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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20236E7761987-07-15015 July 1987 Order.* Withdraws 790320 Order to Show Cause Why Licensee Should Not Resume Responsibilities & Obligations Under License 13-10042-01 at Radioactive Waste Disposal Site Due to 870514 Agreement W/State of Il ML20215J9641987-06-16016 June 1987 Memorandum & Order.* Two Orders Subj to Appeal Vacated,Based on NRC Agreement W/State of Il That Regulatory Jurisdiction Over Sheffield Site Transferred from NRC to State Effective on 870601 & Proceeding Terminated.Served on 870617 ML20214N1151987-05-28028 May 1987 NRC Staff Motion to Terminate Proceeding on Appeal & to Vacate Licensing Board Decisions;Nrc Staff Response to Us Ecology Motion to Vacate.* Appeal Board Should Deny Us Ecology Motion.W/Notice of Appearance & Certificate of Svc ML20214G3631987-05-18018 May 1987 Order Granting Staff Motion to Hold in Abeyance Further Briefing of Appeal in Proceeding.Staff to File Motion to Terminate Proceeding within 10 Days of Signing of Agreement Between NRC & State of Il.Served on 870519 ML20214G4171987-05-14014 May 1987 NRC Staff Motion to Hold in Abeyance Further Briefing of Appeal in Proceeding.* on 870513,Commission Approved Agreement W/State of Il Under Section 274b of Atomic Energy Act of 1954.Notice of Appearance & Certificate of Svc Encl ML20210B7671987-04-29029 April 1987 Order.* Denies Us Ecology Motion for Sanctions & Other Relief.State of Il Brief to Be Filed & Served by 870515 & NRC Brief to Be Filed & Served by 870526.Served on 870430 ML20215K9001987-04-24024 April 1987 NRC Staff Response to Motion by Us Ecology for Sanctions & Other Relief.* Response Opposing Us Ecology 870421 Motion to Strike State of Il as Party to Appeal for Sanctions & Other Relief.Certificate of Svc & Notice of Appearance Encl ML20209E8751987-04-24024 April 1987 NRC Staff Response to Motion by Us Ecology for Sanctions & Other Relief.* Corrected Response Opposes Motion to Dismiss State of Il as Party to Appeal.Notice of Appearance & Certificate of Svc Encl ML20207A2591987-04-22022 April 1987 Order Requiring State of Il & NRC Responses to Motion by Us Ecology for Sanction & Other Relief to Be Placed in Mail No Later than Friday,870424 in Order to Ensure Receipt of Responses by 870427.Served on 870423 ML20204B6161987-03-18018 March 1987 NRC Staff Response in Opposition to Us Ecology Motion to Modify Time for Filing Briefs in Opposition to Appeal of Us Ecology.* Us Ecology Has Not Shown Any Reason for Departure from Normal Appeal Proceeding.Certificate of Svc Encl ML20207S6031987-03-17017 March 1987 Reconstitution of Aslab.* as Rosenthal,Chairman & TS Moore & Ha Wilber,Members.Served on 870318 ML20212P1831987-03-10010 March 1987 Memorandum & Order (Clarifying Finalty of Decision).* Us Ecology,Inc 870309 Motion That Board Clarify 870220 Memorandum & Order Denying Us Ecology,Inc Motion for Summary Disposition Granted & Proceeding Dismissed.Served on 870312 ML20212N4501987-03-10010 March 1987 Notice of Hearing (Postponement).* Evidentiary Hearing Re Us Ecology,Inc,Sheffield,Il Low Level Radwaste Disposal Site Originally Scheduled for 870324-27 & 0330-0403 in Chicago,Il Indefinitely Postponed.Served on 870311 ML20212K3421987-03-0505 March 1987 Notice of Hearing.* Evidentiary Hearings Will Be Held on 870324-27 & 0330-0403 in Chicago,Il.Served on 870305 ML20212D1691987-02-20020 February 1987 Memorandum & Order.* Us Ecology,Inc Motion for Summary Disposition Denied.Parties Directed to File Prefiled Testimony & Proposed Findings of Fact & Conclusion of Law to Be Received by Board by 870316.Served on 870224 ML20214C8231986-11-18018 November 1986 Memorandum Advising That Settlement Proposal W/Technical Exhibits Reflecting State of Il Most Recent Position Re Radwaste Disposal Site Under Review.Certificate of Svc Encl ML20211K3831986-11-10010 November 1986 Response to Us Ecology,Inc Statement of Matl Facts as to Which No Genuine Issue to Be Heard.Nrc Staff Does Not Contest Authenticity of NRC Documents Offered as Exhibits. Related Documentation & Certificate of Svc Encl ML20211K3331986-11-10010 November 1986 