unit 1)
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CERTIFICATE OF SERVICE 2l I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by
=l the office of the Secretary of the Commission in this proceeding in
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accordance with the requirements of Section 2.712 of 10 CFR Part 2 -
Rules of Practice, of the Nuclear Regulatory Commission's Rules and
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Regulations.
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- Dated at Washington, D.C. this r.--
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Offf'ce 6f the Secretary of'the Commission
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of' LONG ISLAND LIGHTING COMPANY
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DocketNo.(s) 50-3220L-4
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5 1 (Shoreham, Unit 1)
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(LowPower) lj
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SERVICE LIST
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1 Marshall E. Miller, Esq., Chairman W. Taylor Reveley, III, Esq.
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Atomic Safety and Licensing Board Hunton and Williams
"}I U.S. Nuclear Regulatory Comission P.O. Box 1535
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a Washington, D.C.
20555 Richmond, Virginia 23212 7
Mr. Glenn 0. Bright Edward M. Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company i
U.S. Nuclear Regulatory Comission 250 Old Country Road Washington, D.C.
20555 Mineola, New York: 11501
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s Ms. Elizabeth B. Johnson Long Island Lighting Company Oak Ridge National Laboratory ATTN: Andrew W. Wofford P.O. Box X, Building 3600 Vice President j
Oak Ridge, Tennessee 37830 175 East Old Ccuntry Road 7l Hicksville, New York 11801 Alan S. Rosenthal, Esq., Chairman i
1 1.
Atomic Safety and Licensing Appeal' Board Herbert H. Brown Esq..
i U.S. Nuclear Regulatory Comission Lawrence Coe Lanpher, Esq..
t Washington, D.C.
20555 Kirkpatrick, Lockhart, Hill, j
i Christopher & Phillips a
Gary J. Edles 1900 N Street, N.W.,' 8th Floor Atomic Safety and Licensing Appeal Board Washington, D.C.
20036 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Honorable Peter 'Cohalan-Suffolk County. Executive Howard A. Wilber County Executive / Legislative Building Atomic Safety and Licensing Appeal Board Veteran's Memorial Highway U.S. Nuclear Regulatory Comission Hauppauge, New York 11788 4
Washington, D.C.
20555
~ Mr. Martin Suuberg Counsel for NRC Staff c/o Congressman William Carney 1!
Office of the Executive Legal Director 1113 Longworth House Office Building i
3 U.S. Nuclear Regulatory Commission Washington,'.D.C -20E15 Ii Washington, D.C.
20555 g-!
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Board and parties - continued 50-3220L-4 4
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T.S. Ellis, III, Esq.
f Donald P. Irwin,.Esq.
. Hunton and Williams l
P.O. Box 1535 s
Richmond, Virginia 23212 q'
- Mr. Brian McCaffrey i -
'I Long. Island Lighting Company
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175 East 01ad Country Road
'j Hicksville, New York 11801 g
i James Dougherty, Esq.
3045 Porter Street, N.W.
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Washington, D.C.
20008 f
1 i
Fabian Palomino, Esq.
Special Counsel to the Governor Executive Chamber, Room 229 J j.
5 tate Capitol Albany, New York 12224-
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j Martin Bradley Ashare, Esq.
1 Suffolk County Attorney H. Lee Dennison Buildiig
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Veterans Memorial Highway
.j Hauppauge. New York 11788 t
j Eleanor L. Frucci, Esq.
Atomic Safety and Licensing Board
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1 U.S. Nuclear Regulatory Comission
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Washington, D.C.
20555 3
Stephen B'. Latham, Esq.
l Twomey, Latham & Shea i.
P.O. Box 398 I
Riverhead, New York 11901 Robert Abrams,.Esq.
Attorney General New York Department of Law Two.World Trade Center, Room 46-14 New York, New York 10047 3
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c_... '14 The Honorable Nunzio J. Palladino U.S. Nuclear Regulatory Commission k d.h..
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i Chairman T
Nashington, D.C.
20555
Dear,
Chairman Palladino:
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i on May 16, 1984 the Commission issu'ed an order in the.
')
Shoreham proceedinf which has subscquently created some confusion j
within the NRC and 'the nuclear industry with respect-to the NRC's l
l') C.F.R.
$ 50.12 exemption process. -See Long Island Lighting.
Co. (5horeham Nuclear Poker Station, Unit'l), CLI-84-8,.19 NRC
( slip op'., Mey 16, 1904).
On behalf of Duke Power Company, Q Yee.pectfully submit our, commerits on the exemption pr6 cess light of the S_horeham decision and subsequent discussions,1, in 1;he NRC' 'Sta ff, ' a's reflected in SECY-84-290, "Need and Standdrd for Exemptions ~"' (July 17, 1984), initially interpreted CLI-84-8 to alter broadly the NRC's 5 50.12 exemption process.
In our opinion',,there 'i:s no reason the Staff's past exemption practice should bf altere!. by either the Shoreham. decision or through changes to t9e. exemption regulation.
The Staff in-the past has recognized the need for flexibility in the regulatory process.
This flexibility would not be possible if the Commission were to adopt a' rigid exemption approach such as is implied by Shoreham.
We recognize that the Commission has already voted to limit CL1'-b4-d to the Shoreham. facts.
However,.
as discussed below, it is not entirelyJfear,that the Staff has done this.
Moreover, we of fer our comments 'ir.- view of the Commission's announced intent to reevaluateLthe exemption regulation.
t 1.
Bjekgenund h
To justif" Sn exemption from GDC 17 for tiow power. operation p'
in Shoreham, the Commisgion stated that ' the upplicant should show-(1) the "ex!,. gent ci.rcumstances" that favor the granting of an exemption under_}'90.12(a), and (2) the he. sis for concluding that, at icw powe6 operation w',uld be "is ' safe" under the 0-1 8
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1/ Arkansas Power'and Light Company, Mississippi Power and-Light Company, and Wes Ycdk Power AuthN ity also: subscribe to these comments.
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' conditions proposed as it would be with. full compliance with the GDC.
Shoreham, CLI-84-8,.s11p.op. at 2-3.
This decision appeared to.both rai'se the threshold for the grant of 5 50.12 exemptions and ' to increase the. number. of situations in which requests are necessary.
In fact, the NRC Staff did so interpret Shoreham in a number of cases.
For example, prior to issuing a license for fuel load for Duke's Catawba plant,.the Staff required Duke either to demonstrate compliance'with each regulatory' requirement for a full power operating license or to request a specific exemption from such requirement.
At the request of the 'NRC Staff, a public Commission meeting n-
' was held on July 25, 1984 at which. the Staff sought clarificat. ion
. of'the exemption requirements in' view of the. Shoreham order.. See SECY-84-290. -This meeting was a positive. step toward eliminating the. unnecessary confusion caused by Shoreham.
By a four-to-one vote the Commission decided that the Staff.should limit CLI-84-8 to the facts of.that case'and continue to follow its.past practice with. respect.to exemption requests.
The effect of that c
direction to'the Staff is to return the standard for the grant of
~
an' exemption to "no undue risk" and'" good cause".-
Similarly, former Staf f practice of utilizing license conditions rather than explicit exemption requests.should be. reinstated.
It is not clear, however, that the Staff has in fact returned.to its prior practice in this latter regard.
In addition, the Commission at the July 25 meeting a' greed to undertake a long_ term evaluation of the entire exemption process and directed 'that the. Staff prepare a discussion paper within 30 days.
The Commission also requested a short staff response in 7 days to proposals by Commissioner Asselstine which in'effect would apply and amplify the. Shoreham tests for Lexemptions in all cases.
Because we consider this to be a significant issue, we urge consideration of our comments.
We have reviewed the Staff's 7-day response related to. commissioner As'selstine's. proposals dated August 2, 1984.
Our comments on the proposals and the Staff's August 2 response are included herein.
2.
The Standards to be Applied to Exemption Requests We begin by addressing the standards by which exemption requests will be evaluated, because it'is in this context that the Shoreham decision has the greatest implications.- In CLI-84-8 the Commission required that LILCO, in a request for an exemption from GDC 17 under } 50.12(a), address (as LILCO' proposed):
1.
The. " exigent circumstances" that favor the granting of an exemption under 10 C.F.R. 50.12(4) should it.be able to demonstrate that, in spite of its non-compliance with GDC--17, the health and safety of the a
public'would be protected.
[ Footnote omitted.]
4jf f
- 2.
Its basis for concluding that, at the power levels for which it seeks authorization to operate, operation would be as safe under the conditions proposed by it, as operation would have been with a fully qualified on-site A/C power source.
Shoreham, CLI-84-8, slip op. at 2-3.
As pointed out by the Staff in SECY-84-290, these standards exceed by a substantial margin prior requirements for exemption requests.
We, however, perceive no reason for an alteration of 'the prior Staf f standards.
The Commission was correct in its July 25th decision to limit-applicability of CLI-84-8 to Shoreham.
In considering the future of the exemption process, however, we wish to emphasize several points.
a.
Exigent Circumstances First, "exicent circumstances" should not be a necessary
~
component of the showing required for a $ 50.12(a) exemption.
Exigent circumstances have been and should be required only for $
50.12(b) exemptions related to construction activities which precede issuance of a construction permit.
Such an " exigency" test cannot by definition be met in many instances during the operating life of a plant where exemptions are sought on an interim schedular basis rather than a permanent technical basis.
A request from an applicant or a licensee for an interim.
(schedular) exemption can be premised only on economic or logistical arguments and the lack of safety significance of compliance with the regulation for the particular short term situation.
Exigent circumstances, as understood for -example in the context of the Shelly regulations, may not exist.
The Commission must recognize this, and its system must be able to distinguish between these matters.
Application of the Shoreham 4 50.12 " exigent circumstances" standard fails to do so.
The Commission, in shoreham, did allude to an aporopriate standard for 50.12(a) exemptions:
The Commission regards the use of the exemption authority under 10 C.F.R.
u50.12 as extraordinary.
This method of I
relief has previously been made available by the Commission only in the presence of
{
excepitonal circumstances.
See. United States Department of Energy, et al.
1
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(Clinch River Breeder Reactor Plant),
CLI-83-t, 17 NRC 1, 4-6 and cases cited therein (1983).
A finding of exceptional circumstances is a discretionary adminis-trative finding which governs the availa-
-+
bility of an exemption.
A reasvied exercise i
of such discretion should take into account
^^
the equities of each situation.
The l
. equities include the stage of the facility's life, any fine.ncial or economic hardships, any internal inconsistencies in the regulation, the applicant's good-faith
- j effort to comply with the regulation from i
which an exemption is sought, the public interest in adherence to the commission's regulations, and the safety significance of the issues involved.
Of course, these equities do not apply to the requisite findings on public health and safety and common defense and security.
Shoreham, CLI-84-8, slip op. at 2-3, fn. 3.
This Commission footnote stresses that in judging an exemption request, a balancing of all of the equities of each situation is appropriate.
This standard allows the Commission necessary j
flexibility in applying the exemption standard and is consistent with the wide discretion allowed the Commission by law in evaluating exemption requests as stressed by the Office of i
General Counsel in SECY-84-290A.
Without adding excess language I
to the exemption regulation, this balancing concept can be established by use of a " good cause" test rather than an
" exigency" test.
The NRC has appropriately applied equitable standards in other contexts.
For example, 10 C.F.R. $ 2.788 governing'
)
requests for stays pending intra-agency review, adopts the equitable balancing test of Virginia Petroleum Jobbers Association v.
FPC, 259 F.2d 421, 925 (D.C.,Cir. 1958).
The presiding officer is granted the discretion to weigh the arguments on a case-by-case basis in order to determine where the equities of the situation lie.
See e.g.,
Portland General Electric Co. (Trojan Nuclear Plant), ALAR-524, 9 NRC 65, 69 (1979).
Similarly, a flexible test for " good cause" is used in ruling on petitions for late intervention in licensing proceedings.
10 C.F.R. $ 2.714(a)(1).
What constitutes good in any given case will depend directly upon the facts and cause equities of that case.
See e.g.,
Long Island Lichting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 396-99 (1983).
There is no reason a similar equitable test cannot be applied by the Staff in evaluating exemption requests under } 50.12 (a).
b.
As Sa fe As Our second point related to exemption standards is that the Sta f f's traditional standard for exemptions, requiring a showing of "no undue risk", is appropriate and should be continued.
It can be applied without modification to both interim (schedular) a and life-of-plant (technical) exemption requests.
It correctly jd allows for an evalue. tion of overall plant conditions that will 4
exist during the time the exemption will be in effect.
This m
' evaluation includes a review of the purpose of the regulation, the extent to which alternative measures or compensatory measures 1
achieve that purpose, operating conditions (e.g., power level),
and the length of time for which the exemption will be needed.
7 Such a standard provides the Staff with necessary regulatory flexibility to effectively deal with the technical merits of each exemption request..Such a. standard would also minimize Staff interpretive difficulties because the Staff has been applying the standard for a long time and can draw from its exemption experience.
The Commissioners discussed modifications to the Shoreham "as safe as" standard at the July 25th meeting.
These modifications are apparently intended to eliminate the problems created by the Shoreham standard which never existed with the "no undue risk" standard.
This strikes us as traveling a rather I
roundabout route only to return to the start.
For example, the Commission considered recognizing a "de minimis" concept in the i
standard, or to make it a "substantially as safe as" test.
The Commission therein correctly recognizes that the "as safe as" 1
test was overly stringent and could not be met for many i
exemption requests (especially schedular but also full-term ones).
However,' such~a problem never existed under a "no undue risk" standard.
We believe that the existing "no undue risk" standard is appropriate and urge that it be continued..
1 3.
The Situations in Which Exemptions,are Requir'ed As an outgrowth of the Shoreham decision, the Commission also appeared to be reevalua' ting the types 'of situations in which
)
the exemption process would be invoked.
The Staff originally interpreted CLI-84-8, as expressed in SECY-84-290, to require explicit exemptions in many cases where traditionally license conditions or technical specifications with limiting condit' ions on operation have sufficed.
For example, the Sta ff's
... fuol interpretation would require an exemption request-if spent pool cooling will not be available until the first refueling outage.
