ML20076A699

Memorandum in Support of Motion to Disqualify Commissioner Gilinsky from Restart Proceeding.Commissioner Prejudged Issues in Proceeding.Certificate of Svc Encl

ML20076A699
Person / Time
Site:	Crane
Issue date:	08/17/1983
From:	Calio N, Kamenar P, Popeo D WASHINGTON LEGAL FOUNDATION
To:	NRC COMMISSION (OCM)
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ML20076A687	List: ML20076A683 ML20076A691 ML20076A699
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NUDOCS 8308180280
Download: ML20076A699 (28)

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{{#Wiki_filter:, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ) METROPOLITAN EDISON COMPANY ) Docket No. 50-289 ) (Restart) (Three Mile Island Nuclear ) Station, Unit No. 1) ) MEMORANDUM IN SUPPORT OF MOTION OF THE WASHINGTON LEGAL FOUNDATION TO DISQUALIFY COMMISSIONER VICTOR GILINSKY FROM THE THREE MILE ISLAND UNIT NO. 1 RESTART PROCEEDING I. INTRODUCTION The Washington Legal Foundation (WLF or Foundation) is a non-profit, public interest law firm with over 85,000 members nationwide, including Pennsylvania and the Three Mile Island area, that engages in litigation and the admin-istrative process in matters affecting the broad public interest.- The Foundation commits a substantial portion of p, its resources to regulatory matters in which it attempts to A f, g reduce regulatory excess, increase regulatory efficiency, i Ei8 Mi ? and insure the integrity of the administrative process. a dl9 l 9 8 e1 5 {e ! o. s WLF submits this Memorandum in Support of the e g l*$ k Motion to Disqualify Commissioner Victor Gilinsky in the gG E 5-2 Three Mile Island Unit No. 1 Restart Proceeding on the grounds a 5 h that his actions with regard to the proceeding conclusively demonstrate that he has: hSO k$0! OSO { G ll

• (1) actually prejudged the issues in the proceeding; (2) given the appearance that he has prejudged the issues in the proceeding; and (3) assumed the role of an advocate and has a bias towards the parties that he has an emotional commitment to one side of the issues thereby destroying his impartiality.

Commissioner Gilinsky's views on the pending proceeding were made public by him on or about June 22, 1983 by his issuance of a Memorandum dated June 22, incorporating a 25-page draft of his views dated February 24, 1983 (" Memo-randum"). As set forth more fully below, Commissioner Gilinsky's actions destroy any appearance of his impartiality and impeach his capacity to decide in a fair and even-handed manner the issues raised and outstanding in this case of broad public significance. Permitting Commissioner Gilinsky to remain in judgment in this proceeding is against the public interest, undermines the integrity of the administra-tive process, and irreversibly infects the entire proceeding to such a degree that a reviewing court would be compelled p under the applicable law to order his disqualification and a A n de novo review of the issues raised and decided during the e Oi8 2d j course of his participation ~in this proceeding. Hence, the a a $OY A o MC. i Washington Legal Foundation submits that Commissioner Gilinsky 0 32o e g lEj j must either disqualify himself or be disqualified by the gC i 5 - 2 Commission immediately to preserve the integrity of this 5 ><f lengthy and complex proceeding, as well as the integrity of the Nuclear Regulatory Commission. 1 l

e II. STATUS OF THE RESTART PROCEEDINGS FOP TMI-UNIT NO. 1 While the proceedings in this case have been lengthy and complex, it is useful to describe briefly the chronology and status of this case. Following the accident in March 28, 1979 at Three Mile Island Nuclear Station, Unit No. 2, the Commission ordered on July 2, 1979 that TMI-Unit No. 1--which was not affected by the accident--to remain nevertheless in shutdown e condition until further notice. On August 9, 1979, the Commission ordered that a hearing be held before startup and prescribed procedures governing this hearing. Since 1979, there have been a number of administra-tive actions taken by the Atomic Safety and Licensinc Board, the Atomic Safety and Licensing Appeal Board, and the Commis-sion itself relating to the restart proceeding of the undamaged TMI-Unit No. 1. The Atomic Safety and Licensing Appeal Board reviewing this case nas now issued two of its three expected decisions on this matter. The major remaining issue yet to 5 be resolved by the ASLAB deals with the management competence C (Y l of the licensee, although the Licensing Board ruled in 1980 U S j~o $ that the licensee met this criterion. ~ i OEd ? d ggi Despite the fact that none of the three major issues E a52 ? j $*I E have been completely reviewed and decided by the Commission as O fd I L $~I a whole, and despite the~ fact that not all the evidence has h been reviewed, Commissioner Gilinsky, on June 22, 1983, publicly issued a Memorandum and gave interviews to the media stating his views on the substantive and procedural 1 l

4 aspects of this formal adjudicatory proceeding. These actions by Commissioner Gilinsky form the basis of his disqualification from further participating in this matter. On July 28, 1983, the Appeal Board held a hearing on a motion filed by certain intervenors to reopen the record on the issue of management competence. No decision on that motion has been made. There is considerable doubt when TMI-Unit No. 1 will be permitted by the NRC to restart its operation. More troubling, there is considerable doubt that the issues will be resol'ved in a fair and impartial manner in light of the views expressed by Commissioner Gilinsky. E a i o i 5i a i ~8 ? 3 tt! : aaG A .oe 3 2 EU I 7 r s e

