ML20082D707
| ML20082D707 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/15/1983 |
| From: | Laverty J CONNER & WETTERHAHN |
| To: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| NUDOCS 8311220517 | |
| Download: ML20082D707 (15) | |
Text
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LAW OFFICES
.GONNER & WETTERHAHN. P.C.
ED 9
r' 17;&7, PENNSYLVANIA AVENUE. N. W.
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5 2stOOFST M.BADER 8 WOXtt D M. O LSON E
AZCIA A. M O O R E. J R.
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d Herzel H. E. Plaine, Esq; General Counsel U. S. Nuclear ~ Regulatory
-Commission Washington, D.C.
20555
Dear Mr. Plaine:
On Novert.be.r 9,
1983, the Atomic Safety and Licensing Appeal Board lin the Limerick operating license _ proceeding requested that you inform them of the specific matters concerning Limerick-that you' or anyone else in your office
= discussed'with me and that you advise them on the need vel nom for my disqualification from participation in the appeal presently pending before them.1/
The ' Appeal Board has
'further requested that you provi'de this information as soon as possible in ' 11ght of the fact that the appeal from the Licensing Board's Partial Initial Decision on the su' plemental cooling water system contentions is scheduled p
for cral argument on December 5, 1983.
While I too would appreciate your earliest response because you can dispose of the question raised eby the Appeal Board regarding my appearance in the Limerick proceeding, I should point out that I have not worked on any aspect of the appeal nor do I plan to.
My intent in entering a notice 'of appearance on October 3,
1983 was to signify _ my appearance in the proceeding before the' Licensing Board.
Copies of my notice of appearance.were served on the Appeal Board pursuant to standard NRC practice.
I. would, however, appreciate 'your prompt response to the Appeal Board's letter.
At the request of Mr. Rothschild, I am providing these comments on the Appeal Board's letter in order to assist you in' your preparation of~ a formal opinion.
I am also providing. these comments in the hope of correcting any misunderstanding about my visit to the Limerick facility in
-1/ '
As you know, we earlier discussed the need for such a formal written opinion.
At that time, you did not think such an opinion was necessary.
8311220517 831115 PDR ADOCK 05000352 Q
WarzaB w. W.1965Bni, Mcq.
Novcmb r 14, 1983 Pcga 2 June 1982 that may have arisen as a result of the Appeal Board's letter.
I will summarize my comments at the outset.
First,.I do not believe that my presence on Commissioner Roberts' site tour of June 1982 constitutes " participation" in the Limerick operating license proceeding as a matter of fact or law.2/
Second, the characterization of that site
' tour providecT in the Appeal Board's letter is potentially misleading.3_/
- Third, although I
did not interpret the requests for information in Mrs.
Shoemaker's letters of October 6,
1983 and October 21, 1983 as broadly as the Appeal Board apparently intended them, I believe that the information I provided to the Appeal Board in my letters of October 14, 1983 and October 31, 1983 was fully responsive to the actual requests.4/
Fourth, I have made every effort to carefully and comprehensively comply with the require-ments of the NRC's Code of Conduct and to cooperate fully with you in the exercise of your responsibilities under that Code.5_/
- Finally, I do-not believe that my appearance on behalf of the applicant in the Limerick operating license proceeding is barred or limited in any way by my prior NRC employment.6_/
Description of Site Visit First, the Appeal Board's characterization of the July 20, 1982 Memorandum For File from Gary G.
Zech, Commissioner Roberts' former.
Technical Assistant, is potentially misleading.
The Appeal Board's letter contains the words
" conversations" and " discussed" in a context which might lead. a reader of that letter to infer that NRC and Philadelphia Electric Company ("PECO") employees discussed 2_/
See pp. 6 & 9 infra.
3/
See pp. 2-6 infra.
4_/
See pp. 6-8 infra.
5/
See pp. 1& 7-9. infra.
6/
See pp. 9 infra.
N
- ~
HOrzol H. E. Plains, Ecq.