The rigid interpretation ignores the technical reality that there is no need for the spent fuel pool cooling until after the first cycle of operation.
The Staf f, in its more flexible prior practice, would have handled this situation with a license condition that pool' cooling be available by the first' refueling outage.
We believe the rigid Shoreham interpretation of the j
exemption process is improper, and that in considering the future of the exemption process the Commission should address the scope i
o f tha t process.o sell as the standards to he applied.
4 In this context we again do not see any compelling need to
}
change the prior Sta f f practice.
The Commission appears to f
regard exemptions as extraordinary measures justified only in
~
exceptional ciredastances.
United States Department of Energy, et al. (Clinch River Breeder Reactor Plant), CLI-83-1, 17 NRC 1, 4
4-6; Long Island Lighting Co. (Shoreham Nuclear Power Station, E[
t Unit'1), CLI-84-8, 19 NRC slip op. at 2-3,'fn. 3 (May.16, 1984).
However, such will not be the case if the.Shoreham q
approach as originally interpreted by the NRC Staff is followed.
t j Under that approach explicit exemptions are required to justify short-term (schedular) exemptions for both near term operating license (NTOL) facilities and operating plants.
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NTOL Facilities
^
Routinely, under prior practice, ~1icense conditions would be
- required instead of exemptions to allow an NTOL ~ to receivo a low power' license.
The license conditions schedule full regulatory compliance at some later time consistent with public health and safety.
Although not reviewed. under " the $. 50.12 process, the Staff applies ~a standard equivalent to the "no undue risk" test discussed above.
Therefore, this approach.provides-the same level of public protection as an exemption approach, is more flexible, and allows for full consideration of the' technical realities of short term operation.
Many of the instances in which the NRC Staff has been requiring. requests for exemptions since CLI-84-8 and since the July 25th meeting involve Staff interpretations of Appendices to-Part.50 (often quite.recently changed interpretations).
Some o f '
the provisions in Appendices to part 50 were originally intended '
to serve ss guidance documents.rather than hard and. fast requiremeats, or to be interpreted in construction permits ac design ob.ectives and not as prerequisites.to 10 C.F.R. $ 50.57 findings.
Where compliance with a regulation ~ or GCC for. low a
power operation makes no technical sense, or presents no undue risk, an exemption. request should not be necessary.
A license-i condition approach prevents unnecessary exemption. paperwork-and
]
potential licensing delays, and appropriately reserves the exemption process for extraordinary cases.-
4 b.
Operating Reactors
~
Perhaps in recognition of the fac t tha t - interim - sched ule exemptions for operating plants could not meet the shoreham exemption standard, the Commission,.at7the July 25th meeting, e
discussed the idea of eliminating such schedular exemptions ~ for operating reactors from the ' 3 50.12 process.
The Office of 3
General Counsel (OGC) proposed instead-that violations of' schedule requirements be' treated as enforcement matters.
Under this scheme, a notice of violation-~would issue for a failure to meet the schedule, and appropriate. enforcement actions would 4
follow depending upon the-safety significance of the violation.
SECY-84-290A, at 20-23, 27.
1 We believe the OGC approach is undesirable.
'For the reasons 6 ;
discussed above, se agree.that. interim-schedular exemptions i
3 1
should not be held to -a. standard higher than the present "no y3.-l undue risk" standard.
However, this reason alone does'not-211 i
, justify creating an awkward exception to the exemption process.
The,OGC approach presents a rather peculiar, indirect means for licensees to obtain necessary and often relatively routine interim extensions of time for compliance with regulatory requirementa.
Consider, for example, a case in which a periodic offsite emergency planning exercise must be held a month or two late because a state or local government cannot participate until that time.
Initiation of enforcement action and a decision not to prosecute or to issue a pro forma notice of violation would be an inefficient, a f ter-the-fac t, process for granting what is in effect an exemption.
Such notices of violation may also have financial and public relations implications for nuclear utilities.
The violations may be subject to financial reporting obligations and may create an unwarranted perception of high investment risk in the financial community.
In terms _ of the public perceptions, the OGC approach would have the further disadvantage of turning routine matters, where no undue safety risk is involved, into enforcement matters whict by their very nature cast the licensee under the cloud of an appearance of guilt.
4.
Conclusion In conclusion, we believe that the Commicsion should re-examine and clarify the complete exemption process in light of I
the Shoreham decision.
The Commission should reaffirm the 1
Staff's existing, clear standard for both short-tern (schedular) and long-term (technical) exemption requests.
Further, the Commission should not expand the process to include situations presently handled by license conditions.
Nevertheless, if the exemption process is altered, it should include standards that are clear and consistently applied to all exemption requests, and a format that does not create unnecessary enforcement action.
Sincerely, j
llJ.
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Michael McGarry, III cc:
Commissioner James K.
Asselstine Commissioner Thomas M.
Roberts Commissioner Frederick Bernthal Commissioner Lando Zech, Jr.
Mr. William Dir'ks, Executive Director for Operations
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Mr. Guy Cunningham, Executive Legal Director j
Mr. Hertzel Plaine, General Counsel 1
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CERTIFICATE OF SERVICE UE.
m g.;.4 I hereof certify that I have this day served the foregoing document (s) i$}- 1 upo:t each person designated on the official service list coepiled by
[3;;.g the office of the Secretary of the Commission in this proceeding in accordance 1:ith the requirements of Section 2.712 of: 10 CFR Part 2 -
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Rules of Practice, of the Nuclear Regulatory Commission's Rules and
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In the Matter of
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LONG ISLAND LIGHTING COMPANY DocketNo.(s) 50-3220L-4 (Shoreham, Unit 1)
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(LowPower)
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~ ' 1 SERVICE LIST OL Marshall E. Miller, Esq., Chairman W. Taylor Reve1sy, III, Esq.
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Atomic Safety and Licensing Board Hunton'and Williams i ;
U.S. Nuclear Regulatory Comission P.O. Box 1535.
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20555 Richmond, Virginia 23212 Mr. Glenn 0. Bright Edward M. Barrett, Esq.
Atomic Safety and Licensing Board Long Island Lighting Company j
U.S. Nuclear Regulatory Comission 250 Old Country Road L
Washington, D.C.
20555 Mineola, New York 11501 Ms. Elizabeth B. Johnson Long Island Lighting. Company Oak Ridge National Laboratory ATTN: Andrew W. Wofford P.O. Box X, Building 3500 Vice President Oak Ridge, Tennessee 37830 175 East Old Country Road Hicksville, New York 11801 Alan S. Rosenthal, Esq., Chairman Atomic Safety and Licensing Appeal Board Herbert H. Brown, Esq.
U.S. Nuclear Regulatory Comission Lawrence Coe Lanpher, Esq.
Washington, D.C.
20555 Kirkpatrick, Lockhart, Hill, Christopher & Phillips Gary J. Edles 1900 M Street, N.W., 8th Floor Atomic Safety and Licensing Appeal Board Washington, D.C.
20035 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Honorable Peter Cohalan Suffolk County Executive Howard A. Wilber County Executive / Legislative Building Atomic Safety and Licensing Appeal Board Veteran's Memorial Highway U.S. Nuclear Regulatory Comission Hauppauge, New York 11788 I'
Washington, D.C.
20555 Counsel for NRC Staff Mr. Martin Suuberg
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Office of the Executive Legal Director c/o Congressman William Carney 4
1113 Longworth House Office Building U.S. Nuclear Regulatory Comission Washington, D.C 20515 Washington, D.C.
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Board and parties - continuad 50-3220L-4 T.S. Ellis, III, Esq Donald P. Imin, Esq.
Hunton and Williams P.O. Box 1535 Richmond, Virginia 23212 j
Mr. Brian McCaffrey Long Island Lighting Company 3
175 East 01ad Country Road Hicksville, New York 11801 James Dougherty, Esq.
3045 Porter Street, N.W.
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Washington, D.C.
20008 Fabian Palomino, Esq.
Special Counsel to the Governor Executive Chamber, Room 229 1
Ltate Capitol.
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Albany,'New York 12224
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Martin Bradley Ashare, Esq.
Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Eleanor L. Frucci, Esq.
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Atomic Safety and Licensing Ecard U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Stephen B. Latham, Esq.
Twomey, Latham & Shea
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- M'C g COUNTY INDUS*RlAL OCVELOpt.(NT AGENCY SCAMC OF DIRECTORS. CooptRAffvt EXTE>eS6CN SCARO OF OlmscToms a 9086 4 wafsn CONSERVATtCN Dl87mtCT surroca covurv ri caics oevcho -<ur cou cis August 23, 1984 s
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SERVED SEP 71984
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20555 Re:
Shoreham Nuclear Plant Dear S" -
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Certain information has ccm3 to cur attention relating to the Ster &.am ni-le i
Plant's canst ue: ion which we want to cenvey to you hi the fem of an inquiry.
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'L'his is of significznt cancern to us in as much as the nuclear plant project at Shoreham is located in the district which I represent, en the suffolk. County
.J Legislature.
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,e are given to understard that relatively limited installa*4,m ths been done W set in place the dcme at the tcp of the plant proje. This is stated in
'I relative tems to us ba-="=a the dcme is not installed with nearly as much enferced 1
support as'coupared with the enforced, three to four fcot @.ick cencrete walls around the plant. If this be the case, inqui:y is cade to you as to 2. ether 9J.s is a safety feature that is, or shculd be, of concern to the p9' ".
Your prm:pt attentien and reply to the foregoing would be greatly appreciated.
Very truly ycurs,
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4 7101 Wisconsin Avenue
, Betnesca. Mar <tanc 2021 *
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August 23, 1984
.,i The Honorable Nunzio J. Palladino
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U.S. Nuclear Regulatory Commission Washington, D.C.
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Dear Chairman Palladino:
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In SECY-84-290 dated July 17, 1984,- the NRC staff posed ; several'
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i g; questions with respect to the Commission's May 16, 1984,:deci-q t,
sion in the Shoreham case relating to the standards for exemp-q tions under 10 CFR 50.12(a).
Long Island Lighting Co. (Shoreham.
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c-Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC
,. slip op.
- 1. S May 16, 1984).
The Office of the General Counsel provided its y
recommendations on this issue on July-24, 1984, in SECY-84-290A i
entitled " Exemptions."
During a public meeting on July 25, j
e 1984, the Commission met to consider SECY-84-290.
The staff j
observed in its paper that the Shoreham decision " establishes.
g practices and requirements for: licensing which differ signifi -
a cantly from prior regulatory interpreta. tion and practice and.
C requested further guidance from the Commission in implementing g
the decision.
SECY-8 4 - 29 0, p.1.
u The Atomic Industrial Forum's Lawyers' Committee has reviewed o
the SECY docaments and-the transcript of the public meeting, and offers the following comments on the Commission's guidance U
to the staff.
The Committee-supports fully the Commission's O
decision to clarify the limitations.of the Shoreham case and to g
proceed expeditiously with a study of the exemption process.
We offer below some suggestions for consideration in this future study.
El The Commission Correctiv Limited the Shoreham Case The issue of'the procedures and standards for gran. ting:exemp-j
- tions.from the requirements of NRC regulations arises in the context of.Long Island Lighting Company's request for a-low power operating license pursuant'to 10.CFR.50.57(c) and the 2.! l applicability of General Design Criterion 17.(Ilectric Power
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August 23, 1984 l
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Systems) to s0ch licenses.
Af ter briefing and oral arguments, the-Commission ruled on May 16,.1984, that "10 CFR 50. 57(c) should not. be read to make General Design Criterion 17 inap-plicable to low-power opera. tion."
Shoreham, CLI-84-8, slip op.
J 3
at 1.
In its decision, the Commission requested that the appli.
address two " standards" in any request'for an exemption cant under 10 CFR 50.12(a).
(The applicant had already stated its 1
intention to seek.an exemption during the May 7, 1984, oral argument before the Commission).
These standards were j
(Shoreham, CLI-84-8, slip op, at 2-3):
- 1. The " exigent circumstances" that f avor -the granting of an exemotion under 10 C.F.R. 50.12(a) should {th'e applicant] be able to demonstrate that, in spite of its non-eompliance' with GDC 17, the health and safety of the public would be protected.
(footnote omitted).
- 2. [The applicant's} basis for concluding that, af the power levels for which it seeks authoriza-tion to operate, operation would be as safe i'
under the conditions proposed by it, as opera-tion would have been with a fully qualified onsite A/C power source.
Some of the difficulties with the Commission's Shoreham deci-sion have been described-by the staff 1.n SECY-84-290 and by the Office of General Counsel in SECY-84-290A.
Briefly stated, the
" exigent circumstances" and "as safe as" standards go - far be-yond the existing exemption standards found in 10 CFR 50.12(a) and appear to constitute a new set of rules for granting exemp-tions.
In addition, it is possible to interpret Shoreham in a way which upsets the licensing procedures which have been histor-ically followed by the staff, procedures which are clearly authorized under existing regulations.
See for example, 10 CFR 50.57(b), which provides that "{e]ach operating _ license will include appropriate provisions with respect to any uncompleted items of construction and such limitations or conditions as are required to assure that operation during the completion of such items will not endanger pu?eriod of the a
)11c health.and.
safety."
A formal exemption under 10 CFR 50.12(a) need not-be called into play where the subject of the request is a tempo--
J rary non-compliance which the Applicant intends to cure at a later date respecting "any uncompleted items of construction."
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Hon. Nun:io J. Pailadino 3
August 23, 1984
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i Such d temporary'non-compliance' can and has been handled by the
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staff with appropriate license conditions.and limitations which will not endanger public health'and safety.
See 10 CFR i
50.36(c)(2).
A different situation is presented where the applicant will never meet the General Design Criteria.
- There, a formal exemption process may well be required.
Suggestions for Future Consideration
(
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In connection with the Commission's direction to its staff to t
study the ' exemption process, the Lawyers Committee suggests that the staff include four broad areas in its focus.
- First, the standards for granting exemptions should be clear and capable of practical application such that the staff can apply the standards to exemption requests with a reasonable degree:of flexibility.
It is especially necessary to _ retain flexibility in the licensing process given that strict compliance with some.
regulations may have an adverse effect on the integrity of some~
components.
