ML19209A829
| ML19209A829 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 09/04/1979 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910050451 | |
| Download: ML19209A829 (12) | |
Text
0 A Xo September 4,1979 UNITED STATES OF A'4 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUGET SOUND F0WER & LIGHT COMPANY,
)
- - - -ET AL.
)
Docket Nos. STN 50-522
)
STN 50-523 (Skagit Nuclear Power Project,
)
Units 1 and 2)
)
NRC STAFF'S RESPONSE IN OPPOSITION TO PETITION FOR REVIEW INTRODUCTION On August 17, 1979, Intervenors Forelan on Board and the Coalition for Safe Power (F0B/ CSP) filed a Petition for Review, pursuant to 10 CFR S 2.786(b),
seeking Commission review of ALAB-556 (July 30,1979) which denied a F0B/ CSP motion to disqualify the Chaiman of the Licensing Board.
The motion to disqualify was tendered to the Licensing Board and the parties at the commence-ment of an evidentiary hearing on July 17, 1979.
The motion sought the dis-qualification of the Chairman upon the' grounds that his untimely resolution of the Indian Tribes' petition to intervene severely prejudiced their rights.
On July 18, 1979, after oral discussion of the motion by the parties, the Licensing Board denied the motion anzi referred it to the Appeal Board under 10 CFR 9 2.704(c) (Tr.12,161).
In its Petition for Review, F0B/ CSP asserts three reasons why the Appeal Board decision is erroneous:
- 1) the Appeal Board erroneously decided that 1127 086 a6\\
7910050
.. F0B/ CSP failed in its moving papers to establish presonal bias on the part of the Licensing Board Chaiman; 2) the Appeal Board committed error when it decided that F0B/ CSP lacked standing to file the motion; and 3) the Appeal Board erroneously concluded that the motion was untimely.
The NRC Staff opposes this Petition for Review because it does not meet the requirements of 10 CFR 55 2.786(b)(4)(1) and (ii). The Staff's position with respect to the three allegations of error are set forth in detail below.
A.
Prejudice 1.
Allegation of Error The Petition alleges error on the part of the Appeal Board in concluding that the F0B/ CSP motion did not establish that the Board Chaiman harbored a personal prejudice against the intervening Indian Tribes.
FOB / CSP asserts error because it perceives that the Appeal Board decided a different issue from that raised by its motion.
Specifically, FOB / CSP ar,gues that it did not try to establish personal bias on the part of the Chaiman in its motion, but rather it alleged that the Chairman prejudiced the procedural rights of the Indian Tribes by not rendering a decision on the Tribes' intervention in an expeditious manner (Petition, p.3).
2.
Aopeal Board Decision The Appeal Board determined that F08/ CSP's motion to disqualify was totally absent of facts which could be interpreted as establishing prejudgment by the Board Chairnan (ALAB-556, Slip Op. at 6).
Since the motion did not set 1127 087
. forth any facts to establish prejudgment, the Appeal Board felt that the thrust of the motion was actually trying to " convey the thought that the Board Chairman had manifested personal bias against the tribes..." (Jd_.).
After considering all the facts surrounding the Board's reconsideration of the Indian intervention and the statements made in the Licensing Board's decision of June 1, 1979 (LBP-79-16, 9 NRC
) regarding the Indian peti-tion, the Appeal Board concluded that, not only were there no facts to estab-lish prejudgment, but also there was no evidence of bias.
The Appeal Board did agree, however, that the Licensing Board might and should have acted on the remand with considerably greater dispatch, but it concluded that the
" failure of an adjudicatory tribunal to decide questions before it with suitable promptness scarcely allows an inference that the tribunal (or a member thereof) harbers a personal prejudice against one litigant or another."
(ALAB-556, Slip. Op. at 9).
3.