. III. AN EXAMINATION OF THE GILINSKY MEMORANDUM AND THE APPLICABLE LAW DEMONSTRATES THAT MR. GILINSKY MUST BE DISQUALIFIED FROM FURTHER PARTICIPATION IN THE INSTANT PROCEEDING Commissioner Gilinsky's statements and actions in issuing his Memorandum necessitate his withdrawal from the TMI-1 Restart proceeding for three principal reasons under the appropriate legal standards. First, the Memorandum demonstrates that Mr. Gilinsky has in fact prejudged the ' merits of the case. Second, even assuming that he had not actually prejudged the issues, he has created the impression that he has made such a premature judgment. Third, the Memorandum clearly indicates that the Commissioner has assumed the role of an advocate in the proceeding and that his view of the case is animated by a bias towards certain individual officers of General Public Utilities such that Mr. Gilinsky has an emotional commitment to one side which is so intense as to foreclose the detachment necessary to render an impartial decision in the instant proceeding. g These reasons, independently and i.n combination, dictate C s 8 that Commissioner Gilinsky recuse himself, or be removed 5i 4,(,8 { by order of the Commission should he fail to do so. a $ $86 ? O uy N g l*y j A. The Gilinsky Memorandum 55 i g~{ Commissioner Gilinsky's " Memorandum for the Parties by in the Three Mile Island Unit I Proceeding" (Exhibit 1), issued June 22, 1983, opens with the claim that the TMI-1 " restart proceeding has bogged down;" notes some of the

unresolved issues of the case; and states that "[t]he Com-mission, as is usual in such proceedings, has been silent" about them. Mr. Gilinsky next candidly notes that he has urged his fellow Commissioners to take interim steps on some of the unresolved issues, but that, "[u]nfortunately, I have had no success in persuading my colleagues to adopt this course." Thus, he concludes: I have decided, in these circum-stances, to make known my own tentative conclusions about Three Mile Island Unit 1 and the management of General Public Utilities in the hope that this might contribute to a satisfactory solution of this case. Having assumed the role of an advocate attempting to improperly influence the administrative process towards a particular result, Mr'. Gilinsky proceeds to attack three management officials of GPU and issues the ultimatum that: so long as they [GPU's officers] remain in control of the Company, I am not prepared to approve the return of Three Mile Island Unit 1 to operation. In my view, the only sensible way of resolving the problems which affect GPU is to a b' replace the top management of the Com-M pany--and by that, I mean the Chairman dig { of the Board of GPU, the President of 2ia GPU, and the Pres'ident of GPU Nuclear. a do9 o $ MC. i While the Commissioner adds that "[G]iven the posture of 3 Ct5 e g lEy this case, my conclusions are, of course, subject to modi-gn E i fication in light of any new information which may be intro- = ri 5 j duced,d the tenor of his remaining " conclusions," as well as those preceding his caveat, suggest that Mr. Gilinsky's judgment is far from " tentative." Even assuming that he had

. an open mind in fact, Mr. Gilinsky's disqualification would still be mandated under existing and well-recognized princi-ples of law and policy. The Foundation notes that Commissioner Gilinsky's actions were promptly and properly denounced by his fellow Commissioners. Chairman Palladino, for example, complained that: In issuing his tentative conclusions on the proposed restart of Three Mile Island, Unit 1, Commissioner Gilinsky i has chosen to disregard the collegial process. I am dismayed by this action, which I believe is unprecedented, and I fear that it may generate confusion on the part of the public and the parties to the case. Statement of Chairman Palladino, June 23, 1983 (Exhibit 2). Furthermore, Chairman Palladino properly noted the prematurity of issuing any views on the subject by stating: The Commission continues to review all the issues in the TMI-1 restart case. Not all the facts are in.... It would be premature for me to comment on those matters while they are still under consideration. g Id. (Emphasis added). Commissioner Asselstine agreed with p n 8 Chairman Palladino stating: Ei8 ? The Commission does not yet have all the Ci a g y$d E information needed to reach a decision d wj b in the TMI-1 restart case and that it ou 0 EER ? would be premature at this point to g {*y { comment on the issues in this c'ase. $n x f-{ Statement of Commissioner Asselstine, June 23, 1983 (Exhibit 3). U i y Not content with impugning the integrity of the 1 parties before the Commission in this proceeding and prejudging the issues, Commissioner Gilinsky also attacks the Commission

• and its staff.

He blames the " Commission... for the disarray which has characterized this case." Gilinsky Memorandum at He criticizes NRC staff for allegedly having been " unusually 4. accommodating" in granting extensions to GPU in making certain changes. Gilinsky Feb. 24, 1983 draft memorandum at 3. If Commissioner Gilinsky has any reason to believe that the NRC staff has acted improperly, he should present those reasons and evidence to the appropriate authorities rather than irresponsibly casting aspersions on the character of the Commission and its staff. The Foundation finds that Commissioner Gilinsky's reckless and maverick conduct is incompatible with an orderly and collegial decision-making process. If Commissioner Gilinsky does not voluntarily recuse himself, it is imperative that the Commission as a whole remove him from these proceed-ings, especially in light of the views critical of Commissioner Gilinsky's conduct expressed by Chairman Palladino and Com-missioners Ahearne and Asselstine. Otherwise, the public and Commissioner Gilinsky will perceive that such irresponsible l 0 W conduct is to be condoned and tolerated in this and all other n 8 5yg? pending and future NRC proc,eedings. Rz ~ a dE4 8 0 M[9 B. The Applicable Law Dictates That 3 Ugl ? Commissioner Gilinsky be Disqualified =**o 3 as a Matter of Due Process Under the ! "- {$ Constitution and the Administrative . Procedure'Act. x n .) The courts have repeatedly found that the test for disqualifying an official of a regulatory agency from an administrative proceeding is whether "he or she has given a