See discussion of Appendix J in the. transcript of the July 25, 1984, public meeting, pages 32-35.
At this time, we see no need to change the criteria listed in 10 CFR 50.12 or the procedures long followed by the staff.
Years of staff experience have shown that the regulation and its implementa-tion have, worked well in a substantial ' number of cases.
j The Commission may, however, in its st' dy of the exemption.
u process wish to make it_ clear that 50.12 provides for two i
different kinds of exemptions, each with its own standards.
In contrast to CLI-84-8, previous Commission decisions have not merged the standards in 50.12(a) and (b), a fact which was recognized by the staff in SECY-84-290.
It would be helpful for the Commission to state clearly that 50.12(b) is limited to certain activities undertaken prior to the award of a construc-tion permit.
The standard of 50.12(a) is to be used'for all
}
- "The' concept of ' exigent circumstance' had previously been considered a factor only in exemptions granted pursuant to j
10 CFR 50.12(b), limited work authorizations."
SECY-84-290, i
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p i-Hon. Nunzio J. p'alladino 4,
August 23, 1984 I
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C Bi other exempt.iod' requests.
Sudh a distinction ~is fully com-
'.i patible with the standards set, forth in 10 CFR 50.57(b) on limitations and conditions and.with the Commission's stat,utory
- (
mancate.
Secondly, the effect of revision of the exemption process on' other areas of licensing must be carefully considered.
As noted'in the analysis of the Office of General Counsel, the Sho11y regulatory process may be affected.. SECY-84-290A p.21.
Tne Sno11y regulations are already a cumbersome process a,nd must not be made more so by changes to the. general exemption I
regulations.
The staff should also consider possible effects /*
on the integrated scheduling plans which have-been. adopted
/
voluntarily by scme operators.
~
Thirdly, the Lawyers Committee opposes the suggestion.in the General Counsel's analysis that the Commission prohibit exemp-tions for operating reactors and treat'non-compliance as a violation of Commission regulations.
SECY-84-290A, p3 22-23.
Therein it is suggested that any noncompliance would be the subject of enforcement action appromriate to the severity of the safety issue posed, including the necessity for plant shutdown.
?o the extent that the General Counsel is talking about exes; tions from regulations, the concerns expressed in SECY-84-290f are misplaced because there are no Sholly pro-blems.
The staff can and should contin s to process such ex-emptions under the exemptions procedures.
Inherent in the General Counsel's concept of "no exemptions" for operating reactors is the idea that the regulations of the Commission are so perfect and the vision in adopting such regulations so all encompassing that there can never be a circumstance not covered by the regulations.- With more than eighty reactors cur-intly' licensed for operation in multiple locations and with a multiplicity of design features, it is difficult to accept such an underlying rationale.
Clearly, the Commission must have the flexibility to consider and grant ex-emptions for operating reactors where circumstances warrant.
Otherwise the regulatory process becomes muscle-bound and self-defeating.
In those cases where an exemption would require alteration of a e
license condition (which we believe are few in number), the
,' 2; Forum's Lawyers Committee is opposed to the General Counsel's i,
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Hon. Nuntio J. Pall'adino 5
August 23, 1984 l
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1 suggestion for several reasons.:
'Ihe willingness of the Commission t6 entertain exemptions on an open public record for good reason and undersappropria~te circumstances is an invitation
. to improve safety by technical innovation.
Continuing efforts by the Commission and the private sector in safety research will quickly die if a message of absolutely "no exemptions" is adopted.
The Commission should address'directly the question of' revision of the exemption process rather than use an approach which resembles back door regulation.
Finally, we believe that the Commission's action at its July 25 public meeting confirms that no new exemption policy was i
created by the Shoreham decision.
While the Commission may have the authority to make new policy in the context of an adjudicatory pro:eeding, we urge the Commission to proceed on a generic rather than plant specific b_ sis.
i Sincerely, O'1 m
Barton.Z. Cowan Chairman, AIF Lawyers Committee 1
BZC:hmg ec:
Commissioner James K. Asselstine Commissioner Thomas M. Roberts Commissioner Frederick Bernthal Commissioner Lando Zech, Jr.
William Dircks, Executive Director for Operations Guy Cunningham, Executive Legal Director Hertzel Plaine, General Counsel s
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,.-.....a.a .lk UNITED STATES OF AMERICA .t, NUCLEAR REGULATORY COMMISSION 11 ! i BEFORE j t CHIEF ADMINISTRATIVE JUDGE B. PAUL COTTER, JR. ./ .i In the Matter of. g Q,.;. SUFFOLK COUNTY AND STATE OF NEW YORK ASLBP 00CKET N0. MOTION FOR DISQUALIFICATION OF 84-503-01 Misc. 1! CHIEF ADMINISTRATIVE JUDGE COTTER (Shoreham Nuclear Power Station, $2 SUO O Unit 1) .d i HEMORANDUM AND ORDER l On June 22, 1984, the cancioned county and state moved that the l undersigned " disqualify himself from participating in any matters ~ concerning the' Long Island Lighting Company's ("L'ILC0") Shoreham Nuclear Power Station ("Shoreham")." Movants allege that a serie.s of events during the two weeks ending March 30, 1984 (th'e date l' appointed an Atomic Safety and Licensing Board to consider a motion filed by the Long ~ Island Lighting Company), established grounds for concluding 'that I had. "in some measure adjudged the facts as well as the law of [this] case in advance of hearing it" (emphasis in original), citing Cinderella Career and Finishincj Schools, 'Inc. v. FTC, 425 F.2d 583, 591 (D.C. -Cir.1970) quoting with approval from Gilligan, Mill & Co. v. SEC, 267 F.2d 461 (2d' i Cir.). The NRC Staff filed a response on July 12, 1984. ji 'i 4 ,,M4 y &hO Y wr e
l { The motion is anomalous and is devoid of basis or apparent 1, precedent. Motions for disqualification or recusal are normally directed to a presiding judicial official who has responsibility for -l deciding a contested issue or issues. See Withrow v. Larkin, 421 U.S. 35 (1975). The rules governing such motions and their resolution are generally the same for the administrative judiciary as for the judicial branch itself, and this Commission has followed that practice. Houston Lighting and Power Co.,15 N.R.C.13, 63,1366 (CLI-82-9,1982). In I the instant case, I have no adjudicatory responsibilities in connection with the Shoreham proceeding. I am not 'a member of the Atomic Safety and Licensing Board hearing the case nor do I serve as an alternate member. a special master, a special assistant, or in any other. f quasi-adjudicatory position in connection with the case. See 10 C.F.R. ) il2.704,2.721and2.722(1984). Consequently, I have no authority to decide any issue pending in the Shoreham proceeding and no adjudicatory ^ responsibility from which to recuse myself. a To the extent the motion may be intended to address my role as the principal administrative officer of the Atomic Safety and Licensing Board Panel, it is equally without foundation. I did appoint the members of three licensing boards which are hearing various aspects of the Shoreham proceeding, and, because of conflicts in workload, have had to reconstitute at least one of those Boards. See notices published at 47 Fed. Reg. 6510 (reconstitution); 48 Fed. Reg. 22235-36 (emergency s planning board); and 49 Fed. Reg. 13611-12'(lowpowerboard). Those g i .a O
._._.m z-- m m m -- . i appointment actions were taken pursuant to administrative responsi-bilities imposed upon me as Chief Administrative Judge of the Atomic Safety and Licensing Board Panel by the Atomic Energy Act and the Commission. 42 U.S.C. 9 2011 (1982), as amended; 10 C.F.R. QS 2.704, 2.721(1984). I do not have the authority myself to refuse to perform such duties. See Boyle v. U.S., 515 F.2d 1397, 1402 (Ct. Cl. 1975) and Nagel v. Department of Health and Human Services, 707 F.2d 1384, 1387 J4 (Fed. Cir. 1983). Even if I did, I would not take any such action on ,J l l the basis of the instant motion. The motion consists of a collection of unfounded accusations, unsupported allegations, distortions of events, hearsay, and omissions of significant facts (for example, the omission of the complete February 22, 1984 ruling of the Shoreham licensing i ) board) concocted in an effort to create an appearance of impropriety or j bias that does not exist. It does not warrant further discussion and will be dismissed.* l Nevertheless, the aggregate effect of the accusations and omissions j is to inject a spurious dispute into the Shoreham proceeding and to impugn my own integrity. The latter result has broader effect because l it has the potential to cast a shadow over other proceedings conducted
- Section 2.704(c) of 10 C.F.R. Part 2 provides chat the denial of a motion to disqualify "shall be referred to the Commission or the Atomic Safety and Licensing Appeal Board as appropriate, which will determine the sufficiency of the grounds alleged." By its terms, 6 2.704(c) applies to a presiding officer or a member of a licensing board and i
therefore does not appear, on its face, applicable to the instant J u d*CiS10"' d dp i -O
a. 6 .,l by atomic safety and licensing boards,that I have appointed in the past i ! 1 1 and will appoint in the future. Consequently, to remove those potentially harmful effects, attached to this memorandum and
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incorporated herein by reference as if set forth at length is my statement concerning the events resulting in the appointmbnt of a board to hear LILCO's Supplemental Motion' for Low Power Operating License filed March 20, 1984. I j .: 4 i -ORDER ) j For all the foregoing reasons, it is this 1st day of August,1984 I ORDERED tl That the Suffolk County and State of New York Motion for Disqualification of Chief Administrative Judge Cotter is denied. e k B. Paul Cotter, d ADMINISTRATIVE JU E' i 1 q -'pp 4 u a, am -
,.i' 1 ~ a e UNITED-STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION j i. BEFORE >d i CHIEF ADMINISTRATIVE JUDGE B. PAUL COTTER, JR. 1, -(- il ll -{j 'In the Matter of: 'j -l 'I SUFFOLK COUNTY AND STATE OF NEW YORK ASLBP DOCKET N0. MOTION FOR DISQUALIFICATION OF 84-503-01 Misc. l l CHIEF ADMINISTRATIVE JUDGE COTTER (ShorehamNuclearPowerStation, Unit 1). ?' ..J 1 .j l t STATEMENT 0F .l B. PAUL COTTER;idR. q. 9 .f.I 1. I was appointed Chairman of the Atomic Safety and Licdnsing 1 'l Board Panel-(the Panel), on November 3, 1980. The Chairman, or. Chief j i ei Administrative Judge, is the principal administrator and-representative of the Panel responsible for appointing atomic safety and licens'ing. ~ i boards to hear.and decide cases, furnishing support for such licensing _ j r boards, and representing the Pane 1J through self-initiated or responsive 1 l contacts with the Chairman of the Commission, other Commissioners, 1]ja government officers such as chief administrative judges, agency administrators and office directors,,and members of. congressional j offices. 1 2. The Chief Administrative Judge'also serves as a' member or-f' chairman'of licensing boards pursuant to 10 C.F.R.. Part 2 (1984). The M.f '~; Ye
f>v m ~ , j.N *,, 9 T f undersigned does not now and never has served in.any adjudicatory ,j l capacity in connection with an operating : license proceedin,g titled,I_n }l - l the Matter of Long Island Lighting Company (Shoreham Nuclear Power-h Station, Uni,t 1), Nuclear-Regulatory Comission Docket No. 50-322-OL. ')> a t- 'i', .i 'l f 3. . The Chief Administrative Judge is charged with appointing. s licensing boards promptly when a case _is filed insuring that no' i ) ,,7y proceeding.is delayed by virtue of a conflict in-work assignments on the j part of' individual administrative judges or licensing. boards, and h q
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generally making sure that cases on the Panel docket proceed in a timely i \\' manner consistent with administrative due process. 'T g. .l 3 4. In May 1981 the Commission issued a Statement of Policy on I y ConductofLicensingProceedinos,13NRC452-(CLI-81-8,'1981),to g i* I emphasize its concern that proceedings-progress in a timely manner'and to give the licensing boards guidance.in that regard. The; policy s I l . statement was issued in part because of Congressional concern which had j earlier led to a requirement, comencing in 1980, that the Comission file a monthly report on the status of all nuclear power plant applications with,the House Subcomittee on Energy and Water Development ~ ("the Bevill Report"). Panel hearings were given special attention in j the Bevill Report from the outset. h.1 i- ).1} 5. Since approximately January 1981 I. have reviewed all case ..y schedulest to insure that no case otherwise ready _for hearing or decision-Mh I i l
j. g. , 'l 1 t was delayed because of a conflict or potential conflict in the schedule I .q of any individual Board member or the Board as a whole. Consequently, q scme 75 board menbers were replaced during the period January 1981 k through May' 1984. For eAample, on February 12, 1982 Judge Lawrence Brenner was appointed Chairman of I.he Shoreham, board in place of Ju'Jge' Louis J. Carter who had a scheduiet conflict [,47 Fed. Reg. 6510(1982). i
- i Also during that period, additiqqo1 ochnds wpk appointed to hear.
