ML20057B639

Staff Answer to Fm Olsen Motion to Disqualify Aslb.* Suggests That Motion Should Be Denied

ML20057B639
Person / Time
Site:	La Crosse File:Dairyland Power Cooperative icon.png
Issue date:	09/04/1980
From:	Stephen Burns, Cyr K NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20049A602	List: ML20049A600 ML20049A603 ML20049H177 ML20049H227 ML20055C173 ML20057B324 ML20057B598 ML20057B608 ML20057B628 ML20057B639 ML20057B686
References
FOIA-92-436 NUDOCS 9309230048
Download: ML20057B639 (4)

Text

.

,, s p

._.?

UNITED 5TATES OF AMERICA yg Eg NUCLEAR REGULATORY CO*HISSION pf g ;;o BEFORE THE ATOMIC SAFETY AND LICENSING BnARD -

9,9 3

U In the Matter of Docket No. 50-409-C -. j DAIRYLAND POWER COOPERATIVE Prov. Op. Lic. No. DPR-45 3

(La Crosse Boiling Water (Order to Show Cause)

Reactor)

NRC STAFF'S ANSNER TO FREDERICK M. OLSEN'S MOTION TO DISOUALIFY THE BOARD On August 19, 1980 Frederick M. Olsen III moved that all members of the 1

Atomic Safety and Licensing Board disqualify themselves from further considera-tion of matters in this proceeding. Mr. Olsen amended his motion on August 22,

=_

1980. As the basis for his motion Mr. Olsen alleges that the members of this r_= =_

Board failed to consider certain issues or admit evidence in the proceeding on expansion of the La Crosse facility's spent fuel pool. These actions of the Board, Mr. Olsen alleges, "have caused'a complete and total loss-of-faith in the Board's ability to consider evidence and render a decision that is in the public intarest as specified in the Atomic Er:ergy Act of 1954". Motion at 3 (August 19,1980).

I As the Appeal Board noted in the Midland proceeding, "an administrative trier of fact is subject to dis-

~

qualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a ' personal bias' against a participant; if he has served in a i

prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual -

as distinguished from legal or policy - issues; or if r

he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues."

Consumers Power Co. (widland Plant, Units 1 & 2), ALAB-101, 6 AEC 60, 65 (197s)-

i Mr. Olsen has not demonstrated in his motion or affidavits that any of the above grounds exist for disqualifying the Board. Rather,the grounds for his notion i

9309230048 930504 PDR FOIA GILINSK92-436 PDR"'A i

~

T

.,, o

+

4 f-,

stem from his apparent dissatisfaction with several rulings of the Board in i

the spent fuel pool expansion proceeding regarding the admissibility of r

evidence and the scope of the proceeding. Mr. Olsen must establish, however, more than that the Board ruled incorrectly in crder to establish that the Board is disqualified from presiding over this new proceeding. Even assuming that the Board's rulings were wrong, the Board's alleged errors are insufficient to show that the Board is partisan or otherwise incompetent to preside over this proceeding. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974).

In addition to showing no personal bias by the Board, fir. Olsen has not shown that the Board has prejudged any of the issues in this proceeding.

Although Mr. Olsen advances in this proceeding an issue identical to one he wishes were considered in the spent fuel pool expansion proceeding (i.e.,

economic costs to facilities as a result of the Three Mile Island accident),

Mr. Olsen does not show how the Board's action on that matter in the spent fuel pool expansion case will affect the Board's detemination whether or not to i

hear that issue in this proceeding. U The Board's deteminations in the spent fuel pool expansion proceeding do not predetermine the Board's action in this proceeding, nor do its fomer actions in any way indicate that it has prejudged the appropriate disposition of Mr. Olsen's request for a hearing or of his prooosef issues in the proceeding on the Order to Show Cause. Cf. Nuclear Enoineerino Co.

For the reasons given in the Staff's answer to the recuests for hearing, the

• f Staff, of course, believes that this issue is outside the scoce of any hearing that may be held in this proceeding. See_NRC Staff's Response to Requests for Hearing (August 29,1980).

h.

(Sheffield, Illinois,

?d-Level Radioactive Waste Disposal Site). CLI-80-1, 11 NRC 1 (1980), in which the Commission rejected the licensee's argument that the Poard would be incapable of rendering a fair decision because the Conm.ission's directives to the Board had effectively predeternined the Board's decision.

In the absence of compelling reasons that clearly show otherwise, it must be assumed that the Board members are " intellectually disciplined and i

capable of judging" the matters in controversy in this proceeding. See id. at 5.

The Board's rulings in an entirely different proceeding hardly portend that the Board will be incapable of resolving matters fairly in this proceeding.

3 si=;

Because Mr. Olsen has shown neither personal bias nor prejudgment of the

=-

issues by the members of the Board in this proceeding, his motion to disoualify 7

the Board should be denied.

Respectfully submitted, t

Stephen G. Burns Counsel for NRC Staff M

Karen D. Cyr Counsel for NRC Staff Dated at Bethesda, P.aryland this 4th day of September,1990.

~

g+ &

~

vW < > ; ;. ?

"9 r'g

,.1

,.<w

,4.

. 3

?~9

~

. *W:.n..M W.b f *' ? " g.

Syw

- j ' 7

.,,,/

a <: 'c'

.s

.8g y

m..

r

.,8 a.e.;...-Q '

+y.. s e

a Q,

t p(.

c:..

...i...

-e u

2 *..-e p};. G ' ' 9.. ff

' ~ g

.p -

l.

.. ~..

4., : j < a. -

5

,s.

gy v

y

.n.r. s t

.i

,s /

1.> ~t N. :,

f:f..

Wf N

e>

1.y i

_. 1.

u.,.;

P 9

.~,,. :

. f

• v..

y.

~

x ~-

s

9 l*,.

