ML19331B250
| ML19331B250 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/20/1973 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), Saginaw Intervenor, US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| ALAB-101, NUDOCS 8007280844 | |
| Download: ML19331B250 (30) | |
Text
b-UNITED STAT'ES OF AMERICA ATOMIC ENERGY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S.
Rosenthal,. Chairman i
Dr. John H. Buck, Member William C. Parler, Member THis DOCUMENT COMTAINS POOR QUAUTY PAGES l
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
Mr. Harold F.
Reis, Washington, D.
C.,
for the applicant, Consumers Power Company.
l Mr. David E.
Kartalia, for the AEC Regulatory Staff.
Mr. Myron M. Cherry, Chicago, Illinois, for the Saginaw Intervenors (Saginau Valley Nuclear Study Group, et al)
Mr. Irving_,Like, Babylon, N.
Y.,
for the Mapleton Intervonors (Nelson Aeschliman, et al)
Mr. Milton R. Wessel, New York, N.Y.,
for Intervenor, Dow Chemical Company.
MEMORANDUM AND ORDER
( ALAB-101)
By initial decision dated December 14, 1972, the Atomic Safety and Licensing Board authorized the issuance 8007280 f
t
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of a construction permit to Consumers Power Company (the applicant) for the Midland Plant, Units 1 and 2.
Thereafter, on January 7, 1973, the Saginaw Intervenors filed with the Licensing Board a motion, with a supporting affidavit, seeking "to require the presiding officer to recall and revoke the initial decision and to declare the * *
- Licensing Board biased."
The claim of bias was premised in large part on the views expressed by Arthur W. Murphy, Chairman of the Licensing Board, in an article which he authored and which appeared in the October, 1972 issue of the Columbia Law Review.1!
Because of the asserted bias,
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the intervenors sought to have a new licensing board appointed, "with instructions to have a new hearing on"
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all relevant issues."
By order dated February 1, 1973, the Licensing Board denied the motion.
dn January 15, 1973, after the filing of the motion to recall but before the Licensing Board's denial of that
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motion, the Saginaw Intervenors filed exceptions to the initial decision.
One of these exceptions (VI. B) asserts that the Licensing Board was " personally biased against intirvenors" and that it " prejudged contested issues"; the s
1/ Arthur W. Murphy, The National Environmental Policy Act and the Licensing Process:
Environmentalist Magna Carta or Agency Coup de Grace?, 72 Columbia Law Review 963 (October 1972).
As will appear later, the bias claim was also diredted.
to certain statements made by other members of the Board.
--,s
exception cites in particular the same Columbia Law Review article.
The intervenors referred to a footnote in their previously filed motion to recall, which had recited their intention to treat the motion as denied if they had not received advice to the contrary by January 15, 1973, the last data on which intervenors could file exceptions to the initial decision; and they take exception to such
" denial."2/
Although the Saginaw Intervenors' motion to recall was not formally designated as a motion for disqualification, within the meaning of 10 CFR s2.704 (c), we regard it as such, despite the question which has been raised concerning the Licensing Board's jurisdiction over that motion.3/
~
2/ Our consideration of this exception should not be taken
~
as. signifying our approval of the manner in which it was presented.
The intervenors were not entitled to demand that the Licensing Board act upon the motion to recall prior to the expiration of the time for filing exceptions to the initial decision; nor were they entitled to treat l
their motion as having been denied if it were not acted upon within that time.
Instead, the intervenors l
need only have (1) filed the motion to recall, unaccom-I panied by any purported directive to the Licensing Board l
concerning the timing of its decision on the motion; and i
,(2) if -- as occurred -- their motion to recall was stil:
pending as the time for filing exceptions approached, included in their exceptions one protecting against the l
possibility that the motion would be denied.
3/ The applicants argued, both before the Licensing Board and in their motion to us of January 9, 1973, that the Licensing Board did not have jurisdiction, af ter issuance of the l
initial decision, to act upon the recall motion.
The staff argued that the Licensing Board retained jurisdiction under 10 CFR E2.717 (a),. and it recommended that the Board exercise that jurisdiction to " ensure that if the Appeal Board is pre-sented with the question of bias, the Appeal Board would have the full benefit of the ASLB's views on the matter."
(continued on next page)
I
y' m
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.1
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i Denial of such a motion by the Licensing Board (ansumina
- 4
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it-had juri'sdiction over the subject matter) operates ij automatically to refer it to the Commission, and hence to 4
un, for review.4/
Since the innuo of a]Icged hita and e
. 'f prejudgment is before us at least on exceptions to the
- [
m
.S) initial decision, we need not determine the jurindictle:i of a licensing board to entertain a motion to recall.
y N
Q}
In passing upon the claim of bias and prejudgment, we 1g have, however, examined and considered all the documents H.
bearing upon this claim which were filed by the pa'rt'ics.
?i Those documents reflect that the_Saginaw recall metic.
.y s.i was supported by the Mapleton Intervenors (who did no norn-DA j
than advise the Board of their support).
,.)
It was opposUd I
1..
by the applicant, the AEC Regulatory StaCf, and Intervenor
'1, Dow Chemical Company.
The applicant argued that the motion
[.
had not been filed on a timely basis; and that, even if it 4
M were regarded as timely, it failed to put forth any valia
'l
- h grounds for disqualification.
The staff advanced similar r) arguments.
