ML20207E397
| ML20207E397 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/18/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | ANTHONY, R.L., FRIENDS OF THE EARTH |
| References | |
| CON-#386-023, CON-#386-23 ALAB-840, OL, NUDOCS 8607220318 | |
| Download: ML20207E397 (13) | |
Text
_
i 3
D 000KETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSW R 18 P3 58 ATOMIC SAFETY AND LICENSING APPEAL BOARD gFFICE OF SEikdiAF f Administrative Judges:
OCKEigb.}LFylCI.
Christine N. Kohl, Chairman July 18, 1986 Gary J. Edles (ALAB-840)
Dr. Reginald L. Gotchy 3ERVED JUL2/1996 3
In the Matter of
)
)
PHILADELPHIA ELECTRIC COMPANY )
Docket Nos. 50-352 OL
)
50-353 OL (Limerick Generating Station, )
Units 1 and 2)
)
)
Robert L.
Anthony, Moylan, Pennsylvania, intervenor pro se and for intervenor Friends of the Earth.
Troy B.
Conner, Jr., Mark J. Wetterhahn, and Nils N.
Nichols, Washington, D.C.,
for applicant Philadelphia Electric Company.
Benjamin H. Vogler for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER In a pleading served June 25, 1986, joint intervenors Robert L. Anthony and Friends of the Earth (Anthony / FOE) have petitioned both us and the Commission concurrently to reopen the record on offsite emergency planning in this operating license proceeding.
The basis for intervenors' request is the Washington Legal Foundation's (WLF) submission to the Commission and various NRC officials of an April 1986 " working paper" titled "Offsite Emergency Planning for Nuclear Power Plants:
A Case of Governmental Gridlock" [hereafter, "WLF Working Paper"] and authored by 8607220318 860718
{DR ADOCK 05000352 PDR
- 2) F L
i 2
Robert M. hader, counsel for applicant Philadelphia Electric Company (PECo) in this proceeding.1 Anthony / FOE contend that this filing, which expresses views critical of the NRC's emergency planning requirements for nuclear power plants, is an ex parte communication prohibited by 10 C.F.R.
S 2.780 (a).
They claim that this constitutes unethical conduct by PECo's counsel and that it has prejudiced and discredited the agency's hearings on offsite emergency planning in connection with the Limerick facility.
By way of relief, Antheny/ FOE request disqualification of Mr.
Rader's law firm, Conner & Wetterhahn, P.C.,
and reopening of the record on emergency planning.
PECo and the NRC staff oppose the petition.
As explained below, we deny Anthony / FOE's request.
1.
At the outset, we address the question, raised by PECo, whether we have jurisdiction to rule on Anthony / FOE's 1 Among the NRC officials to whom WLF sent a copy of the working paper was Alan S.
Rosenthal, Chairman of the Atomic Safety and Licensing Appeal Panel.
Mr. Rosenthal received the document on or about May 15, 1986, notwithstanding PECo's belief that it was mailed May 1.
See Licensee's Answer to Petition (July 9, 1986) at 13 n.26.
The members of this Appeal Board, as well as all parties to this proceeding, were served with copies of the WLF paper on June 2, 1986, by memorandum from William L. Clements, Chief of the NRC's Docketing and Service Branch.
This memorandum noted the NRC General Counsel's conclusion that the filing was an ex parte communication and should be placed in the public record and served on all parties to this proceeding pursuant to 10 C.F.R. S 2.780.
(
~. -,. - _. _. _,
i 3
petition.
We concluded our consideration of those offsite emergency planning issues contested by Anthony / FOE with the issuance on May 7, 1986, of ALAB-836, 23 NRC 479.
PECo thus claims that only the Commission has jurisdiction over the petition because "no phase of the matter in question is now before the Appeal Board."
Licensee's Answer and Suggestion of Lack of Jurisdiction (July 10, 1986) at 1.
The staff, on the other hand, implies that we do have jurisdiction 2 Indeed, PECo is so certain of its views on the extent of our jurisdiction that initially it addressed its reply to Anthony / FOE's petition only to the Commission itself, favoring us with but one informational copy of this pleading.
See Licensee's Answer to Petition, supra note 1.