,Y ~

.' ' f.

w

. 4 yl a..;;. v_f.

e

.; r,.

l.[:

..n

.. :., w F f, '. f:..

' f... p. h.. l-k..:. f : {. ? a. w v : w f..?*f f.-l. l ~? l

.. r n

^.'

T.l -

4,.**

~

% ' ' ~ ^

. ['...

. J :y,y '.h..,'

y. t 9 *.;.,.g..'.

~

$,-fl E

'...:-p~

s' s.- u A,

L.

~, m~;

.2

.:9

. ~ n ; :.

W,* o ?

6 :;'

a..

~

j*'.%,

• e) 'o,-I, [="*

E,2

• h

.:. j,.,.}. ', l.sQ, :%.Q -Q ~.

! i. f'.>.=.. ;.

t-7 ur,.

'f Ig

..r'..

.f

.4 e w

3. A

.'V,'..f.... &. _

-sc t' 4-3..,';l,fi,%.

6.,-

5-

.,A.%.g 7. w Q. -

-i

+ -

c.,..

.tc im '; : 'u 4... y ( :, -

..p

[.

2..i c.

i :v

.m y

..+

^

a b.

, '.,-['

' ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ' ~

/

o l

W..

n... _..

'._s

.l Y.

p-3 ;-.

?$*

y 5

f+,.

7

~

l_.

)kf,(*.

t'

. ~ 'I.; :

c y'.;

c

.~

.. ' *, s,l Y...

^

I

,:g

.s i...

n J'. : ?.

- vl..; ;. l',.

i.. e.

g4 ?

4r

.. [..*

..'s-k % :.L:

~

t

}

.. x. 7., -

, v.,., 9

$ ':. s e..-

. 4r.:

3 t.

..- w Ws

.y w. : s>.:.

t,* :', *-

.v s-p

ff.,*g, /.,'. '

.... ?

. : *t;

.r.

'f ;.p s

P -

.. j

. ~'

Y a'. ' j..

g _,:.,.

2;. v g g._r..

c

!*g2

.g ' m.. *f,

-y

.. ; ~

.s..

..s r

.n_. :.

o

..k

, g4 '- '*-.

hN

. [.h.,.8'I. [, 'e,kk-k k,eh

.g.

w a n("'* ']

' 4 hfh' e' sm fy:m. g.p y w.gyypgg

.na

a. g< ~} -

n

~ m v. c.

nw. &g D,c..

m m

.g.

x g.agg.e

z. : -

.n. ' W.

it.t $ s.

a

,s e :w:

R a

/' S /

c.-..

M-I

.h 1

l'". G g1E l

E

h

{*

f.,,

., %p&gt"? ff._ RQW%cg79%,gg

^ m v

n, ' y

-g y Q 4

Q ri n

h

. i -

g[,

% h i f [C [ " 'fp[df<?

y-wg

%Qy :

g* ~, amp $",h' 2 y

7

,}

g.

g.7- -

3pny, 44 g-9

.n..

9 l

yo s

jg IdMJf 27 m

p s

- 4%yf d [ -

a

-. + p y p ~, &t 5(, -DP.Cr

-z ?

4't-4

%D s;

4 f

a f, mu-lrQ~

Q.g j g${,pgjJgwfg

}l

%g@ff..Q.y

,n^ u* \\ 4.-

, +

c

\\ ^<

'f ' A, ' =4 %,, p2 <.

W=

4 c 'ep

} C n

y" 9 {-

ib"

.f g

gg !,

T.

.j _gs 4

WgM C'

-}g ',

g4g +g

+7 (

cN im

.4 w

t.

4,..

_,+,-

a! W

,sj 3

,f e.

if A

M'

-g

~

_ fy x

. l '_f 4 L

• )

y-

~

' O)

.b i %

k t-

?

.,};. ^ 4:c,. '

s i',&,, d i: d x

4 g

,,.r-r -

\\;

\\

q

+,-

O

_ r,,<-

y's r-c.

x r

'3 's S

_ h x

m, g ij - sf jf 3%

h% '

' %, j i m g3 s

,A p

,aw

,. I

/

r J

w, 1

"ckdMth b

/q i

py g

..(,

y V-

\\1

/

n'.

/

s

/

e-

/

s

/~

w i

)

r y

t n

4 g

h v

~y u

j y/

di k p,fk

\\

~'

9 3

[v.:$ ' t sk.

t a

~

< '/

18 '~ r.

N-

- f P g% ) V f' 4]

?

kin x

^

fn n,4>ov.

a 4

~. +,.

m-Y L

S

33 "Y r al spy \\

/

42g.gf' hr 'E t

.. ym

- 1;e,

c

.5 4

3 fN f,/h.

' & - L

[

'i%g$4f.:, x N[ 'Q h

$Nkh i

i W$?

i, n zu,, ;. w

' w x m ey e

n.

[g/,

"?.t:fl:)%g hj. g &, : ^

s.

_s-.

1,., 4_., w s,

' t :% R -~- a

,-. &y,.

g

..y._.

c x

• ~

~

• f _ %

3 ji, ' N

@ :('E N s

e. :c,p,.)

.I,

[ D ' y'

((

(

w

(*

v-r).

k

~

+

.)%

3

• N*

s 3

x,.

,e

'ty 4

w J

i

i 1

t-9 0)

Up EP

'~

UNITED STATES OF AMERICA O

NUCLEAR REGULATORY COMMISSION y

A -11 k

ATOMIC SAFETY AND LICENSING BOARD _

g p

Charles Bechhoefer, Chairman 1

Dr. George C. Anderson Ralph S. Decker In the Matter of

)

Jg

)

88-DAIRYLAND POWER COOPERATIVE

)

Docket No. 50-409-SC

/

)

Prov. Op. Lic. DPR-45 (La Crosse Boiling Water Reactor) )

MEMORANDUM Alm ORDER DENYING MOTION TO DISOUALIFY LICENSING BOARD (September 19, 1980)

On August 19, 1980, Mr. Frederick M. Olsen. III, then a petitioner for intervention in this show-cause proceeding,1/

filed a motion for disqualification of the Atomic S, #3ty and Licensing Board assigned by the Commission to conaider and rule on the pending intervenrion petitions and to conduct a hearing if required.2/

On August 22, Mr. Olsen filed an amendment to his motion.