-g-1 1 reasonable appearance of having prejudged it." Kennecott Copper Corp. v. Federal Trade Commission, 467 F.2d 67, 80 (Cir. 1972). See also, Cinderella Career and Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583 (D.C. Cir. 1970); American Cyanamid Co. v. Federal Trade Commission, 363 F.2d 757 (6th Cir. 1966); Texaco, Inc. v. Federal Trade Commission, 336 F.2d 754 (D.C. Cir. 1964), vacated and rem'd on other grounds, 381 U.S. 739 (1965); Gilligan, Will & Co. v. Securities & Exchange Commission, '267 F.2d 461 (2d Cir. 1959), cert denied, 361 U.S. 896 (1959). An examination of the leading cases which are similar in fact and principle to the one at bar underscores the necessity of disqualifying Commissioner Gilinsky. In Texaco v. FTC, supra, then Federal Trade Com-mission Chairman Paul'Dixon made a speech before the National Congress of Petroleum Retailers while a case against Texaco was pending before a hearing examiner on remand. During his speech, Chairman Dixon discussed the very type of practices at issue in the Texaco administrative proceeding and noted n U that the FTC was aware of the practices and had challenged n 8 1 5 8 their legality in previous cases. 336 F.2d at 759. C ($$ y ? z a jy Texaco subsequently filed a motion asking that !h Mr. Dixon withdraw from participation or that the Commission nuno a !E ! determine him to be disqualified. Both Dixon and the FTC x - 2 f refused. Id. On appeal, the United States Court of Appeals for the District of Columbia Circuit restated the test for disqualification and stated 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 j violated the Act. 336 F.2d at 760. The court added that "[A]n administrative hearing of such importance and vast potential consequences must be attended, not only with every element of fairness, but with the very appearance of complete fairness." Id., citing, Amos Treat & Co. v. Securities and Exchange Commission, 306 F.2d 260, 267 (D.C. Cir. 1960). Hence, the court con-i cluded that Chairman Dixon's participation in the hearing amounted under the circumstances to a denial of due process invalidating the order under review. Cinderella, supra, also involved a speech given by then FTC Chairman Dixon. In that case, deceptive adver-tising charges brough*t against Cinderella Career & Finishing J School had been dismissed by an FTC hearing examiner and a notice of appeal had been filed by the Commission staff. While the appeal was pending before him, Chairman Dixon spoke to the National Fewspaper Association and referred to a 2 a generic type of advertising as deceptive and admonished-4 3W ! his listeners that they should be " savvy enough to smell gi~ g a dE9 E deception when the odor is strong enough." ' 425 F.2d at 590. - $ 0

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3 Eg Since Chairman Dixon's generic reference included e u sea l5 I thetypeofadvertisinginwhichCindere(lahadengaged l m-A l (although no specific reference was made to the company), l' h' tie Court of Appeals stated that: e r

. It requires no superior olfactory powers to recognize that the danger of unfairness through prejudgment is not diminished by a cloak of self-righteousness. We have no concern for or interest in the public statements of government officers, but we are charged with the responsibility of making certain that the image of the administrative process is not transformed from a Rubens to a Modigliani. 425 F.2d at 590 (emphasis added). As it did in Texaco, the court in Cinderella found that Chairman Dixon's further participation in the administrative proceedings violated due iprocess guarantees. The court reasoned that while the agency had the authority to take certain preliminary actions in the public interest, such authority... 1 does not give individual Commissioners license to prejudge cases or to make speeches which give the appearance that the case has been prejudged. Conduct such as this may have the effect of entrenching a Commissioner in a position which he has publicly stated, making it difficult, if not impossible, for him to reach a different conclusion in the event he deems it necessary to do so after consideration of the record. There is a marked difference betw'een the issuance of a press release which states that the Commission has filed a complaint g because it has " reason to believe" that p there have been violations, and statements 5 8 by a Commissioner after an appeal has 5i been filed which give the appearance that 2(,"8{ he has already prejudged the case and l j ggd that the ultimate determination of the wj 2 merits will move in predestined grcoves. 4 u U EER ? g y"j j Id. (Emphasis added) ( footnote omitted): o-n x l { The reasoning of these cases applies with special l n j force to the facts and circumstances of the instant case. Unlike Texaco and Cinderella in which an administrator made a general statement about an issue pending before him which

' called his impartiality into question, commissioner Gilinsky has made case-specific statements which indicate that he has actually prejudged the issues of this proceeding. While NRC Chairman Palladino and the other Commissioners note that "[t]he Commission continues to review all the issues in the TMI-1 restart case, not all the facts are in," (See State-ments of Chairman Palladino and Commissioners Asselstine and Ahearns), Mr. Gilinsky has indicated that he has made up his mind about permitting the restart of TMI-l unless certain conditions (such as the removal of three individuals in GPU's management) are met. His prejudgment in fact of these issues compels his disqualification. Even if one were to accept as true Mr. Gilinsky's statement that his views are subject to modification "in light of new information which may be introduced," he cannot be permitted to sit in judgment in this proceeding. */ The

• /

Whether Commissioner Gilinsky considers himself ible to rule fairly upon the case is immaterial. Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th Cir. 1977). g

Accord, e.g.,

SCA Servs., Inc. v. Morgan, 557 F.2d 110, 116 m (7th Cir.1977 ); Smith v. Pepsico, Inc., 434 F.Supp. 524, A 8 525-26 (S,D. Fla. 1977). As the United States Court of f 5i8 Appeals for the Fourth Circuit has stated in a case involving l Mia ? judicial disqualification:- a dE9 3 A M[. 5 "The question is not whether the d Egl judge is impartial in fact. It is g

• g a

simply whether another, not knowing h;7 l a i* whether or not the judge is actually 5 impartial, might reasonably question his 5 impartiality on the basis of all of the j circumstances...." Rice v. McKenzie, 581 F.2d 1114, 1116-17 (4th Cir. 1978) l (footnotes omitted). j

• cases discussed above all make clear that actual prejudgment is not necessary for disqualification--the appearance of prejudgment is sufficient.