Dow opposed the motion primarily on the basis
- a fj of timeliness.
'd
.)
3/ (continued from prior pagb). (Answer of AEC Regnlatory Staff to Saginaw Intervenors ' Motion, at p. 4.)
1 4~/ Northern Indiana Public_ Service Co. (DaillY Ceneratir.g 1
StatTon, Nuclear 1), ALAB-76, WASil-1218 (suppl. 1) 510-(October 30, 1972).
ci 4
m
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i i-'
With respect to the Saginaw Intervenors' e::ceptiem VI. B, the applicant has urged that it be rejected.
It generally asserts the same grounds on v.hich it opposed I
l the recall motion.
But it also contends that the adait ional l
l
" evidence" of bias appearir.g in the exception wac in fact l
a restatement of certain actions of the Licensing Ecc-J with which the intervenora di sagreed and t.o which th.:y '.' ad t
objected on the merits in other parts of their exceptions.
i The staff has indicated that the exception is " entirely i
~~
without merit" and that it " generally" concurs in the~
g applicant's comments.
1j For reasons heroinafter set forth, we have-f,ound J
(1) that the issue raised by the recall motion, an well j
as by the Saginaw Intervonors' exception VI.
B, was not i;
asserted in a timely raanner, and (2) even if it had been timely asserted, there has been presented no hhsis which 1
would require us to disqualify Chairman Murphy or either 4
of the other members of the Licensing Board.
1 I
I.
As is made eminently clear in theic motion to recall i
and their exceptions-to the initial decision, the intercancrs' e
1
)
e eg r
claim of bian.is premised largely upon the views expressed 2
by Chairman Murphy in his columbia Law neview article.
That article is a study of the impact of environmental 1
legislation on the reactor licensing process.
It was I
l initially prepared as a report to the Committee on Licenses i
j and Authorizations of the Administrative Conference of the i
United States.
It adopts the general point of view that t
the National Environmental Policy Act (NEPA), or at least t
i certain judicial constructions thereof, have i.mposed a burden on the reactor licensing process with which it
~
cannot effectively cope.
As il'lustrative exampics of I
situations arising under NEPA which the author views as j
inconsistent with the current licensing structurc, the
]
article refers to certain assertions made in the Midland i
j proceeding, as well as the litigation strategy adopted by intervenors in some cases.
I The Saginaw Intervonors assert that the Board as a whole, but particularly chairman Murphy, was " infused by a personal bias," thus rendering the initial decision a
' nullity.
As evidence of bias the intervonors citc, in addition to the Columbia Lad Review articlc, several.
l selected rulings or record statements of the Licensing
,I Doard or its members.
These will be discussed in greator i
detail later.in this opinion (?nfrc, pp. 21-23).
4
r j.,
7_
'e In their exceptions before this Board, the Saginaw Intervenors elaborate on the assertions which they hn5 proviously,made before the Licensing Board.
They character: ::
.f the article as showing a misunderstanding of the obli
.t an:
7 i
1' of NEPA and a bias against enforcing that statute's ranf ate.-
and point to several parts of the initial decision whar:
..j they'believe-that misunderstanding and bias to be manifeste-?.
-ij Finally, they argue that disqualification does not require Aj a showing that the bias of the Board members in fact affected 3
the decision, but only that it in fact existed.
II.
t i
C"o assertions of the applicant, the staff, and Dow-I J
concerning the timeliness of the motion are founded on the purported knowledge of counsel for the Saginaw Inter-venors (Myron M. Cherry) of the content of the law review article almost a year prior to the time that the reccll motion was filed.
1.
The article,. d rse, appeared in the Octcher,
['
1972, issue of the Col.umbia Law Review.
Counsel for the Saginaw Intervenors states,'in his supporting affidarit,
'I that he did not receive a copy of that article until December 23, 1972, approximately a week after the insuance 8
e 4
.l,e
-p%
?
_g-
-l 1
j of_the Licencing Board's initial decision.G/
in their i
motion, the Saginaw Intervenors casert that they "did v.e t b.
become fully' aware until December 29, 1972, of the yi.ounu, j
of bias * *
- and did not know until January 5, 1973 that the Regulatory Staff would itself refuse to tako action consistent with this motion."5!
On the other hand, an j
affidavit of the counsel for Dou indicates that a. copy of
)
the October, 1972 issue of the Columbia Lau Revicu was
.i
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roccived in his office on November 6,1972.-!
But it is not relevant when' counsel for the Saginaw
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Ir4ervenors first le'arned of th"o law rc$iew article itself, 4
}
because it is apparent that he should haVL.become nunre j
of its general content, and of Chairman flurphy's vit z i
on the relationship of NEPA to the licensing process,
.l ong i
j before its formal publication.
As we have indicated, the article itself evolved from an Administrative Conference 1
report.
The final repo'rt is dated August 1, 1972 but a 4
')
first draft (which in relevant aspects is identical to the i
law r eview article) was circulated for comraent to numereus I
interested persons and groups by letter of April 20, 1972 y
from the Chairman of the ' Administrative Conference, f
I I
5/ Affidavit of Myron M. Cherry, dated January 7, 1973, par.
4.
6/ Saginaw Intervenors' Motion, par. 3, p. 4.
' i 7/ Affidavit of Milton R. Wessel, dated January 16, 1973, ist p.
2.
4
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a
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W Mr. Cherry was one of the addressees of that letter.
