ML20215G710
| ML20215G710 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 10/16/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Anthony R ANTHONY, R.L., FRIENDS OF THE EARTH |
| References | |
| CON-#486-1116, CON-CLI-86-18 CLI-86-18, OL, NUDOCS 8610210071 | |
| Download: ML20215G710 (9) | |
Text
q_
hhhb
-C'-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 0CT 16 P5 :37 C0feIISSIONERS:
CP Lando W. Zech, Jr., Chairman 00C C Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Kenneth M. Carr
-mm PCT t 7 N6
)
'In the Matter of
)
)
PHILADELPHIA ELECTRIC COMPANY
)
Docket Nos. 50-352
)
50-353-0 A-(Limerick Gerierating Station,
)
Units 1 and 2)
)
)
MEMORANDUM AND ORDER CLI 18 I. Background On June 25, 1986 Robert L. Anthony and Friends of the Earth ("F0E")
filed a motion with both the Commission and the Atomic Safety and Licensing Appeal Board (" Appeal Board") requesting that (1) the law firm of Conner and Wetterhahn be barred from further representation of Philadelphia Electric Company ("PEC0").in this proceeding; and (2) the record on offsite emergency planning be reopened, and a new record developed to replace the existing record on that subject.
Anthery/F0E argued that this relief was required because the Appeal Board's and Connission's consideration of offsite emergency planning issues had been tainted as a result of the Washington Legal Foundation's submission to the NRC of a " working paper" entitled "Offsite Emergency Planning for 8610210071 861016 PDR ADOCK 05000352 t
G PDR 03b2-
I s
2 Nuclear Power Plants: A Case of Governmental Gridlock." That document had been ' prepared for the Washington Legal Foundation by Robert M. Radar, an attorney in the law firm of Conner and Wetterhahn and one of the counsel for PECO in this proceeding.
In the working paper Radar expressed views critical of NRC's emer.gency planning requirements for nuclear power plants, and specifically addressed issues related to the NRC's treatment of offsite planning for the Limerick facilities.
Anthony /F0E claimed that the views set forth in the working paper reflected PEC0's views and that the company had not disassociated itself from the submission of the paper. Petitioners argued that under the circumstances the submission of the paper to the NRC constituted an ex parte communication aimed at " putting unethical and prejudicial pressure on the Comission and the NRC licensing hearing and appeal process, outside of NRC regulations and the record." Petitioners argued that the appropriate remedy for this alleged misconduct is to disqualify the law firm and generate a new record on offsite emergency planning.
In ALAB-840, 24 NRC (July 18, 1986), the Appeal Board addressed the motion.
In response to PECO's challenge to its jurisdiction to rule on the filing, the Appeal Board found that it had jurisdiction to rule on the requested disqualification of the law firm and on whether its appellate review had been tainted by the submission of the working paper.
It held that it lacked jurisdiction to rule on whether the Commission's process had been tainted. The Appeal Board left that issue for the Comission to resolve.
It then rejected those claims of Anthony /F0E over which it had jurisdiction.
3 Anthony /F0E petitiered the Comission to review ALAB-840 arguing that the Appeal Board erroneously rejected their arguments. PECO, while continuing to argue that the Appeal Board did not have jurisdiction to rule on the motion, agrees with the Appeal Board',s rejection of petitioners' claims.
It requests that the Comission vacate the decision as an unwarranted exercise of Appeal Board authority. The NRC staff suggests that the only action reouired is the denial of the petition for review.
II. Jurisdiction The Comission has concluded that the Appeal Board did not have jurisdiction to rule on the. Anthony /F0E motion. In ALAB-840 the Appeal Board recognized that its jurisdiction over most offsite emergency planning issues had passed to the Comission with the issuance of ALA8-836, 23 NRC 479(1986), a decision that addressed all offsite emergency planning issues except those relating to the State Correctional Institution at Graterfor'd
("Graterford"). The Appeal Board noted that while it still had jurisdicticn over the issues relating to Graterford, as well as the school bus driver availability issue remanded to the Licensing Board in ALAB-836, none of those issues was the subject of the Anthony /F0E allegations. The Appeal Board did not rely on its authority on these unrelated matters as grounds for jurisdiction over the motion.
The Appeal Board instead based its jurisdiction on a novel theory. It founc that the thrust of Anthony /F0E's motion challenged the process that led to the Appeal Board's issuance of ALAB-836. Anthony /F0E maintain that
0 1
the submission of the Washington Legal Founcation working paper somehow compromised that process. The Appeal Board as'serted that:
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, r.otwithstanding that jurisdiction over the underlying substantive claims themselves now lies elsewhere. Cf. Massachusetts Bay Telecasters, Inc. v. Federal Communications Commission, 261 F.2d 55, 67 (D.C. Cir. 1958), modified on other grounds, 295, F.2d 131, cert. denied, 366 U.S. 918 (1961) (decisionmaker itself should detennine initially questions concerning irproper influence on its decisions). Hence, to the extent that Anthony /F0E'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.
(Footnote cmitted).
24 NRC at (slip op. at 4-5).
The Comission does not agree with the Appeal Board's analysis of the jurisdictional issue. There is no support for it in NRC case law and we are unaware of any federal judicial decision that would support such an approach. Massachusetts Bay Telecasters cited by the Appeal Board is not persuasive authority.
In that case information relating to possible ex parte communications came to light while review of the agency decision was pending before the court. The court referred the matter back to the Federal Comunications Comission because it desired the agency's expert views before ruling, not because the agency retained inherent residual power to rule on the allegation. That is an entirely different Aituation than that presented in the instant case.