As one court declared: It is fundamental that both unfairness and the appearance of unfairness should be avoided. Wherever there may be a reasonabla suspicion of unfairness it is best to disqualify. American Cyanamid v. Federal Trade Commission, 363 F.2d 757,- 764 (6th Cir. 1966); see also, National Labor Relations Board

v. Donnelly Garment Co., 330 U.S. 219, 226-7 (1947);

I Dorais-Wamy v. Secretary of Labor, 555 F.2d 832, 843 (D.C. Cir. 1976). The Gilinsky Memorandum and its impact speak eloquently to the point of appearances. That an objective reader of the Gilinsky Memorandum would reasonably conclude that the Commissioner'has in some measure adjudged the case is, WLF submits, beyond peradventure. It is particularly telling that the media, to whcm Mr. Gilinsky widely distri-buted his " tentative conclusions," heralded the Memorandum as a denunciation of GPU and an announcement of unalterable m 3 opposition to restarting TMI-1. For example, the Washington N Ei8 Post article under the headline "NRC MEMBER DENOUNCES OWNER Ei~ ? j y$j E OF TMI," began: oa w ~ U Esh h Nuclear Regulatory Commissioner Victor g l*3 3 Gilinsky issued a blistering indictment 5E i" yesterday of the owners of the Three 5 - l Mile Island atomic power plant, saying U it was " simply unacceptable that the y company responsible" for the nation's worst nuclear accident should be allowed to restart a reactor there.

j 14_ Gilinsky, in a unilateral declara-tion opposing the bid by General Public Utilities to put the undamaged Three Mile Island Unit 1 back into operation, said the company has been slower than most to comply with safety standards set since the 1979 accident at TMI Unit 2. "The conditions that led to the accident at Three Mile Island Unit 2 have not been cured," Gilinsky said. (See Exhibit 4). Both Mr. Gilinsky and the NRC must face the fact that anyone reading the newspaper reports or hearing broadcast reports about Mr. Gilinsky's action could conclude nothing other than that he had made up his mind about the merits of this proceeding. His conduct has the practical effect of " making it difficult, if not impossible, for him to reach a different conclusion in the event he deems it necessary to do so after consideration of the record." Cinderella, supra, at'590. Hence, his disqualification is mandated by the appearance of prejudgment alone. Furthermore, the Memorandum and Commissioner Gilinsky's subsequent public statements to the media demon-strate that he has assumed the role of an advocate and is P d animated by personal bias towards the parties. As a result, g l hi g his emotional commitment to one side of this proceeding is so i gi~ ? $ 0l9 ad 3 intense as to foreclose the detachment necessary for impartial A 5 E!! $ judgment. nemo a h*~ l$ Commissioner Gilinsky openly states in the Memorandum 1 m l that his purpose in taking this unprecedented action is that it "might contribute to a satisfactory conclusion of this case;" satisfactory, that is, to Mr. Gilinsky. As he stated in an interview with the New York Times:

. "I don't think we should be sitting here like five buddhas twiddling our thumbs. I That's not my idea of how you do the public's business." Mr. Gilinsky charged the commission's full-time staff with being " inordinately l lenient with G.P.U.," an attitude, he said, that had " undermined the public's confidence in this agency." (See Exhibit 5). If anything has undermined the public's confidence in the agency, it is Commissioner Gilinsky's bias, arrogance, and reckless conduct which apparently

represents his warped concept of "how you do the public's business."

See also Exhibit 6. These and other statements by Commissioner Gilinsky go far beyond " tentative" statements of attitude.

Rather, they are characterized by conclusory statements of fact; a use of derogatory references to terms and characterizations of both GPU officials and Commission members and staff; and affirmative efforts to propagate his settled views under-scoring an emotional commitment so strong to one side of this proceeding that his further participation in this case 5

is improper. See Reserve Mining Co. v. Ford, 529 F.2d 181 A I) I.{ (8th Cir. 1976); Nicodemus v. Chrysler Corp., 596 F.2d 152 i DS*o ! (6th Cir. 1979). i $. Ed ? 3 While Reserve Mining and Nicodemus involved recusals 0 gsi 8 58 ? l l {2$*E of judges, the decisions are directly applicable to the l o l y 3 instant request to disqualify Commissioner Gilinsky. In h both cases, the sitting district court judge appeared to be so emotionally involved with one side or the other of a dispute as to foreclose the detachment necessary for an m m

mJ . impartial decision. The case involved judicial conduct which was characterized by intemperance of expression towards one side and emotionality beyond simple disbelief, as well as circumstances which required the judge to deal with the parties and assess their good faith. In both cases, it was found that once the judge is drawn to question the good faith of a party, he has, of necessity, failed to remain " detached from the conflict...." Reserve Mining, 529 F.2d at 156; Nicodemus, 596 F.2d at 154-55. Here, Commissioner Gilinsky's conduct is the epitomy of intemperance. He has acted prematurely in disregard of the NRC's collegial decision-making process and disparaged one of the parties as well as the Commission and its staff. */ Moreover, he has freely called into question the good faith of GPU's management in his Memorandum and before the press. Commissioner Gilinsky's animosity toward the'GPU officials is doubly offensive to the administrative process since the character of the GPU management is itself a substantive issue in this proceeding. Whether motivated by " mere righteous indignation," Nicodemus, 596 F.2d at 154, or a simple " cloak of self-righteousness," Cinderella, zl 425 F.2d at 590, Commissioner Gilinsky's role as both advocate l b-l S 3 and judge in this case must be tolerated no longer. y g<od $b 3 U !! w I gh*$l

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For' example, Commissioner Gilinsky concludes that just because the z,*z NRC staff is not as antagonistic to licensees such as GPU as Commissioner dB f. Gilinsky would prefer, the "NRC staff should no longer be a full party l~ j in NRC licensing proceedings." Feb. 24 Mem at 24. He further remarks 2 that with regard to the GPU management issue, "the [ Licensing] Board has no particular competence in matters of management and was out of its depth in making fundamental judgments on the future of GPU." Id. Because of Commissioner Gilinsky's deep-seated bias and strong hostility and distrust of his own agency, WLF submits that not only should he be disqualified in this case, the public interest would be better served by his resignation from the Commission.

