ML19331B260
| ML19331B260 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/22/1973 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19331B261 | List: |
| References | |
| NUDOCS 8007280854 | |
| Download: ML19331B260 (18) | |
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1-22-73 UNITED STATES OF AMERICA ATO51IC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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m Consumers Power Company
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Docket Nos. FO-329 _,. '
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' 50-330 (Midland Plant, Units 1 and 2)
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ANSWER OF AEC PIGULATORY STAFF TO SAGINAW INTERVENORS' MOTION TO REQUIRE PRESIDING OFFICER TO RECALL AND REV/' KE THE INITIAL DECISION AND TO DECLARE THE ATOMIC SAFETY AND LICENSING EGARD BIASED.
I. Introduction
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Pursuant to 10 CFR 6 2.730(c), the AEC regulatory staff submits this answer
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in opposition to Saginaw Intervenors' January 7,1973, " Motion... to require the Presiding Officer to Recall and Revoke the Initial Decision and to Declare the Atomic Safety and Licensing Board Biased".
As the principal grounds for the instant motion, the Saginaw Intervenors i
point to a law review article published by the Chairman of the presiding Atomic Safety and Licensing Board, (ASLB) entitled "The National Environ-mental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup De Grace?", 72 Colum. L. Rev. 963 (1972). This paper examines the impact of the National Environmental Policy Act of i
-1969 (NEPA) on the Atomic Energy Commission. Its stated thesis is "that i
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. the job required of the Atomic Energy Commission by NEPA, as interpreted by the courts, is one which the agency cannot perform, and, in any event, one which the licensing process as it currently exists is ill-designed to handle. " (72 Colum. L. Rev. 963,965) In developing this thesis the author refers, among other things, to certain material docketed in this proceeding. The Saginaw Intervenors characterize the article as one which " details in depth Chairman Murphy's personal bla.s concerning permissible participation by the Intervenors the AEC licensing process
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and, in particular,'Intervenors in these dockets (sic.)" Affidavit of Myron Cherry in Support of Motion to Recall and Reveke Initial Decision
'on the Grounds of Bias, 54.
In part II of this answer we address three questions raised by this motion:
(1) whether the ASLB has jurisdiction to decide the instant motion; (2) whether the motion is timely; and (3) whether grounds for disqualification of the Chairman of the ASLB have been shown by the Saginaw Intervenors.
II. Argument A. The ASLB has and should exercise jurisdiction under section 2.717(a) of the Commission's Rules of Practice to decide the instant motion.
. Section 2.717(a) of the Commission's Rules of Practice, 10 CFR Part 2, provides in effect for limited continuing jurisdiction of an ASLB after its Initial Decision has been issued. In relevant part that regulation.
states:
The presiding officer's jurisdiction in each proceeding will terminate upon the expiration of the period within which the, Commission may direct that the second be certified to it for final decision, or when the Commission renders a final decision, or when the presiding officer shall have withdrawn himself from the case upon considering himself disqoalified, whichever is earliest.
At this time, the presiding officer has not withdrawn, nor was a final decision been issued by the Appeal Board (acting for the Commission pursuant to 10 CFR S 2.785(b)), nor has the 45-day period allowed by.
_ 10 CFR 5 2.760(a) for commencement of review by the Appeal Board (acting for the Commission pursuant to 10 CFR S 2.785(a)) expired.
Thus, the ASLB's jurisdiction in this proceeding has not terminated as provided in 10 CFR 5 2.717(a).
A question remains, of course, as to whether the ASLB should exercise its jurisdiction in this instance or, alternatively, defer to possible con-current jurisdiction on the part of the Appeal Board. In all of the circum-stances, and particularly in view of the fact that the instant motion relates to an action of a member of this ASLB, we believe that the most appropriate
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course would be for the ASLB to exercise its jurisdiction. Among other.
things, this course would ensure that if the Appeal Board is presented with the question of bias, the Appeal Board would have the full benefit of the ASLB's views on the matter.
2 A.ccordingly, the ASLB has and should exercise jurisdiction to decide the inctant motion to recall its Initial Decision on grounds of bias.
B. Tha instant motion is untimely because, in the exercise of reasonable deligence, the Saginaw Intervenors could have raised the substance of their charge of bias several months ago.