Response Opposing Us Ecology,Inc 861014 Motion for Summary Disposition on Issues of Law Raised Re Possession & License Termination.Licensee Possesses Matl Buried at Site & Lacks Right to Terminate License.Certificate of Svc Encl ML20215H1201986-10-20020 October 1986 Memorandum Clarifying Board 860822 Memorandum & Order Establishing Schedule for Conduct of Negotiations for Case Settlement.Staff Will Request Extension Prior to 861118,if Necessary,For Review & Comment on Technical Exhibits ML20214Q9301986-09-24024 September 1986 Order Granting Us Ecology,Inc & State of Il 860924 Joint Motion for Extension for Filing Summary Disposition Motions Until 861013 for Us Ecology & 861110 for NRC & State of Il. NRC Raised No Objections.Served on 860925 ML20212M7021986-08-22022 August 1986 Order Directing Parties to Make Effort to Settle All Issues by Negotiation.Due to Length of Time That Proceeding Pending,Aslb Intends to Move Expeditiously to Hearing in Dec.Served on 860826 ML20212M6721986-08-19019 August 1986 Transcript of 860819 Prehearing Conference in Rosemont,Il Re License for Low Level Waste Disposal Site in Sheffield,Il. Pp 1-86 ML20212B0021986-08-0101 August 1986 Memorandum Listing Factual Matters to Be Addressed by Parties at 860819 Prehearing Conference Re Sheffield,Il Low Level Radwaste Disposal Site.Served on 860804 ML20207B5631986-07-14014 July 1986 Order for Prehearing Conference to Commence on 860819,per RM Rader .Served on 860715 ML20211F8371986-06-13013 June 1986 Orders All Parties to Notify Board When State of Il Established Agreement State Status W/Regard to State Regulation of Source & Byproduct Matls & Propose Three Alternate Dates for Prehearing Conference ML20154B8041986-02-27027 February 1986 Memorandum & Order Directing Parties to File Fourth Joint Rept on Status of Settlement Negotiations on or Before 860424,setting Forth Actions Taken Since Third Joint Rept & Describing Other Developments.Served on 860303 ML20128P0091985-05-29029 May 1985 Memorandum & Order Requiring Parties to Rept Jointly on Status of Settlement Negotiations by 850729.Served on 850531 ML20058G2901982-08-0202 August 1982 Order Granting NRC 820728 Motion to File Status Rept on Negotiations 10 Days After Repts Filed by Other Parties. Motion Consistent W/Commission Regulations ML20058E5731982-07-28028 July 1982 Motion for Order Permitting NRC to File Status Rept on Settlement Negotiations 10 Days After Other Parties File Repts.Certificate of Svc Encl ML20055A4071982-07-14014 July 1982 Order Granting NRC Motion to Continue Proceeding Until 821001 to Provide Addl Time to Permit Settlement Negotiations.Parties Requested to File Statements on Progress of Negotiations within 15 Days ML20151A7791980-11-0303 November 1980 Response to Util 801010 Interrogatories & Requests for Admissions & Production of Documents.Cites & Documents Instances of Noncompliances Noted in IE Insp Repts.Insp Correspondence,Affidavits & Certificate of Svc Encl ML20147C4861978-12-0101 December 1978 NRC Staff Opposes Nuc Engr Co Motion to Compel Filing of Environ Impact Statement Since ASLB Lacks Auth to Order Issuance.Delays Have Been Caused by Applicant & Not Staff & EIS Must Consider Alternative Sites,Cert of Svc Encl ML20148T2911978-11-15015 November 1978 Notice of Withdrawal of Appearance from Subj Proc Re Radioactive Waste Disposal Site.W/Encl Cert of Svc ML20150A9131978-10-0505 October 1978 Response to ASLB 780921 Order.Due to Lack of Cooperation from Applicant,Issuance of Des by End of 1978 Not Possible. NRC Will Inform ASLB of Des Issuance Date After Receipt of Info from Applicant ML20126M7821978-09-0505 September 1978 Memorandum & Order Re Nuclear Engineering Co Application for Renewal & Amend of License to Operate LLRW Waste Burial Site Near Sheffield Il.Motion to Disqualify Remick as Board Member Denied ML20127A2751978-03-31031 March 1978 Affidavit of Mj Bell in Support of Defendant NRC Motion to Dismiss 1987-07-15
[Table view] Category:ORDERS