His affidavit acknowledges that he became aware of the draft report "some time in the summer of 1972" but avers he did not deal with it at any great length because of his in-volvement in another proceeding.E!
In a supplement to their exceptions, the Saginaw Intervenors explained the delay from April, 1972 to the summer of 1972 on the basis that during the spring and summer, "Intervenors' counsel was spending full time in Washington, D.
C.
and thus was away from his office in Chicago."S!
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Whatever may have been the exact date on which Mr. Cherry became aware of the draft report, it seems clear that no later' than the summer of 1972 he either.was, o,r at
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the very least should have been, cognizant of the Board Chairman's views on the relationship of NEPA to the licensing process which later were published in the law revie9 article.SS!
Moreover, as the Board indicates in 8/ Affidavit of Myron M. Cherry, dated January 7, 1973, par. 4, at pp. 3-4 9/," Motion and Supplement to Saginaw Valley, et al.,
Inter-venor's Statement of Exceptions to the Initial Decision filbd on January 15, 1973," at p. 4.
We agreed to con-
' sider this Supplement by our Order of January 23, 1973.
10/ We do not think it unreasonable to expect even a busy lawyer to take the time at least to peruse a received
~~
document in circumstances where (1) that document was authored by the Chairman'of an adjudicatory tribunal before which he is representing a client in major liti-gation; and (2) it is obvious from the title of the document that its subject-matter has a direct rela' tion to that specific type of litigation.
s D
-1 s
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its' denial of the Saginaw Intervenors' motion, the Cliairman
..I and Mr. Cherry werc co-panelists-in November, 1971 at a session ' of an American Law Instittite -- American '!!ar 1
{
Association Course of Study in Washington, D.
C. at'which both spoke ~on a number of the issues referred to in the
-law review article.
2.
For motions for the disqualification of an adju-dicator to be entertained, they must be filed in a timcly manner.
The Administrative Procedure Act, which applies to-Commission licensing proceedings, explicitly so provides.
5 U.S.C.
556(b).
The failure of a party to file a motion for disqualification once the information giv.ing rise to such a claim is availabic to im anounts to E waiver of the disqualification objection.
Gilligan, Vill
& Co. v.
S.E.C., 267 F.
2d. 461, 468 (2d. Cir. 1959).
d Moreover, as a matter of basic equity, a party in a pro-coeding such as this may not remain silent, await the decision of the Commission, and then, doubtless because of its disappointment, seck for the first time to asporse the objectivity of a quasi-judicial officer who joined in the challenged opinion.ll/
4
_=
-11/ Safeway Storen, Inc. v. Fedcral Trade Commission,
~3T6 P.
2d. 795, 802-(9th Cir. 1966).
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Any f a i r arm i.y:Lu-of the Saginaw Intervonors' attempt to disqualiry Chairman Murphy must lead to the
~
conclusion that the Saginaw Intervenors are doing eyactly what the Sa fewav cour t so explicitly dinarproved.
The ic:n:e.v. ist d be t-he Paniacw motion, as well a.s by exception VI.-B., was clearly not asserted in a timely manner.
III Whiler we would have been justified in rejectir.g-the intervenors' claim of bias solely on the. basis of the untigely mannerLin which it was raisdd, ve hace nevertholcsc also considered it on its merits, anhcre rejecting it on that basis as well.
In this part c-this opinion, we shall discuss the statutory and judicial authority which we believe to be governin;r; and, in part IV, wo shall-apply that authority to the-ouestions which are before un.
The grounds on which a member of an adjudicatory body 'such as an Atomic Safety and Licensing Boaru acy be disqualified are both'well-defined and well-recognized.
The principal source of the governiry rules respecting such disqualification is the O
s,
~
Administrative Procedure Act, which is specifically applicable to the Commission's licensing proceedings.12/
The Administrative Procedure Act recognizes essen-tially two broad categories of conduct which may give rise to disqualificatien from a particular proceeding of an agency employee who has adjudicatory responsibilities in that proceeding.
First, the Act provides for a sepa-ration of the adjudicatory functions within an agency from investigative and prosecuting functions.13/
Sec-ondly, the Act requires that the functichs of presiding officers (which would include the functions of members
~
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of Atomic Shfety and Licensing Boards) be " conducted-in an impartial manner," and that a presiding officer may be disqualified for " personal bias or other disqualifi-cation."bd/
The statutory language which underlies the second, and l
far broader, of these categories of disqualification is simi-lar to that appearing in Section 21 of the Judicial Code,bE!
l l
12/ Section 181, Atomic Energy Act of 1954, as l
amended, 42 U.S.C.
2231.
13/ 5 U.S.C. 554(d).
14/ 5 U.S.C. 556(b).
15/ 28 U.S.C.
144.
e m
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% which -is applicable to the disqualification of federal district judges.
The language is the outgrowth, as well as the subject, of a long line of judicial decisions.
The basic rule has been elucidated by the Supreme Court in In re Murchiscnin the following terms:
A fair trial in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the trial of cases.
But our system of law has always endeavored to prevent even the probability of unfairness.
To this end no man can be a judge in his own case, and no man is permitted to try cases where he has an interest in the outcome.16/
From the judicial application of these general criteria to specific types of factual situations, there may be gleaned _
a number of identifiable types of conduct which have been viewed by courts as grounds for disqualification.