separate issues in Shoreham, Comm che Psa, add' Catawba, and Special j m '. 4 Masters were appointed in TMI-1 Restart, Indiad ;?oir t, and UCLA. Those yj 'i i
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additional boards and Special Masters werd appointed go that the I .,it original licensingi, board in those cases could7rocied to haar and decvje ,1 L> (u / primary issues without delay. 1qj a 6. During the period January 198I to Nay 1984, I met periodically q with the Chairmen of the' Nuclear Rr.gulatorv Commission during that' time' x r (Joseph Hendrie, John Ahearne, or Nuntjb PaNadino),leither alone or with members of the Staff and other Comission officers, jo review t ' case schedules and other administrctive' mat,ters, frequently in s jt i e Q connection with reports to, or testiniony before, Congressionbi' 4 j o comittees or subcommittees. ' At no time,during these meetin94 was 3 there i any discussion of a substanti,ve issue in a' active proceedir.g before an n T atomic safety and licensing board. All discussions related solely to 1 scheduling or other Panel management matters. 4 e 3 o
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m. s, q 1 7. Commencing around September 1983, the. Deputy Chief b 4 q v Administrative Judge and I became concerned that th'e Shoreham and j Limerick. Boards were headed for a major schedule conflict because the -{ same two Administrative Judges, Lawrence Brenner and peter A. Morris, I were on'both boards and the.8evill Report indicated that both cases were scheduled for' hearing and decision in approximately the same time frames. We deferred action but reviewed the situation every four to six l' ~ ((! weeks, periodically checking with Judge Brenner on the schedule for both - cases as is the customary practice in the office. "j. c, 8. In late February 1984, I became aware that a bench rulin'g had been issued in the thereham proceeding. At that time over 100 days of hearing ~hadbeenheldandvirtuallyallissues,exceptemergencidiesel generators and emergency planning had been resolved. The licensing board had ruled on February 22, 1984 that it would not approve issuance of a low power license for the Shoreham plant until the Board had decided three pending contentions'concerning the emergency diesel generator problems or some alternate solution to the problem of emergency backup was found. The transcript reports the following language -in the ruling at pages.21,616-21,617: What we have said so far would not preclude LILC0 from-i proposing other methods by which LILC0 believes the' standards of 50.57(c) could be met, short of litigation.of. Conte'ntions 1, 2, and 3 on the merits. Or possibly seeking some sort of waiver under 2.758 or other procedures'. d b --, m<. 3 n;p 't
m l l ' l' But, that is up to LILCO. After giving it thought on our own 5 1 i and listening to the other parties', we agree'it is difficult to A 1 deal with an abstract proposition. And while someone could imagine-different things in combination, we do not know what is feasible or 4.1 what LILCO rould seek to propose. i 4] But whr.tever LILCO would propose, it wouldshave to meet our present'findt.19. That unless we consider Contentions 1, 2, and 3 on the. merits, we do not presently have reasonable assurance that the T01' diesel generators canLreliably.be depended upon to start and' generate electricity. l ]D 1 l
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9. .0n or about March 14,-1984, I was notified by telephone that a scheduling session would be held-in Chairman Palladino's conference room i v. .4 on March 16, 1984 at 1:30 P.M. I had my: Legal Counsel' check on the scheduling status of our proceedings and went to the meeting with fhim. l At the session, the Staff presented anticipated schedules for some 14 or f 15 plants. Seven of the plants addressed were-not in litigation before an atomic safety and licensing board. There was no discussion of any - substantive issue before any atomic safety and licensing board. 1 y
- 10. The Shoreham proceeding schedule was discussed first..There was passing reference to newspaper and trade press-reports of Shoreham's financial condition. Someone from the Staff comented that he had been-told that LILC0 was planning to file a supplemental-motion seeking low j
i power authorization pursuant to Judge Brennerf s ruling on February 22, ij 1984. There was s brief discussion as to whether such a motion could be ij -handled on an expedited basis. I made a note to myself aboutithe Shoreham-Limerick conflict the Deputy Chief Administrative Judge and I
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3- , ~ had been discussing. The discussion then moved on to 13 or 14 other . 5 cases cnd the problem presented by late filed allegations. ~
- 11. O'n March 22, 1984, I received a telephone call from Chairman 1
A Palladino's Legal Assistant, C. W. Reamer. Mr. Reamer stated that the ] Chairman was considering proposing to the Commission an order that would direct a lidensing board to held an expedited hearing on any LILC0 ) motion for a low power license based on alternate energy sources. Mr. f Reamer then asked if I had any coments on the first draft of a proposed order he had prepared for the Chairman's censideration. I stated that I would prefer to see the order before commenting, and he agreed to ' send' l it to me. Upon receiving the Reamer' draft, I noted that the proposed j timetable was impossible to meet because it called for a decisidn in a five weeks but. proposed a seven-week schedule. See Attachment 1.- I was. '{ also concerned that, should the Commission agree with any such proposal. Chairman Palladino might make, any such order they might. issue should be 4 clearly stated and capable of implemertation by a licensing board 's without further clarifying instructions from the Commission. 4
- 12. On March 22, 1984, I obtained a copy of the March 20 LILC0' Supplemental Motion for Low Power Operating License (the LILCO motion).
] The motion asked the licensing board to refer the motion to the .1 Commission or to rule on the motion "as quickly as is feasible" and certify its decision to the Commission. Thus, the motion appealed to present two questions, one procedural and one substantive, viz.: .- J / ';; 9.' + ~~
e '4 ..1 (1) whether the subject matter of the motion should be gi/en expedited 5d., handling; and (2) whether LILCO's supplemental. request for a low power
- j license should be granted or denied.
? s. k4 13. Pursuant to m*y concerns outlined in paragraphs.11 and 12, ~~ above, I began drafting a proposed Commission order that would clearly. m]- state the-issues raised by LILCO's motion and provide that they be heard t on a reasonably expedited schedule. My draft order proposed the appointment of a separate board because I knew that Judges Morris and Brenner would be in hearing for the ner.t two or three months in the Limerick case and would then have to write a decision. My final draft was sent to Mr. Reamer late Friday afternoon, March 23, 1984. See' Judges Brenner and Morris were in a Limerick prekearing ) conference in Philadelphia on that date.
- 14. On Monday, March 26. Mr. Reamer called to 'tell me he had referred my draft to the Office of General' Counsel. On the same. day Judge Brenner returned to the office and advised me that he was concerned about his Board's ability to act on the March 20, 1984 LILCO
'l. F motion because of his and Judge Morris' commitments in April and May to l hearings in the Limerick proceeding.
- 15. On March 27 Judges Brenner and Morris gave me a memorandum asking for relief in the Shoreham proceeding because of their ll
^,.AMt J .e
y comitments in the Limerick case. See Attachment 3. I checked with Mr. OI) Reamer who expressed doubt that the Commission could take any action j l w'ith respect to the LILC0 low power motion before April 5 and more likely not before April 12, 198,4. I expressed my concern to him about ]:s waiting for any Commission action for that length.of time because it ~ would mean that a motion in our hearing process would not even receive consideration for three weeks to a month'after it was filed. Thus, s .c LILCO's request for expeditious consideration of its motion would be '[ i l mooted by the passage of the time taken to decide how to consider it. d1 j ..] l It would then effectively be denied by that de'ay. [
- 16. On March 28 I began to consider appoincing a separate board
.3 ~ myself in view of.th,e Shoreham Board's schedule conflict and the fact j 'that the Commission apparently would not even reach the question for I some time. That same day I so adv'ised Mr. Reamer. ~ i t i
- 17. On March 29 I verified that Judge Brenner's Board was still
'i convinced that it would be unable to consider the motion and after i f reviewing all pending work assignments, I asked Judge Marshall Miller whether he would be able to consider the motion. He said that his schedule was such that he would be available. j
- 18. On March 30, 1984 after thoroughly considering the matter, I
] decided to appoint a board consisting of Administrative Judges Marshall ] v Miller, Glenn Bright, and Elizabeth Johnson to consider the motion..I p ,,Q q
t issued the order and advised Mr. Reamer that I had taken the action. I l also called Mr. Malsch of the General Counsel's Office to notify him the j board had been appointed because of my concern that a motion that had been pending for 10 days had not yet been even considered. _ I pointed out that there was no need for Commission action because the new board could decide whether the motion should or should not receive expedited j treatment, and then, in either event, whether the substantive request should be granted or denied. [d i i ';l,
- 19. At no time during the two-week period ending March 30, 1984 i
did I have any communication with Chairman Palladino concerning appointing the Miller Board other than as an observer at the March 16 scheduling meeting. Chairman Palladino himself never asked me either to 'I appoint a board to hear the LILC0 low power motion or to have the motion 1 given expedited treatment. Nor, so far as I have been able to discern, did the Chairman or any'other Commissioner even suggest, either directly or indirectly, through Mr. Reamer or anyone else, that I should take either action. My sole reason for appointing the Miller Board was to insure that a party to one of our proceedings received administrative due process. i k n$ 1
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o a 20. I have not and would not ever in any way directly or 'i .] indirectly attempt to compromise the independence of any Administrative a Judge of the Atomic Safety and Licensing Board Panel. 1 li W 'B. Paul Cotter, Jr.V - CHIEF ADMINISTRATIVE JUDGE ~2 3 ) . ::k 5 j' e 4 l i 3 e 1 4 s 4g V .. j$$ s lR 3: .1
g. ~ %i.acht.ent 1 J/: 1.' n N//' llk i The E00 has recently provided the Commission an assessment for Shoreham that projects a nine-month licensing delay due ?l to, I am told, the Shoreham Licensing Board's requirement to litigate the diesel-generator question before allowing operation at low power. ji The Commission would like this matter litigated on an expedited basis with a target date off receiving the Board's~ >l decision on this matter by May 9, 1984. Would you please look into what steps are required to meet such a date and J
- 4, inform the Commission on these steps as-soon as possible, but not later than March 30, 1984.
For planning purposes, you could assume the following steps: j/ A two week staff review of the proposal by LILC0; qj A one week discovery period; r/ i; k= A two week period for filing testimony and holding a hearing; ] A two week period to issue the Board's decision' Final Comission guidance on the expedited hearing on this matter would be based on your submittal and follow up discussions. If you have any questions, please let me know. i f
a n n h ent.2 l 'I 3/23/84
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ORDER q, i On March' 20,1984,. LILC0 fiTed with the Licensing Board a !I "Suppiemental Motion for Lcw' power Operating License". LILCO has i requested the Board either to refer the motion immedstely to the Comissiorr for decision or to decide the motion on an expedited basis f and to certify its decision to the Comission pursuant to 10 C.F.R.
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q s f 2.730(f) (1983) As discussed below, the Comission has reviewed ' i )j q l LILCO's motiert and has. concluded that referraT. at this. time wo.uld be .i I inappropriate. We agree, however, that a decision on certain issues j raised by the Applicant shouTd be expedited. to the extent possible_ k i consistent with the development of a sound record. In the exercise of the Comission's inherent authority over the conduct of our adjudicatory l proceedings,. we hereby grant that portierr of LILCO's motion that; i requests arr expedited proceeding. Tc that end,. we direct the Chief li .t, Administrative Judge of the Atomic Safety and: Licensing Board Panel, in j i consideratiert of the existing schedule and caseload of the Panel's members,. to appoint an Atomic. Safety and. Licensing Board to hear and decida LILCU's supple:1entaT motion irt accordance with the procedures and schedule outlined. below. j )l' r. LILCO's Motion j l LILCO asserts that the Shoreham plant is essentiaTTy complete.and,- dj td by its motion, seeks authority to conduct four phases of low power activities, namely: i
= . _ ~ - ~ j i ~2-5 .q Phase I-fuel load and precriticality testing, ,z Phase. II: cold criticality testing; l Phase III: heatup and low. power testing to rated pressure / temperature conditions (approximately li, rated power); and
- 1 Phase IV: low power testing (1-55 rated power).
i j Despite pending litigatiert concerning the emergency diesei generatorr' reliability, LILCO asserts.'in its motion: (1.) the generators are not l needed to protect the public hea.ith and safety for Phases. I and II; l (2) the generators have been tested and are adequa.te to protect the pubTic health and safety during Phases III and IV,. even though litigatiert of their reliability has. not been completed;, and (3). ainple i alternate sources of AC power' are available sufficient to assure no. undue risk to the public health and safety front low power operation of the piant during Phaser III and IV. T II
Background
i! Of scrae 122. safety contentions origina.lly filed in this proceeding 'l all but three have been resolved (The settlement of a fourth issue has i > 4 been presented to the Board for approval). The three remaining j I di
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S - = ~..., ( t 2 contentions concern the reliability of emergency diesel generators at 4, f ~ the facility. 1 LILCO's motion supplemented a Juna 3,1983 motion for a Tow power l licensa. After the motion was filed, however, additionai problems i 1 3 l daveloped with the emergency diesai generators, and the hearing on'their rsliabiTity scheduled to coninance August 29,1981 was deferred pending completion of LILCQ's assessment and tha NRC Staff safety' evaluation In a. partial initiai decision issued September 21,1983, the Licensing ~ Board decided a number of safety issues in favor of operation' up to 5% ~ of rated power but declined to authorize fuel load and low power j operation untii the then pending diesel generator contention was resolved The Staff SER f r presently scheduled for issuance in June 1984,. Titigation of' the three diesel generator contentions is scheduled i to coninence in July 1984, and an initial decision is projected "for i l issuance in December 1984 Suffolk County fiTed four amended contentions on the generators,. and on February 22, 1984, the Board admitted three of them in a ruling on the record. Tr. 21,512 g sec. Although the Board could not. find, on the state. of the record at that time, that the generators could reliabiy perform their needed function even as to-low. power, the Board 15
- P noted that LILCO was not precluded from proposing.other methods by which ia the standards of 10 C.F.R 50.57(c) could be met short of litigating the contentions, or seeking a waiver under Section 2.758, or any other
(
n = 1 j' s 1 3 4_ r 5,k Y ). c ]I procedure. Tr 21,616, 21,630-633. Apparently in response to that-ruling LILCO filed its March 20, 1984 supplemental motion. 'l.f f1 l As noted, Applicant has requested that its supplemental motion be-i referred directly to the Comission for decision. The Comission is jl d-1 i fully apprised of the contents of tha.t motion and ts'of the opinion that
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j i certain issues presented require a factual evaluation that can be ]l i accomplished, more promptly and efficiently by a licensing board than by ) i j the Comission directly. Accordingly, referral to the Comission at (l this time wou.ld be inappropriate. However, the present schedule for i Titigation of contentions related to the TDI diesel generators does present the potentiar for delay inimical to the public interest given }. the apparent physical completion of the Shoreham facility within the meaning of 10 C.F.R. E' 50.57(a) (1982) and. the anonnous financial j inves,tment involved If the af ternatives proposed by Applicant-in its motion are sufficient to permit low-power opera. tion and testing with assurance that the public health and safety are adequately protected, .i l that matter ought to be determined as expeditiously as. possible. l 1i i i j The Comission has inherent supervisory authority over the conduct 1 y of its adjudicatory proceedings, including specific authority under its jk - rules to establish reasonable adjudication time tables. ~ See The U.S. Enerqy'Research and Develcoment Administration, Project Management i e, Corporation, Tennessee Valley Authority (Clinch River Breeder Reactor al
- . i plant), CLI-76-13, 4' NRC 67 (1976), and l' 0 C.F.R. 5 2.711' (1983)..