Timeliness is absolutely essential in connection with any motion to dis-qualify an ASLB or other officer presiding in a proceeding, such as this
. one, which is subject to section 7 of the Administrative Procedure Act (APA). Thus, section 7(a) of the APA, 5. U.S.C. 556(b), provides in relevant part as follows:
On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as part of the record and decision in the case. (Emphasis added)
" Timely" has been defined in this connection as being "at the first reasonable opportunity after discovery of the facts tending to show disqualification.J' Long Beach Federal Sav. and Loan Assn. v. Federal. Home Loan Bank B,d.,189 F. Supp 589,611 (S.D. Cal.1960), reversed on other Trounds, n
295 F. 2d 403 (9th Cir.1961). If an objection going to the qualifications of the presiding officer is not timely made, it is waived. United States
- v. L. A. Tucker Truck Lines. 334 U.S. 33 (1952) In Tucker the objecting party first raised an issue as to the hearing examiner's lack of qualifications in a proceeding for judicial review of the agency's final decision. The Supreme Court held that this delay violated the " timely" requirement, since the objecting party did not offer any excuse for not raising the issue before the agency itself.
In Ginsburg v. Richardson, 436 F. 2d 1146 (1971), cert. denied, 402 U.S. 976 (1972), where a claimant for Social Securtiy benefits. d failed to request withdrawal of the hearing examiner at the agency level, the
q court held that she had waived her objection to' alleged prejudicial condcct on the part of the hearing examiner during the hearing.
In United States v. Independent Quick Silver Co.18 Ad. L. 2d 308 (Dept.
Int.1965), affirmed on other grounds sub nom. Converse v. Udall, 262 F. Supp. 583 (D. Ore 1966), affirmed, 399 F. 2d 616 (9th Cir.1968),
cert. denied, 393 U.S.1025 (1969), a motion to disqualify an examiner because of prejudice allegedly shown by his previous decisions was held not timely and therefore properly denied, where it was made five days before the hearings started, and the record showed that the moy_ ant had notice of who was to be the examiner more that five months before the hearing.
In Safeway Stores Inc. v. FTC 366 F. 2d 795 (9th Cir 1966), cert. denied, 386 U.S. 932 (1967), a motion to disqualify the FTC Chairman was held not timely where it was based on the Chairman's ;articipation in Senate hearings some five years earlier and was not filed until after the Commission had rendered its decision adverse to the respondent.
In R. A. Holman Co. Inc. v. SEC 366 F 2d 446 (2nd Cir 1966), a motion to disqualify an examiner on the ground of his temporary reappointment over the retirement age was untimely where it was not made until hearings had gone on for one and a half years and 8,000 pages of testimony had been
. recorded, and where the examiner's age of 73 "must have been obvious at the beginning of the hearings." See also North American Airlines Inc. v. CAB. 240 F. 2d 867 (D.C. Cir 1956); Bower v. Eastern Airlines Inc. 214 F 2d 623 (3rd. Cir.1954) on the strict requirement that a motion for disqualification be timely ma'de.
In this case the Saginaw Intervenors profers that they "did not become fully aware until December 29,'1972, of the grounds of bias which rendei-
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[the instant motion] necessary." (Motion, 53, emphasis added.) Apparently, the intervenors reached this state of awareness only after a 6-day comparison
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of the subject article and the ASLB's Initial Decision, and after confirming the article's " genesis" as a report submitted to the Administrative Conference of the United States "in May of 1972." We would suggest, howevei-that the date on which the intervenors achieved " full awareness" is not necessarily material. The date which would be material, if known, is the date when, in the exercise of reasonable diligence, the intervenors first could have raised the substance of this matter before the ASLB.
On the basis of Exhibit A of the Applicant's " Opposition" to the instant motion, it appears that the critical date may be as early as the latter part of April,1972. Exhibit A purports to be a copy of a letter from the Chairman of the Administrative Conference to counsel for the Saginaw
Intervenors transmitting for comment two reports, one of which was an early draft of the article that is the principal subject of the instant motion.
We note in this connection that the environmental hearing in this proceeding, which was in session thirteen days and added some 3600 pages to the trans-cript, did not commence until hiay 17, 1972. Of course, it is conceivable that Exhibit A was never sent or, if sent, never received,
- or, if sent and received, mislaid, lost, ignored, forgotten, etc., by the recipient.