MONTHYEARML20236E7761987-07-15015 July 1987 Order.* Withdraws 790320 Order to Show Cause Why Licensee Should Not Resume Responsibilities & Obligations Under License 13-10042-01 at Radioactive Waste Disposal Site Due to 870514 Agreement W/State of Il ML20215J9641987-06-16016 June 1987 Memorandum & Order.* Two Orders Subj to Appeal Vacated,Based on NRC Agreement W/State of Il That Regulatory Jurisdiction Over Sheffield Site Transferred from NRC to State Effective on 870601 & Proceeding Terminated.Served on 870617 ML20214G3631987-05-18018 May 1987 Order Granting Staff Motion to Hold in Abeyance Further Briefing of Appeal in Proceeding.Staff to File Motion to Terminate Proceeding within 10 Days of Signing of Agreement Between NRC & State of Il.Served on 870519 ML20210B7671987-04-29029 April 1987 Order.* Denies Us Ecology Motion for Sanctions & Other Relief.State of Il Brief to Be Filed & Served by 870515 & NRC Brief to Be Filed & Served by 870526.Served on 870430 ML20207A2591987-04-22022 April 1987 Order Requiring State of Il & NRC Responses to Motion by Us Ecology for Sanction & Other Relief to Be Placed in Mail No Later than Friday,870424 in Order to Ensure Receipt of Responses by 870427.Served on 870423 ML20212P1831987-03-10010 March 1987 Memorandum & Order (Clarifying Finalty of Decision).* Us Ecology,Inc 870309 Motion That Board Clarify 870220 Memorandum & Order Denying Us Ecology,Inc Motion for Summary Disposition Granted & Proceeding Dismissed.Served on 870312 ML20212D1691987-02-20020 February 1987 Memorandum & Order.* Us Ecology,Inc Motion for Summary Disposition Denied.Parties Directed to File Prefiled Testimony & Proposed Findings of Fact & Conclusion of Law to Be Received by Board by 870316.Served on 870224 ML20214Q9301986-09-24024 September 1986 Order Granting Us Ecology,Inc & State of Il 860924 Joint Motion for Extension for Filing Summary Disposition Motions Until 861013 for Us Ecology & 861110 for NRC & State of Il. NRC Raised No Objections.Served on 860925 ML20212M7021986-08-22022 August 1986 Order Directing Parties to Make Effort to Settle All Issues by Negotiation.Due to Length of Time That Proceeding Pending,Aslb Intends to Move Expeditiously to Hearing in Dec.Served on 860826 ML20207B5631986-07-14014 July 1986 Order for Prehearing Conference to Commence on 860819,per RM Rader .Served on 860715 ML20211F8371986-06-13013 June 1986 Orders All Parties to Notify Board When State of Il Established Agreement State Status W/Regard to State Regulation of Source & Byproduct Matls & Propose Three Alternate Dates for Prehearing Conference ML20154B8041986-02-27027 February 1986 Memorandum & Order Directing Parties to File Fourth Joint Rept on Status of Settlement Negotiations on or Before 860424,setting Forth Actions Taken Since Third Joint Rept & Describing Other Developments.Served on 860303 ML20128P0091985-05-29029 May 1985 Memorandum & Order Requiring Parties to Rept Jointly on Status of Settlement Negotiations by 850729.Served on 850531 ML20058G2901982-08-0202 August 1982 Order Granting NRC 820728 Motion to File Status Rept on Negotiations 10 Days After Repts Filed by Other Parties. Motion Consistent W/Commission Regulations ML20055A4071982-07-14014 July 1982 Order Granting NRC Motion to Continue Proceeding Until 821001 to Provide Addl Time to Permit Settlement Negotiations.Parties Requested to File Statements on Progress of Negotiations within 15 Days ML20126M7821978-09-0505 September 1978 Memorandum & Order Re Nuclear Engineering Co Application for Renewal & Amend of License to Operate LLRW Waste Burial Site Near Sheffield Il.Motion to Disqualify Remick as Board Member Denied 1987-07-15
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a UNITED STATES OF AMERICA @'@
NUCLEAR RE'GULATORY COMMISSION 8 4 d
ATOMIC SAFETY AND LICENSING APPEAL BOARD 2 e$N Alan S. Rosenthal, Chairman Richard S. Galzman @ '
Dr. W. Reed Johnson 4 to sI l ' '
SEn s
~) SEP 6 1978 In the Matter of )
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NUCLEAR ENGINEERING COMPANY, INC. ) Docket No. 27-39
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(Shef field, Illinois Low-Level )
Radioactive Waste Disposal Site) ) ,
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Messrs. William J. Scott, Attorney General of Illinois, and Dean Hansell, Assistant Attorney General of Illinois, Chicago, Illinois (Mr.