Having not received any reply directed to the Anthony / FOE petition pending before us, and finding it incredible that a party would not reply to a motion raising such serious issues as disqualification of its counsel and reopening of the proceeding, we asked the Board's secretary to inquire of PECo's counsel when we might expect to receive its reply.
When it became clear that PECo intended to direct its reply solely to the Commission, our secretary advised its counsel that the Appeal Board would construe such action as a default.
See 10 C.F.R. S 2.707.
PECo then responded with a timely pleading to us, essentially incorporating by reference its earlier reply to the Commission.
We remind counsel that "(e]very tribunal -- whether judicial or administrative -- possesses the inherent right (indeed, the duty) to determine in the first instance the bounds of its own jurisdiction."
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980), citing United States v. United Mine Workers, 330 U.S.
258, 292 n.57 (1947).
The fact that Anthony / FOE l
directed their petition to both the Commission and us does not deprive us of the responsibility to rule on this matter pending on our docket.
Even if such ruling were only a dismissal or referral of the petition, that action would be a matter for this board to undertake, not for a party to presume.
1 -
i 4
because other offsite emergency planning issues remain before us.
Response of the NRC Staff (July 15, 1986) at i n.1.3 PECo has too readily presumed away our jurisdiction in this instance.
It is true that, in general, our jurisdiction over most offsite emergency planning issues passed to the Commission with the issuance of ALAB-836 and the subsequent filing of petitions for review of that decision.
See ALAB-823, 22 NRC 773, 775 (1985).4 The gist of part of Anthony / FOE's latest motion to reopen, however, is that the process that led to our May 7 decision in ALAB-836 was somehow compromised by the prior publication of the WLF Working Paper on emergency planning.
Where a question has been raised about the integrity of the decisionmaking process, the decisionmaker necessarily retains residual power to address such matter when requested, notwithstanding that jurisdiction over the underlying substantive claims themselves now lies elsewhere.
These other issues concern the evacuation plan for the State Correctional Institution at Graterford.
In addition, we continue to have appellate jurisdiction over the disposition of an emergency planning issue remanded to the Licensing Board in ALAB-836.
None of these remaining matters is the subject of an Anthony / FOE contention.
Both PECo and Anthony / FOE have petitioned for review 4
of different aspects of ALAB-836.
Their petitions remain j
pending before the Commission.
5 Cf. Massachusetts Bay Telecasters, Inc. v. Federal Communications Commission, 261 F.2d 55, 67 (D.C. Cir. 1958),
modified on other groun'ds, 295 F.2d 131, cert. denied, 366 U.S. 918 (1961) (decisionmaker itself should determine initially questions concerning improper influence on its decisions).
Hence, to the extent that Anthony / FOE's petition suggests a taint on the process that resulted in the issuance of ALAB-836, we do indeed have jurisdiction to address the petition.5 2.
PECo devotes the major portion of its reply to an argument that the distribution of the WLF Working Paper was not an ex parte communication.
See generally Licensee's Answer to Petition, supra note 1, at 4-11.
It describes this document as "a generic analysis of basic emergency planning and preparedness issues common to all proceedings and.
. not, in its transmittal to certain NRC employees, associated with any particular proceeding."
Id. at 4 l
(footnote omitted).
PECo compares the WLF Working Paper to
[
a law review article and contends that considering such Insofar as Anthony / FOE's motion concerns the alleged influence of the WLF Working Paper on the Commission's consideration of the pending petitions for review of ALAB-836 (see supra note 4), only the Commission, of course, can respond on taat score.
Thus, the petition presents the rare circumstance where two adjudicatory bodies each must address different arguments within the same pleading.
Anthony / FOE therefore properly directed their petition to both the Commission and to us.
i l
6 material as ex parte would effectively preclude the NRC's adjudicators from reading (and even discussing with colleagues) similar trade publications or public statements.
Id. at 5, 6.
PECo's comparison of the WLF Working Paper to law review articles and the like is not particularly convincing.
For one thing, Mr. Rader's paper is not so generic as PECo's reply suggests.
- See, e.g., WLF Working Paper at 29, 38-41, 52-55, 58-61 (discussing several substantive issues litigated in the Limerick proceeding, some of which -- such as the emergency plan for the State Correctio,nal Institution at Graterford -- have not yet been finally resolved).
Moreover, it is not simply the content of the document, but the manner in which it comes to the decisionmaker's attention that is relevant.