_17 C. Commissioner Gilinsky Has Violated NRC Regulations Regarding Improper Conduct. i Not only does Commissioner Gilinsky's actions compel his disqualification under applicable case law, WLF submits that his actions violate the NRC's own regulations, 10 C.F.R. Section 0.735-49a, regarding ethical conduct. Specifically, commissioner Gilinsky's conduct as described above violates - 10 C.F.R. Sections 0.735-49a(d), (f) which states: Section 0.735-49a Other proscribed actions. I An employee shall avoid any action, whether or not specifically prohibited by this Part O, which might result in, or create the appearance of: (d) Losing complete independence or impartiality; [or] 1 (f) Affecting adversely the confidence of the public in the integrity of the Government. We submit that Commissioner Gilinsky's conduct described above clearly demonstrates that he might have or = l created the appearance of losing complete independence or n O 5 8 impartiality and engaged in conduct that adversely ~affects g ($$y o i a n(a the public's confidence in the integrity of the Govec zent. j ~ w O Es! ! The code of conduct applicable to employees of the NRC should a veo a oa 2 O I" be especially observed in a scrupulous manner by the Commis-55 1 u" sioners since they occupy positions of power and-set an i example for other NRC employees. Further, his conduct appears to' violate the NRC's procedural requirements 1of adjudicatory i proceedings. See 10 C.F.R.f Sections 2.760; 2.770. t

- IV. CONCLUSION For all the foregoing reasons, the Washington Legal Foundation submits that Commissioner Gilinsky must be dis-qualified from any further participation in this proceeding. Respectfully submitted, DANIEL J. POPEO // General Counsel v ka r-m PAUL D. KAMEJAR N Director of Litigation AG NICHOLAS E. CALIO Litigation Counsel WASHINGTON LEGAL FOUNDATION 1612 K Street, N.W., Suite 502 Washington, D.C. 20006 (202) 857-0240 B 5 3v.i gi~ g adM 3 8 n *, *. L 3 UEE ! nvno g oa a ~ &O Z x-p E 5 U i 4

..i.~ c'v e ( ( [ UNITED STATES Mr- / ED gj 'n NUCLEAR REGULATORY COMMISSION 2.k,m H JU'l 2 21983.> C Q;wl}*a. I wasHincron o.C.rosss e qo 9 sp. r um ,1 snhT* W-3 CFFICE OF THE CCM..ilSSIONER June 22, 1983 vf g N N MEMORANDUM FOR THE PARTIES IN THE THREE MILE ISLAND UNIT I PRCCEEDING The Three Mile Island Unit 1 restart proceeding has bogged down. This is to no one's ultimate benefit. On the one hand, the plant does not operate, on the other, opportunities to make needed major changes are being lost. In an effort to obtain a decision favorable to restart, the i NRC Staff and General Public Utilities have tried to disentangle themselves from the nagging questions about the Company management's integrity and competence by proposing changes in the personnel to be assigned to the power plant. The Governor of Pennsylvania has urged the Commission not to permit the restart of Unit 1 until a number of pending issues have been resolved. The Commission, as is usual in such proceedings, has been silent. While the Commission's role in licensing proceedings is in some ways similar to that of a court, its adjudicatory role is less well defined in this extraordinary case. The overlap between issues which are in contention and those which are not, and the sheer length of the proceeding -- it is more than four years since the accident -- have blurred the distinctions between the adjudicative and the administrative processes. And the end is not yet in sight. I have suggested to the Commission that it should at least provide interim guidance on what it enpects the Company to do about the difficult question of management. If the Cocaission waits until the very end of its review, little time will be left to make significant managerial changes, and the Commission will have a limited range of choices between accepting things as they are and further postponing authorization for the reactor to operate. Unfortunately, I have had no success in persuading my colleagues to adopt this course. I have decided,'in these circumstances,'to make known my own tentative conclusions about Three Mile Island Unit 1 and the management of General Public Utilities in the hope that this might contribute to a satisfactory solution of this case. I have therefore asked the Secretary of the Commission to l serve upon each of the parties to the Three Mile Island Unit 1 proceeding a ccpy of the draft separate views which I circulated to the Commission on February 24, 1983. l EXHIBIT 1 DKT. NO. 80-289

1 ( l - g. In those views, I said that the continued shortcomings in GPU's performance make it apparent that the conditions that led to the accident at Three Mile Island Unit 2 have not been cured. I attributed this in large part to the fact that GPU continues to be run by the same few individuals who ran the. Company before the accident and said that, so long as they remain in control of the Company, I am not prepared to approve the return of Three Mile Island Unit 1 to operation. In my view, the only sensible way of resolving the problems which affect GPU is to replace the top management of the company -- and by that, I mean the Chairman of the Board of GPU, the President of GPU, and the President of CPU Nuclear. Given the posture of this case, my conclusions are, of course, subject to modification in light of any new information which may be introduced. I should add that these views have not been redrafted to take into account the changes which have occurred since February, 1983. My overall conclusions on GPU's performance on the hardware issues remain the same, although the details of the hardware situation have, of course, changed since February. A short paragraph on page 3, which referred to the views of another Commissioner, has been deleted. The portions of the opinion dealing with the management issues, however, are as valid today as when they were written. As I mentioned in my' opinion, the Commission must bear the ultimate responsibility for the disarray which has characterized this case. At the outset of the Three Mile Island restart inquiry, I suggested to the Commission that it take up the issue of GPU's integrity and competence and itself decide what should be done about the management of this Company. The Commission, for reasons of its own, demurred and, instead, directed the Licensing Board to conduct a hearing on GPU's integrity and ability to safely operate Unit 1. This was unfortunate. Had the Commission itself taken up the issue of management this hearing could have been significantly simplified and shortened. Had the Commission acted firmly by conditioning the return to operation of Three Mile Island Unit 1 on changes in the top management of GPU, the<public around Three liile Island would be better protected; and even holders of equity in GPU -- and the nuclear industry at large -- would have fared better. As it l is, only GPU's top management have benefited from the course the Commission has taken. fp / / / f." ;- .; 3 i Y / Victor Gilinsky s Commissioner l

