ML19331A986
| ML19331A986 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/01/1973 |
| From: | Goodman C, Hall D, Murphy A Atomic Safety and Licensing Board Panel |
| To: | Saginaw Intervenor |
| References | |
| NUDOCS 8007240567 | |
| Download: ML19331A986 (11) | |
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UNITED STATES OF AMERICA d.JLA ATCMIC ENERGY CCMMISSION c)
In the Matter of
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CCNSUMERS PCWER COMPANY Docket Nos. 50-329 5 ~33 Mid' and Plant, Units 1 and 2
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Order Denying Motion to Recall and Revoke Initial Decision THIS DOCUMENT CONTAINS P00R QUAUTY PAGES Saginaw Intervenors have filed a motion requesting the Atomic
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Safety and Licensing Board (ASLB) to " Recall and revoke the initial decision" and "to declare itself biased." The Saginaw motion is supported by an affidavit of its counsel, Myron M. Cherry. The motion has been joined in -
by Mapleton Intervenors who have not filed any additional papers. The motion is opposed by Applicant, the Regulatory Staff and, Intervenor, Dow Chemical Company.
The primary basis for the motion is an article written by the Chairman of the Board and published in the October 1972 issue of the Columbia Law Review. The article, entitled The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace, originated as a report to a committee of the Ad-ministrative Conference of the United States which commissioned the Chairman to do a study of the impact of environmental legislation on tne Federal Licensing Process. There are, in addition, several instances referred to in the Saginaw papers purportedly demonstrating bia.s on the part o f the Chairman and the other members of the Board.
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-2 The Saginaw papers do not specify the particular basis upon which their charge of bias is predicated. The article itself covers a broad spectrum of topics related to atomic energ licensing and the ad-ministrative process generally. The only guide to the specific concern of intervenors is the selected 21 pages of the article attached to yx.
Cherry's affidavit. Having read those pages, the Board confesses to a certain amount of bafflement as to exactly what it is ye. Cherry complains of, but as indicated below, we have operated on the assumption that the claim is of prejudgment of certain issues.
I Applicant, the Staff, and Dow have raised the objection that the motion to disqualify is untimely. We believe that this objec ion is well taken. It is certainly no secret that the Chairman has views about AIC licensing; indeed an earlier article by the Chaiman, (Murphy, Atomic Safety and Licensing Boards: An Experiment in Administrative Decision Making on Safety Questions, 33 Law and Contem. Prob. %6 (1968)) was extensively cited by Mr. Cherry at the outset of the hearing. The period in which this proceeding has been pending has been one of very considerable i
l interest in the licensing of electric power facilities and there have been i
numerous occasions on which counsel for the various parties have exchanged l
views on general problems of licensing. In July, 1971, the Board, on one occasion, altered (at Mr. Cherry's request) the scheduled course of the i
hearing in order to permit him to testify on various aspects of the licensing process before the Joint Congressional Comittee on Atend.c Energ.
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t it thought the Ccumnittee should have the benefit of his views. Many of the issues on which he testified are, of course, involved in this proceeding but no one questioned the propriety of his discussing those issues as part of the general discussion of licensing.
In November, 1971, Mr. Cherry and the Chair =an were co-panelists at a session of an American law Institute - American Bar Association Course of Study in Washington D.C. at which both the Chairman and Mr. Cherry spoke on a number of the issues referred to in the Columbia law Review article. At other sessions of the same Course of Study, many counsel involved in AEC licensing, including Robert Lowenstein, Esq. and Irving Like, Esq., then counsel (respectively) to the applicant and Mapleton Intervenors in this proceeding gave talks.
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One of the luncheon speakers at the Course of Study was Hon. ~hoger C.'