Those will be described seriatim:
The first -- and most obvious -- situation calling l
a.
for disqualification is one in which the adjudicator has a direct, personal, substantial pecuniary interest in a result which may be reached in a proceeding.
Tumey v. Ohio, 273 U. S. J10 ( 1927).
b.
Another equal 2y obvious such situation is that where, in the terms of the Administrative Procedure Act, the adju-
{
dicator has a " personal bias."
5 U.S.C. 556 (b).
See also Northern Indiana Public Service Co. (Bailly Generating l
Station, Nuclear 1), ALAB-76, supra, at p. 511.
y 3 9 U.S.
133, 136 (1955).
I i
~
i c.
-Under the specific provision of the Administra:itc Proccatire Act, dupra, an individual who has served a prc a-cutive function in a case may not thereafter serve in ?r.
adjudicative capacity, even though a substantial tirae s riod may have elapsed between his respective service in the two roles. 'Thus, the Chief Counsel and Staff Director of a Congrecsional Committee which conducted an inves'igation c
of the drug industry could not thereafter participate as a membcr of the Fedcral Trade Commiccion in a case involvi.g the pricing practices of the same co apanics which vera the subject of the Congressional investigation.
American
~
Cyanamid Co. v. Federal Trade Commission, 363 F.
2d. 757 (6th Cir. 19,66).17/
,I d.
Prejudgment, as well as the appearance of pre-judgment, has also been judicially recognized as a grcur.d for disqualification; however, in fashioning the stander 5s ir.
this area, the courts have made it clear that the pre-l judgment which is proscribed is a prejudgment of fact 2 i-controversy but not of legal iss_ues_.
Thus, in a land..ar:-
i a
-17/ See also Temico, Inc. v. Federal Trade Camaission, 236 F.
2d. 754 (D. C.
Cir. 1964), vacated cind r:.rmnded cr other grounds, 381 U. S.
739 (1965); Anon T& eat & Ct.
v.
S.E.C.,
306 F. 2d. 260 (D. C. Cir. I?37).
"[if.
~
i Sateway Stores, __Inc. v. Federal Trade _C,o:' :icn icn, E.t, ra ;
R. A.
Holman & Co. v.
S.E.C.,
366 F. 2d. 446 (2d. C :. r.
4 1966).
s
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decision in this area, the Supre m Court fennd F 4
the Secretary oC Agricult ure wen not di m13 :' '
n.
participating in a proceeding on remand 1.o his de 4rt-4 ment, even though he had public]y criticiced on policy i
)
grounds the court decision which had ordered the te e d.-
j Distinguishing sharply between the policy gucntions upon which the Secretary had spoken, and the factual issues which were to be considered by hi:a on remund, the Court reasoned:
j i
That (the Secretary] not mere.1v held, but expressed, strong views on na t t-:rs bc3 icvc'd by him to have been in isono, did not unfit him for exercising his duty in subcccuent -
proceedings ordered by this Ce.trt.18/ -
i 4
2 The Court also assumed that cabinet officers charried j
i by Congress with adjudicatory functionc.cro not "flr.bby t
creatures any more than judges are" ; that "(b]oth may have an underlying philosophy in approach.ing a specific case" ; and that " (bloth are *** men of conscience and intellectual disciplino, capabic of judging a particulcr 19' controversy fairly on the basis of its own circur:r tencan.-
4 18 / United States v. Morgan, 313 U.S.
409, 421 (1941).
19 / Ibid.
s s
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,y The Suprecte Court siroilarly han~ permitt:ed mer.th.:n.
~ 61
,l 'f.
of t-he Federal Trade Commission to participate in a pre-I6 t...
ceeding where it was charged that respondents had engacec:
["
-in an-unfair method of competition, and in price discri-3 s
mination, arising out of a basing-point pricing sys;cm, 7
.j even though the Commission had previously expressed l7 '
~
views, in reports to Congress and in Congressional tenti-
,t many, on the unlawfulness under the Sherman Act of'the
,j basing-point-pricing system. 'As the Court stated:
')
the fact.that the Commission had intertained such views as the result of its prior ex parte investigations did not necers.7rily
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3~
mean that the minds of its members were irrevocably closed on the subject of the p.
respondents' basing-point practiccc.20../
e fj e.
The federal courts have made it coually clear that the appearance of either bias or the prejudoment
[
of factual -- as opposed to legal -- issues in contre-j versy will disqualify an adjudicator from participatinc in a proceeding.
Thus, in two separate cases, the Chairman of the Federal Trade Commission wcc: di nue:1.irie!
b, ;.
I' f
20/ Federal Trade Commission-Cement Institufr 333 U.S. 683, 701 (1948) ; see also fhl i v Ofl h.,'
Co. v. Federal Power (odmission, 3 7 D.' M O gi TIO t.h CTr. Y'ib"fd.,
-(
,il, c.
l%
f+$C
?
ry-y
,n
.* p,
4..
4
'e DMpgEW43 i
j N
l from participa ting in proceedimn: where le had tir eior.s1v i
made speechen which took a posiLion on : ut:ua] nr.i t s.
1 directly in controversy.
Cinderella Carenr and-Finishino lj Schools, Inc. v. Federal Trade Commissiru,, 425 P. 2d 533 j,
1
]
(D.C. Cir. 1970); Texaco, Inc. v. Federal Trade. Corc#s-1 J
sion, supra.