Russell R. Eggert and Ms. Susan N. Sekuler, Chicago, Illinois, of counsel), for the inter-venor State of Illinois.
Mr. John M. Cannon, Chicago, Illinois, for the intervenor Chicago Section, American Nuclear Society.
Messrs. Troy B. Conner, Jr. and Mark J. Wetterhahn, Washington, D.C., for the licensee Nuclear .
Engineering Company, Inc. ,
Mrs. Ellen Silberstein 'Friedell for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER September 5, 1978
( ALAB - 4 94)
- 1. This proceeding involves the Nuclear Engineering .
Company's application for renewal and amendment of its license to operate a low-level radioactive waste burial ,
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1 PDR FOIA-MESTER92-71 PDR-.
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site near Sheffield, Illinois. One of the parties is the Chicago Section of the American Nuclear Society 1/
(Chicago section) . In view of this circumstance, another party, the State of Illinois, seeks to disqualify Dr. Forrest J. Remick from further service as a member of the Licensing Board assigned to the proceeding because he is a member of the American Nuclear Society (ANS) . -
,', According to Illinois ' disqualification motion, although
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he is a Pennsylvania resident and does not belong to the Chicago Section Because the Society intends to adduce evidence on matters which go beyond the narrow interests of the Chicago Section * ** , Dr . Remick's affiliation with the Soc,iety raises at least the appearance of impropriety. While the State is in no way suggesting that Dr. Remick would act in other than complete good f aith, in f airness to all parties to this proceeding, as well as to the process itself, Dr. Remick should be disqualified as a member of this Licensing Board. _
1/ The Licensing Board initially denied the Chicago
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Section's petition for leave to intervene. On the appeal taken from that denial, we agreed with the Board below that the Chicago Section lacked standing to intervene as a matter of right but nonetheless determined that it should be given another opportunity to demonstrate that it should be allowed to partici-pate as a matter of discretion. ALAB-473,-7 NRC (May 3, 1978). The Chicago Secticn availed itselI~-
of that opportunity and was admitted as a party by Licensing Board order of June 20, 1978. ,
2/ Dr. Remick is a part-time technical member of the Atomic Safety and Licensing Board Panel, from which the licensing boards for particular proceedings are drawn. He is principally employed by the Pennsylvania State University in State College.
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The motion was opposed by the Chicago Section, the licensee and the NRC staff. On August 16, 1978, the Licen-sing Board entered an order in which it expressed- the unanimous view that there was no reason why Dr. Remick should be disqualified and therefore referred the motion 3/
to us for determination. ~~ On full consideration of the arguments of the respective parties , we reach the same conclusion.
- 2. In the Midland proceeding, we canvassed the statu-tory and judicial authority respecting the grounds on which disqualification of a member of an adjudicatory body such 3/ 10 CFR 2.704 (c) explicitly requires such a refer-
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ral in circumstances where the Licensing Board does not grant a motion to disqualify one of its members and the member in questien does not recuse himself.
As the Licensing Board pointed out, Section 2.704(c) also requires that a disqualification motion "be sup-ported by affidavits setting forth the alleged grounds We have held that this require-i for disqualification".
ment must be observed even if the motion is founded wholly on matters of public record. Duauesne Light Co.
(Beaver Valley Power Station, Units 1 and 2) , . ALAB-172, 7 AEC 42, 43 fn. 2 (1974). By motion filed Aughst 25, i
1978, Illinois has sought to supply the missing af fida-vit. The document submitted, however, though signed l
! by counsel of record, does not bear the attestation of a notary or other official authorized to administer Nonetheless, the absence i caths and is thus inadequate.
of an affidavit here is not crucial. The Illinois' mo-tion is founded on a fact to whfch the Board itself had called attention in its March 1, 1978 order ruling l
! upon various intervention petitions (at fn. 2). Further
! in light of the narrow scope of the State's challenge to Dr. Remick's continued participation, an affidavit was not needed to reduce "the likelihood of an irres-ponsible attack upon the probity Beaver or objectivity vallev, of the Board member * *
ALAB-172, supra, at fn. 2.
as a' licensing board may be sought. Our conclusion was that
- an administrative trier of fact is subject to disqualification if he has a
- direct, personal, sWbstantial pecuniary interest in a result; if he has a " personal bias" against a participant; if he has served in a prosecutive or investigativo 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. .g Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973). None of these bases has even arguably been shown to be present here.