Novcmb2r 14, 1983 Pago 3 the information provided by PECO or exchanged views on it.7/
Such was not the case.
The letter also contains the word
" briefed" in a
context which might lead a
reader to infer that tour participants received a detailed or substantive presentation on the supplemental cooling water system contentions.
- Thus, the Appeal Board letter states:
According to Mr.
Zech's memorandum, officials of the Philadelphia Electric Company " briefed" the tour participants on several
- matters, including con-tentions concerning the supplementary cooling water system, which had recently been admitted to the proceeding by the Licensing Board.
Letter at 1 (quotations in original).
This sentence is apparently intended to be a summary description of Mr. '
Zech's Memorandum.
In the ' third paragraph of that Memorandum, however, Mr. Zech stated:
During the tour, we were briefed by the following individuals from Philadelphia Electric Company.
I Memorandum at 1.
In the fifth paragraph of that Memorandum, Mr. Zech stated:
l 7/
At the outset, the Appeal Board states that Mr. Zech's Memorandum " summarizes the events and conversations that transpired during the tour" (Letter at 1).
A review of Mr. Zech's Memorandum reveals that it does not summarize conversations.
- Rather, it provides a fairly detailed chronology of the things that were seen and the information that was provided during the tour.
In this vein, the Appeal Board's letter states that "the cooling system itself was also discussed" (Letter at 1).
The letter supports this statement with a citation to pages 1 through 3 of the Memorandum (Letter at 1).
A review o'f these pages indicates that the cooling system was merely described (Memorandum at 3).
To my knowledge, tour participants did not discuss the cooling system.
I certainly did not.
t
- H0rzol H. E. Plnino, Ecq.
Nov;mber 14, 1983 PCg3 4
[Mr.
Boyer) then briefly identified those contentions concerning potential environmental' impacts on the Limerick cooling water system that were admitted to the operating license proceeding by the ASLB Board assigned to the Limerick Case.
Memorandum at 2.
Mr.
Zech's Memorandum next sets forth these contentions verbatim as he found them in the Licensing Board's Special Prehearing Conference Order of June 1, 1982 (Memorandum at 2). To the extent that the Appeal Board's letter implies that NRC employees received a lengthy or substantive discussion of these contentions, this impression is false and does not comport with what is described in Mr.
Zech's Memorandum or with what actually happened.
While the Appeal Board letter does state that "Mr Zech's memorandum does not state that any of the NRC tour participants themselves engaged in discussion of the supplementary cooling water system contentions, with either company officials or each other," it goes on to assert that "it is clear from the memorandum that this matter received special attention during the tour" (Letter at 2).
The letter cites pages 2 and 3 of the Memorandum for support for this statement (Letter at 2).
A review of the particular pages cited and the Memorandum as a whole demonstrates that the supplemental cooling water system contentions did not receive special attention during the tour.
As noted earlier, the contentions received attention on the tour only insofar as they were briefly identified (Memorandum at 2).
The cooling system itself received attention only insofar as it was described as part of the identification of various buildings at the Limerick site on overhead viewgraphs (Memorandum at 3).
Moreover, in light of the Appeal Board's citation of Mr. Zech's Memorandum as the basis for this conclusion, a
review of Mr.
Zech's Memorandum indicates that the item receiving the most attention on the tour was PECO's operator candidate training program (Memorandum at 2-3).
- Finally, as a
practical matter, if.one considers that all of the items described in the Memorandum were covered in 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br />, one realizes that the. tour gave participants only a broad overview of the facility and was, in fact, rushed (Memorandum at 1 and 3).
I should interject at this point that at the beginning of the tour when Mr. Boyer and Mr. Mulford provided de-scriptions of the history of the plant, its type and status, J
P
HOrzol H. E. Plcina, Ecq.
. November 14, 1983 Pcga 5 the supplemental cooling water system, and the four con-tentions dealing with that system, I
asked Mr.
Richard Starostecki of the NRC Staff whether this information was in the public record.