In both cases, the court expounded its test for disqualification as being whether
]
a disinterested observer may conclude t!'o 4
[the agency] has in some W.cature adiudged the facts as well as the law of a narticu~
{
j lar-case in advance of hearing it.21/
In emphasizing that the appearance of bias or prm-
- l judgment is as va, lid a basis for disqualil ication en ic actual bias or prejudgment, a court noted
- "An cdminin-i i
trativo hearing * *
- must he attended, not only with cvery element of fairness but with the very appe7rance of complete fairness.
Only thus can the tribunal conducting
}
a quasi-adjudicatory proceeding meet the basic recruirc-ment of due process."
Amos Treat & Co. v.
S.E.C.,
2'~.
l 2d 260, 267 (D.C. Cir. 1962).
i 21/ Cindcrclla Carcer and Finishing Schooln, Inc.
v.
FIIdcral Trade Comm.Gii. Ion, nur ra, at n.
59fi-Texaco, Inc. v.-Federal Trado conmienion, sunts, at p. 760 fin each coun cuoting lant:naga from Gillican, Will & Co.
v.
S.E.C.,
267 F.
2d 46),
J. 6 9 tid Cir. 1959), cert. den. 363 U.S.
89C (3 959)-].
1
m
^
e 1.
Under this rule, actual bias or prejudgment need not be shown.
.Indeed, the rule "may sometimes bar trial by (those] who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties."
In re Murchison, supra, at p. 136.
As one judge cogently remarked, We must presume that a f air hearing was denied if a disinterested observer would have reason to believe that the Commissioner had 'in some measure adjudged the facts * *
- of a particular case in advance of hearing it.'
[ footnotes omittedj.22/
In sum, therefore, an administrat.ive trier of fact is subject to disqualification if he has a direct, personal,-._..
substantial pecuniary interest in a result; if~he has a if he has served in
" personal bias" agah st a participant; a prosecutive or investigative role with regard to the sama facts as are in issue; if he has prejudged factual --
as distinguished from legal or policy -- issues; or if he hats engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.
22/ Texaco, Inc. v. Federal Trade Commassion, supra, con-s 336 F.
2d at p.
curring opinion of Judge Washington, 764.
t The rule governing the appearance of bias or prejudg-ment is expounded in greater detall' in the opinion we are issuing today in the LaSalle proceeding, to the l
1 f acts of which we have found that rule applicable.
Commonwealth Edison (o. (LaSalle C2unty Nuclear' Power Station, Units 1 anf. 2), ALAB-102, l
l i
I
'l
19 -
s s
IV.
As previously pointed out, the Saginaw Intervonora' claim of bias is prc:mised largely upon the views eqin-m3 by Chairman Murphy in his Columbia Law Review artic}c.
- But, as the Licensing Board indicated in its order of Febracry 1, i
1973 denying the claim of bias, the exact legal grounds on which disqualification is being-sought are not entirely clear.
The Licensing Board treated the claim as one of prejudgment since it was unaware of any circumstances which could give rise to a claim of personal bias -- i.e.,'the man tfestation of animosity or partiality-toward one or more of the parties or their counsel.
Our review cf the record convinces us that the Board was justified in so treating t
the claim.
What, then, might Chairman Murphy or other members of f
the Board have prejudged?
As is clear from the affidavit of intervenors' counsel in support of the recall motion, the gravaren of intervenors' complaint is that, before the Midland case had become ripe for adjudication, Chairu4n Murphy i
had reached certain conclusions.
Specifically, according to counsel, he -
"and hence the Doard" -- had decided that NEPA was " interfering with the production of needed energy and development of nuclear powcr" and, according]y, had e
6 a
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failed to Culfill the regeiraments of NEPA.-
For this pro-j
. pon tion, the att.idovit pointed solely to the low revie
.acticle.
p
- 11. j :. i. t. ie,
<A course, that t.he artic.1'e expre m;d cheptici:,nt regar(ling whether the requirements of NE'7s cou3c i
j be fulfilled in the c,:isting licensing process. But the
- 3 expositier. of such thouyhts en legal mat.t'ers em se.netioned i
' j by the - Supremo _ Court in its Morgan and Cemen t instit_:te f
decisions, supra.
Moreover, we notc that the Licensing fl' Board disclaimc any belief on its part that NT,PA is r.ot f
to be enforced:
t
- the Chairman, in his law r.c.vicu a:: icle. _
4 cupren. sed the view that the prenent. lice."r.iag structure iu not adeguately dic.igo"i to ' 'ndl.'
the ioli which has been given to it be a:ae
- _ ' ~
j-Icgic10ture and the courts.
Tha heard, not-withstanding the Chairm:2n'c viewn thct the system is incdeque.to to the job, took the case as given to it, and did the best job it ecu'.c'..
(Licensing Board'c Order at p.-4.J i
4 We turn now to exception VI. B of the Saginaw L'.ter rc.:.rs,
which points to specific sections'of the law revie...rticle as indicating prejudgment.
Those sections dincuan euch t
matters as. the ability of J icensing boards to conduct a meaningf ul environmental 1:chicw, i.he general utilii" cf th--
i Cor.uaission 'c operating license hearings, whether NDN squir..;
a cost-benefit analysis of the icnuance of certsiin r.nul.-
- .s.
and whether NEPA can be used to nullify an agency'a ccula; 3
e k
I t_
.%. s i
minulon.