The motion was opposed by the 1IAt a prehearing conference on September ll,1980, the Board granted Mr. Olsen's petition and admitted him as a party to the proceeding.

A Prehearing Conference Order recording this determination will be issued' in the near future.

2_/ ee Commission Order dated July 29, 1980, published at S

~

45 Fed. Reg. 52290.

o k

4 **

7

, Licensee and by the NRC Staff.EI For reasons set forth herein, and as announced at the prehearing conference, we are denying the motion and referring the denial to the Atamic Safety and Licensing Appeal Board for its review.

As reflected in the affidavits accompanying the motion and the amended motion, the sole ground for which disqualification is sought is certain assertedly erroneous evidentiary rulings made by this same Board in the proceeding i

involving the spent fuel pool expansion of the La Crosse reactor.b/

Those rulings are said to have resulted in an inadequate record in that proceeding and, as stated by Mr. Olsen, "have caused a complete and total loss-of-faith in the Board's ability to consider evidence and render a decision that is in the public interest * * *."

l That ground, however, is not one which provides a basis for disqualification of a Board or its members.E The grounds i

I 1/At the September 11, 1980 prehearing conference, Mr. Olsen provided the Board and parties with an " Answer to NRC Staff l

and Applicant's [ sic) Responses to a Motion to Disqualify the Board.

Although such a filing is not authorized under NRC rules (see 10 CFR $ 2.730(c)), we invited responses from the i

Licensee and Staff Crr. 6) and have taken this material into account in reaching our decision on disqualification.

bIAn initial decision authorizing the requested expansion, subject to specified conditions, was issued on January 10, 1980.

LBP-80-2, 11 NRC 44.

EIThis is so irrespective of the correctness of the rulings in question.

Any party may, of course, appeal evidentiary rulings.

Mr. Olsen was not a party to the spent fuel pool proceeding, and no other party appealed the rulings in cuestion.

i t which can serve as a basis for disqualification were outlined by the Appeal Board in the Midland proceeding:

• *

• an administrative trier of fact is subject to disqualification if he has a direct, personal, sub-i stantial pecuniary interest in a result; if he has a

" personal bias" against a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual--as distinguished from legal or policy--issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgement of factual issues.

Consumers Power Co. (Midland Plant, Units 1 and 2), AIAB-101, 6 AEC 60, 65 (1973); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), ALAB-164, 6 AEC 1143 (1973); Northern Indiana Public Service Co.

i (Batlly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974) ("To establish that a hearing was biased, something more must be shown than that the presiding officials decided catters incorrectly; to be wrong is not necessarily to be partisan").

Because Mr. Olsen's motion, including the accompanying affidavits, makes no assertions which fall within the scope of matters which can give rise to disqualification, - that motion must be, and hereby is, denied.

In accordance with the requirements of 10 CFR S 2.704(c), this denial is referred k/

or its review.1/

f to the Appeal Board IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD G L s. f& d L L Charles Bechhoef er, Shairman Dated at Bethesda, Maryland this 19th day of September 1980.

t t

6_/ y Order dated September 12, 1980, the Commission delegated Bits review authority and functions in this proceeding to the Appeal Board.

1/ n connection with this referral, the Appeal Board's attention I

is directed to:

(1) Mr. Olsen's Motion for Disqualification, dated August 19, 1980; (2) Mr. Olsen's Amended Motion, dated August 22, 1980; (3) the NRC Staff's Answer, dated September 4, 1980; (4) the Licensee's Response, dated September 5,1980; (5) Mr. Olsen's " Answer" to the responses of the Staff and Licensee, served on the parties at the September 11, 1980 prehearing conference: and (6) discussion at the prehearing conference, at Tr. 5-7.

1 n

er 7,.. 5 "..,.'."o 0 2 n."..I^a' 9,jg,

~. 'Pu. T v* 2..Y C CJ..'...1". C u" r.g.. n- - 2 i

o s

e

+

'In the ::atter cf

)

p Docket 30..wA Wygg a

u..1 m. ~:.~ :C !.m...

C eCm..n...w...r:

=

a (La Crosse 3oilir.g Yater Eeactor) 18 %vg

%gZ d

A'IS~.7EE TO IG.C STA?? AND A IICANT'S RES?CHSSS TO A T..;_

g

a TC DIS 0UALI?Y FEE SCARD To start, on page 1 of Applicant's (not "Liscensee" as erronecusly stated) response, Applicant states that Frederick Olsen is a.CHEC member.

Tir. Olsen is not a CHEC nember, and-he.s not been since January, 1950, v/nen he broke yith the group oier a strategy disagreement t.'ith CREC's executive officers.

Mr. Olsen continues to closely scrutinize CRSO's activitiec.

On page 2 of NRC Staff's response, it is stated

• that thD

//

board's alleged errors are insufficient to show the board to be i

r

[

partisan or otherrrise incompetert.

To ignore the largeet cost I

factors (excluding deco:cissioning and waste storage) in a i

't hearing specifically concerned ~ with Lacbwr plant economics is reithcut 6cubt grounds for disqualificatien in future proceedings.

A sicple promise "not to do it again" will net suffice.

Richard Shimsha'c, Lacher plant nanager, has repeatedly stated that '"F.I-2 acci6ent related costs wcul6 be the econonic un0cin.r.,

of his.alant.

-On rage 2 of Applicant's response, it is sta ec that

.'r.

t

~

Olsen asid that the board was biaset.