NRC Staff Posi tion The Staff is in complete agreement with the Appeal Board that the motion to disqualify is completely void of any facts to establish prejudgment on the part of the Board Chairman. We also believe that, based on the. wording and the thrust of the motion, it was reasonable and proper for the Appeal Board to interpret it as attempting to establish personal bias.1/ Accordingly, there is no merit to this allegation of error in the first instance because the motion could reasonably be interpreted as attempting to establish personal bias on the part of the Chairman.
1/
For example, FOS / CSP's objection to the Licensing Board's emplopent of the term " legal battleground" certainly could be construed as attempting to establish personal bias.
1127 088 In any event, even if the motion was only alleging that the Board Chairnan prejudiced the Tribes' procedural rights by not rendering a decision in an expeditious manner, we believe that tb Appeal Board addressed this concern as well. The Appeal Board indicated that the Tribes' procedural rights would not be impaired by the Licensing Board's decision if in fact that decision was eventually reversed by the Appeal Board or the Commission.
Under those cir-cumstances, "it would appear that it is the applicants -- and not the tribes --
who have the most to lose by reason of the seeming tardiness of the entry of the June 1 order."
(Id_.,p.9).
If the intervention decision was reversed, the Tribes would be allowed to litigate their concerns, and their procedural rights would not be prejudiced. However, this would result in further extending the proceeding which would be contrary to the Applicants' interests.
Based on the foregoing, it is clear that Commission review of this matter would not involve a matter of law or policy that raises an important proce-dural issue or an important question of public policy as required by 10 CFR 5 2.786 (b)(4)(i). We do believe that this question of prejudgant or pro-cedural prejudice involves a factual matter that has been reached by both the Licensing Board and the Appeal Board in a consistent manner.
Therefore, in accordance with 10 CFR f 2.786(b)(4)(ii), review should not be granted on this factual matter because it would involve a third factual review by the Commission.2.]
2/
While it is true that tne Licensing Board did not issue a written order delineating its reasons for denial of the disqualification motion, it may be assumed that the Licensing Board did not feel that it had pre-judged the decision or had harbored personal bias or had prejudiced the Tribes procedural rights.
I127 089 B.
Standing 1.
Allecation of Error F0B/ CSP asserts that the Appeal Board committed error when it decided that F08/ CSP could not establish an invasion of any of their own rights when the Licensing Board denied intervention to the Indian Tribes and thus lacked standing to file the motion seeking disqualification.
FOB / CSP alleges that the appropriate Commission regulation pertaining to disqualification motions, 10 CFR S 2.704(c), states that only a " party" to a proceeding can file such a motion. Therefore, they argue that since the Tribes are not a party to this proceeding, it would be impossible for them to file a disqualification motion.
In addition, F08/ CSP argues that the regulation does not require that the aggrieved party has to be the party to file the motion -- it believes that any party can file a disqualification motion when a violation of justice has occurred (Petition, pp. 4-5).
2.
Acceal Board Decision The Appeal Board indicated that FOB / CSP did not assert any invasion of their own rights in the disqualification motion nor did it explain the basis for their standing to complain on the Tribes' behalf since there was nothing to indicate that the Tribes had clothed F08/ CSP with the authority to speak for them (ALAB-556, Slip. Op. at 3). The Appeal Board further noted that it was not imediately obvious to them the basis for F08/ CSP acting to behalf of the Tribes when the Tribes were represented by competent counsel. The Appeal Board thus concluded that the Tribes could have sought the disqualification i127 090 of the Chairman even though they were not parties to the proceeding, in that any litigant has the right to seek to disqualify a Board member in any aspect of the proceeding which related directly to them (Id., n.8).
3.
NRC Staff Position The question presented in this assertion of error is whether F08/ CSP has standing to allege a violation of rignos of another litigant. We believe the Appeal Board has decided this question correctly.
It is clear at this point that FOS / CSP's motion to disquMify is based on the allegation that the Licensing Board violated or prejudiced the proce-dural rights of another litigant because it did not render its decision in an expeditious manner. We believe that the motion is improper and should be denied because FOS / CSP does not have standing.