He indicated that it was and could be found in such documents as the FES-CP, the SER-CP, the Licensing Board's orders, and various newspaper articles.
I later asked Mr. Zech to verify that the information provided was'in the public record.
Prior to writing his Memorandum, he confirmed this.
In fact, he attached to his Memorandum and served on the parties various maps and charts from the construction permit proceeding displaying much of the information recited during the tour.
See Attachment A.
The letter next states:
(0]ne might reasonably infer subsequent discussion of the subject among the NRC participants, given the then-pending Licensing Board hearing on the supple-mentary cooling water system.
Letter at 2.
As I indicated earlier, I did not discuss any contentions with any PECO or NRC employee other than to check with Messrs. Starostecki and Zech that the information provided during the tour was
.in the public record.
Furthermore, to my knowledge, none of the other tour participants discussed the contentions.8/
The Appeal Board next notes that intervenors were excluded from the site tour (Letter. at 2).
It is unclear that this statement bears on your determination of whether my presence on the site tour should disqualify me from par-ticipation in the Limerick operating license proceeding.
I
- can, however, provide you with more information on the exclusion of the intervenors from the tour.
8/
To the extent that the use of the word. "pending" implies that a
hearing on these contentions was
- imminent, that of course was not rhe case.
As you know, there are many procedural steps between admission of and hearing on a contention in a licensing proceed-ing.
At the time of Commissioner Roberts' site visit, the first contentions had been admitted to the proceeding seven days earlier.
The hearing that was "pending" was the hearing on all admitted cont.entions, (Footnote Continued)
H3rzol H. E. Plains, Ecq.
Novcabar 14, 1983 Pega 6 At the.the I learned of. Commissioner Roberts' decision to visit Region I and the Limerick facility, I called PECO counsel, Mr. Troy B. Conner, Jr., and asked if the recently-admitted intervenors might accompany Commissioner Roberts on his tour.
He checked with PECO and advised me of their negative decision.
After commissioner Roberts indicated that he still intended to go, I spoke to Mr. Martin G.
Malsch, your Deputy General Counsel.
He indicated that, prior to undertaking the tour, Commissioner Roberts should advise the intervenors of his decision and, after the tour, serve on all parties a trip report describing the tour.
He furtner indicated that Commissioner Roberts should not discuss any substantive matter at issue in the proceeding.
After this conversation with Mr. Malsch, I called Ms. Judith Dorsey, counsel for Limerick Ecology Action and coordinator for the intervenors.9/
I told her of Commissioner Roberts' decision to go on tee tour, of PECO's ' decision ~ to exclude the intervenors from the tour, of Commissioner Roberts' intent not to discuss any substantive matter at issue in the proceeding, and of his intent to serve a trip report on all parties after the ' tour.
~Ms.
Dorsey thanked me for this information.
That same day, I wrote a letter to the Licens-ing-Board describing Commissioner Roberts' plan and had it served on the parties to the proceeding.
Mrs. Shoemaker's Letters Second, I would like to comment on the statements in the Appeal Board's letter regarding my responses to letters of October.6, 1983 and October 21, 1983 from Mrs.
C.
Jean Shoemaker.
The Appeal Board states that it is " troubled by Ms. Laverty's seeming reluctance to be more forthcoming in the specifics of her prior involvement as an NRC employee in Jan aspect of the licensing of the Limerick facility" (Letter at 2 (emphasis in original)).
I have not been reluctant to provide the information requested by the Appeal Board in 'Mrs.
Shoemaker's letters.
- Rather, I
did not understand information on the site visit to ever, explicitly or implicitly, have been requested.
Each-request for information, while broader than the request that preceded
-(Footnote Continued) not merely the four supplemental cooling water system contentions.
9/
I called Mr. Conner on June 3; I called Mr. Malsch and Ms. Dorsey on June 4.
I H3rzol H. E. Plnina, Esq.
Ncvember 14, 1983 peg 3 7 it, has been. limited to requests for information regarding my involvement.in the licensing proceeding.
