ML20050B110
| ML20050B110 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 03/31/1982 |
| From: | Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8204050010 | |
| Download: ML20050B110 (6) | |
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UNITED STATES OF A" ERICA NUCLEAR REGULATORY COMMISSION 1
BEFORE THE COMMISSION In the Matter of Docket No. 50-142 THE REGENTS OF THE UNIVERSITY OF CALIFORflIA (Proposed Renewal of Facility i
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NRC STAFF RESPONSE TO INTERVEN0R'S MOTION
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FOR DISQUALIFICATION OF COMMISSIONER ROBERTS na h
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Stuart A. Treby
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Assistant Chief Hearing Counsel i
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Url!TED STATES OF AffERICA fiUCLEAR REGULATORY C0fif11SSI0fl BEFORE THE CC+NISSI0fl In the ffatter of
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Docket No. 50-14?
Tile'REGEflTS OF THF UtlIVERSITY OF
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CAL IFORf1I A
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(Proposed Renewal of Facility
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License)
(UCLf Pesearch Reactor)
)
i NRC STAFF RESP 0flSE TO IflTERVEh0R'S ff0TIOM FOR DIS 00ALIFICATI0ft OF COPf1ISSIONER ROBERTS
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I.
IrlTRODUCTION On ifarch 13, 1982, Comittee to Bridge the Gap (CBG), the Intervenor in this procceding, filed a notion seeking disqualification of Comissioner Thomas Roberts from participation in any decisions regarding the contested applicatien of the Regents of the University of California (" Applicant").
Motion at 1.
CBG clains that Comissioner Roberts and certain members of I
his staf f violated the Connission's ex parte rules in four reetings held with representativer of the Applicant on January 26,'1981, et the Applicant's fecility, and that, in addition, they violated 10 C.F.R. 9 2.780(c) by failinp to file the required reports detailing the contents of the ex parte communications which took place during those meetings. Motion at 2.
j further, CBG alleges that fis. Laverty's current. rnie as legal advisor to Comissioner Roberts violates the Comission's separation of functions rules because she previously served as counsel for the NRC Staff, one of the parties in the proceeding.
Id.
Finallv, CBG contends that those vio-lations evidence such a substantial bias in favor of two of the parties in the contested proceeding, Applicant and Staff, and against the renaining 3
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party, Intervenor, that the taint of partiality can only be removed by Comissioner Roberts being recused from participation in any decision related to any aspect of the nroceeding. itotion at 1, 36.
In the alter-native, CBG requests that it be granted discovery rights to further develop the facts as to natters related to the alleged ex parte contacts, separation of function violations, and appearance of bias. flotion at 36.
The Staff opposes the Motion in its entirety for the reasons set forth below.
II. DISCUSSION This proceeding is currently in the discovery phrase, with all aspects of the proceeding pending before the Atomic Safety and Licensing Board (" Board").
No evidentiary hearings have been held and no initial decision by the Board has been made on the license renewal application.
No appeals on any subject have been filed by any party before either the lippeal Board or the Comission.
In sum, there are no matters in this pro-ceeding pending before the Comission requiring it to act in an adjudica-tory role and therefore the requested relief is, at best, premature.
Further, even in the hypothetical case that any matters were before the Comission, the requested relief should not be directed to the Comission as a bcdy.
It is only the Commissioner whose disqualification is sought who may judge if his past conduct forecloses him from participation in an adjudication. As stated in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, l! nits 1 and 2), CLI-80-6, 11 NRC 411 (1980):
" Con-sistent with the Commission's past practice, and the generally accepted practice of federal coc-ts and administrative agencies, the Commission has
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o t deterrined that disqualification decisions should reside exclusively with the challenged Connissioner and are not reviewable by the Conmission."
11 NRC at 411-12. Should any issue concerning ex, parte communications be raised if and when the Commission is engaged in consideration of any aspect of this proceeding, that natter could then be decided by the involved 4
Cornissioner.
For these reasons, CBG's clains for relief do not warrant consideration by the Comnission and should be denied.
In the alternative, CBG requests that it be granted discovery rights
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to further develop the facts as to matters related to the alleged fg! parte contacts, separation of function violatiens, and appearance of bias. As recently noted by a Licensino Roard in Houston Liahting and Pcwer Company, et al. (Scuth Texas proiect, Units 1 and 2),
NRC (ffarch 26,1982),
)
Slip op. at 3.
"This type of relief is inconsistent with the self-policing i
r.nedy provided by hRC Rules for ex parte contacts.
10 C.F.R. 9 2.780.
[footnoteomitted)" For this reason, the alternative relief should also be deniec.
III.
CONCLUSION For the reasons stated abcVe, CBG's request that Comnissioner Roberts be recused f rom participation in any decision related to any aspect of the UCLA reactor license renewal preceeding does not warrant consideration by the Connission and should be denied.
Further, CBG's request for the alter-native relief that CBG be granted discovery rights to further develop its 1
allegations should be denied.
Respec,tfully submitted, f QQ /
J'f Stuart A. Treby
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Assistant Chief Hearing Counsel h!!3kstdayof"$ arch ($0N2 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIDH BEFORE THE COMMISSION In the Matter of
)
Docket do. 50-142 THE REGENTS OF THE UNIVERSITY OF
)
CALIFORHIA
)
Proposed Renewal of Facility
)
License)
(UCLA Research Reactor)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVEN0R'S MOTION FOR DIS-QUALIFICATION OF COMMISSIONER ROBERTS" 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 31st day of March, 1982:
John H. Frye, III, Chairman Mr. John Bay Administrative Judge 3755 Divisadero #203 Atomic Safety and Licensing Board San Francisco ~, CA '94123 U.S. Nuclear Regulatory Commission Washington, DC 20555 Christine Helwick, Esq.
Glenn R. Woods, Esq.
Dr. tr.ceth A.
Luebke*
Office of General Counsel Adiainistrative Judge 2200 University Avenue Atomic Safety and Licensing Board 590 University Hall U.S. Huclear Regulatory Conaission Berkeley, CA 94720 Washington, DC 20565 Roger Holt, Esq.
Dr. Uscar H. Paris
- Office of City Attorney Adainistrative Judge 200 North Main Street Atomic Safety and Licensing Board City Hall East, Room 1700 U.S. Nuclear Regulatory Conaission Los Angeles, CA 90012 Washington, DC 20555 Daniel Hirsch Mr. Daniel Hirsch Box 686 Comittee to Bridge the Gap Ben Lomond, CA 95005 1637 Butler Avenue, #203 Los Angeles, CA 90025 l
William H. Corraier, Esq.
Office of Administrative Vice Chancellor University of California at Atomic Safety and Licensing Board Los Angeles Panel
- 405 Hilgard Avenue U.S. Nuclear Regulatory Comission Los Angeles, CA 90024 Washington, DC 20555 i
l
Atomic Safety and Licensing Appeal Samuel J. Chilk Panel (5)*
Office of tha Secretary U.S. Nuclear Regulatory Comission U.3. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Docketing and Service Section ( )*
Leonard Bickwit, Esq.
Office of the Secretary General Counsel U.S. Nuclear Regulatory Comission Office of the General Counsel Washington, DC 20555 U.S Nuclear Regulatory Washington, DC 20555 s
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y Stuart A. Treby Assistant Chief Hearin Counsel e
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