The Supreme Court has held that to establish standing a "plantiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490 at 499 (1975).
Similarly, the Commission has held that in Commission licensing actions contemporaneous judicial concepts of standing should apply.
Portland General Electric Comoany (Pebble Springs Nuclear Plant, Units 1 and 2),
In Pebble Sorinas, the Commission stated that:
1127 091
. "To have ' standing' in coJrt, one must satisfy two tests.
First, one must allege some injury that has occurred or will probably result from the action involved.
Under this
' injury in fact test' a mere academic interest in a matter, without any real impact on the person asserting it, will not confer standing." 4 NRC 610 at 613.
Under this test, it is our opinion that F08/ CSP also does r ot have stand-ing to file the disqualification motion because they have not alleged, nor can they allege, that they were injured by the Board's action.
Based on the foregoing judicial concepts of standing, we think it is abun-dantly clear that only the Tribes could have sought the disqualification of the Board Chaiman in this instance.
As the Appeal Board indicated, the Tribes are represented by competent counsel who presumably could have sought disqualification of the Board Chaiman, not through the provisions of 10 CFR Q 2.704(c), but rather through the appeal process o' the Board's June 1 decision by alleging an abuse of discretion and a ysolation of procedural rights.
See Detroit Edison Comoany (Greenwood Er ;rgy Center, Units 2 and 3), ALA8-376, 5 NRC 426 (1977).
Not having sought disqualification, it must be assumed that they did not feel that the Chaiman prejudged the facts or harbored a personal bias against the Tribes.
This is not to sa) it the Tribes, or any narty, is supportive of the delay in the decision on the Tribes' intervention.
However, as recognized by the Appeal Board, delay in issuance of a decision does not, by itself, indicate 1i27 092
. prejudgment or personal bias.
If the delay does cause some procedural or due process violations to the Tribes, they can ultimately be raised as legal arguments by the Tribes in their pursuit of intervention or, if granted party status, on their appeal of the initial decision.
These legal argu-ments can only be exercised by the Tribes since it is their rights that have been or may be potentially violated by the Board's action and they are the only ones who will be injured.
Thus it was totally inappropriate for F08/ CSP to pursue these arguments on behalf of the Tribes.
For the above reasons, the NRC Staff is of the opinion that this assertion of error should not be reviewed by the Commission because it does not involve an important procedural issue or an important question of public policy as required by 10 CFR 9 2.786(b)(4)(i).
C.
Untimeliness 1.
Assertion of Error The Petition asserts error by the Appeal Board in its decision that the motion to disqualify was untimely (Petition, p.5).
F08/ CSP alleges that the motion was filed as expeditiously as their time and resources would allow and that neither the Licensing Board nor the parties objected to the motion on grounds of untimeliness.
2.
Aapeal Board Decision In their opinion, the Appeal Soard did not rule upon the timeliness vel non of F08/ CSP's motion, but rather, only noted in a footnote previous ALAB ii27 093
. decisions which held that the " failure of a party to file a motion for dis-qualification once the information giving light to such a claim is available to him amounts to a waiver of the disqualification objection."
(See Slip.
Op.,p.4,n.6).
In this instance, the Appeal Board observed that the six-weeks delay in filing of the motion and the submission of the motion at the commencement of an evidentiary hearing session deprived the Licensing Board of an opportunity to consider the motion prior to the hearing.
3.
NRC Staff Position Because the Appeal Board did not decide the present case on the issue of timeliness, it is the Staff's position that this question is inappropriate for Commission review.
For the law is clear, we believe, that it is the decision of the Appeal Board and not its opinion upon which the question of appropriate review must focus.
See, Duke Power Co., (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-478, 7 NRC 772, 773 (1978.)
