ML19070A329
| ML19070A329 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 03/11/2019 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | Jeff Baran, Stephen Burns, Annie Caputo, Kristine Svinicki, David Wright NRC/OCM |
| SECY RAS | |
| References | |
| 72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54848 | |
| Download: ML19070A329 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Kristine L. Svinicki, Chairman Jeff Baran Stephen G. Burns Annie Caputo David A. Wright In the Matter of INTERIM STORAGE PARTNERS LLC Docket No. 72-1050-ISFSI (WCS Consolidated Interim Storage Facility)
CLI-19-03 MEMORANDUM AND ORDER This proceeding involves the application of Interim Storage Partners LLC for a license to construct and operate a consolidated interim storage facility (CISF) in Andrews County, Texas.
Numerous petitioners sought to intervene and requested a hearing in this proceeding, and the Board has not yet ruled on any of the petitions. On November 26, 2018, a group of petitioners (referred to as the Moving Petitioners) requested that each of the Boards three members disqualify himself from hearing this matter.1 The Staff opposed the motion, and other participants in the hearing did not respond to it.2 1 See Motion of Sierra Club, Dont Waste Michigan, Citizens Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development (SEED) Coalition, and Leona Morgan, Individually for Disqualification of Atomic Safety and Licensing Board (Nov. 26, 2018) (Motion).
2 NRC Staff Response to Motion for Disqualification of Atomic Safety and Licensing Board (Dec.
6, 2018) (Staff Response).
The Board denied the motion and referred its ruling to the Commission, as our regulations require with respect to motions to disqualify.3 We agree with the Board that the Moving Petitioners did not provide a valid justification for disqualifying the Board or any of its members, and we affirm its ruling.
I. DISCUSSION NRC regulations provide that, if the Commission itself does not designate the presiding officer, then the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel will do so.4 The Chief Judge has broad authority to manage the Panels docket efficiently, including such matters as splitting an adjudication between two boards.5 Although the regulation pertaining to disqualification of a judge does not describe what circumstances justify disqualification, we have held that Licensing Board members should look to standards that apply to federal judges.6 Those standards hold that a judge must disqualify himself or herself whenever the judges impartiality in the proceeding might reasonably be questioned, as well as in specific circumstances in which conflict of interest is shown.7 While the Moving Petitioners did not claim in their motion that any of the Board judges have an actual 3 LBP-18-6, 88 NRC __ (Dec. 13, 2018) (slip op.); see 10 C.F.R. § 2.313(b)(2).
4 10 C.F.R. § 2.313(a).
5 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-7, 47 NRC 307, 311 (1998) (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-916, 29 NRC 434, 438 (1989)).
6 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982).
7 28 U.S.C. § 455(a)-(b).
conflict of interest, they argued that the circumstances would suggest[] the appearance of bias to an objective observer.8 Specifically, the Moving Petitioners argued that the three members of the Board should disqualify themselves because the same three judges are serving as the Board members in a similar license proceeding, involving the application of Holtec International for a CISF in New Mexico; that proceeding is also now in its preliminary stages.9 The Moving Petitioners point to caselaw that holds that even where there is no actual conflict of interest, a judge should disqualify himself or herself where a reasonable person would question the judges impartiality.10 They argue that having the same three judges preside over the two licensing proceedings poses the appearance of bias.11 They cite no other facts supporting their argument. They do not explain how there could be an appearance of bias at this point in the proceeding, when the Board has made no substantive rulings in either proceeding.
The Moving Petitioners argue that an appearance of bias could arise in the future; that is, that a reasonable observer would infer bias if, after ruling on an issue in one proceeding, the Board then makes a similar ruling in the other proceeding.12 At this point, there is no indication 8 Motion at 1.
9 Id.
10 Id. at 4-5 (citing, among others, Cheney v. U.S. Dist. Court for the Dist. of Columbia, 541 U.S.
913 (2004) (Scalia, J., in chambers); Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-98-9, 47 NRC 326, 331 (1998)). In Hydro, we rejected the argument that a reasonable person might believe the Presiding Officer would be biased in favor of a party represented by a law firm with which the Presiding Officer had recently discussed, but had not been offered, employment. CLI-98-9, 7 NRC at 331.
11 Motion at 4.
12 See id. at 6 (arguing that two different boards should be appointed to dispel any appearance or suggestion that the complex and controversial decisions in one case are being made, but in short-shrift or summary fashion, by the same judges in the other CISF licensing case).
that the Board or any of its members have established views about any issue pertaining to this proceeding. Moreover, in order to provide a basis for disqualification, the prejudgment, or appearance of prejudgment, must relate to a factual dispute rather than a legal one.13 While a judge should not have preconceived beliefs about the facts, it is not grounds for disqualification for a judge to have formed an opinion about the applicable law.14 If two proceedings occasionally present overlapping legal issues, then consistency between the legal rulings of the two cases is to be expected, regardless of the composition of the boards. And where the facts and legal issues between the two proceedings are distinguishable, we have confidence in the boards abilities to distinguish between them.