f* JD. L I F/ C. a p c% CHAIRMAN PALLADIN0'S STATEMENT ON COM 8 TENTATIVE CONCLUSIONS ON THI-1 Y 4, @4 ^' p In issuing his tentative conclusions on the proposed C-restart of Three Mile Island, Unit 1, Commissioner Gilinsky has chosen to disregard the collegial process. I am dismayed by this action, which I believe is unprecedented, and I fear that it may generate confusion on the part of the public and the parties to the case. One of the great strengths of a Commission form of regulatory agency is that the collegial views of all members can be focused on important issues at the same time , regardless of their views. I believe that Commissioners should speak to an issue in a licensing case all at one time so that the public and the regulated industry have the benefit of the opinions of all the Commissioners. The Commission continues to review all the issues in the TMI-1 restart case. Not all the facts are in. It now appears to me that we may not be able to decide the key issue of management for at least a couple of months, although we may be able to get to some of the other issuen before that time. It would be premature for me to commenz on those matters while they are still under consideratior.. I will take whatever time is necessary to reach an objective decision on whether or not to restart THI-1 and, if it is restarted, under what conditions. t i 1 [ l l l l EXHIBIT 2 DKT. NO. 50-289

C. f.. .h. Ch'tfk. ri .o i. ? o -3., ;,' Of.. [i .,1 M *: . - 5";

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'vc d 3 ,(.p. w..' -[,.)' COMMISSIONER ASSELSTINE'S STATEMENT ON COMMISSIONER GILINSKY'S TENTATIVE CONCLUSIONS ON TMI-1 Commissioner Asselstine agrees with Chairman Palladino that the Comis-sion does not yet have all the infonnation needed to reach a decision.in the THI.-1 restart case and that it would be premature at this point to ciomment on the issues in the case. "Q 3 ~ ( 3 s,-% jf: 1 3 2n iggy * *- 0 cN'4cr COMMISSIONER AHEARNE'S STATEMENT ON COMMIS

5. *Q i

CONCLUSIONS ON TM1-1 i / ,1.8 to I agree with Chairman Palladino's statement (including the last sentence, were I to have remained on the Commission). i l e-e e i l i i 9 ~ EXHIBIT 3 DKT. NO. 50-289 l

r MyA* e e . ~.. - - NRC VIeinber Denounces Owner of TVII Hy Milton R. Benjamin He said that unless the top man-immediate reaction from NRC Com-

• Being " extraordinarily slow waiw -e= merwn" agement of GPU, including the missioner Thomas Roberts.

Gilinsky, in a 25-page statement, .. in making the changes to plant I Nuclear. Regulatory Commissioner chairman and president, are re. Victor Gilinsky issued a blistering placed, "I am not prepared to ap-accused the GPU management oft equipment and procedures required indictment yesterday of the owners prove the return of Three Mile Is-

• Taking a " narrow and grudgin:

at all plants by the NRC Action of the Three Mile Island atomic land Unit I to operation." conception of its public responsibil-Plan as a consequence of the expe. cn power plant, saying it was " simply In a separate statement yesterday, ities," and trying to "get by with the rience of the Three Mile Island ac-unacceptable that the company re-NRC Chairman Nunzio Pa!!adino minimum, be it in terms of plant cident.". c37 sponsible" for the nation's worst nu-said that he was dismayed by Gilin-equipment, or of staff discipline and ng b. scrape by in comply-m clear accident shouki be allowed to sky's declaratiort and that the com-. training, or of forthrightness with ing with the new emergency pre-restart a reactor there. mission would not be able to decide public authorities." I*d** 9"irements resultmg o Cilinsky, in a unilateral declara-the key issue of whether the GPU

• Withholding "information about from its own acc. dent."

Z i tion opposing the bid by General management is competent to operate ' the' severity of the accident" at TMI Gilinsky also expressed concern Public Utilities to put the undam-Unit 1 *for at least a couple of Unit 2 from the state of Pennsylva, about the NRC's "own performance aged Three Mile Island Unit 1 back months." ) nia and the NRC early on the day of in this case. O into operation, said the company has NRC cominissioners James Assel-the accident, "when public protec. "Th oughout this inquiry, the been slower than most to comply stine and John Ahearne also issued tion was most critical.". NRC staff has been inordinately le. with safety standards set since the brief statements agreeing with Pal-

• Being " astonishingly tolerant of nient with GPU," Gilinsky said.

Ed 1979 accident at TMI Unit 2. Iadino that the commission does not cheating by its employes, most par- "The staff's habitual alignment with E "The conditions that led to the ac. yet have all the information needed ti' ularly by senior members of its GPU has been particularly unfortu-d c cident at Tnree Mile Island Unit 2 to' decide whether to permit restart-operating staff," on examininations nate as it has undermined the pub-R have not been cured," Gilinsky said. ing the Unit I reactor. There was no for reactor operator licenses.. lic's confidence in this agency." N l h O 6

0 o ^ ' - --'M=E,_ s__ ., _ u, __,, I l f s .lOfficia1FrgesDismissa:. p Of 3 a<:T1ree Mi:.e Is:.and. i ! ?

a -

[...h," * ', 5 ' ~~ -y ByJ ANE PE 'I.EZ l ~ s,anat =ns m-vnin=== je s,..,..,., ~ Mr. Palladino said be 'would take 2 l 'N5SHINGTON, June 23 - A mem-bar of the Nuclear Regulatory Comm!a-whatever time "is namury to risch ".,, I slan, chastising his own agency for an objective decision on whether or not Inept handling of the Three Mue Island to restart T.M.I.1 and, if it is restarted, case, said today that the three senior underwhat conditions." esecutives of the nuclear plant should Jemes K. Asselstine and John H. be disminnad before an e_mAmmaaed unit Ahearne, two other commfuionen, of the reactor was allowed to operate. said today to that they agreed with the Yletor Guinsky, the mmmletoner, chairman that insufficient information barshly criticized the performance of was available to draw a conclusion on General Public Utilities, the operator of the restarting Unit 1. Ibe fifth commis.