In any case, as indicated by Exhibit B to the applicant's opposition and the affidavit of hiilton R. Wessel filed in connection with the instant motion, a draft of the subject article was in circulation by the summer of 1972. Thus, it comes as no surprise that counsel for the Saginaw Intervenors, an active and knowledgeable member of the atomic energy bar should " recall some time in the summer of 1972, of having become aware of the existence of the precurm of the Columbia Law Review article."
Affidavit of hiyron hi. Cherry,14. What is surprising is that counsel should offer no reason, other than his involvement in another proceeding, for not fully acquainting himself with the contents of the draft then in circulation; and that he should dismiss the extremely pertinent question or the extent of his actual knowledge of the article in the summer of 1972 with the vague A similar letter was received by staff counsel, as suggested by Exhibit B to the applicant's opposition. See attachment A hereto.
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statement that he "did not deal with that article at any great length... and did not fully appreciate its significance." In fact, nc,where in the instant submission do the intervenors meet the timeliness issue head-on. Do they wish the ASLB to believe that at no time prior to their receipt of the law review article on December 23, 1972, were they aware that Chairman Murphy had published a paper setting forth his views on NEPA and/or (b) referring to the Midland case? They do not say so, and in the circumstance the ASLB should not simply assume that that is the case. In our view, on the basis-of counsel's affidavit itself, the instant.otion could have been filed, in the exercise of reasonable diligence, several months ago.
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The Saginaw Intervenors' motion to recall the' Initial Decision on grounds of bias shoulc be denied as untimely.
C. Chairman Murphy's article merely states his views on questions of law and policy and therefore does not constitute disqualifying bias.
Nothing in Chairman Murphy's article constitutes disqualifying bias.
The Saginaw Intervenors are confusing personal bias, a basis for dis-qualfication, and prejudgment of issues of fact in a particular case, sometimes basis for disqualification, with a crystallized point of view about issues of K.C. Davis law or policy, which is almost never a basis for disqualification.
defines the four common types of bias as follows:
. A judge may have a bias on a question of law because he decided the question in a previous judicial opinion; the judge who has the most biases in this sense may be the best judge. Closely related but distinguishable is bias or prejudgment concerning issues of fact about the parties in a particular case; all agree that too much bias in this sense is a ground for disqualification, but the p-oblems of what is too much are oftcn difficult. A third kind of bias is often called " partiality" or " personal bias" or " personal prejudice"; these terms signify an attitude for or against a party as distinguished from issues of law or policy. When this kind of bias is strong encugh, it is a ground for disqualification. A final kind of bias is " interest".
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A juds,e who stands to gain or lose by a decision either way... has, an interest of the kind that is a ground for disqualification if it is of sufficient magnitude. Davis. Administrative Law Treatise, 5 12. 01, p. 130 - 31.
Davis further points out that bias in the sense of crystallized point of view about issues of law or policy is almost universally deemed no ground for disqualification. Id. See also, Memorandum and Ordcr of the Atomic Safety and Licensing Appeal Board in Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ASAB - 76 (October 30,1972).
. Chairman Murphy's article represents neither " personal bias" for or against a party, nor prejudgment of the facts in this proceeding. It does, however, detail the author's views about policy and procedures for in:plementing policy. Specifically, the law review article presents a scholarly and thorough examination of the practical problems an Atomic Safety and Licensing Board confronts when trying to conduct a full environmental 2 eview pursuant to NEPA. The heart of Mr. Murphy's article is contained in the following sentences:
It is the thesis of this article that the job required of the Atomic Energy Commission by NEPA, as interpreted by the courts, is one which the agency cannot perform, and, in any event, on which the licensing process as it currently exists is ill-designed to handle.
The task imposed on an already overburdened structure has had, at least temporarily, a disastrous impact. Part I describes the situation as it exists and analyzes the reasons for the crisis. Part II offers suggestions for changes in the structure of the licensing process to enable the AEC and other agencies to better deal with environmental questions. 72 Colum. L. R. at 965 - 96.