I 516 no: so state.

I sts.ted that I 1Ecke6 faith in the botri'sibilitiQ But" to aedress the c.uestion of whether or not Freierick 01ren considere6 the board To be biase6, I neef only refer the ratier to the leet sente-.ce of the boar? 's nencran/u: m d or?er of 5 August 1950.

Ecre, the boerf states thst li-nefr-etion catters curt be hnnf_ef e-,Giticusiv.

The or.ly

.s.:-ty tc benefit f ro: such e:gefiticuensse rculf be the ap lienr.t.

Surely, eith 1s cb77's - oor e:cn:.cie rictu:e the.-ubli c : 219 not be har:ct by tue thcrough tre 2t ent of :::t=rs th?.t th! 1r.,fe==nf5 Thir e ::'Firiournese Ihn; :'.c 1

y M-, D & m l-

1 i

i the board feels is necessary nor contrasts sharply."ith the lack of expediticusness shown by the boar 6 in s.11 other natters ( such as the spent fuel an6 full term liscense

,I proceedings).

This lack of expeditiousness can certainly also be viewed as bias on the beard's ps.-t, 'cecause it allows P

Applicant to keep Lacbwr operating without a liscense.

c;.

On page_,3, of Applicant's response, Applicant states that Mr. Clien a) pears to have nisperceived "the actual si;;nificance" of a linited appearance statenent -- that a linited appearance I

statement is not evi6ence, A linited appearance statenent nay Edt be evi6ence, but M,mav -'ose cuestions that the board has a 6.uty M see r.secred.

To cucte Title 10 of the Coce of i

yederal Regulations, Chapter 1, Appen6ix A, part V., (a) (4):

I statenent A person making a limited appearance may not only want to state his position, but to raise questions that he woul6 like to have answered.

This shoul6 be pernitte6 to the extent that the questions are within the scope of the proceeding as 6efined by issues set out in the. notice of bearing, the prehearing conference or6er, or any later or6ers.

Usually such persons should be aske6 to nake their statenents and raise their e,uestions early in the procee6ing so that the boar 6 will have an opportunity g h sure that relevant and neritorious cuestions are vrocerly cealt with during the course of the near:tng.

(emphasis a66ed)

I'r. C1sen's questions were relevant, as they ccnce ne6 nanf atery enpenditures during the three year period being discussed at the 1979 spent fuel hearings a la Crosse.

Mr. Olsen's questions were ceritorious, in that !~.r.

Olsen appeare6 to be the cnly

-rerson attending the October 19'i9 hearin's viho Pner anything

s. bout the TYI-2 retrofit cost issue.

Certainly, IPC e;nployees shored only ipernnes.

The board an$ N:C stP.ff eeene$ to j

believe tha: the reconnendations conce ning '31-2 retrofits Wer? sonOh0W DCt bin?ing, anf therefOrP. GOT rOleY"nt.

F o r T.,

nuestion t0 b6 770-9 71 4 21t ri T h, it CUSt De trC'Er1V t

r ans:crci.

t i

t B

i f-

i j

i 4

Neither U2C Staff nor Applicant disputes par ; III. of Frederick Olsen's Notion to diseualify the Boar 6.

This alone can be censidered grounds for dise.ualification, as the board has a duty to develo a soun6 record. Even if the concept of reactor vessel conversion had been consi6ere6 anf tnen disca-fe6, 1

in cur current period of uncertainty regarding the 6e-cc--4 seioning of power reactors, the concept may (and rill) be of use elsewhere, an6 therefore should.have.been inclu6ed in a soun6 record....

, J As. MRC Staff and ~ Applicant have not given any solid reasons l

against the granting of the Ilotion to dise,ue.lify, and as a change in Atonic Safety and liscensing Board is materially no different - - - - -

than a change in' judge. for civil and other judicial procee61ngs, -

- 3~

lir..Clsen urges that, in the public interest (which the NRO Staff and.*.pplicant never mentioned in their responses),

. his Isotion to Disqualify the Atomic Safety and Licensing 3oard be GRANTED.

=,

RESPECTFULLY 5b3M(TTED y d

'Mj. 6%s 2 i

J' kl O

2 s

f r

1 i

~ '

s

. 21.$

• T'V'[s**.p.'"ips}"p~

G.x;"T

. - 17x,1 ='*~ r ; " - %M

- ~,..< m R

VR

$. !"M;'TV3

.%)fM*'~j.% b

.y !,

%;%,-Q g.!

7

-w n.

'5

g.

v i

m.~ l &, &*

l!

L' h

N5J M }'a',9's j p'

,w%

,j -

} pg;A, K k,. Q f* fg Jhd'yf;.'h*

1_

, & Q

• ~ ?)..

[s

}

'i

- +$ S-n.3 4Q o

-.: J 5:,,-Q.,

a.+ p yt:<- 2 LF.. - -

h* t g?=-

his i

~'

f$ b $..1.

.k i'

'.* ' ?. &

f _f.

b h"\\.)b -j)'.)Efy w

~

)-

Y

.y r

%.;.n..;'.p..+Y } [=,

f y.;~.

. : *f g)1,; + - -

~

'.I.

/ [,'"* s*( -

.;. ~

.1.s..,# 9 '

'1..

~.v i yQ.

. "';. ~

f 1.

fed *t.

, ~.. ? l k '.

1 e.

J,

?

.u.

,3.

3m

,p s

2 a

.y.

(., *e.f (<-

?.f,' *f.

y;

, 9:

w.' ;f.

..,~~,. je., y. 4

~

g. *, (, '- 4 y

..,,, 0.,,

• J41 t '.

.g.

?"

C.y 8

9 ~s,%

4 *%. $ * '- -

t'

' 4 ?'

i :,, *.'

f_d

,e N,.. L.* '*'

s?