The Commission's regulations prohibit any party to a proceeding for the issuance.
. representative, or of a license.
. or any.
any other person directly or indirectly acting in l
behalf thereof [from] submit [ ting) off the record to Commissioners or such staff members, officials, and employees, any evidence, explanation, analysis, or advice, whether written or oral, l
regarding any substantive matter at issue in a j
proceeding on the record then pending before the NRC for the issuance.
. of a license.
I I
[
t 7
10 C.F.R. S 2.780 (a) (emphasis added).6 See also Administrative Procedure Act (as amended in 1976 by the Government in the Sunshine Act) [hereafter, "APA"), 5 U.S.C.
SS 551(14), 557 (d) (1).
It is one thing for a judge to go to the library and discover a law review article that discusses issues raised in a case then pending before him or her, and that is authored by one of the attorneys in that case.
But while it may not be the circumstance before us here, it is quite another matter for counsel in a case to submit to a judge, ex parte, counsel's own analysis of issues pending before that judge, as set forth in a law review article counsel has penned.
We need not decide, however, whether the WLF Working Paper was, in fact, an ex parte communication.
Even if such were the case, the relief sought by Anthony / FOE's petition is clearly not warranted in the circumstances.
6 As PECo notes, the Commission has pending a rulemaking that would modify its ex parte regulations.
See 51 Fed. Reg. 10,393 (1986).
Curiously, PECo does not argue that the communication is permissible under the Commission's regulations because (1) the Washington Legal Foundation did not send the Working Paper to any of this Board's three members (see supra note 1); or (2) the WLF -- an entity separate from PECo, its counsel, and anyone acting on its behalf -- actually submitted the Working Paper to agency officials.
But in view of the basis on which our decision here rests, we need not reach these threshold issues either.
Q 8
The explicit commission remedy -- placement of the written ex parte communication in the public document room and service by the Secretary "on the communicator and the parties to the proceeding involved" -- has already been effected.
10 C.F.R. S 2.780 (b).
See supra note 1.
It is clear, however, that regulatory and statutory authority exists for the particular additional relief sought by Anthony / FOE -- i.e.,
disqualification of counsel and reopening the proceeding.
Any party or its representative who fails to comply with an order or is " guilty of disorderly, disruptive, or contemptuous conduct" may be reprimanded, censured, or suspended from participation "if necessary for the orderly conduct of a proceeding."
10 C.F.R. S 2.713 (c).
The APA also authorizes an adjudicator to the extent consistent with the interests of justice and the policy of the underlying statutes,
[to] require the party to show cause why [its]
claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
i 5 U.S.C. S 557 (d) (1) (D).
See also Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority,.685 F.2d 547, 564 n.30 (D.C. Cir. 1982)
[hereafter, "PATCO"] (legislative history indicates that remedies provided in section 557 (d) were intended to supplement an agency's existing authority to prohibit an attorney who violates the section from practicing before the agency).
9 Anthony / FOE, however, have failed to provide any basis for invoking either of these authorities and imposing the additional penalties they seek in their petition.
They complain generally that the offsite emergency planning hearings for Limerick have been " discredited" and
" prejudiced hopelessly" by the " unethical pressure" and
" destructive tactics" of PECo's counsel.
Anthony / FOE Petition (June 25, 1986) at 1, 2.
They assert that the WLF Working Paper is "an affront to the Commission and the NRC regulations."
Id. at 2.
They also cite to numerous excerpts from the document that are critical of public intervenors and their role in licensing proceedings.
Id. at 2-3.
But in no respect do Anthony / FOE support their generalized charges of improper or unethical conduct by PECo counsel with anything more specific than the ipse dixit that
" counsel violated the ex parte rule, therefore counsel and his firm should be disqualified."
See Cincinnati Gas and Electric Co. (William H.
Zimmer Nuclear Power Station, Unit No. 1), CLI-82-36, 16 NRC 1512, 1513 n.1 (1982) (charges of ethics violations "should only be filed after careful research and deliberation").
As noted at supra p.
8, disqualification is not the remedy specified in the Commission's regulations for an ex parte violation.
For this penalty to be exacted,
" disorderly, disruptive, or contemptuous" behavior that threatens the conduct of the proceeding must be I
e 10 demonstrated.