.g. ~. 1 J \\ i 1 1 ..; q l}<, J III. Issue's to be Heafd 'n j i Accordingly, absent settlement, we direct that the following issues be adjudicated on an expedited basis:. .i I Jj i ,1 L Whether the work described. in Phases E and II of LILCO's jl 4! i motion can be per#enned without' the need. for the presently ]! y instaTied ansita emergency diesai generators; i ~ 1 ~ i 2.. Whether the alternate sources of AC power available to ] Shorehant are adequate to protect the public health and safety .I by performing the function that-the presently installed. onsite emergency diesel generators would'have performed during any or 1 all, of Phases I,. II, III, or IV; p i 3. What requirements for testing or other demonstrittien of the avaiTability and effectiveness of the Shoreham alternate power -i sources should be required as a precondition to the issuance of any licansa permitting operation at up to P. of rated power. l 4. Whether, in consideration of the Board's findings on the.above- ?,4 w issues and assuming all other regulatory requirements have ,j been satisfied, LILCD should be granted a-low power license to w.
~ i.f i a .i perform the work described in any or all of Phases I, II, III, 1-or IV. j i l .~ 1 The Ticensing board constitutad pursuant to this. order is authori::ed to 1 conform the statement of the abova issues to the evidence relevant to !1 -(f j LILCO's motfort and this order. The licensing board shall not consider '.i i s] the operability and relf ahiTity of the TDL diesal generators currently
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) onsite. These matters are presently the subject of an extensive Staff review and will be folly adjudicated when the results of the Staff's review are avaflabTe. l IV. Proceeding Schedule' ) f The Licensing Board constituted pursuant to this order is directed te certify its Initial Decision ort these cuestions to the Comission.60 calendar days after the Staff fiTer its SER on the technical aspects of-1 the LILCO motion To that end, the following expedited schedule is recomended to the Board and the parties: a 3 l Day -T Comf s::fon Order j> j.! Day 1 Staff and parties file response to -1 substantive aspects of LILCO's motion
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.i Day 1 Sta.ff files SER on technical aspects of. ./ ' j) LILCD Supplemental Motion for Low Power Operating Licensa and serves the SER on the parties ji Day.2 Discovery comences,
g e i 3
- j Oay 18 01scover/ fs completed a
Day 2E Testimony is filed Day 30 Hearing comences Day 40 Hearing concludes Day 60 Board issues decision . l The Licensing Board constituted pursuant to this order is I e authorized to adopt, take official notice, or otherwise incorporata any portion of the existing record in this proceeding as it sees fit. The l i Board shali closely monitor and assist in the discovery process, Timit the number of pages in any filing if necessary, alter,. revise or modify any of the intemediate dates or sequences set out above, and othemise facilitate the expedited completion of the proceeding'in the full exercise of its authority. See, e.g., Statement of Policy 'on Conduct of Licensing Proceedings,. II NRC' 452 (CLf-8I.-8,1981). i Steos L. 3/26: Comissiorr issues brief notica to parties suspending parties responsa time to LILCO's accion i 2. 3/26: Comission orders Staff to prepare SER by April 7 f c dj f6] ! M 3. 3/30: Comission issues expedited hearing order - ? s 4
4 - l_.. %- [ t Some Considerations 1. Excellent Staff SER is. critical to success of this expedited proceeding: Totai systems ana. lysis required or Boards and i i Comission will look bad. ] l'
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"q a. Staff should be fonnally notified to begin work imediately 4 l b. Staff SER issuance on day 1. assumes they have already 1 comenced to prepara it, and this order won't issue until 1 3 March 30 2. Sixty day schedule is brutally tight. Daffnitely not recomended i but possibly achievable e f 3. Very importantro give Licensing Board flexibility 'to reformulate' issues within overail guidance should evidence shift the nature or emphasis. of the issue. f I t d.. Boards comitted to hearings or partial.or initial decision writing i in April and May include Catawba, Comanche Peak, Shearon Harris, Limerick, Midland, Shoreham, and Wolf Creek a ; j &jd %{ _ { i
..u u u ~. s b o t = = =.. "'~ - Need to avoid Commission debate on Board membership (cf. 4' i Indian Point) i \\ 5. Phase L and II issue may be resolved by agreement of parties which !; 1 would make possible PID authorizing that work _.A
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3l THIS ORAFTING SERVICE FURNISHED "AS IS": 'd l NO WARRANTIES EXPRESS OR IMPLIED i i 1 i a l f i 3 e f ,(- i i t 3 ,.r.r. I'h .a m 9
l e j I q l UNITE D ST ' ~Es i (..g,.{,[/f,f ATOf.1lC SMETY AND LICENslNG BOARD PANEL l NUCLEAR REGULATORY COMt.'.JSSION l g . <. j WASHINGTON. O C. 20555
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March 27, 1984 3 l i O ) q I NOTE T0: Judge B. Paul Cotter, Jr. Chief Administrative Judge l
SUBJECT:
LILCO SUPPLEMENTAL MOTION FOR LOW POWER OPERATING LICENSE (dated March 20,1984) ~ l The subject motion, among other things, asks the Shoreham operating j, license board presiding over the diesel issues to refer the motion to l i the Commission. We understand that the Commission is aware of the .i a i motion and is considering whether to take action in the immediate future, -lj on its own. >j In anticipation of imminent Commission action, we have not taken ) further action beyond scheduling the preliminary procedural answers to i March 26. New York State will file an answer on March 28. The NRC . j the motion by the parties. (Suffolk County's answer was. received on Staff's answer is scheduled for March 30.) Unless the Commis~sion issues l at least preliminary guidance that the licensing board should hold matters in abeyance pending further Commis'sfon orders, we intend to l proceed on or about April 2,1984, to implement some combination of a .i.i conference call, prehearing conference and written order to establish with the parties procedures and a schedule for consideration of LILCO's { motion. .i li Depending on the schedule established (by us or the Commission), !I the Shoreham Licensing Board on which we sit may have to be reconstituted by you due to our heavy schedule for the Limerick evidentiary hearing in April and May. ll .y f Lawrence Brenner, Chairman ADMINISTRATIVE JUDGE j t i i I: I 7 W 44 4,v Dr. Peter A. Morris / 'T i ADMINISTRATIVE JUDGE I l
i CERTIFICATE OF SERVICE i In the Matter of i SUFFOLK COUNTY AND STATE OF NEW YORK 1 MOTION FOR DISQUALIFICATION OF ') CHIEF ADMINISTRATIVE JUDGE COTTER "I (Shoreham Nuclear Power Station, Unit 1) .i I ASLBP Docket No. 84-503-01 Misc. !1 L .j + I hereby certify that copies of the attached Memorandum and'0rder and Statement of B. Paul Cotter, Jr. were served this date upon the 4 following by U.S. mail, first-class, postage' prepaid or by NRC '] interoffice mail. i Chairman Nunzio J. Palladino Judge Marshall E. Miller United States Nuclear Chairman, Atomic Safety 3 Regulatory Comission and Licensing Board Tj Washington. DC 20555 United States Nuclear 1i i Regulatory Comission Connissioner Thomas M. Roberts Washington, DC 20555 U,ited States Nuclear ] Regulatory Commission Judge Glenn 0. Bright-Washington, DC 20555 Atomic Safety and Licensing Board Commissioner James K. Asselstine United States Nuclear ~ United States Nuclear Regulatory Comission Regulatory Comission Washing 1;on, DC 20555 -l Washington, DC 20555 Judge Elizabeth B. Johnson Comissioner Frederick M. Bernthal Oak Ridge National Laboratory United States Nuclear Building 3500' Regulatory Comission P.O. Box X Washington, DC 20555 Oak Ridge, TN 37830 Comissioner Lando W. Zech, Jr. Edwin J. Reis. Esquire United States Nuclear Bernard M. Bordenick, Esquire Regulatory Comission Office of the Executive Washington, DC 20555 Legal Director United States Nuclear Alan S. Rosenthal, Chairman Regulatory Comission Atomic Safety and Licensing Washington, DC 20555 j Appeal Board United States Nuclear Alan R. Dynner, Esquire j Regulatory Commission Herbert H. Brown, Esquire Washington, DC 20555 Lawrence Coe Lanpher, Esquire Kirkpatrick, Lockhart, Hill { Christopher & Phillips
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8th Floor .I 1900 M Street, N.W. f
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e -1.1- .i Fabian Palomino, Esquire James Dougherty, Esquire , l!, Special Counsel to the Governor 3045. Porter Street 11 ; Executive Chamber, Room 229 Washington, DC 20008 State Capitol .)l Albany, NY 12224 4 Martin Bradley Ashare, Esquire Stephen B. Latham, Esquire j Suffolk County Attorney John F. Shea, Esquire 1 H. Lee Dennison Building Twomey, Latham & Shea Veterans Memorial Highway 33 West Second. Street
- j Hauppauge, NY 11788 Riverhead, NY 11901 1
,;j The Honorable Peter Cohalan Jay Dunkleberger, Esquire i Suffolk County Executive New York State Energy Office l County Executive /. Agency Building 2 Legislative Building Empire State Plaza Veteran's Memorial Highway Albany, NY 12223 Hauppauge, NY 11788 '3, Mr. Martin Suubert Docketing and Service c/o Congressman William Carney Branch j 1113 Longworth House Office Office of the Secretary Building United States Nuclear Washington, DC 20515 Regulatory Commission 1 Washington, DC 20555 d) .x a .-e-Caro 49n K. Ecker I i August 2, 1984 .I l j 1 h ,. x., m
s e 5[1!} xx s%.$ L' h&A4 (P. ?2 raTd l 7._- UNITED STATES OF AMERICA l*J.*.TJE l NUCLEAR REGULATORY, COMMISSION $ j) In the Matter of ) E22 ~ ) _S E LONG ISLAND LIGHTING COMPANY ) Docket No. (s) 50-32[dt K ) = ) (Shoreham Unit 1) ) m=m, ) PS I E* ".. '..i ) ) uswa.W.
