ML20052G823

Memorandum Supporting Motion for Recusal of Commissioner Asselstine from Any Reconsideration of Commission 820316 Decision on Exemption.Events Have Created Appearance of Loss of Independence.Certificate of Svc Encl

ML20052G823
Person / Time
Site:	Clinch River
Issue date:	05/17/1982
From:	Finamore B, Greenberg E National Resources Defense Council, Sierra Club, TUTTLE & TAYLOR
To:	NRC COMMISSION (OCM)
Shared Package
ML20052G809	List: ML20052G808 ML20052G823
References
NUDOCS 8205190030
Download: ML20052G823 (10)

Text

5/17/82 Before the UNITED STATES NUCLEAR REGULATORY COMMISSION Washington, D.C.

20555 In the Matter of

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UNITED STATES DEPARTMENT OF ENERGY

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PROJECT MANAGEMENT CORPORATION

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Docket No. 50-537 TENNESSEE VALLEY AUTHORITY

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(Clinch River Breeder Reactor Plant) )

MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE 3IERRA CLUB, IN SUPPORT OF THEIR MOTION FOR RECUSAL OF COMMISSIONER ASSELSTINE Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club (the "Intervenors"), submit this memorandum in support of their motion seeking the recusal of Commissioner Asselstine from any reconsideration of the Com-mission's March 16 decision on Applicant's Section 50.12 re-quest (CLI-84-4) (the " Order").

Intervenors believe that the process leading to Applicants' request _for reconsideration and surrounding Commissioner Asselstine's nomination has created an appearance of bias, partiality and loss of inde-

- pendence.

Consequently, under the Commission's regulations, it is inappropriate for Commissioner Asselstine to sit on this matter.

8205190030 820517 PDR ADOCK 05000537 l

O PDR

.. Lest there be any misunderstanding, Intervenors should stress that they are not suggesting that Mr.

Asselstine is personally biased or that he has actually pre-judged reconsideration.

Rather, the issue here is one of appearance.

The ef fect of process leading up to reconsidera-tion of the Order has been to create an impression that the reconsideration decision is a foregone conclusion, based on political philosophy rather than independent jugment of the facts and law.

And, because of the importance of maintaining public confidence in the integrity and impartiality of the Commission's decision making process, the appearance of bias, partiality or loss of independence is as important a factor under the Commission's Code of Conduct as actual bias, par-tiality or loss of independence.

In essence, there have been four elements critical in creating the impression of bias, partiality or loss of in-dependence:

(1) the earlier statements of the Chairman with respect to reconsideration; (2) the apparent efforts of the Administration to find someone "to vote their way"; (3) the mention of the reconsideration issue by Administration offi-

~

i cials to Mr. Asselstine prior to the confirmation process; and (4) the very speed with which the reconsideration process has proceeded since Mr. Asselstine's confirmation.

Each is discussed briefly.below.

, First, even before the Commission voted on the Sec-tion 50.12 request in March, the Chairman, sensing the votes were not going his way, publicly noted his interest in recon-sidering the order when the " composition" of the Commission changed.

Commissioner Bradford, who voted against the Appli-cants, was leaving.

A new Commissioner, to be appointed by the Administration, would be replacing him.

And, the Chair-man seemed to assume, more or less implicitly, that a new Commissioner might vote a different way.

Thus, at the March 1 Commission meeting, the Chairman, af ter noting that denial of the exemption "would be a very sad mistake," Transcript of March 1 Meeting at 40, stated that he'd "like to keep the options open for a new Commission or a Commission that has a different membership," id.

In fact, a vote was put off several days until Commission counsel could provide legal advice with respect to how to go about reconsideration and, on March 5, counsel advised the Commission that the Chairman could vote with the minority and still move to reconsider later, and, further, that reconsideration, on the basis of the existing record, might take place within 60 days (the period for seeking judicial review of the Order).

Transcript of March 5 Meeting at 1-3.

The discussions on March 1 and March 5 thus plainly set the stage for reconsideration of the Order in what would be expected to be a more favorable cli-i mate for Applicants.

. Second, the Chairman's interest in reconsideration seems not to have been lost upon the Applicants.

They appear, as far as press reports indicate, to have embarked upon a course designed to get a new (and presumably favorably disposed) Commissioner on board within 60 days.

Thus, for example, Judith Miller of the New York Times reported on March 6, "There were indications today that the Administra-tion would act swiftly to provide Mr. Palladino with a Repub-lican-dominated commission so that he could reconsider the exemption."

N.Y. Times, March 6, 1982.

And, at every stage of the way, there has been an expectation that somehow, if the Administration's nominee could be confirmed and sworn in by May 15, reconsideration (and presumably a switched vote) would be the result.

See, e.g.,

Environmental Energy Study Conference Weekly Bulletin, May 3, 1982 at C14.

Third, although Commissioner Asselstine has stated that no promises were sought or given in connection with his nomination, he has noted in a response, dated May 10, 1982, to questions from Senator Staf ford, Chairman of the Senate Committee on Environment and Public Works, "I was told by one

~ individual (lef t blank] that the Administration wished to fill the existing vacancy on the Commission as soon as possi-ble, and that one factor was the desire to resolve the DOS exemption request."