Thus, having declined to expressly rule on the matter of timeliness, the issue raised by FOB / CSP as to the correctness of the Appeal Board's observations in this regard does not present an issue of law or policy requiring consideration by this Commission under 10 CFR S 2.786(b)(4)(i).
1127 094
. CONCLUSION For the reasons set forth above, the NRC Staff submits that this Petition for Review should be denied.
Respectfully submitted A
I /
d f.f I
V Richard L. Black Counsel for NRC Staff Cated at Bethesda, Maryland this 4th day of September, 1979.
4 1127 095
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f' MISSION BEFORE THE COMMISSION In the Matter of
)
PUGET SOUND F0WER & LIGHT Docket Nos. STN 50-522 COMPANY, U &.
)
STN 50-523
)
(Skagit Nuclear Power Project,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that. copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO PETITION FOR REVIEW" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or; as indicated by an asterisk by deposit in the Nuclear Regulatory Commission's internal mail system, this 4th day of September,1979:
Alan S. Rosenthal, Esq., Chairman
- Dr. Frank F. Hooper, Member Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board School of Natural Resources U.S. Nuclear Regulatory Commission University of Michigan Wash.igton, DC 20555 Ann Arbor, MI 48109 Dr. John H. Buck, Member
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Robert Lowenstein, Esq.
Michael C. Farrar, Esq., Member
- Lowenste h, Newman, Reis, Atomic Safety and Licensing Appeal Axelrad & Reis Board Suite 1214 U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Valentine B. Deale, Esq., Chairman
- Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Planning Department 1001 Connecticut Avenue, N.W.
120 W. Kincaid Street Washington, DC 20036 Mount Vernon, WA 98273 Donald W. Godard, Supervisor Mr. Lloyd K. Marbet Siting and Regulation c/o Forelaws on Board Denrtment of Energy 19142 S. Bakers Ferry Road Room 111, Labor and Industries Boring, OR 97009 Building Salem, OR 97310 1127 096
. Mr. Nicholas D. Lewis Richard D. Bach, Esq.
Chairman Rives, Bonyhadi & Drummond Washington State Energy Facility 1400 Public Service Building Site Evaluation Council 920 S. W. 6th Avenue 820 East Fifth Avenue Portland, OR 97204 Olympia, WA 98504 Roger M. Leed, Esq.
F. Theodore Thomsen, Esq.
1411 Fourth Avenue Perkins, Coie, Stone, Clsen Seattle, WA 98101
& Williams 1900 Washington Building Warren Hastings, Esq.
Seattle, WA 98101 Associate Corporate Counsel Portland General Electric Company Richard M. Sandvik, Esq.
121 S.W. Salmon Street Assistant Attorney General Portland, OR 97204 State of Oregon Department of Justice James W. Durham, Esq.
555 State Office Building Portland General Electric Company Portland, OR 97201 121 S.W. Salmon Street TB 17 Canadian Consulate General Portland, OR 97204 Robert Graham Vice-Consul Atomic Safety and Licensing Board 412 Plaza 600 Panel
- 6th & Stewart U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, DC 20555 Thomas F. Carr, Esq.
Atomic Safety and Licensing Appeal Assistant Attorney General Panel (5)*
Temple of Justice U.S. Nuclear Regulatory Commission Olympia, WA 98504 Washington. DC 20555 Patrick R. McMullen Docketin7 and Service Section (4)*
Skagit County Prosecuting Office of the Secretary Attorney
'U.S. Nuclear Regulatory Commission Courthouse Annex Washington, DC 20555 Mount Vernon, WA 98273 Samuel J. Chilk (12)*
Russell W. Busch, Esq.
Secretary of the Commission Attorney for Upper Skagit Indian U.S. Nuclear Regulatory Commission Tribe and Sauk-Suiattle Indian Washington, DC 20555 Tribe Evergreen Legal Services 520 Smith Tower Seattle, WA 98104 I
/f f
by j! b nt Richarc L. Black /
Counsel for NRC Staff 1127 097
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