ML20236V016

Responds to 871113 Response to Author Request for Board Consultation W/Parties Before Selecting Replacement for Judge Margulies.Clients Request Explanation of Process Used to Select Judge Gleason

ML20236V016
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/25/1987
From:	Brown H KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Cotter B Atomic Safety and Licensing Board Panel
References
CON-#487-4933 OL-3, OL-6, NUDOCS 8712040039
Download: ML20236V016 (2)

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aca nsen November 25, 1987 Administrative Judge B. Paul Cotter, Jr.

Chairman Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20555

Dear Judge Cotter:

j This is in reply to your letter dated November 13, 1987, which in turn responded to our November 12 request on behalf of Suffolk County and New York State that you consult with the parties to the Shoreham proceeding before selecting a replacement for Judge Margulies. Your November 13 letter rejected this request, stating that, "Given the current state of complexity of the proceeding and the need for Judge Margulies' replacement to familiarize himself with the case, I deemed it essential that a replacement be named promptly in order to avoid any further delay."

Suffolk County and New York State take exception to your action. While inordinate " delay" would not have been desirable,  ;

delay itself was never an issue in this instance. Indeed, the  !

issue was how best to act appropriately under the unusual I circumstances of the Shoreham case. Your precipitous action, I however, has now become a significant issue, because without justification you foreclosed the views and involvement of the County and State on a matter which these parties deem central to the fairness and objectivity of the hearing process.

A basic reason the County and State requested to be consulted was because of the present " complexity" of the Shoreham proceedinn, a factor you cited in your November 13 letter. Given this complexity, it surely would have been useful for you to have sought the views of the parties to the Shoreham proceeding, rather than to have barred them peremptorily. l I

Our understanding is that Judge Gleason is a part-time l member of the licensing board panel. Whether this status poses 4 any issues that may be relevant to the shoreham proceeding is unclear, particularly in light of the realistic characterization 8712040039 871125 e PDR ADOCK 05000322 C PDR - CDO r -

, KIRKPATRICK & LOCKHART Administrative Judge B. Paul Cotter, Jr.

November 25, 1987 Page 2 of Judge Margulies in his resignation letter that the upcoming litigation will be demanding, intensive, and extensive. This is a matter that would have arisen had you consulted the parties before acting.

-Moreover, there is no apparent reason why Judge Frye was not chosen to chair the licensing board. Judge Frye is particularly knowledgeable of the background of Shoreham-related issues.

Upon issuance of the OL-5 decision, he presumably would be available to chair the OL-3 board. This, too, would have been addressed had you consulted with the parties before acting. Your failure to address these matters, or indeed even to permit the parties to raise these questions before you hastily chose Judge Gleason, is inexplicable.

This is the third instance where you abruptly changed the composition of licensing boards without consulting the parties, the previous instances being highlighted by the notorious creation of the Miller Board that ultimately was restrained by the U.S. District Court. Such actions undercut the credibility of the licensing boards and fuel growing suspicions of the af fected public that the NRC is not an objective adjudicator, but is instead the promoter of a private agenda that suits only the applicant in this case.

Suffolk County and New York State believe that it would benefit both the substance and integrity of the Shoreham proceedings if you reconsider your action. In particular, the County and State request that (1) you explain, beyond the conclusory statement in your November 12 letter, the processs you used here to select a replacement judge and why you selected Judge Gleason rather than any other judge, including Judge Frye; (2) you request the views of the parties with respect to the replacement of Judge Margulies under the circumstances of this case, including criteria appropriate to making the replacement.

Sincerely, Herbert H. Brown cc: Service List f

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