The Moving Petitioners argument concerning bias is not persuasive. Nothing in the motion suggests that any of the Board judges either have a conflict or have prejudged any issue involved in this case. The motion does not provide any reason why a reasonable observer might question the Boards impartiality.
The bulk of the Moving Petitioners motion is devoted to arguments implying that the judges would be overworked by the complexity and confused by the similarity of the issues in the two licensing proceedings.15 These claims do not relate to prejudice. As for the prospect that the judges may be overworked, the Chief Administrative Judge appoints members of each board and has the discretion to manage the boards if the complexity of the issues involved 13 See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21, 34 (1984).
14 Id. at 35 (citing S. Pac. Commcns Co. v. AT&T, 740 F.2d 980, 990-91 (D.C. Cir. 1984)); see also Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 64, 65, 66 (1973).
15 Motion at 3-4.
makes it expedient to do so.16 That would include substituting Board members, or replacing an entire Board, if necessary for workload reasons.17 We decline to take over this duty of the Chief Administrative Judge. In addition, we are not persuaded by the suggestion that the Board members may become confused by the factual similarities between the two proceedings. We traditionally give a high level of deference to the boards as the fact finder in our adjudicatory proceedings.18 The Moving Petitioners have not provided a sufficient basis for the Commission to do otherwise in the instant proceeding.
II. CONCLUSION We therefore find that the Moving Petitioners grounds for disqualification are insufficient and affirm the Boards ruling.
For the Commission NRC SEAL
/RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 11th day of March, 2019.
16 See Private Fuel Storage, CLI-98-7, 47 NRC at 311; Seabrook, ALAB-916, 29 NRC at 438.
17 See Private Fuel Storage, CLI-98-7, 47 NRC at 311.
18 See, e.g., Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 73 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
INTERIM STORAGE PARTNERS LLC
) Docket No. 72-1050-ISFSI
)
(WCS Consolidated Interim Storage Facility) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-19-03) have been served upon the following persons by the Electronic Information Exchange:
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Paul S. Ryerson, Chair Administrative Judge E-mail: paul.ryerson@nrc.gov Nicholas G. Trikouros Administrative Judge E-mail: nicholas.trikouros@nrc.gov Dr. Gary S. Arnold Administrative Judge E-mail: gary.arnold@nrc.gov Joseph McManus, Law Clerk Taylor Mayhall, Law Clerk E-mail: joseph.mcmanus@nrc.gov taylor.mayhall@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O16-B33 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O16-B33 Washington, DC 20555-0001 Hearing Docket E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Joe Gillespie, Esq.
Sara Kirkwood, Esq.
Mauri Lemoncelli, Esq.
Emily Monteith, Esq.
Patrick Moulding, Esq.
Carrie Safford, Esq.
Thomas Steinfeldt Alana Wase, Esq.
E-mail: joe.gillespie@nrc.gov sara.kirkwood@nrc.gov mauri.lemoncelli@nrc.gov emily.monteith@nrc.gov patrick.moulding@nrc.gov carrie.safford@nrc.gov thomas.steinfeldt@nrc.gov alana.wase@nrc.gov
Docket No. 72-1050-ISFSI COMMISSION MEMORANDUM AND ORDER (CLI-19-03) 2 Counsel for Beyond Nuclear Diane Curran, Esq.
Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Mindy Goldstein, Esq.
Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 E-mail: magolds@emory.edu Diane DArrigo Nuclear Information and Resource Service (NIRS) 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 Email: dianed@nirs.org Karen D. Hadden Executive Director, Sustainable Energy and Economic Development (SEED) Coalition 605 Carismatic Lane Austin, TX 78748 E-mail: karendhadden@gmail.com Counsel for Interim Storage Partners LLC Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Stephen Burdick, Esq.
Timothy Matthews, Esq.
Ryan Lighty, Esq.
Paul Bessette, Esq.
E-mail: stephen.burdick@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com paul.bessette@morganlewis.com Chris Hebner, Esq.
City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283 E-mail: chris.hebner@sanantonio.gov Counsel for Sierra Club Wallace Taylor 4403 1st Avenue S.E.
Suite 402 Cedar Rapids, IA 52402 E-mail: wtaylorlaw@aol.com Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Robert V. Eye Law Office, L.L.C.
Robert Eye, Esq.
Timothy Laughlin 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 E-mail: bob@kauffmaneye.com tijay1300@gmail.com Counsel for Dont Waste Michigan, et al Terry Lodge, Esq.
316 N. Michigan Street Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com
[Original signed by Herald M. Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 11th day of March, 2019