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y.um= { I hereby certify that I have this day served the foregoing document (s) g i upon each person designated on the official service list compiled by ) "=""" j accordance with the requirements of Section 2.712 of 10 CFR Part 2 - ] the Office of the Secretary of the comission in this proceeding in Rules of Practice, of the Nuclear Regulatory Comission's Rules and
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Regulations. .mam m q 1 d f { Dated at Washington, D this 1 uuamm / G ). """""~' (O day of lys"f ~~J V r r....... b&hhh d.lbl'$ Sl Offied df/the Secrdtary of the Gdmission mua = f' .B. &>x.t&
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-. ~ - .,.... ~. ~. -. - - -. -. -.... ~., f;i, i ~f, l I-l UNITED STATES.0F AMERICA .l NUCLEAR REGULATORY COMMISSION q; .V ?\\ b\\ l In the Matter of 1h f j$ LONG ISLAND LIGHTING COMPANY DocketNo.(s) 50-3220L-4 .t . (Shoreham, Unit 1) (Low' Power) j
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) ) 'd ) 1 ) -(( l SERVICE LIST t .d i: l Marshall E. Miller, Esq., Chairman W. Taylor Reveley, III, Csq. '"l - \\ t Atomic Safety and Licensing Board Hunton and Williams . ~j! j U.S. Nuclear Regulatory Comission P.O. Box 1535 t Washington, D.C. 20555 Richmond, Virginia 23212 ? Mr. Glenn 0. Bright Edward M. Barrett, Esq. i . Atomic Safety and Licensing Board Long Island Lighting Company U.S. Nuclear Regulatory Commission 250 Old Country Road Washington, D.C. 20555 Mineola, New' York 11501. nl Ms. Elizabeth B. Johnson Long Island Lighting Company ~ Oak Ridge National Laboratory ATTN: ' Andrew W. Wofford d. P.O. Box X, Building 3500 Vice President. Ll H j Oak Ridge, Tennessee,37830 175 East Old Country Road Hicksville,'New York - 11801 Alan S. Rosenthal, Esq., Chairman 1 i Atomic Safety and Licensing Appeal Board Herbert H. Brown, Esq. Il U.S. Nuclear Regulatory Comission Lawrence Coe Lanpher,.Esq. Washington, 0.C. 20555 Kirkpatrick,. Lockhart, Hill. I Christopher. & Phillips ~ Gary J. Edles 1900 M Street, N.W., 8th Floor i Atomic Safety and Licensicc Appeal Board Washington, D.C. 20036 . l i U.S. Nuclear Regulaton Comission 1 Washington, D.C. 20555 Honorable Peter Cohalan 4 Suffolk County Executive - .J Howa-d A. Wilber County Executive / Legislative Building I Atomic Safety and Licensing Appeal Board Veteran's Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New-York 11788 1, Washington, D.C. 20555 j' Mr. Martin"Suuberg j-Counsel for NRC Staff Office of the Executive Legal Director c/o Congressman William Carney 4 1113 Longworth House Office Building U.S. = Nuclear Regulatory Commission Washington,:D.CL 20515' 'E Washington,'D.C. 20555 .,, #c3 i Tf]g I
. f m. l <} y ' o Board and parties - continued 50-3220L-4 T.S. Ellis, III, Esq. Donald P. Irwin, Esq. Hunton and Williams i P.O. Box 1535 Richmond, Virginia 23212 q Mr. Brian McCaffrey
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i Long Island Lighting Company 1 175 East 01ad Country Road j Hicksville, New York 11801 1 James Dougherty, Esq. 3045 Porter Street, N.W. i Washington, D.C. 20008 5 Fabian Palomino, Esq. j ~ Special Counsel to the Governor 1{ Executive Chamber, Room 229 -Ltate Capitol l.. 1 Albany, New York 12224 .j, ' 1 Martin Bradley Ashare, Esq. i Suffolk County Attorney i i H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Eleanor L. Frucci, Esq. Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 Stephen B. Latham, Esq. Twomey, Latham & Shea .i P.O. Box 398 i Riverhead, New York 11901 d 'l i b 1 J l 1 3 a ? $g h 4 d
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UNITED STATES l, ( g NUCLEAR REGULATORY COMMISSION j ATOMIC SAFETY AND LICENSING APPEAL PANEL h WASHING TON, D.C,20555 0:U;[p - July 24, 1984 U..N c - 1 bA utk24 Fabian G. Palomino, Esq. El- 'r< _ .j Special Counsel to the Governor Executive Chamber ~ ..I' Room 229 Capitol Building l Albany, New York 12224 Re: In the Matter of i1 LONG ISLAND LIGHTING COMPANY 'I (Shoreham Nuclear Power Station, Unit 1) i i Docket No. 50-322-OL-4 (Low Power) 1
Dear Mr. Palomino:
j j The Chairman of the Appeal Board assigned to the above-styled proceeding has asked me to acknowledge receipt of Ms. Zavlek's letter in response to my July 10, 1984 inquiry on behalf of the Board. The Chairman fully understands that, in this' instance at least, the State of New York is being represented by the Governor's office rather than by its Attorney General. He also understands that your official title'is that of Special Counsel to-the Governor and that you therefore employ that title in identifying yourself on pleadings filed in the proceeding. But neither of these considerations or Ms. Zavlek's letter explains why you have signed pape s filed in the name of the State as attorney for the Governor rather than as attorney for the State. More specifi-cally, it would seem to the Chairman that, in connection with such papers, you are acting as attorney for the State and should be so designated. (Such a designation would, of course, not preclude your use of your official-title. Presumably, when the Attorney General of New York files papers in the name of the State, he uses his official title.for identi'fication purposes but nonetheless cigns the papers as attorney for the State.) The Board does not intend to pursue this matter any further. As you will note from ALAB-777, issued on July 20, 1984 in connection with one of the disqualification motions filed by the State and j Suffolk County, the authors of that opinion chose to consider your a e , ei w w, 4 e a
Fabian G. Palomino, Esq. 2.- July 23, 1984 4 involvement in that motion as having been as counsel for the-State. They will similarly regard any future papers that you .1, might file in the proceeding in the name'of the State. Sincerely, i l b. C. Je n Shoemaker-Secretary-to the + I Appeal Board i e cc with copy of Ms. Zavlek's 7/20 letter: W. Taylor Reveley, III, Esq. i Robert G. Perlis, Esq. Lawrence Coe Lanpher, Esq. Decketing and Service Branch \\ ^ k 6 l I l l i l l i l, i 'l l / t g 4 e j
4; T] s l -Ni j w STATE or Ncw Yon < ..] Execurive CHAMBER ALGANY (2224 s FA8t AN PALOMINO Special Counsel to the Governor il j / .s l July 20, 1984 l 1.ls ps Ms. C. Jean Shoemaker Secretary to the Appeal Board U. S. Nuclear Regulatory Commission i Atomic Safety and Licensing Appeal Panel ,j i Washington, D.C. 20555 l
Dear Ms. Shoemaker:
{ i This ' letter is in response to our phone j conversation of July 13, 1984, regarding the questions j F raised by the Appeal Board concerning the manner in i which papers filed on behalf of the State of New' York are being signed. The State of New York is appearing through.the I Governor. Hence, papers are being signed by Fabian Palomino, Special Counsel to the Governor. The same procedure has been followed throughout the'Shoreham -l proceedings and New York State's papers will continue to J be filed in the same manner. j Sincerely, l s Shelley M ek l Legal Intern l c'l J l J Nb i .y s d L
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? y y NUCLEAR REGULATORY COMMISSION ' WAs m oT m,c.c.2csss p. ~ q *q p p t a ' J uly - 13, 1984. ~ 1 i CHAIRMAN - Qd .q The Honorable Edward J. Marke', Chairman [ y . Subcomittee _on Oversight and Investigations NI:1 Aommittee on Interior and Insular Affairs - . United States: House of Representatives J, Washington, DC 20515
Dear Mr. Chairman:
In further response to your letters of March 28, April 12, April 24, A May 4, and May 10,'1984 regardjng the Shoreham proceeding, we want to take this opportunity to address previously unanswered matters raised in ,J' 1 that correspondence. ' \\ In your. letter of March 28, 1984, you expressed your inability to understand the Commission's decision of June.30,1983 with regard.to emergency planning and. low-power operation of Shoreham, and your requested clarification. That order, CLI-83-17,17 NRC 1032, simply < said that 10 C.F.R. 50.47(d)~,: which authorizes grant of' a. low-power. license notwithstanding the absence of. an approved emergency plan, is' premised on the low risks associated with low-power' operation'. For a-a full-power license to be granted, the emergency planning requirements for full power must be met. The Commission's order said that ~in this L respect, emergency planning is 'no different from any safety issue which-requires resolution prior to full-power operation' but not: prior 'to low-power operation. The order made clear that a finding that a ticular issue need not be resolved prior to low-power operatiod,' par-and the-grant of a low-power license,. in no way assure that.the. applicant will receive a full-power license. Commissioner Asselstine adds: I disagreed with the Commission's June 30, 1983 order regarding emergency planning and low-power operation at Shoreham.- At the time,1 expressed the view that the 'iegal and policy issues involved were not nearly as simple or clear cut'as the majority had s indicated, and that the Cormiission should have obtained the views of.the: parties before reaching a decision.on this matter. ' Apart i I from this defect in the majority's: approach to ; decision-making, I. believe that it would be unwise to' allow low-power operation ati t Shoreham prior'to the issuance of an' initial decision by the f. licensing board on.the emergency planning and preparedness Td! contentions. .I ( L The emergency planning content' ions-in the Shoreham case differ from r h,f most contentions in nuclear plant operating license. proceedings, Most such contentions, if decided in favor of th'e intervenor,:are correctable through additional; inspections, license conditions or - -- 3 J p g he dware c Orecedural changes.to the plant. However,.the a l YW
y,_ .my. -~- -~~ ~x.3 x ,yf c y ~ .o s. - ~ )L t.* U t I M The Honorable Edward J. Markey _2 ~
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J^ j - \\ i e c emergency. planning contentions _ in Shoreham, if decided inr favor of the intervenors, would likely preve: t full-power operatior.-of the 5 plant. In such circumstrsces, it r r*,asilittle sense,"toillow 4ql low-power operation of tre plant-mritiordthat would contaminate 4 the facility and complicate subsequininintenapce--urtil the - , i emergency planning contefions are rclyed. _!-l 7j L In your April 12 letter, you strongly?jcriticized the Licensincj Board}s s resolve cr even respond to the argwnents p,d did n.ot (a)- specifically ruling of April 6, stating that "tha bear f intervenors that an u -l! expedittd' schedule.weuld prejdici their right to a full and fair. o hecringband (bLstata why it apparently believes an expedited hearing' Al p L is necassaryJ You added, "I. respectfully request that-the-Comission 'l formally ask de.besd to res;snd to these two issues." Since that i ' time, the.Comission's action vacating the. Board's schedule has mooted 1 4 the two issues. Moreover, we do' not believe that-such a_ request shou 1F be made lest the Sobeamittee k perceived as intending to affect.the' outcome V the adjl,fdicatory press. d o Ir. your April 24,/ 1984 lutter,you asked for a more complete explanation. "that resolves all known facts
- concerning the events preceding the Licensing Board's order in an expedited hearing.' This explanation was furnished both orally and in ry prepared written testimony delivered.at,,
) the Mr.y 19,-1984 hearing before the Sub:omittee on Energy.and the i ~ ~ Erivironment. v ~ In your May 4,1984 letter you requested a reecrd of all my comunica-tions with Executive ' Branch ard federal' agencies that'~ relate th,emer. - gency planning or the Shoreham proceeding. - On April 12,1984QI met l _ _ l with Secretary Hodel of, the Department of Energy 'ankiiscussed Member 4 ~ o' topics, including emergency phnning. On April ' 20 d1954,YI cett'qoded 1 a luncheon with? Louis JGuiffri&l Director of the Federal Emergerp. . t %nagement Agency. The discussions' adifressed the question of h'.rw ta ,a improve the NRC/ FEMA working niationship' and a discussion.of how to. 7 imorove-puulic understanding cf FEMA's amergen:y preparedness entuation ~ act'vities. No pending licensint casu or issues were discusse'd'. Ftr.eM on April 26, 1984, I received a. call from Secretary Hodel I p c9ncerrring the U.S. District hurt's decision in the.Fhoreham case. Documents relating to these catacts are enclosed-(Enclosure lh j ' i l i .nr I : Some mentars of my staff'have also had. communicationswith. O'OE 'and FEMA - relating to emergency planning or Shoreham.. A sumary of recoTlections. 1; .f p, of such comunications is presented in Enclosure 2.- In 'the' interest of 3 thoroughness and to supplement our responses to your letters 'of. Aprff 12 l1 M /a r and May 4,1984, my fellow Comissioners _have further examined their ' N' Wj records. I also requested that relevent Commission hnd staff offices do: the same. As a result, the C! airman of the Atomic Safety and Licensing NL Board Panel provided the docuients. in Enclosure 3 r ano the_NRC staff /developedJthe;1'ist and furnished documents in Enclosure 4. Comissioner; Asseistine;crovided aimemorardum dated May.14,1984 (Enclosure 5);.no-3(. i \\h
m.._._ m.s -e 4 The Honorable Edward J. Markey '3 i ,qI other Comissioners responded. Based on discussions with your staff, l' this NRC staff list includes all connunications regarding the Shoreham facility and other comunications of a general nature concerning emer-gency planning but does not include routine comunications regarding other specific facilities (e.c., routine correspondence to and from FEMA - l regarding FEMA findings, transmittals to FEMA of proposed and admitted contentions, transcripts of hearings, requests for responses to inter-rogatories (~and corresponding FEMA responses) and similar comunica-i tions). These documents include notes of oral comunications where they exist or could be recreated. Nevertheless, as you must be aware, infomal communications with such agencies routinely occur in the l ordinary discharge of this agency's functions and often, in the absence j of notes of a particular discussion, the nature of such communications simply cannot be reconstructed. In your May 10, 1984 letter you state that you believe that I must explain fully why I should not recuse myself.from any future decision-i making role in this proceeding. On June 6, 1984, I received a formal j l request for recusal filed by Suffolk County.and the State of Hw York. i l A copy-is enclosed for your information (Enclosure 6). In addition, on ) 1 June 18, 1984 I received coments (see_ Enclosure 7) from LILCO on the formal recusal req (uest from suffolk County and the State of New York. On June 21, 1984 per Enclosure 8) -I a.sked for coments from the NRC staff, the third party to this proceeding before I respond to the. recusal request; in that document I indicated that until I respond to this request I do not plan to participate.in any further Shoreham proceedings. [ Staff comments provided July 5,1984; see Enclosure 9] Therefore, it would be inappropriati for me to coment on this matter while it is pending before me. My decision on this subject will be a matter of record in the proceeding and will be made available to you. Sincerely, M Mb Nunzio J. 61adino " //9 b.' 3
Enclosures:
1. Documents re DOE & FEMA i contacts 2. Sumary of Recollections 'of Comunications 3. ASLBP documents 4.. NRC staff list & documents ? 5. Memo, 5/14/84, Comissioner / e Asselstine to Comission 6. Ltr, 6/6/84, Suffolk County + & NY to Palladino 7. LILCO's Response, 6/18/84
c. y s. 8 4 0 The Honorable Edwird J. Markey 4 .< i 8. Memorandum to Parties, 6/21/84 ~]g l 1 9. NRC Staff Response to Suffolk County j & State of NY Request for Recusal of j Chairman Palladino -44 'l '3 cc: The Honorable ~ Ron Marlenee 4 9 i1 1 ? .o ? g b i i 4 e 4 --i t t l f i t ^ .j i -. g. - % yj n, t =. p 4 9 e
o r ' pg g. 653 s KIREPATRICE, LOCKHART, HILL, CHRISTOPHER Se PHILLIPS A PAmtwaasurP lsC3.UD1mo A Poor.senosAA CoseoeArtog. 0 1900 M STREET, N. W. C WAmamorow, D. C. 20006 I 23 P 2.rci....U2toi o 14sa mascxst.t. Av.sva T3LaFNoWar(908) 468 7000 v. usAms, Fem Genet PTTTO.UEO., P.NNSYt.YANIA L8344 g (sos; Grd eses (anaj aes.eooo i June 27, 1984 $Q ".3.1._b'"g .m. m 202/452-7011 1 Nunzio J.'Palladino, Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W. g/. -3 Room 1114 f Washington, D.C. 20555 Re: Long Island Lighting Company, 9 -3. 2. 2.. O ' _I'. ! Shoreham Nuclear Power Station; l Docket No. 50-322-OL 1 I
Dear Mr. Chairman:
j, Enclosed you will find an Affidavit to accompany the l "Suffolk County and State of New York Request for Recusal and, Alternatively, Motion for Disqualification of Chairman.Palla-dino," submitted June 5, 1984. This Affidavit previsouly has been filed before the Licensing Board and is submitted herewith in the event you believe an affidavit is appropriate for the instant request. I l l We are in receipt of the " Memorandum 'a the Parties," duc.ed June 20, 1984, by which you requested the NRC Staff to submit views on the County and State recusal request. In view of the fact that the Staff is alleged to have played a role in the conduct which is the subject of the recusal request, we ask you to consider whether it is appropriate to seek tne Staff's views. Sincerely yours, Lawrence Coe Lanpher Attorney for Suffolk County. LCL/dk Enclosure cc: Service List 4 3fi[ m an, k
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .]1 '! l Before the Atomic Safety and Licensino Board. >l i i 11 ) In the Matter of ) ~, ) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4 -l ) (Low Power) (Shoreham Nuclear Power Station, ) .j Unit 1) ) aj ) ?- jl i .4 'I AFFIDAVIT OF i 4 HERBERT H. RROWF, LAWRENCE COE LANPHER, FABIAN G. PALOMINO t l: i Herbert H. Brown, Lawrence Coe Lanpher, and Fabian G. Pal-l omino, being duly sworn, do state under oath the following l The undersigned are attorneys in the Shoreham low -.i ,j 1. j power proceeding, Messrs. Brown and Lanpher representing' ] Suf folk County and Mr. Palomino representing the State of New i York. The purpose of this-Affidavit is to furnish source data for the Suf folk County and State of New York Motion for Dis-qualification of Judges Miller, Bright, and Johnson. j 2. The factual statements set forth in paragraphs.3-41 h below are ierived. from publicly available documents, except for ) certain instances (paragraphs 11, 12, 24, 34) which pertain ) primarily to'the Affiants' personal recollections of Chairman 4 .3 l l s i Q. J f n l A $^R& } ' f Q] V lV IVf'
l l-l .Palladino's oral testimony on May 17, 1984, before the Subcommittee on Energy and the Environment of the House Commit-i 1 tee on Interior and Insular Affairs. As to each factual state-ment set forth below, the Affiants provide the basis or bases
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for the St'atement, i.e., identification of the publicly avail-able document or any other source of the data. 3. On February 22, 1984, the NRC Licensing Board chaired ~ by Administrative Judge Lawrence Brenner (the "Brenner Board") 1 i ruled that there >ss no basis for granting LILCO a low power e license for Shoreham "in advance of complete litigation" of the emergency diesel issues. Source: ' Transcript of ASLB Hearing, ( Feb. 22, 1984, at 21,615. The Brenner Board set'a schedule. for litigation of those issues that, after a discovery period of approximately two months, provided for a conference of the rarties after May 10, to determine subsequent precedures. i Source: Id. at 21,634. In issuing that schedule the Brenner ] ) Board concluded: Based on what we have before us now, there is no basis to proceed towards litigation that could possibly lead to a low power license in advance of a complete litigation of Contentions 1, 2 and 3 (the outstanding diesel issues). i Source: Id. at 21,615. 1 4 i t , 8 i dl I' ', i t f d
-s, u 4. Under the Brenner Board schedule, it was estimated by the NRC Staff that an initial decision on e'mergency diesel gen-erator contentions would be issued in December 1984. Source: ,I 1 Attachment to Memorandum from William J. Dircks to Commissioners, March,9, 1984, available as part of FOIA-84-250. i N 5. As of February 22,' the NRC Staff opposed LILCO's arguments that " enhanced" of f site power could. substitute for t l deficient onsite power. The Staff would give no credit to including the gas turbine physi-i 1 LILCO's of fsite power system, ..O \\- l cally located at Shoreham, because " General Design Criteria 17 J requires an independent, redundant and reliable source of n si on-site power." Source: RRC Staff's Response to Suffolk J County's Motion to Admit Supplemental Diesel Generator Conten-- tions, February 14, 1984, at 12, footnote 7. The S'taff took i "no position upon whether applicant, upon a proper technical 1 analysis, could or could not support an application for an ex-emption to allow it to go to low-power. absent reliable sefety-I grade diesels." Source: Id. ? an open meeting between the NRC Staff and the TDI 6. At owners Group on January 26, 1984, Mr. Harold Denton of the Staff stated CW3e are'not prehared to go forth and recommend the issuance of new. licenses on 'j: any plant that has Delaval diesels until the issues that are raised'!.ere teday.are [ adecuately addressed.. 3 I 4 3~'- ',5y. L .M a
m. + 1 26 'eeting transcript at 8. Mr. Darrel Eisenhut M Source: Jan. of the Staff stated at the same meeting that " prior to licensing, even a low power license," the Staff must have con-q j fidence that the TDI diesel problems have been solved. Source: 5 o Id. at 95-96. 7. The Brenner Board's February 22 decision was followed j two days later by a published report that LILCO 's Chairman, William.J. Catacosinos, had met with the NRC Commissioners. ] l Sources. Newsday, Feb. 24, 1984.