Ag n i.n, these arc legn.T iur.ucs, anil not factual questions in dispute in this-procccding.
'It is truc that-the Saginaw Intervenors emphasi;c a 2
-i statement in the article concerning the inevi.tability of the need for a substantial increase in generating capacity 3,/-
1j
-- which is a factual matter.
Saginaw Intervenors essert i.j that the need for additional scncrating-capacity is an 3
J issue in this proceeding.
But even though Chairman Murphy 4
may believe that "it' seems inevitable that there will have 4
to be a substantial increase in generating capacity, over the next ten years," it does no't follow that the Midland
^
i facility -- or indeed any other particular reactor -- need _
i be built.
In this connection, we find nothing in the
}
article or in the record to suggest that'to any extent the.
Chairman related-his general observations respecting increased overall electric power needs to the question as to whether the issuance of a construction permit for this aj specific plant should be authorized.
Reviewing the entire lau review articlo, including a
each of the passages to which the Saginaw Intervenorn have referred, we find no evidence of prejudgment of any EacL4
- j in issue.
lior do we finr1 any appearance of prejudgmen2.
t t
j 23/ 72 Ccl. Law Rev. at p. 963.
4
m All that we find is an individual who may have certain crystallized views -- indeed, who may possess an " underlying philosophy"21/ -- on the application of NEPA to the Commission's i
licensing process.
Previous decisions of this Board and the Commission have explicitly recognized this situation as nondisqualifying.
Thus, in the Bailly case, we referred to Professor -Davis ' view, based on his analysis of the juris-prudence in this area, that "the fact that a member of an adjudicatory tribunal may have a crystallized point of view on questions of law or policy is not a basis for his disqualification."2}/
And in an earlier decision, the Commission squarely ruled that
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~
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Philosophic or professional attitudes or.
similar, generalized mental attitudes do not constitute disqualifying bias.26/
.Saginaw Intervenors additionally cite remarks by various members of the Licensing Board, and Licensing Board rulings, which are said to be " clear statements of bias."21/
Taken in context, none of the cited remarks or 24/ U.S. v. Morgan, supra, at p. 421.
25/ No'r'thern Indiana Public Servi;e Co. (Bailly Generating
~
- Station, No. 1),
ALAB-76, supra, at p. 511.
26/ In the Matter of Long Island Lighting Co.,
(Shoreham Nuclear Power Station Unit No. 1), Commission Memorandum and Order dated October 28, 1970, at p. 5.
27/ Affidavit of Myron M. Cherry, dated January 7, 1973, par. 10.
s l
e.-
p e---,
-m-
+ - - -
=
, N '
~
ruli ngc Jin ot': -view indicates any bias or projudgm.ent of b cts in issue.
To the extent, if any, thct they may 1
i ndicato a vi<:s..' on larpal matters in' issue, they arn <;?
t.o nur Imml.Un y rmis on 11w merl' r,
cour:,n nub ju.
r is also the I:nord'n apprutch and rulings in applying the r
dictates of - 1&:PA to thi:s ptoc::eding.
i-(
v.
I We have determined Elm.t, measured againct the' settled principles relating to di.squalification for personal bias -
or prejudgment, the law review article in quec tion dc us
~
not provide a legn11y cut.ficient basis for the inval!-:-tion
~
j of the initial decision of the Licencing Boned inf thi.=
proceeding.
We do not, however, wich that cenclusio:. '.c 1
1 i -
be taken as a tacit approval of the publication of tm.t 9
i article by the Chairman of the Itoard.
We make, therefore, these few additional ob.icrvations.
i
~
We appreciate that t.he Chairman performo his ad:iudi-catory function for the Comminnion on a part-i-i:r.e bacis and that he ' has other.:ignificant responaibilities v: ch i
are entitled to recognition.
It is also tru:? that, 2.3 previously noted, the genesis of the article was a repcrt e
i
.i he had prepared for.the Administrctive Conference of
.S c L
United States.
But considera tions of thin natto:e dc. mot 9
e'--
t
-w i
~
t :
- 2:1 -
^
an adjuelicator :o everet.cc lensen the distinct ossligation o f particular care to avoid doing anything -- in a goverturent I or private capacity. -- which might erodo public confiden -
in his ability to dispatch his quasi-judicial duties in an I
entirely dicpassionate manner.
l-I Phe fulfillment of this ' obligation may not wholly foreclose a widely-disseminated critique on the.4djudicatcry process of which he is a~part, or on a statute (c:_.q. NEPA)
- l which he is called u'pon to enforce.
But we believe that 1
greater circumspection might have been in order in this j
instance.
In this regard, we have particular reference'to the allusions in the article to the Mid]and care itself.
1 j
Although these allusions may have been deemed perfectly
)
innocuous by their author, it seems of doubi.ful prudence for an adjudicator to comment in such fashion upon any 4
1 1
aspect of a case still before him for decision.
t VI.
I For the foregoing reasons, we conclude that the Saginaw Intervenors' claim of Lias or prejudgment was not
. 1 submitted on a timely baris and, in any case, did not h'
advance any valid reasons for disqualification of Chairman Murphy or either of the other Board merabers.
Accordingly, i
the Licensing Board's Order Danying Motion to Recoll and 1
1
?'
~.
4-6 t
e s.
3 g.
-.25 -
t Royoke Initial Decision,' dated February 1, 1973, is affir"ed.