• the piant. He said the company ccmtin' sioner, Thomas M. Roberts, did not ned to show " shortcomings" that al. make his views known.

Iowed conditions leading to the acddent The three executives Mr. GI!!nsky re-at Unit 2,'four years ago, to remain un-ferred to are William G. Kuhns, the changed. chairman of the board of General Pub-He attributed this "in large part to lic Utilities; Herman Dierhamp, pnsl. the fact that G.P.U. continues to be run dent of the company, and Robert C. Ar. by the same few individuals who ran the nold, president of GPU Nuclear Corpo-company before the accident." ration. Both Mr. Kuhns and Mr. Dieck. In an unusual step, Mr. Gl3nsky amp were with the company before the inade his views known before the five accident at Unit 2, said a company mmmiatoners voted on the start-up of spokesman, John Fidler. Unit 1. 'Ihat unit was not working in Mr. Fidler said that the company re-March IM9, when an evacuation of the gretted that Mr. Gilinsky, by mairtnqr Harrisburg, Pa.. area followed Unit 2's his statement, had chosen to disregard accident, the industry's worst. Unit 1 is the established " collegial process" of r ~- atwinof Unitt. the commiulon. He asserted that Mr. Gilinsky's conclusions " discounted and ,.i ' Disarray *in Case Cited contradicted years of official investiga. He said the mmminion "must bear tions" and that the company looked for. theultimate ibility for the disar, ward to an " orderly process" that ray which has etertzed this case" would result in the restart of Unit 1. and that he had spoken out in the hope .The staff of the Nuclear Regulatory that a resolution might be more quickly F""m'" ion recently suggested to the achieved. comm% loners that a gmup of rnanage-In an interview, he said: "I don't ment officials at G.P.U. be assigned think we should be sitting here like five away from Unit 1 tmtilinvestigations by buddhas twiddling our thumbs. That's the staffI.ad been completed.. not my sdea of how you do the public's In his 28-page report, Mr. Gilinsky business." said that despite certain improvements Mr. Gilinksy charged the commla. since the accident, "the overall plc-I sion's full-time staff with being "inordi. ture" is of a company with "a narrow sately Imlent with G.P.U.." an atti. and grudging conception of its publie re-tude, he said, that had " undermined the sPonsibilities, which seeks to get by with the minimum, be it in terms of . i pubile's confidencein this agency " P ant equipment, or of staff discipline l The chairman of the commission, Hunzio J. Palladino, said be was " dis. and training, or of forthrightness with mayed" by Mr. Gilinsky's eady find. public authorities." , lag, railins it %y, Ated" and ,g'the pu SUMMERTIME / FRESH AIRTIME OIVE TO THE FRESH AIR FUND n a. J-S S l EXIIIBIT 5 DKT. NO. 50-289

) i 8 I.. 'THE W5LI.' STREET JOURNAL Friday, June 2',1983 4 . GBl's T"Pm ificidis Sh6iUEBb Rhp. la&d D m-Q,., P .u..n. n: y.. Bufbre Rduribf Riaht6QRCAidESa,ga* s Cl, yh.r.r. e u.m u m#:, cewwww.. w Dieckamp.ls c +. ? uw'd,r. wm:.: m

• *. r,>vs.

t.. x. .;.n, s,. wistan=v Javam.34ffBapmer.g[ president. aD chief ' operating iWASHINGTON JAEmNn'tEEEJthEr et lofficeeGPU Nudear:was at=Nu d asa e ' dear. Regulatory Commission;sandstheY op, subsidiary after the. Unit;.2 mMdat to. man-t management?cf /Geaeralt Pnhtic ; Ut!!!tler age.the. utility's.nudear operations.includ-8 Corp.xshould'be replaced?beforethe. conf ing.tWunits:st'.Three Mlle: Island:and' panyis allowed to restart;tts undamaged ~re.'. Oyster. Creek,'in' lacey Township,?.J$at: I That* assertion tv'sComrnisrloner'. Victor'. at;,Three M11e.IslandSigpg.{c ,KGPitsaid Mr..Gmntky's condusions' con +] i tradicted ;" years. cf. official :tnvestigations'S' Gilinsky' caused a ' start!!ng blowusifat the-and, expressed., confide ~nce'.that "a reison F normally' pladd'.NRC:'<Cornrnission'iChair. able,* complete.and prompt review":of-the,. man!Nunzlo Pafladtnh i sald' pe* wast." dis - restart questiontwould support the posi' ion-mayedpat Mr. Gillnsky's ?' Unprecedented *g that.GPU.Nodeart.',has the competenceind voicing of an opinion before the' entire Dye-integrity /to. safely operate *l.. Unit'.lufM.f. member NRC is ready to rule on the muchl -TAs reported; GPU. earlier this month rea, delayed' case. MrlPalladino said that may} ligned:theimanagement of its nudear. subs take;"at.least a(couple of manths."; sidiary to assure.the NRC that certain man 2 Commissioners John Ahearne and~ James agement personnel who' worked for the utili AssdtinC. issued (statements saying.they- !!y:1irben, the ' accident occurred *wouldh't 3 agreed with-the chairman. The fifth com-work at Unit 1 until management.inte missioner; Thomas Roberts, was out.of town questionsNrere resolved.#.WsQ and didn't comment.gii F A %, The< utility.also,"rellIocated" idyv4 l i Faii2Qciden'tih2(I ^ % - ities of the ' president of GPU Nudear dP,ifownitwo reacto$ d'f'hreeYe is. primary responsibility for Unit 1.to P, joined, RT Clark, executive ytce presidentiwho land ccilthCSdsquehanna River in Pennsyl. vania Unit'l was' dosed for refueling when the company.aner.the accident'. Robert C.,. Unit 2 overheated and broke down in the fa-Arno!;1, presidens of the uudear subsidiary, ~.ous 1973 aeddent.The NRC ordered Unit I and a GPU.cfSc4at *J.e time of the acci-rr vestigated. Thatilnvestigation has evolved ' dent..will: devote. mast ef, his time,t,o the to reniain dosed.while the accident was in. 'into a NRC scrutiny'of.the fitness of the util' d.deanup of pnit t : . ; *. '. gr.; ~. ^" " " "'~ - ity's management to run the plant if Unit 1 is. restarted..,%$p@ inst all. nuclear