The Appeal Board's dissatisfaction with my
.etters seems to flow from its -assiimption that presence on a site tour is involvement in a licensing proceeding.
I do not believe, either as a matter of fact or law, that my presence on the June 1982 site tour was part of the Lin.srick operating license pro-coeding.- Thus, I do not believe that a description of the June 1982 site visit falls within the scope of any of the Appeal Board's requests for information.
A more detailed analysis of this point follows.
Mrs. Shoemaker's first letter called my attention to the NRC's Code of. Conduct, specifically 10 C.F.R.
SS 0.735-26 and 0.735-27, and to the D.C.
Bar's rule DR 9-102
(
concerning imputed disqualification of law firms.
It also requested assurances that my former employment in the Office of Executive Legal Director and the Office of Commissioner Roberts did not preclude my appearance as counsel for the applicant in the Limerick proceeding.
'Of course, I'was aware of the NRC's Code of Conduct and DR 9-102.
At the time I first considered leaving Federal employment and-prior to receiving any job offers, I talked to.Mr. Irwin B.
Rothschild in your office about the Ethics in Government Act, the Commicsion's rules on the subject, the D.C.
Bar's Code of Professional Responsibility, and relevant court cases.
He gave me the Office of Personnel
' Management ("OPM")
regulations, a law review article, and several legal analyses of various court cases prepared by him.
At this time, I-also spoke to Mr. William Murphy in the Department of Treasury concerning his
- article,
" Vicarious Disqualification of Government Lawyers,"
pub-lished in the March 1983 ASA Journal and to Mr. Gary Davis in the Office.of Government Ethics concerning the provision of advice regarding conflicts to designated agency offi-cials.
Furthermore, as you know and as I stated in my letters 'of October 14, 1983 and October 31, 1983, at the time I
received an offer of employment from Conner
.Wetterhahn, P.C.,
I discussed with you and Mr. Rothschild the applicability of 18 U.S.C.
S 207 to my activities as an NRC employee.
The request for assurances when read in conjunction with the citation in Mrs. Shoemaker's letter to 10~C.F.R. S 0.735-27, which states that the General Counsel is the only NRC official authorized to provide a former employee with an interpretation of 18 U.S.C.
S 207, would seem to be a request-to know if the General Counsel had been consulted
H0rzol H. E. Plcina, Egq.
Ncvember 14, 1983 Page 8 prior to submission of my notice of appearance.
Thus, I provided the Appeal Board with the information that I had consulted with the General Counsel prior to submitting my notice of appearance.
At that point, a more detailed letter did not seem necessary.
Mrs. Shoemaker's letter of October 21, 1983 indicated a
that the Appeal Board was aware that only the General Counsel could offer a former employee with an interpretation of 18 U.S.C.
5 207 and that it was not offering such an interpretation (Letter of October 21, 1983 at 1).
- Instead, indicating that my letter of October 14, 1983 was "somewhat ambiguous," the letter stated that the Board was seeking more detailed assurances of no conflict (Id.). Specifically, e
the Appeal Board indicated its interest ~"in the specific nature of (my] involvement, if any, in this proceeding" (M.
(emphasis in original) ).
To illustrate the kind of information it wanted, the Board cited the Commission's decision not to review ALAB-726 (Id.).
Finally, the letter asked if the Appeal Board could assume that the General Counsel had been apprised of any association I had had with 4
the Limerick proceeding and that he concurred in my judgment (M.).
At this point, as you know, I called Mr. Rothschild to let him know that I
might have to request a written confirmation of the advice I had earlier received on the applicability of 18 U.S.C. S 207 to my participation in the Limerick proceeding.
Mr. Rothschild stated that he thought I should write a letter to the Appeal Board, describing the consultative process I had gone through and specifically stating his conclusion that my participation in ALAB-726 did not bar my representation of applicant in the Limerick proceeding.1_Of As you know, in response to this advice, I drafted such a letter and sent it to the Appeal Board on October 31, 1983.