• • r..'l.,

og.

s k, f..' ~

., l

'.I

.(..

I?

. Ik-

,h h

.[ '

.,. l-5

• l f 'l e

p'y,.p.;>.

v:v t

-},p..p; *. yr

~ :. y

.6

's. ;_

' \\-

.g.

T..*k.,.;....

s :

p.\\

....e. t ' :..,; b

'(-

..s

.J_

.y r.

g p

. ~. '.

,7

<.'u.':..e;:

p.

4'

_?

s si,*: *

.... v,3 :

,e

~,..

• .. ;.[

• i > -

.., -: T. - ^

m Y.

t.

f-l,p,H fe4N d

~~

7, g

^

e.

Q.

>8

..-s e :. :-

.c

.. \\ *. '

Sql

.~.',a f

l p, a

'jt J 4 ' *,*

a; '

,r.

,, " L 4

, s,-

,,u a

. ~

4.

, < f'

,l,

+'

L

_.1$q s.:

y:gl;C c

g.,,,:). f,',._...--

' *,,.,, T+ ; '.. ;f

,.,,.;.~$c, [Yr.

~

2;. ; ;:

. ;. 'g.[ :

f._

' 'f

) -(, ' :flI ~ _.. '.y,k 4 N. ;'.g J.',[

L

. s..)/

s; f'

. +3&( h.,;,.

., y _..,t.

e -

3.r,.

e

,..;,.,1

+

s

_ ;Jeg._.,

, ~._...

~ l.f. _' } ' ' ^ **;}^ lg..,

. ; ;. _ s.

i, Q ^.;s.i h N.$. '.,f); ii-k% ;. j W my}DlN.i.fy;V

,f.'l

'\\

Q;fR Ys

• r,r

.k. ' -

'*k.-yl*a:.M." ' ' : Q T.'

• M i

~r M p s[ ml : f'.

W ?.*p..

?'

• l'

~ 'g ; ?. Y; ik

!k&& wag g.s g&p&

5 f~f?

enWw&wk f

h ?>m % g'yg g g g g g fly y t Q<f,p ~

-pgyy a.,

.we1 M.

. x*. n --

-, s g

,.T..

c

.;t

=

- 3,*~ ~s 5,.

(

. ~.

g

(

4..

n.

t 9

e.

',g g,7 e

1,. eg;c ~g o

%y, 2. -

j

., o,-

,s

.-,g s.

gp, T

f y[y u

e d, e w* 9

~

4 ig 9

?

),

. ey en,

yg 3. "te

- 4

~

y-g, w p m

- hp7

=,, g mg y

g..y g33 g

,y

i 1

q.

f'f * ~

d',

e}

~a;.m w-n; t

g%rs.

g:: :p.

• f ;-.

g, '

\\1

[

W) y/

v h c

g h

o n

1,

(

\\

t

+..

'M(

} ),. -

_=

~,,.

/

s 7

p '( j

$$$$lh36 b

/

1 L

i t

1 s(

a

/

l r

E T

d s

s.

\\

y

/

. gp N i N

/

v s

~

a M.

~

.(,

4

+

7<

k

~

'Y

" fk it;

~j' s

I) t a

[

L

,)

C 9

4

.h '

g_

]

1 e

,\\

-? i,,

c

- 1 s

f

• q' ef- ' 'r

--1 ry;,

p

.a

- e p

. 3

}

?/

f,,

l

I r,.

' <*$g 1 -

T

• M w-

. %d

,,1 m

s

~

m

. m-

c__

p \\ MI I p.

UNITED STATES OF AMERICA s

NUCLEAR REGULATORY COMMISSION

^

g SEP 24

-9 ce ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman s

Dr. John H. Buck Thomas S. Moore O

)

2 D In the Matter of

)

)

DAIRYLAND POWER COOPERATIVE

)

Docket No. 50-409 SC

)

(La Crosse Boiling Water Reactor)

)

)

DECISION September 24, 1980 (ALAB-614)

This is a show cause proceeding involving the outstanding 1

provisional operating license for the La Crosse nuclear power facility.

On August 19, 1980, Frederick M. Olsen, III, then a petitioner for intervention in the proceeding,M moved to dis-qualify the entire Licensing Board which had been assigned by Commission order 2/ to conduct it.

On September 19, 1980, that Board denied the motion and, as required by 10 CFR 2.704 (c),

referred its action to us for review.

1/

We understand that Mr. Olsen's intervention petition was recently granted and therefore he now is a party to the proceeding.

_2/

The order was entered on July 29, 1980.

See 45 Fed. Reg.

52290 (August 6,1980).

+-

~

( WDDe24ok46y

' d..... _ _

I

^

r

i t

t t

t On an examination of the papers filed below for or against the disqualification motion, we conclude (1) that there is no l

necessity to call for further submissions to us; and (2) that l

We therefore affirm the motion is patently without substance.

,t' summarily the ruling below.

1.

The three members of this Licensing Board were also assigned to the separate and distinct proceeding involving the application for an amendment to the La Crosse provisional operating license to enable an expansion of the capacity of the facility's spent fuel pool. 3/

The sole basis offered for seeking their disqualification here is that they had mishandled that proceeding.

In this connection, Mr. Olsen complains principally of their failure to have required the development of a full evidentiary record on certain matters which he main-tains were relevant to the disposition of the license amendment application.

This asserted failure is said to "have caused a co=plete and total loss-of-f aith in the Board's ability to con-4 sider evidence and render a decision that is in the public l

interest as specified in the Atomic Energy Act of 1954". 4 /

i J/

See LBP-80-2, 11 NRC 44 (1980).

J/

Motion, p. 3.

t k

i

l 2.

We need not now pass upon whether there is substance to Mr. Olsen's charges. 5/

As the Board below correctly ob-served in denying the motion, the disqualification of a licensing board member may not be obtained on the ground that he or she committed error in the course of the proceeding at bar or some earlier proceeding.