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8. In a March 9, 1994, letter to LILCO shareholders, Dr. '. l Catacosinos notedt. our inability to open Shoreham has created a serious cash shortfall for LILCO. Ac-cordingly, since January 30, I have made government officials aware of our critical ) situation, and I believe there now seems to be a greater understanding among federal, state and county officials of the crisis A timely reso-the company faces lution of the Shoreham situation and a res-j elution of the Company's critical cash shortage are essential to the continued vi-ability of LILCo. source: 'LILCo 1983 Annual Report. 9. On March 9, the NRC Staff notified the Commissioners of potential licensing delays of 9 months for Shoreham. The 9 month delay was estimated by LILCO and passed on to the l Commissioners by the Staff. Source: Attachment to Memorandum, iN _"$1
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from William J. Dircks to Commissioners, March 9,
- 1984, available as part of.FOIA-84-250.
Chairman Palladino mest on-March 15 with personnel 10. from the Offices of Policy Evaluation and General Counsel con-L It was then decided to cayning the potentiaP licensing delays. hold a meeting on March 16. Source Individual Statement of l Nunzio J. Palladino Before the Subcomm. on Energy and the Envi-l
- renment, H. Comm. on Interior and Insular Affairs, May 17,
) i I s' 1984, pp. 8-9 (hereafter, "Palladino Statement"). i 5 11. On March 16, Chairman Palladino met with members of t commission offices, " Tony Cotter" (B. Paul Cotter, Jr., the NRC's Chief Administrative Judge), and top level Staff person-nel, including the Executive Director for Operations, the Director of the Office of Nuclear Reactor Regulation, the Exec-1 utive Legal Director and their subordinates to discuss the alleged delay in the licensing of Shoreham and other plants. Source: Palladino Memo to Commissioners, March 20, 1984-(here-4 after, "Palladino 3/20 Memo"); Palladino Statement at 8-10) Af-recollection of Chairman Palladine's May 17 Congressio-fiants' nal testimony (as to fact that Directors of NRR and OELD were J ~ present). l 12. The other Commissioners were not advised of the March 16 meeting in advance. Source: Affiants' recollection of ~ 5-EAN ,s $f 5
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s. Chairman Palladino's May 17 Congressional testimony. Neither the County nor State was advised of this meeting, and no transcript was made. Sources: No prior notice of meeting was ~: given to County or state, and there has nev.er been any indica- 's tion that a transcript was made; NRC Commissioners' April 23 J Meeting. Transcript, p'.10. 'l l . I n 13. Commissioner Asselstine criticized Chairm'an Palladino for meeting with one party -- the Staff "without the oppor-I tunity for the others to have any notice of the meeting or be l Source: NRC g~ j j provided an opportunity to comment Commissioner's April 23 Meeting Transcript, p. 10. j j 14. Commissioner Gilinsky questioned whether it was proper for the Staff to meet with Chairman Palladino at the March 16 meeting: The Staff is a party in the hearing; the 4 Chairman is one of the ultimate judges. The i Staff Directors should have told the Chairman - 4 politely that it is not their job to carry the ball for the Company. It is understandable that l they did not say this ender the' circumstances. The Chairman is, by law, the Staff's direct su-pervisor. He controls annual bonuses worth many j thousands of dollars to. senior Staff members. What we have is a situation in which one member of the ultimate NRC adjudicatory tribunal appears to be directing the actions of a key I r party in the case. Source: CLI-84-8, Separate Views of Commissioner Gilinsky, May 16, 1984. i a 6~- 1 1
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l Chairman Palladine's March 16 meeting was held even j 15. '1 LILCO had not filed a new motion for low power operation j t -~ of Shoreham. NRC April 23 Meeting Transcript, p. 7. 1 -lJ 16. Judge Cotter's notes of the Chairman's March 16 j j l meeting reveal that the following matters were discussed per-taining to Shoreham: "Says will go bankrupt if 12/84 I.D.r" " Alternative solution for low power;" "LILCO file proposal to get around diesel issue and hold hearing on ooeration at low 1 + ! power;" " Based on LILCO. proposal, ' Staf f issue report in 30 days - + l as to whether safe at 5% without diesels;" " Commission ordered i l j hearing would a) define ' contention' and set time frames for f expeiited procedure b) Reverse Board Order of 2/22;" " Notes Concern re same Board Chaiman." Source: Judge Cotter's Notes, i available as part of FOIA-84-267 (emphasis in original). 17. Chairman Palladino later told the o her Commissioners the March 16 meeting "some preliminary ideas regarding that at SoErce: expeditlm.g the Shoreham hearing were discussed." Palladino' Memo 2e Commissioners, April 4, 1984 (hereafter,' ? of FOIA-84-26i.. "Palladino 4/4 Memo"), available as part Commissioner Asselstine stated: I understand from Tony ' Cotter that there was discussion at-the March 16th meeting of the scope and type of issues that would be consid-l ered in a low-power licensing proceeding with the Staff. j 1 4 . ? 4 ': .e>
4 Source: NRC Transcript of April 23 meeting, at 9-10. i 18. On May 17, Chairman Pal.adico stated: ^l1 ! At that meeting, held on March 16, I was n; j ej briefed as to the status of a number of, including the Shoreham proceeding.
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While the Briefing included identification by the Staf f of the issues of the Shoreham eroceeding, I do not recall the Staff in { any way stating or intimating how those ~ J y issues should be resolved. I am confident l ) .~ that if the Staff had done that, or if any q other impropriety had been committed, one or more of the several top agancy lawyers
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] would have raised a warning flag. j) present 1 i Likewise, I recall the staff advising that 3 3 3 they understood.that LILCO planned to l appeal the denial of its low power request.. zi But again, there was no discussion, to the
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.) best of my recollection, of the merits of that request. i Source: Palladino Statement at 10. i 19. One reason that Chairman Palladino met with the Staff and others on March 16 "w'as the possibility that if NRC didn't l ] do something Shoreham would go under because of NBC's inability f to make timely licensing decisions, and I. felt that, whatever 3 ! j happened to Shoreham, I did not want inaction by NRC to be the ,1 cause." Source: Palladino Statement at 4-5: see id. at 11 '. Judge cetter's notes of the March 16 meeting underscore the concern for LILCO's. financial condition: the March 16 meeting. included discussion that LILCO would "go bankrupt" if it had to j i l Source: await a Licensing Board decision in December 1984. Judge Cotter's notes, suora, 9 16. jq q
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.....--..n l \\ l On March 2L Chairman Palladino circulated a memoran-20. The memorandum reported on'the dum to the other Commissioners. March 16 meeting and proposed that in order to " reduce the ll, 1 1 delays at Sho r eham, " the Commission should " consider a proposal j l for an exped,ited hearing on the diesel problem, or from OGC proposals for other possible actions so that at'least a low c power decision might be possible while awaiting resolution of ( the emergency planning issue. I have asked the OGC to erovide a paper on this subject soon." Source: Palladino 3/20 Memo. 1 Chairman Palladino did not then report, as he later dil in his April 4 Memorandum, that some preliminary' ideas for expediting 1 j the Shoreham proceeding had been discussed with the Staf f and others who were present at that meeting. Sources: Palladino f 3/20 Memo; Palladino 4/4 Memo. 21. The Chairman's March 20 Memorandum was circulated to "SECY, CGC, OPE, CIA, EDO." Thus, the Staff's Executive Director for Operations was-further advised of the Chairman's view that the Shoreham proceeding needed to be speeded up.. The March 20 Memorandum also specifically recuested the EDO to respond to the March 20 Memorandum and to prepare a paper Source: outlining steps to deal with the " potential delays". Palladino 3/20 Memo. 4
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= i i 22.' On March 20 -- the same day that the Chairman circu-lated his Memorandum (see Mt 20-21) -- LILCO filed a new pro-I 1, j. posal for a ' low power lic'ense, styled as a Supplemental Motion i for Low Power Operating License. LILCO made. essentially the i same arguments for a low power license that the Brenner Board had previously rejected, except that LILCO provided greater de-tail and added that it also intended to install at Shoreham four mobile diesel generators to' enhance the offsite AC electric power system. LILCO served copies of the Motion on the NFC Commissioners. LILCO did not apply for a waiver of or an exemption from GDC 17. Sources: LILCO's March 20 Supple-j mental Motion for Low Power Operating License; LILCO's Fesponse i to Suffolk County's Motion to Admit Supplemental Diesel Genera-ter Contentions, Feb. 7, 1984, at 5-7. i a 23. After March 16, Chairman Palladino had further dis-j cussions with his staff and apparently "with EDO as well, searching for options," to deal with the alleged delay. t Source: Palladino Statement at 11. ~ 24. Chairman Palladino's legal assistant discussed with Judge Cotter the following " working pape'r" prepared by the Chairman's office (the paper,was sent to Judge Cotter on ~ March 22), which relates to the Chairman's desire to expedite the Shorehan proceeding: ) 10 - J M .h {1
x -m-II. g The EDO has recently provided the Commission an assessment for Shoreham that i 1 projects a nine-month licensing delay due s i te, I a,m told.. the Shoreham Licensing Board's requirement to litigate the diesel-generator questions before ' allowing 1 l operation at low power. The Commission would like this matter liti-gated on an expedited basis with a target .' j date of receiving the Board's decision on this matter by May 9, 1984. Would you .i ! please look into what steps are required to meet such a date and inform the Commission on these' steps as soon as possible, but not later than March 30, 1984. i l For planning purposes, you could assume the ,] l 1 following steps: L E A two week staf f revie'. of the propos-i al by LILCO; A one week discovery period; 9 A two week period for filing testimony ) and holding a hearing; I A two week period to issue the Board's I decision. Final Commission guidance on the expedited t hearing on this matter would be based on your submittal and follow-up discussions. If you have any questions, please leg me know. Sources: Palladino Statement at 11-12; Palladino 4/4 Memo and Attachments. The tima estimates in the " working paper" appar-ently were derived by Chairman Palladino from "oCC's rough estimates of the time that an expedited hearing such as suggested by OGC might take Source: Palladino J Ststment at 12. Chairman Palladino had not discussed this 1 4ii . :) . u
w 9 " working paper" with the other Commissioners. Thus, the reference to "The Commission" in the second paragraph was not j accurate. The other Commissioners were not informed of Chair- '}lt man Palladino's " working paper" or his request to Judge Cotter until April 4 when the working paper was distributed to the I Source: Affiants' recollection of Chair-other Commissioners. man Palladino's May 17 oral Congressional testimony: Palladino Statement at 12; Palladino 4/4 Memo. !l l 25. Judge Cotter responded to Chairman Palladino's " working paper" on March 23. Sovreet Palladino Statement at i 13. His March 23 response, in the form of a 9 page proposed order for adoption by the commission, contained, inter alia, the following elements: (a) A proposed decision that consideration of ) LILCO's low powqr proposal be expedited and that it be decided on the merits, with specific issues to be decided spelled _out. (b) A proposed decision that a new Licensing Board be appointed to replace the Brenner Board. (c) A proposed decision that LILCO's March 20 Motion and be litigated on a schedule described as " brutally tight" ~ "[dlefinitely not recommended but possibly achievable. " The l Cotter schedule called for a decision on the LILCO Motion f',
i s. t within 60 days. 'To achieve such expedition, Judge Cotter suggested that there be 16 days for discovery, 5 days between close of discovery and filing testimony, 5 days until the start of hearing, and 10 days for the hearing. i (d) One reason cited by Judge Cotter for adoption of the proposed order was "the enormous financial investment" of LILCO. Cotter draft order, attached to Palladino 4/4 Memo. q I Source: E i 26. On March 26, Suffolk County submitted preliminary l views to the Brenner Board regarding LILCO's March 20 Motion.. j These views were submitted in response to a specific March 22 oral recuest of the Brenner Board that parties provide prelimi-- + In nary views on how the new LILCO Motion should be handled. these views the County stated: I (a) The County recuired more than ' the normal ten-day period to respond to LILCO's Low Power Motion, because it i raised many new and complex factual issues and the County ~ those issues. needed to retain appropriate experts to analyze (b) Analysis of the factual issues would first recuire the County to obtain substantial information through discovery. ! 4 ; (N ' s s l