The Saginaw Intervenors exception VI. n to'the initini q
j decision ic $ enied, without prejudice to our later cen-l
]
cideration on the mer _es' of the subs t.antive matt ers raiand
.1 1
therein.
1
~
It is so ORDEPID.
1 J
l
.j
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iit FOR TIIE ATOMIC SAFhTY AllD LICENSING APPEAL BOARD
.4.
~ '.
- y-n r e. -: n:.e! c_ $_w&}- t;...
/ Margaret E.
DuFlo
-}
- Secretary to tlw
~
Appeal Board l
l Dated: ' February 20,'1973 5
I t
l t
4 4
M o
.1 4
j 4
I
.I f
-~
m n
h -h&-h u,
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
)
)
CONSUMERS POWER COMPANY
) Docket Nos. 50-329 & 50-330 l
)
(Midland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of MEMORANDUM AND ORDER dated February 20, 1973 in the captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 20th day of February 1973:
Arthur W. Murphy, Esq., Chairman Richard G. Smith, Esq.
Atomic Safety and Licensing Board Smith and Brooker, P. C.
Columbia University School.of Law 703 Washington Avenue 435 West 116th Street, Box 38 Bay City, Michigan 48706 New York, New York 10027 Harold P. Graves, Esq.
Dr. Clark Goodman Vice President & General Counsel Professor of Physics John K. Restrick, Esq.
University of Houston Consumers Power Company 3801 Cullen Boulevard 212 West Michigan Avenue 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 Thocas F. Engelhardt, Esq.
Midland, Michigan 48640 David E. Kartalia, Esq.
Robert Newton, Esq.
Honorable Jerome Maslowski Regulatory Staff 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 Myron M. Cherry, Esq.
525 West Ottawa 1 IBM Plaza Lansing, Michigan 48913 Chicago, Illinois 60611
N h
5'0-329, 7 page 2 Anthony Z. Roisman, Esq.
James A. Kendall, Esq.
Berlin, Roisman and Kessler Currie and Kendall 1712 N-Street, N. W.
135 North Saginaw Road Washington, D. C.
20036 Midland, Michigan 48640 Milton R. Wessel, Esq.
William A. Groening, Jr., Esq.
J. Richard Sinclair, Esq.
James N. O'Connor, Esq.
Allen Kezsbom, Esq.
The Dow Chemical Company Kaye, Scholer, Fierman, Hays 2030 Dow Center and Handler Midland. Michigan 48640 425 Par.k Avenue New York, New York 10022 William J. Ginster, Esq.
Merrill Building Mr. Wendell H. Marshall Saginaw, Michigan 48640 RFD No. 10, Mapteton Midland, Michigan 48640 Irving Like, Esq.
Reilly, Like and Schneider Honorable William H. Ward 200 West Main Street Assistant Attorney General
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State of Kansas Howard J. Vogel, Esq.
Topeka, Kansas 66612 Knittle & Vogel 814 Flour Exchange Buildinh Judd L. Bacon, Esq.
Minneapolis, Minnesota 55415 Consumers Power Company 212 West Michigan Avenue Mr. Karl Berg, Director Jackson, Michigan 49201 Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 Information copies mailed on 2/23/73:
Mr. Adam F. Emmendorfer, President Mrs. Judith Boli Home Builders Association Public Affairs Committee of Midland Saginaw YWCA P. O. Box 1763 1121 Weiss Saginaw, MicLigan 48602 Mr. William T. Demers, President Midland Lumber Dealers Association Sidney N. Smock, M. D.
802 Ashman Street 1255 Chippewa River Road Midland, Michigan 48640 Midland, Michigan 48640 Mr. John A. Rapanos Mr. Steve J. Gadler Executive Plaza 2120 Carter Avenue Midland, Michigan 48640 St. Paul, Minnesota 55108 Mr. Edward Miller 8055 Hospital Road Freeland, Michigan 48623
h
-5 50-329,_330 page 3 Mr. Halph W.
Purdy
[:r. Edward L. Kern, Prc:t i d en t
'!ich Performance Tn hnoi my, r,e.
Executive Secretary Department of lJacural Resources Midland, Michigan
. %.O State of Michigan Stevens T. Mason Building Mr. Clif ferd Mapc<, Vice i: hair: an f.ansing, !!ichigan 4M926 Midland C mnt, ::aa.! : Caemi s un Midland, 'tich!An 4%O Mr. W.
G. Turney Assistant Chief Engineer Mr. Ned Arbury, President Michigan Water Resources Commission Arbury and Sons Innurance Stevens T. Mason Building Midland, Michigan 48640 Lansing, Michigan 48926 Mr. H. C. Allison, Vice President Mr. Willis F. Ward, Chairman Alden B. Dow Associates, Inc.
Public Service Commission Midland, Michigan 48640 State of Michigan Department of Mr. Fred Minzer Commerce Seven Story State Of fice Building Minzer Real4ty Lansing, Michigan 48913 411 S. Saginaw Boulevard Midland, Michigan -48640 Mr. Judson T. Byers 705 Maple
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Mr. J. R. Buckley, Vice President--
Midland, Michigan 48640 Mutual Savings and Loan Association -
Midland, Michigan 48640 fir. Edward L. Kern 300 Rodd Street Mr. Roy Lanham, President Midland, Michigan 48640 Brown Lumber, Inc.