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Cramton, then Chairman of the Administrative Conference, who discussed, among other things, the study of the licensing process then underway for the Conference. The participation of the Chairman of the ASLB in that study was certainly widely known by that time. Whether Mr. Cherry knew of the study before April,1972 when he was sent a copy of the draft report is, of course, a matter for conjecture, but certainly the participa-tien of the Chairman and his general views were widely known long before the environmental phase of this hearing began. In the circumstancer, we believe that the objection is clearly untimely under such decisions as Safeway Stores, Inc. v. FTC, 366 F.2d 795 (9th Cir.1966, cert denied, 386 U.S. 932 (1967)); Gilligan, Will & Co. v. SEC 267 F.2d 1461 (2d Cir.),
cert. denied, 361 U.S. 896 (1959).
II Notwithstanding our view that the challenge to the Board is untimely, we have also considered the merits.
In a number of places Saginaw Intervenors used the tem " bias".
There are no clai=s of personal bias which are made in the affidavit,
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and the Board is not aware of any circumstances which could conceivably give rise to such a t'laim.
The sist of the ec= plaint seems to be not personal bias but prejudgment of certain issues in the case. All of-the members of the Board have sat on previous license applications and have participated in decisions granting construction permits. Certainly this represents a judgment ou their part that nuclear power plants can l
be constructed and operated safely in the United States. Equally clearly, however, this cannot be deemed prejudg=ent or no judge could ever sit in a case involving an issue simile to one decided previously. Nor can, in our view, prejudgment be fairly based on the fact that the Chaiman, in his law review article, expressed the view that the present licensing i
structure is not adequately designed to handle the job which has been given to it by the legislature and the courts. The Board, notwithstanding the Chairman's view that the syste= is inadequate to the job, took the l
case as given to it and did the best job it could.
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, If citation -is needed on this point, we refer to the article by Judge Marvin E. Frankel of the United States District Court for the Southern District of New York, entitled Lawlessness in Sentencing, 41 Cin. L.
Rev.1 (1972), where Judge Frankel vigorously criticized sentencing procedures in the Federal Courts, going so far (as the title indicates) as to characterize them as " lawless." Judge Frankel nevertheless goes on sentencing as cases come before him, doing his best with the material at hand. Similarly, Judge Henry Friendly of the Court of Appeals for the Sccend Circuit, in his as yet unpublished Carpentier,
Lectures at the Columbia Law School in November 1972, delivered a wide-ranging MEticism of many agects of federal juri2 diction, including certain asiacts of diversity jarisdiction which Judge Friendly maintains would be much better left to the state courts in handle. Presumablyi Judge Friendly will continue to pass oa cc.Ses involving state law in diversity cases, makir.g the best of what is in his view a less than perfect system.
The claim of prejudgment must then rest on the fact that the Chairman, in his article, cited ce:-tain contentions made by intervenors i
in their preliminary statement of cententions as illustrative of the difficulties of the job which faced the Board. The Board has reviewed the article and is satisfied that in fact there was no prejudgment. To the extent that the contentions referred to in the article were advanced 1
in the proceeding, (many were abandoned) they were judged on the merits i
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_6 as were all other issues.
However, the law, as we understand it, requires not only that there be no actual prejudgent but that the proceeding not give the appearance of prejudgnent. According1'/ we have reread the article in the light of the charges of Sagint.w Intervencrs and we are satisfied that there is no appearance of prejudgment. Indeed the 3 card sas fre-quently criticized for its willingness to listen to argu=ent and re-ceive evidence en points as to which intervenors might technically have been held barred, e.g., the issue of " synergism".
With one possible exception, the references to the Midland proceeding in the Article are to general contentions of the kind being made not only in this case but in other cases, and refer to questiens of law as to what is and what is at issue in such a hearing. Such views are
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clear'.y views about " matters of law and policy" rather than issues of fact in the proceeding. In any event, in all instances in which these matters were pursued, the Board heard evidence and argument, and the record prec1w _a any reasonable belief that there was prejudgment.