Accordingly, the Appeal Board did not have jurisdiction to rule on the motion to reopen the record. Therefore, the Comission it, vacating ALA8-840 and will now address the merits of the Anthony /F0E motion.
f 5
III. Motion to Disqualify Counsel The thrust of intervenor's disqualification request is that the submissien of. the Washington Legal Foundation working paper to the Commission constituted an improper ex parte contact implicitly sanctioned by PECO. The alleged purpose of the comunication according to intervenors was to put " unethical and prejudicial pressure on the Commission and the NRC licensing hearing and appeal process, outside of the NRC regulations and the record."
Disqualification of counsel generally is a remedy imposed only in extraordinary circumstances. Based on our review of the record, disqualification of Conner and Wetterhahn is not warranted. First, based on
~
the existing record it is not possible to determine whether the submission of the working paper to the NRC by the Washington Legal Foundation constitutes an ex parte communication. That organization is not a party to this proceeding and conceivably it might not be covered by the ex parte rules here because it may not be an " interested person."I Even if the submission were to be considered an ex parte communication, disqualification would not be warranted. Under the Commission's regulation, 10 C.F.R. l 2.780(c), if an ex parte filing is received by an adjudicatory official, the normal remedy is to serve the document on the other parties to the proceeding. This was done here.
In eg'regious cases, sanctions against a party or its representative could be imposea under 10 C.F.R. 6 2.713 if the Commissicn found that the 15 U.S.C. 9 557(d)(1)(A) provides that the ban against submitting "ex parte cent.unications applies.to an interested person outside the agency."
6 party submitting the ex parte comunication is " guilty of disorderly, disruptive, or contemptuous conduct." The Comission under 5 U.S.C.
6 557(d)(1)(D) could also require the party to show cause why its claim or interest in the proceeding should not be denied or otherwise adversely affected because of an ex parte comunication. We' decline here to impose such sanctions. Petitioners have merely asserted generalized allegations that the appellate process has been " prejudiced hopelessly" by the
" unethical pressure" and " destructive tactics" of PEC0's counsel. However, they have made no attempt to demonstrate how rulings of the Appeal Board or the Ccmmission on specified issues could have been prejudiced by the submission of the working paper.
Indeed, the Appeal Board specially noted that it did not receive the working paper until after it had issued ALA8-836, the decision in question. ALAB-840, 24 NRC (slip op. at 11).
Although the Commission had the working paper during the period it was considering whether to take review of ALAB-836, the Commission did not rely on the document in evaluating that Appeal Board decision. Under the circumstances, we are denying the motion to disqualify counsel.
IV. Motion to Reopen the Record l
The Comnission's recently promulgated regulation,10 C.F.R. 9 2.734, sets forth the criteria ~ applied by the Commission in ruling upon motions to reopen a record. Those criteria are:
(1) the motion must be timely, except that an exceptionally grave issue may be considered in the oiscretion of the presiding officer even if untimely presented; (2) the motion must address a significant safety or environmental issue; and (3) the motion must
7 4
7 cemonstrate that a materially different result would be or would have been likely had the newly proferred evidence been considered initially.2 Here there is no doubt that the motion was timely filed. The Washington Legal Foundation working paper was served on the parties to the Limerick proceeding on June 2,1986. The motion to reopen was filed on June 25, 1986. The other criteria however have not been met and therefore the Commission is denying the motion to reopen the record.
Petitioners have not raised a significant safety or environmental issue because they have not demonstrated how the working paper rendered the present offsite emergency plans unworkable or how the working paper has adversely affected plant safety.
In the absence of such a showing, petitioners have failed to. demonstrate that the working paper contains new information that would have likely caused the NRC adjudicatory tribunals to reach a materially different result.
Finally, the courts have made clear that the submission of an ex parte comunication does not automatically require vacating an agency decision.
In making the determination whether its decisionmaking process had been irrevocably tainted by the ex parte communication so as to make the ultimate judgment of the agency unfair several factors are to be evaluated. These include the gravity of the ex parte comulunication, whether the contacts could have influenced the agency's decision, whether the party making the Although this regulation was not in effect at the time the Anthony /F0E motion to reopen the record was filed, it is being applied here because its use will not prejudice any party. See Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974). Also the new regulation essentially codified agency case law.
7 4
8 contacts benefited from the agency's final decision, whether the contents of the communications were known to the other parties to the proceeding, and whether vacation of the agency's decision would serve a useful purpose.
Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 564-565 (D.C. Cir.1982).
As noted previously, it is questionable whether the Washington Legal Foundation's submission is an ex parte comunication. In any event it was served on the other parties'to the proceeding and there has been no showing that the document influenced the agency's decisions on offsite emergency planning or that PEC0 benefited from the submission. Moreover, Anthony /F0E have not demonstrated that reopening the record would be useful for they have not shown that a new proceeding would produce significant new information on the offsite emergency planning contentions litigated in this proceeding. Thus, the motion to reopen is denied.
Commissioner Carr participated in Sections I and II. He did not participate in Sections III and IV because he was not a member of the Comission at the time it considered whether to take review of ALAB-836.
It is so ORDERED.
pn REco Forlthe Commission If 8'.
.i I?r 8
.[
I
}/kh, y
a SAMUEL 4.N HILK 4
gf
/ Secretary of" the Commission 9 %+g4 Dated at Washington, D.C.
this day of d / s>v,1986.
i SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I agree with those portions of the Comission's crder which' dispose of the motion to disqualify counsel and the motion to reopen the record. However, I believe that the Appeal Board had jurisdiction to consider the Anthony /F0E motion.
I do not, therefore, join in that portion of the Commission's order which decides the jurisdiction issue.
-