Rather, an administrative trier of fact is subject to disqualification only if he has a direct, personal, substantial pecuniary interest in a result; if he has a if

" personal bias" against a participant; he has served in a prosecutive or investi-gative role with regard to the same facts as are in issue; if he has prejudged factual

-- as distinguished from legal or policy --

issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, l

6 AIC 60, 65 (1973).

Mr. Olsen has not alleged, let alone established, the ex-istence of any facts which might conceivably satisfy any of those tests.

In this connection, it is long settled that "[tjo establish that a hearing was biased, something more must be shown than f

9 J/ Not being a party to the spent fuel pool proceeding, Mr.

Olsen could not appeal from the initial decision rendered therein (LBP-80-2, fn.

3, supra).

See 10 CFR 2.762 (a).

i Although the NRC staff did file an exception to that de-cision, it related to an entirely discrete Licensing Board determination.

We have not as yet acted on the completed the review on our own initiative exception or of the decision as a whole.

B

o T that the presiding officials decided matters incorrectly; to Northern Indiana be wrong is not necessarily to be partisan".

(Bailly Generating Station, Nuclear-1),

4 Public Service Co.

ALAB-224, 8 AEC 244, 246 (1974), citing Tennessee Valley Au-Units 1 and 2), ALAB-164, thority (Bellefonte Nuclear Plant, 6 AEC 114 3 (1973).- !

i Affir=ed.

i r

In his response below to the applicant's and staff's op-l 6/

positions to his disqualification motion, Mr. Olsen stressed that the motion had not asserted that the Li-rather, had only questioned i

censing Board was biased but, the " ability" of its members.

He went on to suggest, however, that bias nonetheless might be inferred from the Board's purported lack of expedition in the conduct l

of both the spent fuel pool proceeding and another (still-pending) proceeding involving the conversion of the La Crosse provisional license to a full-term operating (In this regard, Mr. Olsen took note of the license.

Board's statement in an August 5,1980 order that the instant show-cause proceeding would be completed with 4

dispatch).

Leaving aside the fact that the disqualification motion itself made no such claim, we find wholly insufficient cause for indulging in Mr. Olsen's assumption that the various La Crosse proceedings have been given disparate for the applicant's benefit.

There are, of treatment course, many legitimate -- and indeed often compelling --

reasons why one proceeding will move forward more rapidly And, as the Board below noted in its than another.

the Commission's July 29 order (see fn. 2, August 5 order, supral conveys the message that there is to be expeditious disposition of the issues presented in this proceeding.

I l

s s 1 It is so ORDERED.

FOR THE APPEAL BOARD t

O.bcAAAM C. Je Bishop

\\

Secre to the Appeal Board 4

Mr. Moore did not participate in the consideration or disposition of this matter.

i s

I l

l I

i i

l l

i i

I

ummmmmmmmmmmmmmi 1Dt n b y 9"9p3 e

.\\,

y+

s....[.e March 31, 1981 SECY-81-207 ADJUDICATORY ISSUE (Information)

For:

The Commission From:

James A. Fitzgerald, Assistant General Counsel

Subject:

BACKGROUND OF ADMINISTRATIVE JUDGES' CONCERNS ARISING OUT OF ALAB-590

Purpose:

To report the results of an OGC survey of the NRC administrative judges about the Appeal Board decision in ALAB-590.

Discussion:

I The Appeal Board in ALAB-590, 11 NRC 542, reversed a Licensing Board denial of Mr.

F.

H. Potthoff's petition to intervene in the Allens Creek proceeding on the ground that he failed to provide a basis for his contention that a marine biomass farm would be environ.aentally preferable to Allens Creek.

A divided Appeal Board found that the Licensing Board, in rejecting the contention, had disregarded the long-standing - adminis-trative practice that the underlying factual l

support for a contention is not a proper subject for examination in a decision'whether to permit intervention.

E.g.,

Mississippi Power & Light Co. (Grand Gulf Nuclear Sta-tion, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).

The Appeal Board found that Potthoff, a pro g litigant, contended only that the biomass farm was a viable alternative that had been ~ neglected in the NRC FES and that he Contact Mark E. Chopko, GC X-43224

' N x

ISIDif331iOD i3 lhf3 (CC'Jfd f.'J3 d'e!cd la Lccordance w:!5 the free 2m cf information Act,exe as - I mongos=w rw - =ru w n.

=p 9

m i

'I

~

2

~

l should not have been held to a basis for

" preferability."

ThAs decision drew a vigorous dissent from Dr. Buck-who urged not.

only that the majority opinion was in error.

t in accepting what in his view was a frivolous contention, but also that the. Commission-(

should review this case to address the

" basis" requirement for contentions.

While this case was pending before the Commission, the Acting Chairman of the Licensing Board Panel and several Licensing Board members i

filed separate memoranda with the Commis-sion -- some urging review because ALAB-590-was seen as an evisceration of the contention

'i requirement for intervention and.others urging no review because ALAB-590 was seen as a confirmation of present practice.

These filings were extraordinary in view of the

+

nature of the case and its practical effect on Allens Creek.

l

,_..--- -~-

[_ _-

i r

l

'6 l

l

-(

i w

-j l

i o

l

. WP 6

r-

.-y_

y

I

{j i

e

_v 3

l I

i l

L J Under NEPA it is the agency's

~

't duty to fully explore alternatives to the i

proposed action.

A challenge to the per-

.I formance of that duty is surely cognizable in the proceeding.

This did not mean that in Mr. Potthoff wou{4 prevail on the' merits t fact he has not._/. What'it means is that he presented enough information that on. its face-gave the other parties adequate notice of his 1!

concern and supported going forward to'a merits evaluation.

Members of various Boards questioned the validity of an intervention policy that permitted such a contention to be accepted in-the first place.

