ML20148J272
| ML20148J272 | |
| Person / Time | |
|---|---|
| Site: | Atlantic Nuclear Power Plant  |
| Issue date: | 11/03/1978 |
| From: | Roisman A National Resources Defense Council |
| To: | |
| References | |
| NUDOCS 7811150227 | |
| Download: ML20148J272 (11) | |
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.mM=%4N UNITED STATES OF AMERICA e *b NUCLEAR REGULATORY COMMISSION P ,
-2 BEFORE THE COMMISSION F' '
,, gyj 2' a4*
In the Matter of ) y \+o OFFSHORE POWER SYSTEMS )
) Docket No. STN 50-437 (Manufacturing License for Floating )
Nuclear Power Plants) )
NATURAL RESOURCES DEFENSE COUNCIL RESPONSE TO MEMORANDA TO COUNSEL Both Chairman Hendrie and Commissioner Oilinsky have disclosed direct involvement with respect to the substance of some of the issues raised by the pending certification of the Class 9 question addressed in ALAB-489. Both have indi-cated that this prior involvement would not affect their ability to be impartial. Therefore, the question raised by the Memor-anda to Counsel is not the fact of impartiality -- a fact which we do not dispute -- but whether there is an unacceptable appearance of partiality or whether there is a non-waivable conflict requiring disqualification. .
The relevant legal provision has been previously determined to be 28 U.S.C. S 455. Project Management Corporation (CRBR) , Docket No. 50-537, Memorandum to Counsel for the Parties dated July 14, 1976. That statute, written for determining disqualification of judges, includes a waivable restriction on participation of a judge whose impartiality might reasonably be questioned (S 455 (a) & (e)) and a series of non-waivable restric-tions (S 455 (b)) . The applicability of these latter restrictions 781115 d A.2 7
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-to Chairman Hendrie and Commissioner Gilinsky is confused because they were written in the context of a lawyer whose prior employment caused him to know facts, give advice or have an opinion on the matters at issue. We can discern no reason why S 455, which is being used as guidance for the NRC and not a binding statute, should not be read to apply to analogous situations with respect to non-lawyers.
The matters in which Chairman Hendrie and Commissioner Gilinsky were previously involved have po^tentially important implicatione for the OPS proceeding. In ALAB-489, the Appeal Board addressed the issue of whether the Commission had as a policy ruled that the consequences of core melt events at FNPs should not be discussed in environmental impact statements.
Chairman Hendrie attended a meeting in April 1974 at which the reported consensus was as follows:
The position of the Commiscion continues to be that the probability of core melt !
is sufficiently low so that core melt ;
need not be a design basis event. There-fore, the staff will not, at this time, initiate additional studies to investi- i gate the consequence of core melt, either i for land based or offshore plants.
J Commissioner Gilinsky supervised a team at Rand who in September 1974 concluded in a draft research proposal submitted to the ADC, following discussions with the AEC regarding the desirability 1
of such a proposal being submitted.
The probability of a moltdown can be made extremely low through' the use of adequate engineered safeguards. Nevertheless, it is essential in licensing offshore plants to assess the consequence of a core melt-down and subsequent release to the envir-onment.
3 I. Mandatory Disqualification (S 455 (b)) '
Chairman Hendrie r
Chairman Hendrie's comments relate to the Commission position on Class 9 accidents. That is relevant in the following respects:
- 1. As a matter of fact, what did the Commission intend when it drafted the proposed Annex to 10'CFR Part 50, Appendix A?
- 2. As a' matter of law, what did the Commission intend when it drafted the proposed Annex to 10 CFR Part 50, Appendix A?
- 3. As a matter of fact, for how long, if at all, did the Staff take the position that Class 9 accident consequences were not relevant to the environmental analysis for a Zloating nuclear plant?
On the issue of the existence or non-existence of a i
prior Commission position on evaluating the consequences of a. '
l core melt event at an FNP,. Chairman Hendrie is more nearly l
a potential witness than a person who expressed prior opinions '
or judgments on or gave advice with respect to any issue now involved in this case.
The provisions of S 455 (b) (1) specifically cover the situation of a judge who has personal knowledge of disputed evidentiary facts and requires disqualification:
(b) He shall also disqualify himself in the i following circumstances:
l (1) Where he has a personal bias or l prejudice concerning a party, or personal !
knowledge of disputed evidentiary facts concerning the proceeding [.]