We understand from the press that Mr. Cherry has particularly objected to a passage on page 981 of the article in connection with the chairman's discussion of the problem of alternative choices, where a specific reference is made to the dispute about the location of the Midland power i
1 We would like to call attention to the fact that Mr. Cherry, chose not to participate in the environmental hearing and chose not to file proposed findings and conclusions of law, with the result that Saginaw Intervenors were substantially inactive at the environmental stage of the hearing.
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plant on the operations of Dow Chemical Company. The article reads as follows:
Putting aside for the =c=ent the diffi.ulty of establishing the truth of the broad propositions contended for by inter-venors, it must be reali::ed that neither the Board, the AEC, nor anyone else has the power to order the " optimum result."
The only binding effect of the enoice of an alternative is the negating of the site under exa=ination. In the circu=-
stances, there is streng ta=ptation to approve the contested site and fudge the question of alternatives.
The footnotes to this passage make a= ply clear, we believe, that the Chairman was not indicating approval of such a practice, but only suggesting that in the absence of clear guidance by statute or regula,
tion there was a danger that the question of alternatives would be
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fudged. Here too, we believe the record in this case is ample on the question of the Board's consideration of the site and we do not feel that any reasonable person reading the article and the opinion could -
conclude that the Board had prejudged this question.
Saginaw's affidavit also makes reference to a number of isolated statements by members of the Board over a period of some two years of litigation and out of some nine thousand pages of transcript.
We have exattned into the context of those re= arks, and are satisfied that they are simply not worth extended ccament as examples of prejudg=ent on the part of the Board. It is important in this connection to re:mmber that the members of the Board, particularly the technical members of the Board, are in a vast 4 different position than is the trier of fact in an ordinary lawsuit. The technical me=bers are experts in various aspects of nuclear technology. They bring to each case the accu =ulated learning of not only a number of different licansing actions, but also decades of i
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6 learning in the nuclear field. They do, conseq2ectly, ccese to a hearing with tentative cecclusicus about :na=y matters which are at least theoretically potential issues in a proceeding. In this sense they are in no different positien than anybody ta**g official notice of facts within their expertise. All that is required in such a case is that an cpportunity be given to these who disagree with -%
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clusiens to introduce cc=:ertailing evidence. Tnat cppertunity was cer:W'y given to interteners in this case. A=y c her method of cperatics vould reTaire the Applicant and the Staff to sustain the burden of prcof en a" questiens cf the =derlying physics and techscicct cf the reactor prega=, including, cne veuld suppose, the prepcsitic:
that I=nc. We do not believe that such a process is rer:irei cr, indeed, that licensing would be viable if it vere.
We have examined all of the cases cited by the parties in this case to give us guidance and we cocclude that the law is quite clearly ngnNt Em&xv Intertescrs. The only cases cited by Mr. Cherry in which dist alification has been reTaired (Texaco, Inc. v. M C, 336 y.2d 754 (D.C. Civ.1964) and Cinderella Career and Finishing Schools, Inc.
- v. MC, 425 F.2d 563 (D.C. Civ.1970), are cases vas ly different frce cr:rs.
In :ncre nearly analogous cases such as United States v. Morgan 313 U.S.
h09 (1941) and MC v. Cement Institutes, 333 U.S. 663 (19hS), diseaslifi-cation has not been thcu6ht app m,,riate.
1 This case has been under active ccesideratics for we'.1 c car two years. We believe that it would be whcIly disr:ptive of the ad-ministrative process for us to recall our i=itial decision and send this s
. case back for rehearing. We would prefer, of course, not to be charged with bias, and would prefer if reasonably possible to lean over backwards to avoid the unpleasant argt=ent which is certain to ensue over whether the Board's actions were or were not i= proper. However, we are satisfied that there was no prejudgnent, that there is nc appearance of prejudgment by any rational standard, and that it would be totally irresponsible in the present circu= stances to grant the motion.
The : notion is denied.