It is of course not claimed that, by reason of his ANS membership, Dr. Remick has a pecuniary interest in the outcome of the proceeding, is personally biased against Illinois or another of the parties, or has prejudged f ac-tual issues. Rather, as we have seen, Illinois explicitly disclahns any suggestion that Dr. Remick "would act in other than complete good f aith" . It puts its entire reliance upon the " appearance of impropriety" which assertedly we'uld flow from his continued participation on the Licensing Board in the face of the AMS affiliation.
We can take official notice of the fact that the AMS is a professional organization of national scope. Its
membership (which according to the staff totals approxi-mately 13,000) is drawn from the ranks of _ (inter alia) industry, government, universities, nuclear medicine This being so, it facilities and research laberatories.
seems scarcely likely that anyone would presume that positions taken by the Chicago Section -- in litigation or otherwise -- reflect the viewpoints and interests of all of the members of that Section -- let alone the nation-
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wide ANS membership. We think it is unreasonable to conclude that, simply because of his ANS affiliation, a risk exists that a Pennsylvania State University faculty member would be partial to the litigating posture of an ANS Section (to which he does not belong) in a proceeding involving a distant waste burial site in which he has no
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interest.
4/ In this regard, it is our understanding that the
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by-laws of the Chicago Section preclude it from acting for or in the name of the ANS and also provide that no expression of the Section shall~ be considered 1 an expression of the ANS as a whole without prior approval of the latter's Board of Directors.
5/ This is true whether or not, as Illinois maintains,
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the Chicago Section proposes "to present- evidence of relevance to questions of national policy." For one thing, there is nothing to indicate that the Chicago Section's views on appropriate national policy would coincide with those of Dr. Remick. For another, in its August 16 order the Licensing Board stated that it would entertain no evidence of that character.
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" Illinois has not cited, and we have not discovered on our own, any authority to support its thesis that mem-bership in a national professional organization perforce disqualifies a person from adjudicating a matter to which a local chapter of the organization is a party. On the other hand, the staff has called attention to authority pointing in the opposite direction. In re Rhodes, 370 F.2d 411 (8th Cir.), certiorari denied, 386 U.S. 999 (1967)
'I hear disbar-(judicial members of an integrated bar may ment proceedings). See also, Abbott Labs. , Ross Labs.
Division _ v. tiLRB, 540 F.2d 662, 664-65 (4th Cir. 1976);
Overlook Nursing Home, Inc. v. United States, 556 F.2d 500, 503 (Ct. Cl. 1977).
The staff further provided the Licensing Board with a copy of a letter from the Acting Assistant Attorney Gen-eral in charge of the Antitrust Division of the Department of Justice to a judge of the District Court for the District of Columbia, cealing with whether membership in the Amer-ican Bar Association disqualified her from hearing an anti-trust action challenging the ABA's restrictions on adver-
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tising by lawyers. The letter stated that, in the view 6/ Letter from acting Assistant Att'orney General Joe Sims to Judge June L. Green, dated August 16, 1976, re United States of America v. American Bar Association (Civil Action No. 76-1182, D.C. D.C.).
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of the United States, " mere membership in the ABA, an _
association of approximately 200,000- attorneys, would-not create an' appearance of partiality on the part_of a judge hearing this matter" and thus would not require the judge 7/-
to disqualify herself by reason of 28 USC 455 (a) . In order for that Section to _ come into play, the lette'r con-tinued, the judge would have had to have been an active participant "in activities involving adoption or interpre-tation of the ABA's restrictions on advertising by lawyers."
Although needless to say we are not bound by that analysis here, it appears both sensible and in full conformity with the jurisprudence on the subject. It therefore commends itself to us in the analogous circumstances of.this case.
The motion to disqualify Dr. Remick is' denied.
It is so ORDERED.
- FOR THE APPEAL BOARD mne] f A Margpet E. Du Flo=
Secretary to the
- Appeal Board 7/ Section 455 (a) , added to the Judicial _ Code in 1974,
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provides that. " (alny * * * . judge * *
himself'in any proceeding <in which his=imoartiality might reasonably be questioned".
- Because he is a l member of the American Nuclear Society -
(albeit not of the Chicago Section) , Dr. . Johnson did not participate ~in the consideration or disposition of: this motion. In view of the conclusions reached by his col-leagues, he will. participate in any-further matters _ coming before this Board-for decision.
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