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l The knowledge possessed by Chairman Hendrie is at most personal knowledge.of wnat a number of peopla believed was Commission policy. There is nothing to discicse that personal knowledge of the views of any Commissioner are alleged to be known. Nor is it-clear that personal knowledge of what the Commissioners thought.would be admissible. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); but cf. ALAB-489, Slip Op.
at pp. 49-50, and compare Slip Op., pp. 56-7. Thus the restric-tions of S 455 (b) (1) do not *ppear to be ralevant here.
i The issue of whether, as a matter of law, the Annex was intended to include or exclude FNPs presents a different and more difficult issue. In S 455 f b) (?), a judge is disqualified if, during government employment, he held an opinion on the merits of the particular case in controversy:
(b) He shall also disqualify himself in the following circumstances:
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness l concerning the proceeding or expressed an opinion concerning the merits of the par-ticular case in controversy [.]
i The meeting minutes do not clearly disclose whether Chairman i Hendrie's views (expressed in a discussion on the licensing of FNPs), as part of the consensus, represent an opinion or a statement of fact -- i.e., a statement of the practice,1 not l
l 1/ If it was a practice, it was not sufficiently long-standing to become in effect a regulation of the Commission. In addition the meeting minutes do not explicitly address the precise legal issue involved here - i.e., the need to evaluate core melt con-sequences as part of the environmental review and the meaning of the Annex.
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5 necessarily of the rule. Although this would only be an opinion on a portion of the merits of the case, if Chairman Hendrie did in fact. mean to express an opinion, then disqualification is required. Only he can. clarify this point.
On the third issue regarding the staff position on the need to include Class 9 consequences, the provisions of S 455 (b) (1) are again applicable. The meeting minutes reflect the existence of a staff. policy and Chairman Hendrie apparently concurred in that policy. However, it would not appear that there is much room for dispute about the fact of the staff policy as of April 1974. If all parties stipulate to that fact, then Chairman Hendrie's knowledge of the fact would be irrelevant. A stipu-lation would have to be initiated by the staff which should know what was the staff position as of April 1974.
In sum, Chairman Hendrie's prior opinion on the Commission 1
position on Class 9 accident consequences for FNPs and his know-ledge of a staff position on that issue does constitute infor-mation and opinions which could be relevant to this proceeding.
If he did hold an opinion regarding the Commission position 2 on the Annex to Appendix A, then the provisions of S 455 (b) (3) would require disqualification. If the factual issue of what was the staff position in 1974 is not subject to stipulation, then
- the provisions of S 455 (b) (1) would require disqualification.
2/ We do not believe the staff position on class 9 accident consequences at FNPs as of April 1974 is relevant to the issues presented, But Applicant apparently disagrees and thus for purposes of the disqualification issue the staff position is assumed to be relevant.
6 Commissioner Gilinsky Commissioner Gilinsky presents a markedly different problem. Assuming that views of those who worked under his rupervision are his views, then in 1974 he held the view that the consequences of a Class 9 accident should be analyzed in deciding whether to license FNPs. Assuming the inclusion of this opinion was not based upon knowledge that this was staff policy in 1974, and assuming the refusal by AEC to fund the proposal was not based upon the opposite belief regarding the relevance of such a study, the provisions of S 455 (b) (1) are not relevant. There is no apparent relevant fact of which Commissioner Gilinsky has personal knowledge.
The provisions of S 455 (b) (3) present a much more difficult issue. Although Commissioner Gilinsky was not employed directly by the government, the function he performed i
at Rand was not, for these purposes, dissimilar to government employment. The dichotomy between .c 455 (b) (2) and (b) (3) does not make sense for non-lawyers and should not be read to exclude the non-lawyer who in his professional capacity holds an opinion on the merits of a controversy. Although S 455 (b) (2) refers to
" matter" and (b) (3) refers to " proceeding" and this could argu-ably make a difference as to which provision governs, we believe the concept of matter was not intended to be read so broadly that an opinion on the issue involved in the proceeding auto-matisally disqualifies the judge from participation in the pro-ceeding.. ~ !! owe ve r , if Commissioner'Gilinsky's prior involvement with this issue stems from a research request
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concerned with OPS -- which looked to Reactor Safety Research to do the work - then the opinion formed by Commissioner Gilinsky would have arisen as part of the same matter involved here and S 455 (b) (2) would require disqualification. Commissioner Gilinsky will have the facts available to determine the issue.
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II. Discretionary Disqualification (S 455(a))
I (a) Any justice, judge, magistrate, or referee !
in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be I
questioned.
It is arguable that both Chairman Hendrie and Commissioner l Gilinsky could have their impartiality questioned. It appears to us that, with respect to Chairman Hendrie and based on the documents disclosed, the alleged partiality would be base ~. on limited involvement relevant only to aspects of the preceeding which are at best remote. Assuming there is no mandatory dis-qualification with respect to Chairman Hendrie, we wc uld wa /e any objection that might be raised under S 455(a).
Commissioner Gilinsky presents a different case. Unless ,
the view expressed in the research proposal is not fairly attributable to him, he has previously expressed an opinion on the outcome of this proceeding. While this may not, due to the technical wordin g of S 455 (b) , require disqualification, it does nonetheless create an appearance of prejudgment. His judgement corresponds with ours on the merits of this case l
8 and we could not question his impartiality.3 Applicant would have to state whether the prejudgment on the issue creates a question of impartiality from its perspective and whether or not to waive any objection. For our part, we waive any possible objection under S 455(a) with respect to Commissioner Gilinsky.