February 1,1sr/3 AccMIc sLn'Tr AND LICENSLTr 30,GD ~~
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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,Pn CONStD'ERS POWER COMPA'#
) Docket Nos 6 30-330
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(Midland Plant, Units 1 and 2)
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CERTIF!CATE OF SER"trE I hereby certify that copies of Order Denying Motion to Recall and Revoke Initial Decision dated February 1, 1973 in the captioned matter have been served on the following by deposit in the L'nited States mall, first class or air mail, this 5th day of February 1973:
Arthur W. Murphy, Esq., Chairman Richard G. Smith, Esq.
Atomic Safety and Licensing 30ard Smith & Brooker, P. C.
Columbia University School of Law 703 Washington Avenue'
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435 West 116th Street, Box 38 Bay City, Michigan 48706 New York, New York 10027 Harold P. Graves, Era.
Dr. Clark Goodman Vice President and General Professor of Physics Counsel University of Houston Consumers Power Company 3801 Cullen Boulevard 212 West Michigan Aven'ue
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Houston, Texas 77004 Jackson, Michigan 49201 Dr. David B. Hall Mr. R. C. Youngdahl Los Alamos Scientific Laboratory Senior Vice President P. O. Box 1663 Consumers Power Company Los Alamos, New Mexico 87544 212 West Michigan Avenue Jackson, Michigan 49201 Dr. Stuart G. Forbes 100 Tennessee Avenue, Apt. 37 Honorable Frank Olds, Chairman Redlands, California 92373 Midland County Board of Supervisors 623 St. Charles Street Thomas F. Engelhardt, Esq.
Midland, Michigan 48640 David E. Kartalia, Esq.
Robert Newton, Esq.
Honorable Jerome Maslowski Regulatory Staf f Counsel Assistant Attorney General U. S. Atomic Energy Commission State of Michigan Washington, D. C.
20545 Seven Story Office Building 525 West Ottawa Harold F. Reis, Esq.
Lansing, Michigan 48913 Jerome E. Sharfman, Esq.
Newman, Reis & Axelrad Honorable Curtis G. Beck 1100 Connecticut Avenue, N. W.
Assistant Attorney General Washington, D. C.
20036 State of Michigan Seven Story Office Building 525 West ottawa Lansing, Michigan 48913
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50-329 & 50-330 page 2 Myron M. Cherry, Esq.
Mr. Wendell H. Marshall 1 IBM Plaza RFD No. 10. Mapleton Chicago, Illinois 60611 Midland, Michigan ao%ti Anthony Z. Roisman, Esq..
Irving Like, Esq.
Berlin, Rois=an and Kessler Reilly, *ike and Schneider 1712 ?! Street, N. W.
200 '.* st 9ain Street Washin; ton, D. C.
20036 Sahylan, :;ew York 11?}2 James A. Kendall, Esq.
Honorable Uilliam H. Ward Currie and Kendall Assistant Attorney General 135 Ncrth Saz,inaw Road State of Kansas Midland, Michigan 48640 Topeka, Kansas 66612 Milton R. Wessel, Esq.
Mr. Karl Berg. Director J. Richard Sinclair, Esq.
Grace Dow Me=orial Library Allen Kez,bom, Esq.
1710 West St. Andrew Road Kaye, Scholer, Fierman, Hays Midland, Michigan 48640 and Handler 425 Park Avenue Howard J. Vogel, Esq.
New York, New York 10022 Knittle & Vogel 814 Flour Exchange Building William A. Groenini;, Jr., Esq.
Minneapolis, Minnesota. 55415 Ja=es N. O'Connor, Esq.
Teh Dow Chemical Company Judd L. Bacon, Esq.
2030 Dow Center Consumers Power Company Midland, Michigan 48640 212 West Michigan Avenue Jackson, Michigan 49201 William J. Ginster, Esq.
Merrill Building, Suite 4 Saginaw, Michigan 48602 Jam U. A&fuYA f
Office'of the Secretary of the Co:Tafs sion ec:
Mr. Murphy Mr. Engelhardt ASLBP E. Goulbourne M eg. Files 1-