However brief this reference, it clearly

. tut Commissioner Asselstine on explicit notice of the Admin-istration's intere:.t in obtaining reconsideration in connec-tion with his nomination.

Fourth, and finally, the haste with which the Applicants and the Commission itself appear to be pursuing reconsideration adds to the entire atmosphere of prejudgment.

Commissioner Asselstine was confirmed Thursday, May 13.

On Friday, May 14, Applicants filed a request for reconsidera-tion.

Without even providing Intervenors with a chance to respond, a Commission meeting with respect to that request was apparently scheduled for the afternoon of Monday, May 17, one working day later.

And, we understand that Commissioner Asselstine may be sworn in just in time for that meeting.

This sequence of events creates the impression of a rapid and unreflective effort to reverse the Commission's prior section 50.12 decision.

While no single one of the elements just described might be enough, standing alone, to require recusal of Com-missioner Asselstine, all the elements taken together inevit-

=9 ably create the impression that the process by which the reconsideration issue reaches the Commission has been design-ed to achieve a preconceived result.

And, it is precisely this impression which the Commission's Code of Conduct is in-

. tended to protect against.

More particularly, 10 CFR S0.735-49a provides:

"An employee shall avoid any action, whether or not specifically prohibited by this Part 0, which might result in, or create the appearance of:

(d)

Losing complete independence or impartiality; (e)

Making a Government decision outside of offical channels; or (f)

Affecting adversely the confidence of the public in the integrity of the Government."

Under this regulation, quite apart from any actual bias, par-tiality or loss of independence, recusal of Commissioner Asselstine is not only appropriate, it is compelled.

Only in this way will the appearance of integrity of the Commission's decision making process be fully maintained.

In sum, for all the reasons set forth above, Inter-venors submit that Commissioner Asselstine should decline to

~-deal with any matters relating to reconsideration of Appli-cants' Section 50.12 request.

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Respectfully submitted,

/

s Eldon V.

C. Green rg TUTTLE & TAYL R 1901 L Street, N.W.

Washington, D.C.

20036 (202) 861-0666 Ak A. Pin (

ru Barbara A.

Finamore S. Jacob Scherr Natural Resources Defense Council, Inc.

1725 Eye Street, N.W.

Washington, D.C.

20006 (202) 223-8210 Attorneys for Intervenors Natural-Resources Defense Council, Inc., and the Sierra Club Dated:

Washington, D.C.

i May 17, 1982

=9 6

).

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MOTION FOR RECUSAL OF COMMISSIONER ASSELSTINE and MEMORANDUM OF INTERVENORS, NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB, IN SUPPORT OF THEIR MOTION FOR RECUSAL OF COMMISSIONER ASSELSTINE were delivered by hand this 17th day of May, 1982 to:

The Honorable Nunzio J.

Palladino Chairman U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 The Honorable James K. Asselstine Commissioner

• B) c :, 7 7 ', h,I 00 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 The Honorable Victor Gilinsky Commissioner U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 The Honorable John F. Ahearne Commissioner U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 The Honorable Thomas F.

Roberts Commissioner U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 Daniel Swanson, Esquire Stuart Treby, Esquire Bradley W.

Jones, Esquire Office of Executive Legal Director U.S.

Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20814 R. Tenney Johnson, Esquire Leon Silverstrom, Esquire Warran E.

Bergoholz, Jr.,

Esquire Michael D. Oldak, Esquire

~

L.

Dow Davis, Esquire Office of General Counsel U.S.

Department of Energy 1000 Independence Avenue, S.W.

Washington, D.C.

20585

. George L.

Edgar, Esquire Irvin N.

Shapell, Esquire Thomas A.

Schmutz, Esquire Gregg A.

Day, Esquire Frank K.

Peterson, Esquire Morgan, Lewis & Bockius 1800 M Street, N.W.

Washington, D.C.

20036 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 (3 copies)

Leonard Bickwit, Esquire Office of General Counsel U.S.

Nuclear Regulatory Commission Washington, D.C.

20545 And by mail, postage prepaid, to the following:

Marshall E.

Miller, Esquire Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Mr. Gustave A.

Linenberger Atomic Safety & Licensing Board U.S.

Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Dr. Cadet H.

Hand, Jr.

Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923 Atomic Safety & Licensing Appeal Board U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 Atomic Safet/ & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 i

, Herbert S.

Sanger, Jr.,

Esquire Lewis E. Wallace, Esquire James F.

Burger, Esquire W. Walker LaRoche, Esquire Edward J. Vigluicci Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 William B.

Hubbard, Esquire Assistant Attorney General State of Tennessee Office of the Attorney General 422 Supreme Court Building Nashville, Tennessee 37219 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 William E.

Lantrip, Esquire City Attorney Municipal Building P.O.

Box 1 Oak Ridge, Tennessee 37830 Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Mr. Joe H. Walker 401 Roane Street Harriman, Tennessee 37748 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 32219 Eldon V.

C. Greenb