1. .0 :,.. 't Mr.'4G111nsky isn't:aga.,

l powerc but he's beenhan[acerbicjeritie of. fWh:the industry's and.ths.NRC"s own pao-ceduret.21n.that 'veiniheYrnadeTpublic a' mamyandum complaining 7thaEth ;Three,i Mlle-Asland. case. ls ;" bogged "down 'Hercontinued:'."On the:one? .thet p!:nt:doesn't operate,'on the'otheriosiportup l nitjescto make needed' major thangestarej l behtlcst.".He'said he had urged his feDow: l cammissioners to give GPU."mterim guide

• thes*(o.t what it must-do to win the NRC's.

I approsal'to rest.irt Unit 114 c WA.@ Theiother commissioners wouldn't go . along;with.that, so Mr. Gllinsky specified tu conditions for winning his own restart vote? Q W.. ..g.,C.:.c.. ;.$4, Gttinghy's. Recommendation. W,,.n. , f.'In my view." he said,'"theinly sensible l why'of resulting the problem which.affects GPitis to replace the. top management of - the company-and by that I mean the chair-tr.an of the beard of GPU, the president of GPU.and the president of GPU Nuclear'J' > Chairman Palladino protested that NRC r9 embers should speak on a pending case "all at one time," nnd said Mr. Cilinsky's action would just ' confuse 'everybody.. es' William G. Kuhns is chairman and chlef cuuve otneer ;of GPU and.Hennan EXIIIBIT 6 DKT. No. 50-289

r e o DOCKETED USARC UNITED STATES OF AMERICA 33 E 17 A11:06 NUCLEAR REGULATORY COMMISSION OFFICE OF SEcqqip. BEFORE THE COMMISSION 00CXEIING & SERVICF BRANCH In the Matter of ) ) METROPOLITAN EDISON COMPANY ) Docket No. 50-289 ) (Restart) (Three Mile Island Nuclear ) Station, Unit No. 1) ) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Leave of the Washington Legal Foundation to File the Motion to Disqualify Commissioner Victor Gilinsky, Motion to Disquality Commissioner Victor Gilinsky, Memorandum in Support thereof, and Exhibits thereto were served upon the Commissioners of'the NRC by hand-delivery this / day of August, 1983, and upon all other persons named in the attached Service List this same day, by first-class mail, postage prepaid. Commissioner Gilinsky's draft memorandum dated February 24, 1983 which was incorporated into his Rp June 22, 1983 memorandum was not served on the parties O E 9W 8 inasmuch as they were already served with such draft memo-ei~ ? $ y$j g y randum by the Commission on June 23, 1983. $Es E W $..

• I PAUL D. M N g 3

fi Director of Liuigation WASHINGTON LEGAL FOUNDATION 1612 K Street, N.W., Suite 502 Washington, D.C. 20006 (202) 857-0240

a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) ) METROPOLITAN EDISON COMPANY ) Docket No. 50-289 ) (Restart) (Three Mile Island Nuclear ) Station, Unit No. 1) ) SERVICE LIST Chairman Nunzio J. Palladino Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal ! Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission Commissioner Victor Gilinsky Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ivan W. Smith, Esquire Chairman Commissioner James K. Asselstine Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Frederick H..Bernthal Dr. Walter H. Jordan U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel 881 West Outer Drive Commissioner Thomas M. Roberts Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Linda W. Little Atomic Safety and Licensing Docketing and Service Section Board Panel Office of the Secretary 5000 Hermitage Drive 7; U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27612 Washington, D.C. 20555

1. 1 8

James M. Cutchin, IV, Esquire f 5 Gary J. Edles, Esquire Office of the Executive Legal Director S (,8 { Z Chairman U.S. Nuclear Regulatory Commission j h }6 Atomic Safety and Licensing Washington, D.C. 20555 wj 0; Appeal Board ou 3 E$ $ S l U.S. Nuclear Regulatory Commission John A. Levin, Esquire Q [*i j Washington, D.C. 20555 Assistant' Counsel ggi Pennsylvania Public Utility Commission U 7 Dr. John H. Buck P.O. Box 3265 E Atomic Safety and Licensing Harrisburg, Pennsylvania 17120 y Appeal Board U.S. Nuclear Regulatory Commission Robert Adler, Esquire Washington, D.C. 20555 Assistant Attorney General 505 Executive House P.O. Box 2357 Harrisburg, Pennsylvania 17120

. N ", . Jordan D. Cunningham, Esquire 2320 North Second Street Harrisburg, Pennsylvania 17110 Ms. Louise Bradford TMI ALERT 1011 Green Street Harrisburg, Pennsylvania 17102 Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Steven C. Sholly Union of Concerned Scientists 1346 Connecticut Avenue, N.W. Suite 1101 Washington, D.C. 20036 ANGRY /THI PIRC 1037 Maclay Street Harrisburg, Pennsylvania 17103 William S. Jordan, III, Esquire Harmon & Weiss 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Chauncey Kepford Judith H. Johnsrud Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Marjorie M. Aamodt R.D. 5 Coatesville, Pennsylvania 19320 x u, 4 e W g George F. Trtubridge "j 'Ihcmas A. Baxter i 0 *. o o ~ ~ ; SIWi, PITIMAN, ICITS & TlWBRIDGE d $8d ? 1800 M Street, N.W. }yf 3 Washington, D.C. 20036 x E !i 4 x o t! 5 0 0 () I = - p n s a e}}