This dispute was placed before the Commission.

On June 10, the Commission discussed ALAB-590 and the -views expressed by the various Board members l

t i

1/

On Fe'bruary 2, the Appeal Board affirmed the Licensing i

Board's grant of summary disposition to the applicant on the Potthoff biomass farm contention.

Because that was i

his only contention, Mr. Potthoff has been dismissed from the proceeding.

Dr. Buck, who dissented in. ALAB-590, i

stated in a separate opinion that this procedure " served i

no purpose other than to consume unnecessarily the time of

~

the parties, the Board below, and this. Board. "

Slip op. at

-i 15.

See SECY-A-81-131 (March 2,-1981).

l l

l r-7.

- +.,

+-

i 4

l and decided not to take review.A!

At the same time, however, the Commission directed us to study what sparked the filing of various memoranda from the Boards and what might be done about it, including whether the Grand Gulf /Allens Creek standard should be.

changed.

As you will recall, the Commis-sion's discussion focused' on the policies for.

and against.the current low ' threshold for '

judging the adequacy of contentions at the intervention stage.

On the one hand, it was.

noted that technical members must feel-frus-trated by not being able to use :their exper-tise to weed out unmeritorious contentions at -

this' stage.

(See also n.1, supra.)

On the other hand, the view was expressed that in adjudication issues should be-rejected for l

lack of merit, not on.a-judge's intuition and~

calculation but on a record developed by the parties -- the danger being that only 37 IWa conventional issues would be accanead -

YU I

y ieva

},B l

i SI In a one-page order, the Commission, with the Chairman dissenting, announced.it would not review ALAB-590 and t

stated it did not read-that decision,as departing from the standard set in Grand Gulf.

After this order, we would

-l regard any decision interpreting ALAB-590 as eliminating.the '

1 basis requirement as error and a candidate for reversal.

1/

These concerns paralleled the issues raised in -the. Licens-ing Board memoranda.

It was suggested 1that ALAB-590 -rep-..

resented an overly legalistic approach that was irratior al

.l and wasteful for a technical agency (Deale) and had

)

i stripped the " basis-for-contention" requirement of-meaning

( Lazo ).

On the contrary, it was noted. that there was a.

danger in letting technical judgment go unchecked' because '

only the conventional issue would survive and that ALAB-590 had only confirmed what had always been the. law (Parin, e ti al. ).

t

'l

5 UnlesT the conFention is

' f rivolous on Tts fsee or discloses some illegality or is unsupported by the plain language of the basis asserted, the con-tention must be admitted.

~ ~

~. - -

What follows is our report on the causes of the reaction to ALAB-590.

A presentation of alternatives on how the contention standard may be changed is now the subject of a separate OGC task arising out of SECY-81-111 (February 17, 1981).

Administrative Judges' Opinions We have discussed the ALAB-590/ contention situation at a neeting of the Licensing Board panel and with,%1an Rosenthal and John Buck of the Allens Creek Appaal ' Board.

From these discussions, we have identified several reasons to explain why ALAB-590 should have caused such concern from Board members while the case was still pending before the Commission.1/

(1)

Concern among the judges about the nature of the role the Commission in-tends its adjudicatory boards to play in dealing with public participants.

Some judges alluded to their dual role in the Commission's system -- they are at the 1/

In one of its Shearon Harris decisions, the Commission encouraced its ad judicatory boards to advise the Commission on situations that the Commission should address, where the boards we re powe rle ss to act.

Carolina Powe r & Light Co.

(Shearon Harria Nuclear Power Plant, Units 1-4), CL1-80-12, 11 NRC 514 (1980).

The concerne expressed reflect that policy.

In our view, i

6 same time judges ruling on particular-ized matters in adjudication and the Commission's agents representing the agency's authority to the public.

There is considerable balance in these roles, 3

and they are aware of this most acutely in ruling on inte rven tion petitions.

Some judges specifically indicated that they would welcome Commission guidance here:

What does the Commission want of them?

To wha t extent does it vant the Boards to indulge members of the public and hear unreasonable issues?

What is the !TRC trying to accomplish by plead-ings?

What is the hearing supposed to accomplish?

These invitations for guidance suggest the need for some Commission action, either to bless the current approach (with some fu rthe r direction) or to change it.

(2)

Dif fering views on the wisdom of the current threshold for contentions.

Perhaps the dichotomy of views is be s t exemplified by the opinions of Dr. Buck and tir. Parrar in ALAD-590.

Dr. Buck was disturbed at the thought that the NRC process should require that the biomass contention be he a rd, wi th an appropriate reference to Dickens.

1 Mr. Farrar conceded that this case might be perceived as a ' bad result," but it was nonetheless the price ITRC pays for having an open ' system. of adjudication.

Some judges feel that the current thresh-old (10 CFR 2.714 as interpreted in Grand Gulf) is sensible and workable.

They see it as "ea sily applied, " and are concerned that raising the threshold will cut of f sone good but novel con-tentions.

Moreover, since the Com-mission allows an intervenor to make his case entirely on cross-examination, one

b 7

judge indicated it would be inconsistent to raise a high threshold to entry to the proceeding itself.

On the other hand, some would like to see the Commission be more conservative in allowing " losing" contentions into. the proceeding.

These judges believe it is wasteful to go forward with insubstantial contentions.

Summary disposition, while more ef ficient than hearing, nevertheless is "not so easy."

It takes resources, discovery t ime, etc.

One judge felt that it was somewhat fraudulent to go to hearing on a s pecious issue, particularly to the intervenor who is misled into believing he migh,t prevail.

(3)

The Appeal Board interpreted the conten-tion differently than the Licensing Board did.

Mr. Potthoff had urged that a large marine biomass f a rm wou ld be

" environmentally preferable" to Allene Creek.

The Licensing Board found that no basis for the " environmental su pe r-iority" of the prof fered alternative had been demonstrated.