.s, (c) Additional time was required to address legal i issues raised by LILCO's Motion. r 1 (d) A number of threshold issues should be addressed 2 before the, merits of LILCO's Low Power Motion were considered, b including: (i) the Motion did not meet the criteria enunciated by the Brenner Board on February 22 for a new low power propos-al, because it did not state how it met regulatory requirements or why a waiver therefrom should be granted; (ii)'the Motion d 3 r'elied' upon power sources located at the Shoreham site,which _1 ? were not seismically qualified, as required, but LILCO had .. l (iii). 7" i sought no waiver of the NRC's seismic requirements; and 6 A contrary to the Board's February-22 order, the Motion appeared to rely upon the TDI diesels. (r) The County requested a conference ~ with the 4 Brenner Board to discuss the procedural matters affecting the 'l .) diesel litigation and LILCO's Low Power Motion. Suffolk County's Preliminary Views on Scheduling Source: i Begarding LILCO's New Motion, March 23, 1984. 27. On March 28, the-State of New York filed preliminary. Source: views which supported those. submitted by the County. Preliminary View of Governor Cuomo, Representing the State of- 'a New York, Pegarding ' LILCO 's So Ca,*<. led " Supplemental Motion for i k - 14l-j
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~ i a Low Power Opera' ting License," March 28, 1984. The County supplemented its views on March 30, urging that the LILCO Motion be summarily dismissed for failing to comply with GDC 17. Source: Supplement to Suffolk County's' Preliminary views-March 30, 1984. on Scheduling Regardi,ng LILCO's New Motion, I i 28. On March 27, Chairman Palladino gave Judge Cotter's l draft order to the Office of General Counsel. Source Palladino Statement at 13. Chairma,n Palladino did not give the l draft order to the other Commissioners until April 4. Source: ) Palladino 4/4 Memo. 29. On Merch 27, Judges Brenner and Morris wrote Judge k 1 Cotter that "(d]epending on the schedule established (by us or f 1 + the Commission), the Shoreham Licensing Board on which we sit may have to be reconstituted by you due to our heavy schedule for the Limerick evidentiary hearing in April and May." I Sources Brenner and Morris Memo to Cotter, May 27, 1984,_ available as part of FOIA-84-267. l 30. On March 30, the ETRC Staf f responded to LILCO> s Low Power Motion. In reversal of its prior position that no low power license could be issued for Shoreham until the TDI diesel problems were solved (absent a waiver or exemption regarding see, 5 5, supra, the which the Staf f had taken no position), Staff stated that operation of Shoreham could be permitted in . j iff i su f
= ( t t the complete absence of any nuclear qualified onsite electric power system. If the protection afforded to the public at low-power levels without diesel generators is found to be equivalent to (or greater than) the protection af forded to the public full-power with approved diesel genera-4 attors, the Staff submits that LILCO's motion should be granted.\\ t Source: NRC Staf f Response to LILCO's Supplemental Motion for Low Power. Operating License, March 30, 1984. Without address-ing-the County's and State's concerns regarding the time I required to respond to LILCO's Low Power Motion and without
- re-vealing the Staf f's March 16 meeting with Chairman Palladino, n
i; i the Staf f called for an expedited hearing on the Motion, with all testimony to be filed by Acril 23. Source: Id. i 31. Commissionser Gilinsi.y criticized the Sta'f f's posi-1 tion before the Licensing Board. t I must say that this confirms me even further in my view that the staff ought not be in these hearings. Here is the staff l concocting arguments on how all this (GDC17 and Section 50.57(c)] can be rationalized and I must say that even though you didn't tell them anything about the hearings, this is after your meeting with them on the speeding up the process so the effect of it is inevitable. You have them go back and think, 'Well, how can we speed up this process?' I am not suggesting that you did anything proper Esic] mind you but that is intrinsic in.the way the system works. A,4
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m .i i s Searce_: NRC April 23 Meeting Transcript, p. 59. See also CLI-84-8, Separate Views of Commissioner Gilinsky ("the Staff had been.trying to run legal interference for the Company"),
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and Commissioner Asselstine, May 16, 1984. On March 3d, Chief Administrative Judge Cotter issued h 32. an order removing the Brenner Board and establishing a new jq licensing board "to hear and decide" LILCO's Low Power Motion. ] j 'The order noted the " advice" of the Brenner Board that "two of its members are heavily committed to work on another operating ) l .4 license proceeding." Sources Order, " Establishment of Atomic ,'T t Safety and Licensing. Board to Preside in Proceeding," March 30,- 1984. According to a report in Nucleonics Week, April 5, 1984: 1 t Appointment of a board to hear Lilco's motion for a low-power license-at Ehereham . Cwas] his idea, Cotter said through an agency spokesman..However, he said, j Palladino's staf f was " aware" of his deci- ] sien. Source: Nucleonics Week, April 5, 1984, at 10. Chairman } S Palladino recalls that Judge Cotter informed the Chairman's office of the appointment before it was made. Source: -r. Palladino Statement at 14. jl t ]
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o. 33. The NRC's Office of General Counsel spoke with Judge Cetter several times between March 27 and March 30 reg'arding Judge Cotter's proposal to appoint a new board and questioned whether the action did not appear to presume that LILCO's Source: NRC April 23, 1984 Meeting Motion would be grant,ed. Transcript, pp. 8-9. Mr. Malsch of the Office of General Counsel described these conversations as follows: [Malsh]: After the meeting between the 3 l Chairman, ourselves, EDO and so forth, there ap-j peared on my desk a draf't notice from Tony + Cotter announcing a reconstitution of the Licensing Board. I called Tony and asked ~him -- i i I told him that I was sort of bothered by it on its face since it wasn't clear to me that there was a scheduling conflict unless it was presumed that the LILCO low-power motion is granted. At. that time the motion had been' filed. .I didn't think that he, Tony Cotter, had the authority to grant a low-power motion and then refer the motion to another Licensing j Board. 1 I also raised reservations about how the whole thing would appear. He said, "Oh, no," that he had been advised by Larry Brenner who l was the Chairman of the other Licensing Board that he, Larry Brenner, couldn't really give the low-power motion any considoration at all'either granting it or denying it.',ecause he~was so in' volved in the Limerick case and the2efore, Tony didn't feel that his appointment of a new Board in effect prejudged action on the '.ow-powe r motion. He said that he would think, about my i problem about appearadces and call me back.- He then called me back the'next day and said that they were going forward with'it. CHAIRMAN PALLACINC: With what? 18 - 4 a?
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i ~ .s ( MR. MALSH: And that they were going { ) forward with the reappointment of the new Licensing Board. 34. On March 30, the parties were notified by telephone -:h 1 a J l that the new Licensing Board (the " Miller Board") would hear ) oral arguments on April 4, 1984, on LILCO's Low Power Motion j ] t 1 and the response thereto. The telephone notice indicated that I i "a schedule for their expedited decision" would be considered on April 4. Sources: Statement of Oral Notice, available as 1 !)1 part of FOIA-84-267; Mr. Lanpher's recollection of the phone 3 !f This oral notice was confirmed in writing by the Miller . l call. Board on March 30, 1984. The Board stated that at the oral J / r i the Board would hear the issues raised by the parties argument "in their filings, as well as a schedule for their expedited consideration and determination." Source: ASLB No.tice of Oral Arguments, March ,0, 1984. 3 l 35. On April 2, the NRC's General Counsel circQiated a + Memorandum to all the Commissioners. The purpose of this Memo-randum was to respond "to the Chairman's March 20,' 1984' request i that OGC develop proposals _for expedited hearings on the j Shoreham diesel problem." The OGC noted that the " issues OGC Craised by LILCO's Motion) are extremely complex suggested a nunher of alte,rnatives, including an expedited i i, hearing schedule, which allowed a total of 80 days between a Commission Order starting the proceeding and a Licensing Board l ,q 19 - W .g v Y ~
j Under this OGC schedule, there l decision on the LILCO Motion. would have been 15 days for discovery, 10 days between close of discovery and the start of hearings, and 15 days for hearings. j Memorandum from Herzel Plaine to NRC Commissioners, Source: ~ j April 2, 1984. 36. On April 3, the County filed Comments on the Miller 5f a Board's March 30 Notice of Oral Arguments, pointing out that 'q "there is no basis for any expedited process," and that this issue should be addressed by the parties at the oral argument. j The County repeated its view that LILCO's Low Power Motion should not be argued on the merits until the County had an op-y J i portunity to retain experts and conduct adequate discovery, as discussed in the County's March 26 Preliminary Views. Sources q i Suf folk County's Comments on Notice or Oral Arguments, April 3, -l ) l 1984. 37. On April 3, the State of New York filed a motion in opposition to the Miller Board's ruling that LILCO 's Low Power Motion would be given expedited consideration. The State argued that expediting LILCO's Low Power Motion was arbitrary and would deny the State due process of law. Source: Motion by Governor Cuomo to Delete Provision in this Board's Order of March 30, 1984 Mandating Ex)editious Consideration and Determi-e nation of Issues Raised in LILCO's Supplemental Motion, l April 1, 1984. N i 4.,' g n r .,a .es
~. J t 38. On April 4, Chairman Palladino distributed a Memoran-i I attached to which was Chairman 1 dum to the other Commissioners, Palladino's March 22 " working paper" (see 5 24, supra) and Judge Cetter's March 23 draft order (see T 25, supra). The t ]l Chairman's April 4 Me,morandum was also distributed to the Atom-ic Safety and Licensing Board Panel. Source: Palladino 4/4 .3 Memo. j 39. On April 4, the Miller Board heard oral argument on 4' the LILCO Motion. Source: ASLB Transcript, April 4, 1984. J! ' I. i 40. On April 6, the Miller Board issued its Memorandum q! and Order
- Scheduling Hearing on LILCO's Supplemental Motion for
' iI j i Low-Power Operating License (the " Low Power Order"). The Low 1 1 l\\ Power order stated that LILCO could operate-Shoreham at low 1 l power with no ensite electric power system, provided that pub-3 lic health and safety findings similar to those suggested by the NRC Staff were made. Source: ASLB Low Power Order. The time-frames established by the Miller Board for con-sideration of LILCO's Motion were as follows: { Time for discovery 10 days i Time between close of discovery and filing 4 days of testimony Time betwe'en filing of testimony and start 4 days of hearing a ~ 5 - a s ,e d d
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.) Source: Low Power Order. . i. ; i The time-frames ordered that the h' earing would end by Low Power Order. ))4 I May 5. Source: = 41. Suffolk County and the State of New York objected to i the Miller Board's April 6 order as denying them due process of law and as being contrary to GDC 17 and.other NRC regulations. j j Joint Objections of Suffolk County and the State of -l Source: New York to Memorandum' and Order Scheduling Hearing on LILCO's '! j Supplemental Motion for Low Power Operating License, April 16, J .\\ i 1984. The County submitted affidavits of expert consultants ) indicating that the April 6 order denied the county.a chance to-prepare for and participate meaningfully in the hearing'. Source: Letter from ' Lawrence Coe Lanpher to ASLB, April 23, 1984, transmitting affidavits. The Miller Board and, subse-quently, the Commission refused to alter the April 6 order.- ) Source: ASLB Order Denying Intervenors' Motion to Vacate Order, April 20, 1984; NRC April 23, 1984 transcript, at 122-25. The County and State sought a temporary restraining order in federal court that was gr' anted' on April 25. Source: Memo-randum opinion, U. S -. Distrlet Court Docket 84-1264, April 25, l 1984. 1 .'- ); 1 /: 2 .~q$ x
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. c z:zs ~ IXICU" Ire DI.2E000R FOR OPERATIONS + SC3 JECT: SEORIEAM ECC5 I ..! p' hk (D jt has come to my attention that essentially all ~of the ICCS .f pumps?dt Shoreham are located. next to one another on the '~ " '. s bottoidloor of the reactor building. Since there are no -l walls ca. dams to isolate the pt=ps, I am curious 'its to how - the plant meets the Appendix R fi: e barrierir.cquirements or ! 4-General Design Criterion 35,, 34, a.nd 35 with ' respect to . l i flooding induced by a single pipe. f ailure. Has the staff made a finding that the EccS pt=ps meet the regulations? ~ 3 I would appreciate a response by tome: row evening if possible. 1 l i \\ / i .'i .A, Victor Gilinsky \\J cc: Chai.7. an palladino i Co:::missioner Roberts Comissione: Asselstine Commissione: Bernthal SECY / t \\ i N .It } ;' i ,s, -j - 3 [, 2 s d, ) -a s 3 q s r..y - yq a e M7;3G,m a40626 m 2 ',. PDR ADOCK 05000322 )- T ' Q PDR ~
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