ML20054C946
| ML20054C946 | |
| Person / Time | |
|---|---|
| Site: | 05000000, Crane |
| Issue date: | 10/08/1981 |
| From: | Eilperin S NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC |
| Shared Package | |
| ML20054C939 | List: |
| References | |
| FOIA-81-437 NUDOCS 8204220155 | |
| Download: ML20054C946 (3) | |
Text
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ATOMIC SAFETY AND LICENSING APPEAL PANEL
,8, WASHING TON, D.C. 20555 dE
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- 3 thk 2-October 8, 1981 1
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s MEMORANDUM FOR:
ALL PARTIES l
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FROM:
Stepnen F.
Eilperin, Chairman Three Mile Island-l Restart Proceeding i
RE:
METROPOLITAN EDISON COMPANY ET AL.
l (Three Mile Island Nuclear Station, Unit 1) Docket No. 50-289 -(Restart)
On September 28 I wrote a memorandum to the parties disclosing my prior involvement with matters touching the TMI-1 restart proceeding, and asking whether there was objection to my chairing the Appeal Board that would review at least the Licensing Board's August 27, 1981 Partial Initial Decision in this proceeding.
The NRC staff had t
I no objection, while the Union of Concerned Scientists, which did not participate on the management issues to which l
the Licensing Board's August 27 decision was addressed, i
reserved its right to object at a later date if I were l
appointed to the Appeal Board to review the follow-up Licensing Board decision on design and technical issues.
Three Mile Island Alert, Inc. ( "TMIA"), however, voiced strong objections to my participation on the Appeal Board at this time.
Its objections were twofold.
First TMIA claimed that as a matter of law I was dis-qualified by reason of having supervised, as the Commis-sion's Solicitor, the litigation defense of two TMI-l restart related cases, People Against Nuclear Energy v.
NRC, No. 81-1131 (D.C. Cir.) and TMIA v. NRC, No. 81-1157 (D.C. Cir.).
This was said to demonstrate my substantial interest in the outcome of the TMI-l restart proceeding and unquestionable prejudice to TMIA.
Second, TMIA claimed i
that apart from legal considerations I was perceived as biased by area residents, and my appointment to the Appeal Board exacerba'ted the distrust with which TMIA's constituency had come to view the Commission's decisional process.
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l 8204220155 811112 PDR FOIA ELLIOTT81-437 PDR
l ALL PARTIES On the basis of TMIA's letter I have decided to recuse myself from the Appeal Board for the TMI-1 restart proceeding.
I do so not on the basis of the claimed legal infirmity to my sitting.for I believe that the commission's former Solicitor, as the Commission itself, is free to hear and decide the TMI-1 restart proceeding, including any issues a court might remand i
for further consideration.
TMIA does not claim that the Commission is somehow disqualified from having issued.the rul-ings that gave rise to the TMI-l restart related litigation.
Defending those rulings in court would perforce not be ground for disqualification.
I am persuaded, however, to recuse myself in light of TMIA's argument that my sitting substantially adds to their distrust of the commission's decisional process in this matter,
.and that it deserves. total confidence in the tribunal which will hear its appeal.
Plainly, a litigant should have con-fidence'that the tribunal which will hear its case will do so fairly, but at what-point a party's fear'of unfairness (where the prospective judge thinks there is none) should lead to voluntary recusal.is a. difficult judgment to make.
In this regard I think the TMI experience has undoubtedly been unique, especially for those who live in that area.
They, of anyone, have an especially strong claim that there should be not the slightest appearance of unfairness to the decision about which they are concerned.
Moreover, TMIA's unhappiness with the decisional process to date stems not only from the res' tart rulings that have been taken to court but includes earlier Commission decisions dealing with the cleanup of TMI-2 such as the decision to purge the TMI-2 containment o f krypton.
There too, as Solicitor, I actively defended the Commission's position in court.
Additionally, I participated in advising the Commission on its course of action, had a hand in supervising the drafting of the Commission orders, and had rather frequent contact with lawyers for Metropolitan Edison during the extensive liti-gation which followed.
.On still other aspects of the TMI-2 cleanup, such as the operation of EPICOR-II I have had l
occasional contact with utility officials who later were witnesses in the T,MI-l restart proceeding.
A-O C7 ALL PARTIES 3-Despite the fact that I have not formed any position on the merits of the Licensing Board's decision and consider myself free of bias about any of the issues which might come before me in this case,given the totality'of circumstances recited above I think the integrity of the Commission's decisional process is better served if I voluntarily recuse myself from this proceeding so there is not the slightest doubt that TMIA and the other parties to the restart pro-ceeding will be given a fair hearing.
I therefore will not serve on either of the Appeal Boards which will review the TMT-1 restart proceeding.
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