One final point should be stressed. Our analysis of S 455(b) is admittedly technical and focusses on the precise words of that section. Arguably such a technical analysis is inappropriate and the at ysis should be more policy oriented.
We feel that because S 45 ,b) requires automatic disqualifica-tion, it should be read strictly. If there is a genuine problem with respect to impartiality, the more general provisions of S 455(a) would apply.
This lengthy analysis leaves open the question of mandatory disqualification because of the need for more facts.
As to discretionary disqualification, we believe it is not warranted but would not file an opposition if the applicant 3/ Our view might be different if the prejudgment appeared to be the product of a lengthy process of analysis. Where it appears co be less intense than that, we fall to see how it could influence his judgment, particularly since we believe that an impartial judge would reach precisely the same con-clusion based upon a reading of the record here and the law.
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l felt it was appropriate with respect to Commissioner Gilinsky.
Respectfully submitted, c-7 ~
Y .AD i /t
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Anthony Z. poitman 1 Natural Resodrces Defense Council I 9 ].7 15th Street, N . * ?. I Washington, D.C. 20005 l (202)737-5000 ;
Dated: November 3, 1978 ;
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
OFFSHORE POWER SYSTEMS ) Dock #t No. STN 50-437
-)
(Manufacturing License for )
Floating Nuclear Power Plants) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRDC RESPONSE TO MEMORANDA TO COUNSEL were served today, November 3, 1978, upon the persons whose names appear on the attached list.
Asterisks indicate hand delivery; all others were served by first class mail, postage prepaid. J l
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. I Anthony Z. dis an I
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[ Richard S. Salzran, Chair an 7 Stephen M. Schir.ki, Esq.
Atcmic Safety and Licensing Apreal Board Office of Executive Iegal Directcr U.S. Nuclear Pegulatory Carlssion U.S. Nuclear Pegulatory Comnissicn Washington, D.C. 20055 Washington, D.C. 20555 IDr.JohnH. Buck Carl Valore, Jr., Esq.
Atcmic Safety and Licensing A ;eal Board Valore, McAllister, DeBrier, Arcn &
U.S. Nuclear Pegulatory C .a.ission Westnereland Washington, D.C. 20555 535 Tilten Poad P. O. Box 152 prMichaelC.Farrar Northfield, New Jersey 08225 Atanic Safety and Licensi g Jrpeal Beard U.S. Nuclear Pegulatorj Ccrissien [JohnF.Ahearne Washington, D.C. 20555 Camdssioner U.S. Nuclear Regulatory Cannissicn ;
rgSheldon J. Wolfe, Esq. , C e an Washington, D.C. 20555 Atanic Safety and Licensing 3 card i U.S. Nuclear Pegulatcry C=rission R. William Potter, Escr. I Washingten, D.C. 20553 Assistant Ceputy Public advccate State of New Jersey Dr. David R. Schink P. O. Box 141 Atanic Safety and Licensing 3 card Trentcn, New Jersey 08601 Departrent of Cceancgraph.
Texas ACI Unitersity Mr. Kenneth B. Walten College Station, 'Ibxas 77E
- 3 Brigantine Tutoring 309 21st Street, South
[IasterFornblith,Jr. Brigantine, New Jersey 08203 Atcmic Safety and Licensi 7 3 card U.S. Nuclear Pegulatory Ccrissicn Mr. Ccorge B. Ware!
Washington, D.C. 20555 Nuclear Power Plant Ccrrittee City Hall Dr. David L. Hetrick Brigantine, New Jersey 08203 Atcric Safety and Licensing Scard University of Arirena Harold P. Abrams, President Tucson, Aritena 05721 Atlantic 03unty Citizens Council on Environnnnt l
[ Joseph Hendrio, Chairnan 9100 A:rherst Avenue U.S. Nuclear Pegulatory Catm'n {
Margate, New Jersey 08402 Washington, D.C. 20555 g Docketing and Service Section l Office of the Secretary U.S. Nuclear regulatory Conrissicn Barton Z. Ccwan, Esq. Washington, D.C. 20555 John R. Kenrick, Esq.
Eckert, Searans, Cherin 5 ."elictt Pichard M. Hluchan i
600 Grant Street Deputy Attorney General ,
Pittsburgh, Pennsylvania ~.5219 State of New Jersey )
36 West State Street pVictorGilinsky Trenton, New Jersey 03625 Cc:missioner U.S. Nuclear Pegulatory Cone'n [ Peter Bradford, Cannissioner Washington, D.C. 20555 U.S. Nuc. lear Pegulatory Ccnmission Washington, D.C. 20555
%RichardT. Kennedy,Coamissioner ;
U.S. Nuclear Regulatory Ccnmission '
Washington, D.C. 20555 b_