Midland, Michigan 48640 lioward J. Vogel, Esq.
814 Flour Exchange, Building Mr. John A. Miller Minneapolis, Minnesota 55415 Midland, Michigan 48640 Mr. Donald E. VanFarowe Mr. Alan Ott, Vice President Air Pollution Control Cocesission and Director Chemical Bank and Trust Company State of Michigan Department of Public !!ealth Midland, Michigan 48640 3500 N. Logan Street Lansing, Michigan 48910 Rev. Theodnre M. Greenhoe Memorial Presbyterian Church Mr. Franklin E. Braman Midland, Michigan 48640 Board of Directors of l
Downtown Bay City, Inc.
Mr. Robert Ferries, President Bay City, Michigan 48706 Ferries and Maxwell Insurance Agency, Inc.
l Midland, Michigan 48640 Ilonorable Julius Blasy Mayor, City of Midland Midland, Michi:.:an 48640 Mr. James C. Handeen, President Bandeen Chevrolet I!onorable Fred 1.. Yockey Midland, Michigan 48640 City Manager Midland, Michigan 48640
50-329, 310 page 4 Mr. Arthur.E. Maas, Superintendent Mr. Bruce R.
Benway, Vice President Waste Water Department First National Bank Midland, Mich igan 48640 Midland, Michigan
'48640 Miss Lyn DeVries Mr. Larry Reed, Lne u::ive Midland Business and Vice Pre s ident Profes:itonal Womens Club Bay Areas Chacher of Commerce Midland, Michigan 48640 Bay City, Mich f;un
'43706 Mr. Robert Parker, Executive Mrs. Georgena Coft
'!!ce Presid0nt 3710 Washington Street Midland Area Chamber of Commerce Midland, Michigan 48640 Midland, Michigan 48640 Mrs. Mary Sinclair, President Mr. William II. Meier, President Citizens' Committee for Meier Studio and Camera Shop Environmental Protection of Midland, Michigan 48640 Michigan 5711 Summerset Drive Mr. James L. Collison, Executive Midland, Michigan 48640 Director East Central Michigan Economic Honorable Wiiliam C. Milliken Development District Covernor, State of M+chigan University Center, Michigan 48710 Lansing, Michigan 48914
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R. Gerald Rice, M.'D.
Director of Public Health Michigan Department of Public licalth 3500 North Logan Street Mr. Robert B. Chatterton Lansing, Michigan 48914
(
Midland Township Supervisor 928 Clarence Court - Route 7 Mr. Herbert C. DeJonge, Director Midland, Michigan 48640 Michigan Department of Commerce Lansing, Michigan 48901 Mr. Ri srt Kingsley Director of Elementary Education Mr. Ralph A. MacMultan, Director Midland Public Schools Department of Natural Resources Midland, Michigan 48640 Michigan Department of Conservation Lansing, Michigan 48926 Mrs. George B. Ulmer 3910 Applewood Mr. Harry Brown, Director Midland, Michigan 48640 Michigan Department of Labor 300 East Michigan Avenue Mr. Robert Copeland, Chairman Lansing, Michigan 48933 Midland Section, America Institute of Chemical Engineers Mr. William J.
Pierce Midland, Michigan 48640 National Conference of Commissioners on Uniform Laws University of Michigan Law School Ann Arbor, Michigan 48103
'0-329, 310 page 5 Mr. I.ewis Warren, Executive Mr. & Mrs. Fritz Ecarius Vice President 113 W. lelines
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Greater liginaw Chamber of Midland, Michigan 48640 Conne rc e Sa.i nw, Michigaa 4H605 Mr. J. C. Yo un.'
Antri:n Coonty Board of Mr. H o h e r t. G. Anp.rger Co:mi u t orm r :
!>4 Clay Street Keuadin, Michigan ' W.. i Midland. Michigan
'.8640 Honorable James liarvey Mra. M.ichel !!arel House of Represent.atives nul Townsend 9treet Rayburn Building, Room 2352 sfidland, Michit:an 48640 Washington, D. C.
20515 Mr. & Mrs. M.I.. Rippee Mr. Robert A. Wiesemann, Manager Route 4 Special I.icensing Projects Midland, Michigan 48640 Westinghouse Electric Corporation Box 355 Mr. 6 Mrs. J. V. Clark Pittsburgh, Pennsylvania 15230 Route 5 Mid land,- Michigan 48640 A. W. Vadnais Esq.
Westinghouse Electir~f c Corporation Mr. & Mrs. F. E. St. John 1782 Westinghouse Building _
Rout.e 1 Cateway Center Breckenridge, Michigan 48615 Pittsburg, Pennsylvania ~ 15222 Mr. 6 Mrs. V. E. Rippee B. Z. Cowan, Esq.
671 Woodcock Road, Route 7 Eckert, Seamans, Cherin & Mellott Midland, Michigan 48640 10th floor, Porter Building Sixth Avenue & Crant Street Mr. Dennis Ohlrogge Pittsburgh, Pennsylvania 15219 3200 Nolske Street Midland, Michigan 48640 Environmental Protection Agency Environmental Evaluation Branch Building 2, Room 1000 Washington, D. C.
20242 Q
b/>f)U-l.haan.M:
Office'of dhe Secretary of the Connission cc:
Mr. Murphy Mr. Engelhardt ASLBP E. Coulbourne Reg. Files