The Appeal Board, h oweve r, said Potthoff's papers clearly indicated his concern that a viable alternative had been overlooked in the FES.

The Board found that an examina-tion of the superiority of er alter-native is a merits determin' t lon, the decision that the large ma: x,e biomass f arm was not shown to be ar nnviron-mentally superior alternati e was error, and the Licensing Board should have found a basis for the contention that a biomass f arm wa s a viable alternative.

A theory of the Appeal Board decision is that a reasonable ba sis for viability is.

all that needs to be established and a Board may not examine superiority as l

well in deciding whether to allow the contention at the intervention stage.

e

4 8

rd's interpretationimplicitly criti

+

The Appeal Board was On se pleadings.

is of the Licensing Boaof Mr. Potthof f's Erpeal B o

read less vocation to this level, the Ap se of a proir plain an in dings perceived asstringently the plea ged by notwithstanding the result was in fact urits brief in

litigant, While This intervenor TexPIRG in appeal.

for the words.

f's support of Potthofsolid caselawture from theinten-support words its general allow Appeal Board's depar there is an result was to of the pleading'tod contention into the h

tion, because t e strong opposition "a

of apparently absur a matter was As well-hearing, there ALAB-590.

was reacted directed atver, the decisionmaythavethan the law, howe /

The judgesin fact also founded.5more to the resu t The feeling wasd should l

itself. the Appeal BoarBoard to task contention to policy expressed that have taken the lowerconstruing the" prefera not more when it wasbe " viability, f f expressed a

" not of concern same degreeexpressed.

Mr. Pottho alternative, thehave been Had might not se by a groof his lack drafted Glore complaintd in view

v. DuPonte v.

well-settled that a be liberally construehistication. MerckenCir. 197$

citing HainesIn Dioquardi s

It is curiam). Judge Clark, sustained litigant must 2d of professional sopCo., 514 F.2d 20 (

(1972) (per 77 4 (2d Cir. 194 4),

~

519, 520 of Civil Procedure, motion to dismiss Forgan &

U.S.

Kerner, 404v. Durning, 139of the Federal Rules F.2d only claim as laint against arules, Hr. Dioguardi w statement of the relief," Fed. R.

draftera "home drawn" compunder theshort and plainentitled to by the federal judi-is stating that, required to make "athe pleader is 2.714, well-respectedding rule, 10 See SECY-A CPR This practice isThe Commission's pleato the federal r showing that les.

i 8(a).

interpreted analogous a

ciary.

16, supra.

I

t 9

1 bases d additionalthe prehearing Mr. Potthoff offere xplained that d

At to the. Appeal Boar. conference, Mr. Potthoff con-(4) he intended by histhe farm "would g into decay have it like tention that and in something and and take itmethane energy source or independence, ready alcohol or as an (Tr. 931)was " project could be The Licensing that" his basis a biomass farmwas insuf ficient (Tr. 932).

which says* *

• in 19 8 6.

• was Board said thatmarine biomass farmnuclear basis a

show that rior to a

appeal,he believed en ironmentally supeIn his brief ond that take to v plant.Mr. Potthoff pleadeBoard would justenvironmentalradio-the Licensing marine farm

- noirrevocably obvious of the notice a

advantages toand less landenergy produc-was nuclides nuclear assertions of these and both committed to Neither low con-made to the Board bedirectly related to t biomasswith the tion.

h In Creek had that tention.

judges, the Allens remarked thati n been presentedreached Board Chairman additional informat oinitially the Board w ld have on interven-a feeling ion a different conclussuggested to us the judg'es that d the Licensingincludes infor-This on the part of the tion.

Appeal Board reversea record thatbelo.

does The w

not presenteddecision, however,and could Board on mation reverse the Licens-tion Appeal Boardn t cite this informaIn d in to the not rely on it o

ing Board. February 1980 in that a lower first reverse only NRC Board refused toon informationALAB-582, 11 decision appeal.

adduced on s

10 w

gy. 5' I

s Points 1 and 2 suggest that some change is needed to 10 CPR 2.714.

Points 3 and 4 indicate administrative reasons for the concerns raised about ALAB-590 -- principally issues of inter-Panel relations.

Preliminary Conclusions This paper has been reviewed by members of the Licensing Board Panel and Judges Rosenthal coordination:

Written comments are attached.

and Buck.

rY S

w-

)

James A.

P erald A'ssistant General Counsel i

Attachments:

1.

Memo, 3/20/81, Rosenthal l

i to Pitzgerald 2.

Memo, 3/24/81, Buck to Pitzgerald f

DISTRIBUTION Comissioners Comission Staff Offices Exec Dir for Operations ASLBP ASLAP Secretariat i

UNITED STATES f

NUCLE AR REGULATORY COMMISSION y

e.

g ATOMIC SAFETY AND LICENSING APPEAL PANEL l

wAsumaroN, D.C. 20555 g

March 20 1981 l

James A. Fitzgerald MEMORANDUM FOR:

Of fice of the General Counsel Alan S. Ro senthal, Chairman FROM:

Atomic Safety and Licensing Appeal Panel OGC REPORT ON ALAB-590

SUBJECT:

I have In response to your March 19 memorandum, nothing to addJo the report prepared by vour office on ALAB-590. IIt seems to me g

'IEls my understanding, however, 'thaCJidk 8uex

~

He will transmit wiii%e commenting on the report.

his comments directly to you.

As you are undoubtedly aware, Bill Reamer has sent me a copy of the draft amendments to 10 CTR 2.714, with a request that any comments regarding those amend-I have cir-ments be submitted by Thursday, March 26.

culated the-draft among the members and senior profes-Some of them m sional staff of the Appeal Panel.

to express an opinion on the amendments; in any event, I very likely will do so.

t ATTACHMENT 1 J'

2 iDG O%Ds;Kb-