ML20215G735

Requests Explanation for Removal of Judges Margulies & Kline from post-exercise Litigation Due to Schedule Conflicts.Commission Directed in CLI-86-11 That If Available Margulies Board Preside Over post-exercise Litigation

ML20215G735
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/14/1986
From:	Brown H KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Cotter B Atomic Safety and Licensing Board Panel
References
CON-#486-1140 CLI-86-11, OL-5, NUDOCS 8610210085
Download: ML20215G735 (3)

Text

/tfD KIRKPATRICK & LOCKHART 1900 M STREET, N W.

TASHINGTON, D.C. 20036 N PLACE

,h4 02108 TE12 PHONE CO2) 452-7000 e73 54ao 14;8 BluCKELL AVENUE TTLECOP!ER CC2) 452 7032

• LF 't 1500 OLIVER BUILDING HERBERT H. BROWN OFFICE msseacpA U222 aca <s2m DOCKETitiu'*P "'*? U October 14, 1986 esANet TELECOPY Administrative Judge B. Paul Cotter, J r. , Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland Re: NRC Docket No. 50-322-OL-3 (EP Exercise)

Dear Judge Cotter:

I am writing on behalf of Suffolk County and with authorization to write also for the governments of New York State and the Town of Southampton (" Governments").

This past weekend, counsel received your " Notice of Reconstitution of Board," dated October 7, 1986, which for the stated reason of " schedule conflicts" removed Judges Margulies and Kline from the Shoreham post-exercise litigation and replaced them with Judges Frye and Paris. The Governments respectfully request that you particularlize the " schedule conflicts," explain the circumstances that prompted the Notice, and identify the factors you considered in deciding to remove Judges Margulies and Kline. In particular, the Governments would appreciate learning whether, in making your decision, you were. aware:

1. that in CLI-86-11, the Commission had specifically " directed" that if available the Margulies Board preside over the post-exercise litigation?

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

October 14, 1986 Page 2

2. that in order to benefit from the

" knowledge" the Margulies Board previously gained on emergency preparedness issues and the Board's familiarity with the " mammoth record," the Applicant had specifically requested that the Margulies Board preside over the post-exercise litigation; and no other party objected?

3. that in the post-exercise proceeding, the Margulies Board had presided over two prehearing conferenc'es of counsel, read and considered hundreds of pages of substantive pleadings concerning issues to be litigated, ruled on motions and numerous contentions following oral arguments of counsel, and fixed a pre-hearing discovery schedule?

4. that the Margulies Board had personally heard three full days of oral limited appearance statements in Suffolk and Nassau Counties at which hundreds of members of the public and scores of government officials and community leaders presented their views on the pending issues?

5. that any party to this prceeeding might view the reconstitution of the Licensing Board as prejudicial or otherwise adverse to the public interest?

The Governments would appreciate being advised as to the consideration and weight you gave each of these factors.

By having presided over the critical early stages of the post-exercise litigation, as well as having participated in the earlier emergency preparedness decisions, Judges Margulies and Kline became educated as to the evidence of record, the facts at issue, and the relationship of those facts to the ultimate legal questions. While bhe Governments have objected strongly to certain rulings of the Margulies Board and have appealed these rulings, the fact is that Judges Margulies and Kline have a familiarity with the record in this proceeding that cannot be duplicated by new Judges. Indeed, the removal of Judges Margulies and Kline will have the potential to cause an immediate adverse impact on the post-exercise proceeding, because the new Judges will require time to learn the relevant history of the

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

October 14, 1986 Page 3 unprecedented emergency preparedness issues at Shoreham -- more than four years of NRC and court proceedings and thousands of pages of materials concerning the first " utility plan" -- before they are in a position to act knowledgably in their new capacity.

Even after familiarizing themselves, the new Judges will never realize the benefit of having participated in earlier decisions concerning emergency preparedness or having heard the testimony of the public and government officials at the limited appearance sessions.

In short, the Governments submit that the Notice reconstituting the Margulies Board should be rescinded. Whatever considerations led you to issue the Notice should be re-evaluated in light of the prejudicial and otherwise adverse effects that reconstitution of the Board has on the parties and public in this unique proceeding. Putting new Judges into the Shoreham proceeding at this time denies the Governments a fair and adequate hearing board.

In the event you perceive any scheduling conflicts among Board members, the Shoreham proceeding should take priority. Any conflicts should be resolved so as to preserve the original membership of the Margulies Board and the base of critical background and familiarity these Judges have with the singular pending issues. At this stage of the proceeding, there is no legitimate reason to have any emergency preparedness issue heard or decided by any Board other than the Margulies Beard.

The Shoreham proceeding is not commonplace in any of its dimensions, and it is.not a case in which Licensing Board members can be viewed as being'fungible. It.is, to the Governments, inexplicable that your majdr decision to reconstitute the sitting Licensing Board -- a matter affecting the very structure of Shoreham proceeding -- was made-by you without prior notice to the parties or even a request for their views. The Governments accordingly submit that the only appropriate course is for you to ,

reconstitute the Margulies Board and to permit the Shoreham proceeding to move forward in accordance with NRC regulations and without further interference.

SySPrely, Herbert . B' o w n cc: Service List (LILCO and NRC Staff Telecopied) l l