The article then proceeds to discuss these problems as outlined in the above quoted summary. This article represents the author's thinking on the general role of the ASLB and how it should function. At not point could the article be considered a prejudgment concerning issues of fact about the parties in this or any other case. Such particularized precon-ceptions are essential to a finding of legal bias sufficient to require dis-qualification.
Statements similar to Chairman Murphy's have been consistently held proper by the courts. For example, in Skelly Oil Co. V. FPC 375 F. 2d 6.
(10th Cir.1967) modified on other grounds, 390 U.S. 747 (1968), two Commissioners were alleged to have prejudged a natural gas rate case in speeches on the issue of whether substantial competition existed among gas producers. No claim was made that either Commissioner prejudged the ultimate issue of a just and reasonable rate. The court held:
In our opinion no basis for disqualification arises from the fact or assumption that a member of an administrative agency enters a proceeding with advance views on important economic matters in issue. Nothing in the record disturbs the assumption that the two Commissioners are " men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances". 375 F. 2d at 18.
The court then distinguished the Texaco
- case, cited in intervenor's brief, noting that in Texaco te alleged bias was based on a charge of pre-commitment of a Commissioner on the guilt of an accused. 375 F. 2d at 18, f.n.14. Chairman Murphy's position here is like that of the Commissioners in Skelly. Chairman Murphy had advance views on environmental matters Texaco. Inc. v. FTC, 336 F. 2d 754 (D.C. Cir.1964), vacated and remanded on other grounds, 381 U.S. 739 (1965)
and the procedures to examine these matters just as the Skelly Commissioners had views on economic matters, but in neither case was there a prejudgment of the factual issues to be decided in the case.
The Supreme Court gave general guidance to the question of prejudgment of law or fact in FTC v. Cement Institute, 333 U.S. 683 (1948). There the FTC had issued a cease and desist order against the use of a multiple basing point system in the selling of cement. Before instituting the proceedings, the Commission had made reports to Congress and the President expressing the opinion'that the multiple basing point system was~a violation
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of the Sherman Act. The companies contended that the Commission has.
expressed a " prejudgment of the issues" and that it was " prejudiced and biased". The Court specifically said that it was deciding the case "on the assumption that such an opinion had been formed by the entire member-333 ship of the Commission as a result of its prior official investigations."
U.S. at 700. Then the Court held that the Commission's previously-formed opinion did not disqualify the Commission. Id. The Court pointed out that the minds of the Commissioners were not " irrevocably closed", that
" judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and
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. In Chronicle Broadcasting Co_. 26 Ad. L. 2d 270 (F.C.C.1969) Commissioner Johnson's writings clea2ly indicated that he had strong views on the general question of concentration of control of the media of mass communications.
A motion to dirqualify him as biased on a specific license renewal case was, however, denied. The Commission stated:
The issue is whether he [ Commissioner Johnson] has given the appearance of prejudging the narrower question of whether the present ownership of KRON-TV and KRON-FM constitute a concen-~
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tration of control inconsistent with the public inteiest, beyond the necessary and proper determination that the issue is sufficiently substantial to require a hearing. This view as to a desirable state of ownership was properly expressed and is not a prejudgment as to any particular licensee's basic qualifications, particularly when it was stated in the context of a comparative proceeding. It may well reflect a " crystallized point of view on a question of policy."
... [Such] an expression of a point of view is no -ound for dis-qualification. 26 Ad. L. 2d at 277 - 78.
Similarly, in Johnstown Pa.14 Ad. L. 2d 720 (F.C.C.1963) the Commission held that the fact that a Commissioner might have had or expressed definite views as to the policy considerations to be applied on a particular matter (regarding the granting of VHF licenses) did not disqualify him from subsequent participation in that matter.
_ In U.S. v. Morgan, 313 U.S. 409 (1941) the Supreme Court held that the Secretary of Agriculture's public criticism of a previous decision of the Supreme Court upsetting a rate-fixing order did not indicate that he was incapable of judging the matter fairly in subsequent proceedings.
The cases in which the Saginaw Intervenors rely all involved prejudgments of fact in particular proceedings. Each of the cases involved an accusatory proceeding, and in each the issue was possible prejudgment of guilt. In.