10 C.F.R. S 2. 713 (c).
No reasonable claim is or could be advanced here that the alleged ex parte communication was disorderly or disruptive to the proceedings before us.
Anthony / FOE's arguments suggest an element of " contempt,"8 but the mere fact of the submission of the WLF Working Paper, albeit an intentional act, hardly provides a basis for finding " contemptuous conduct" threatening to the proceeding.9 Anthony / FOE's generalized complaints about the asserted ex parte violation also fail to establish a ground for reopening the record on offsite emergency planning.
Such a remedy would be tantamount to voiding the extensive hearings and decisions already issued on this subject, and is not ordered lightly even by the courts when an ex parte communication has remained undisclosed throughout an agency proceeding.
In PATCO, the court explained:
In enforcing this standard, a court must consider
(
whether, as a result of improper ex parte communications, the agency's decisionmaking 8 " Contempt" is defined as " willful disregard or disobedience of a public authority."
Black's Law Dictionary 288 (5th ed. 1979).
Anthony / FOE also imply that -- apart from the actual submission of the WLF Working Paper to the Commission --
l there is some independent impropriety in the fact that PECo's counsel, Mr. Rader, has expressed views critical of NRC regulation.
But this is no more improper (or surprising) than is the fact that intervenor public interest groups -- such as Friends of the Earth -- frequently express equally critical views of the agency in their publications.
l
11 process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect.
In making this determination, a number of considerations may be t
relevant:
the gravity of the ex parte communications; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose.
Since the principal concerns of the court are the integrity of the' process and the fairness of the result, mechanical i
rules have little place in a judicial decision t
whether to vacate a voidable agency proceeding.
4 Instead, any such decision must of necessity be an exercise of equitable discretion.
685 F.2d at 564-65 (footnotes omitted).
See also Braniff Master Executive Council of the Air Line Pilots Association International v. Civil Aeronautics Board, 693 F.2d 220, 227 (D.C. Cir. 1982) (content and significance of ex parte communication to agency decision are relevant considerations).
l We have little difficulty in answering each of the
=
l inquiries posed by the PATCO court in the negative.
- For, Anthony / FOE have not provided a single example of how I
ALAB-836 and our decisionmaking process were or might have been compromised by the WLF Working Paper.
Nor could they:
our decision was rendered on May 7, 1986, before any member of this Board saw or was aware of the WLF Working Paper.
See supra note 1.
Further evidence belying any suggestion l
of improper influence on our decision or benefit to PECo is i
I
i 12 found in that portion of ALAB-836 reversing and remanding the issue of school bus driver availability; the WLF. Working Paper would eliminate this " human response" issue entirely from consideration in NRC proceedings.
Compare ALAB-836, 23 NRC at 515-20 (slip opinion at 62-73), with WLF Working Paper at 52-55.
See PATCO, 685 F.2d at 572 (no benefit to ex parte communicator and no showing of injury to complaining party).
We therefore deny Anthony / FOE's request to reopen the record on offsite emergency planning.
Cf.
Power Authority of New York v. Federal Energy Regulatory Commission, 743 F.2d 93, 110 (2d Cir. 1984) (where opposing party was promptly made aware of ex parte communication and offered no rebuttal evidence, further evidentiary hearing and disqualification of decisionmakers were unnecessary).10 Finally, lest there be any doubt, we decide cases on the basis of the record and the law.
Obviously, we cannot and should not be sheltered from the vast array of views on nuclear power, pro and con, expressed in all forms of the media.
But that does not detract from our capability "of judging a particular controversy fairly on the basis of its 10 The rationale for our decision here makes it unnecessary for us to decide (1) whether the usual criteria for reopening a record also apply where taint on the decisionmaking process (as opposed to a deficiency or discrepancy in the evidentiary record) is alleged, and (2) if so, whether those criteria have been satisfied.
See 10 C.F.R.
S 2.734, 51 Fed. Reg. 19,535, 19,539 (1986).
5 0
13 own circumstances."
United States v. Morgan, 313 U.S.
- 409, 421 (1941).
Anthony / FOE's June 25, 1986, petition to reopen is denied.
It is so ORDERED.
FOR THE APPEAL BOARD
- t. C%dL - AQ C. J qn Shoemaker Secretary to the Appeal Board l
l
__. _ _. _.