That letter was followed by the Appeal Board's letter of November 9, 1983.
10/
In its letter of November 9,
1983, the Appeal Board states that it agrees that participation in ALAB *i 26
~
does not constitute substantial participation as that decision dealt with a " peripheral" or " ancillary" issue (i.e.,
jurisdication),
"not directly involving the substantive merits of a matter."
~
. HOrzol H. E. Plnina,-Ecq.
Novcmber 14, 1983 Pcga 9 Appeal Board's Letter In. its November 9 letter, the Appeal Board indicates its dissatisfaction with my failure to discuss commissioner Roberts' 1982 site visit in response to its question that I provide it with the specific nature of my involvement, if any,.in the Limerick proceeding (Letter at 3 n.3).
I did not discuss the 1982 site visit because it seemed to me to be outside the scope of the Board's inquiry.
My only involvement in the proceeding was my participation in the Commission's decision not to review ALAB-726.11/
Thus, I provided the Appeal Board with that informatiE.
Because the June 1982 visit to the Limerick facility was not related to the licensing proceeding or any Commission decision, I do not believe my presence on that site visit can reasonably be said, either as a matter of fact or law, to be part of the licensing proceeding.
The Appeal Board's letter also raises the issue of whether discussion of contentions in the proceeding during or after the site tour constitutes " participation" in the proceeding (Letter at 2).
Discussions when not coupled to the kinds of actions described in Section 0.735-26 would not seem to constitute " participation."
While the discussion of contentions with any party to the proceeding when other parties are not present would have to be analyzed to determine if it constituted a violation of the ex parte 12/ it would not seem to be a conflict.
DiscuTsion of rule,Eions l
conte among members of Commissioner Roberts' staff I
would not seem to be a
violation of either Section j
0.735-26 (a) or Section 2.780.
i I hope this information will assist you in the prepara-tion-of your formal written interpretation of the l
application of 18 U.S.C. S 207 to this case.
Sincerely, caNM essica H. Laver M/
As you know from our earlier conversation, I did not participate in the Ccmmission's dec:,.sion not to review the Director's decision denying a petition to stop j-construction of the Point Pleasant Diversion Project.
12/
10 C.F.R. S 2.780.
l
Harz31 H. E. Plain 9, Ecq.
Nov mbar 14, 1983 Pcga 10 cc:
Robert J. Sugarman, Esq.
Ann P. Hodgdon, Esq.
Judge Lawrence Brenner, ASLB Docketing and Service Branch Christine N. Kohl, Chairman' Dr. Reginald L. Gotchy Gary J. Edles
?
Attachmhnt A
~
~
LIMERICK GENERATING STATION, UNITS 1 & 2 DOCKET NOS. 50-352; 50-353 PLA'OT/ SITE' DATA Utility:
Philadelphia Electric Company Net MWe:
1100 for each unit Reactor Supplier:
General Electric Architect Engineer:
Bechtel Power Corporation Construction.Date:
CP Issued June 19,.1974 Location:
Limerick Township, Pennsylvania (3 miles ESE of Pottstown)
County / State:
Montgomery County, Pennsylvania Exclusion Radius / Low Population Zone:
2500 feet,1.3 miles Nearest Population Density: 3milesWNW(Pottstown,1970 pop.25,000)
Population Distribution:
1970(0-5 miles))67,229 (0-10 miles 152,644 1980(0-5 miles))80,240 (0-10 miles 232,200 Plant Construction Status:
Unit 1 - 74%; Unit 2 - 30%
In May 1982, the Pennsylvania PUC ordered construction halted on Lime' rick 2 be-cause of lack of need.
Inclusion of construction costs in the rate base is not permitted, and the PUC has indicated that it will not approve long tem bonds '
for the second unit.
The licrnsee is assessing the most economical means of complying with the PUC order, and will probably complete the Unit 2 cooling tower and use it to increase Unit 1 themal efficiency.
Operating License Status:
The first pre-hearing conference was held on Janu-ary 6-8, 1982.
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