Texaco the court concluded that "a disinterested reader,of Chairman Dixon's speech could hardly fail to conclude that he had in some measure decided in advance that Texaco had violated the Act." 336 F. 2d at 760. The,
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circumstances in Cinderella were much the same. Cinderella Career and Finishing Schools. Inc. v. FTC, 425 F. 2d 583, 589 - 92 (1970). In Gilligan the SEC had issued a press release during the pendency of the proceeding there involved stating that certain Broker-dealers, had violated the Securities Act of 1933. The SEC apparently conceded that Gilligan, though not mentioned by name in the release, was among the parties to which the release referred.
Gilligan Will & Co. v. SEC 267 F. 2d 461, 468 (2d Cir.), cert. denied. 361 V.S. 896 (1959). Amos, Great involves the participation of a Commissioner who as a Commission staff member before taking his seat on the Commission
itself had been responsible for the Commission's investigation of the accused. Amos Treat & Co. v. SEC. 306 F. 2d 260 (D.C. Cir.1962).
Accordingly, the publication by Chairman Murphy of an article setting forth his views on matters of law, policy and procedure, but not prejudging th~e facts of this case, is not grounds for disqualification, and the instant motion fails on its merits.
III. Conclusion For the reasons stated herein, the ASLB should (1) exercise the jurisdiction it has to decide the instant motion to recall its Initial Decision on~ grounds
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of bias; (2) deny the motion on grounds of untimeiness; and, if the motion
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is treated as timely, (3) deny it for failure to show disqualifying bias.
Respectfully submitted, o Att AL/ Q 1
David E. Kartalla Counsel for AEC Regulatory Staff Of Counsel:
Michael W. Grainey, Esq.
Dated at Bethesda, Maryland this 22 day of January,1973.
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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Conusmers Power Company
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2
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CERTIFICATE OF SERVICE I hereby certify that copies of " Answer of AEC Regulatory Staff to Saginaw Intervenors' Motion to Require Presiding Officer to Recall and Revoke the Initial Decision and to Declare the Atomic Safety and Licensing Board Biased."
dated January 22, 1973, in the captioned matter, have been served on the following by deposit in the United States mail, first class or air mail, this 22nd day of January,1973:
Alan S. Rosenthal, Esq., Chairman William J. G' inster, Esq.
Atomic Safety and Licensing Suite 4, Mm.ll Bt41 ding Appeal Board Saginaw, Michigan 48602
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U.S. Atomic Energy Commission
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Washington, D.C. 20545 Mr. Frank W. Karas Chief. Public Proceedings Staff Dr. John Buck, Member Office of the Secretary of the Atomic Safety and Licensing Commission Appeal Board U.S. Atomic Energy Commission U.S. Atomic Energy Commission Washington, D.C. 20545 l Washington, D.C. 20545 James A. Kenciall, Esq.
William C. Parler, Esq., Member 135 N. Saginaw Road Atomic Safety and Licensing Midland, Michigan 48640 Appeal Board U.S. Atomic Energy Commission Milton R. Wessel. Esq.
Washington, D.C. 20545 Kaye, Scholer, Fierman, Hays and Handler Arthur W. Murphy, Esq., Chairman 425 Park Avenue Atomic Safety and Licensing Board New York, New York 10022 Columbia University School of Law Box 38, 435 West 116th Street James N. O'Connor, Esq.
New York, New York 10027 The Dow Chemical Company 2030 Dow Center Dr. Clark Goodman Midland, Michigan 48640 Professor of Physics University of Houston
'3801 Cullen Boulevard Houston, Texas 77004
2-Dr. David B. Hall Los Alamos Scientific Laboratory P.O. Box 1663 Los Almos, New Mexico 87544 Mpron M. Cherry, Esq.
Jenner and Block One IBM Plaza Chicago, Illinois 60603 Irving Like, Esq.
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Reilly,-Like and Schneider 200 West Main Babylon, New York 11702 Hon. William H. Ward
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Assistant Attorney General State of Kansas Topeka, Kansas 66612
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Atomic Safety and Licensing Board Panel U.S. Atomic Energy Commission Washington, D.C.
20545 Atomic Safety and Licensing Appeal Board U.S. Atomic Energy Commission Washington, D.C.
20545 W (l dLCLhoj David E. K'artalia Counsel for AEC Regulatory Staff