ML20236T000
| ML20236T000 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1998 |
| From: | NRC |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V47-N05, NUREG-750, NUREG-750-V47-N5, NUDOCS 9807270363 | |
| Download: ML20236T000 (53) | |
Text
l NUREG-0750 Vol. 47, No. 5 l
Pages 261-306 1
l NUCLEAR REGULATORY-COMMISSION: ISSUANCES
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Superintendent of Documents U.S. Government Printing Office i
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. A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publication are available from National Technical Information Service I
l Springfield, VA 22161 i
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e Errors in this publication may be reported to the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission l
Washington, DC 20555-0001 (301-415-6844) r.
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NUREG-0750 Vol. 47, No. 5 Pages 261 -306 NUCLEAR REGULATORY COMMISSION ISSUANCES May 1998 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM)
The summ#5 and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independentlegal significance.
U S. NUCLEAR ' REGULATORY COMMISSION Prepared by the Office of the Chief Information Officer U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301-415-6844)
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l COMMISSIONERS Shirley A.~ Jackson, Chairman Greta J. Dicus.
Nils J. Diaz.
Edward McGaffigan, Jr.
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- B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety & Ucensing Board Panel l
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CONTENTS I
Issuances of the Atonale Safety and Licensing Boards HYDRO RESOURCES,INC.
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. (2929 Coors Road, Suite 101' Albuquerque, NM 871'20) -
Docket 40-8968-ML (ASLBP No. 95-706-01-ML) l-(Re: Leach Mining License)
I' MEMORANDLM AND ORDER, LBP-98-9, May 13,1998 '........ ; 261 HYDRO RESOURCES, INC.
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- (1929 Coors Road, Suite 101 Albuquerque, NM 87120)
- Docket 40-8968-ML (ASLBP No. 95-706-01-ML)
(Re: Leach Mining an ' Milling License)
. MEMORANDUM AND ORDER, LBP-98-11, May 26,1998...... 302
,1-PRIVATE FUEL STORAGE, LL.C.
(Independent Spent Fuel Storage Installation)
Docket 72-22-ISFSI (ASLBP No. 97-732-02-ISFSI) l MEMORANDUM AND ORDER, LBP-98-10, May 18,1998...... 288 1
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T Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James R Gleason,* Deputy Chief Administrative Judge (Executive)
Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)
Members Dr. George C. Anderson Dr. Richard F. Foster Dr. Kenneth A. McCollom Charles Bechhoefer*
Dr. David L Hetrick Marshall E. Miller Peter B. Bloch*
Ernest E. Hill Thomas S. Moore
- G. Paul Bollwerk lil*
Dr. Frank F. Hooper Dr. Peter A. Morris Dr. A. Dixon Callihan Dr. Charles N. Kelber*
Thomas D. Murphy
- Dr. James H. Carpenter Dr. Jerry R. Kline*
Dr. Richard R. Parizek Dr. Richard F. Cole
- Dr. Peter S. Lam
- Dr. Harry Rein Dr. Thomas E. Elleman Dr. James C. Lamb 111 Lester S. Rubenstein Dr. George A. Ferguson Dr. Linda W. Little Dr. David R. Schink
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I Dr. Harry Foreman Dr. Emmeth A. Luebke Dr. George F Tidey
- Permanent panelmembers
Cite as 47 NRC 261 (1998)
LBP-98-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
Peter B. Bloch, Presiding Officer Thomas D. Murphy, Special Assistant in the Matter of Doeket No. 40-8968-ML (ASLBP No. 95-706-01-ML)
(Re: Leach Mining Lleense)
HYDRO RESOURCES, INC.
(2929 Coors Road, Suite 101, Albuquerque, NM 87120)
May 13,1998 Three petitioners in this 10 C.F.R. Part 2 Subpart L proceeding were admitted as parties after considering whether they had suffered injury in fact, whether they had filed timely petitions, and whether they had stated at least one valid area of concern.10 C.F.R. I 1205(h). Other petitions for a hearing were denied.
RULES OF PRACTICE: STANDING (INJURY IN FACT; NEED FOR FURTHER INFORMATION)
Petitioners may have standing if they reside close enough to.a planned project so that there is a reasonable apprehension of injury from implementation of the project. When the Staff of the Commission delays issuance of the full license that is applied for, the Staff's reluctance to act without further information is an indication of the reasonableness of petitioners' apprehensions of injury.
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- RULES OF PRACTICE: STANDING (INJURY IN FACT)t CONDITIONING OF LICENSE
' Even though a license is conditioned so that certain activities cannot be taken -
without further Staff approval, the scope of the license is not narrowed. A petitioning organization has standing to request a hearing if any of the activities under the license may cause injury to its interests or to one of its members.
RULES OF PRACTICE: STANDING (SPECIFIC ALLEGATION)
A petitioning organization is not entitled to standing unless its member, on whom it relies for representational standing, specifies with particularity how the
. activities of the project will cause the member an injury.
RULES OF PRACTICE: SUBPART L (AREAS OF CONCERN)
An area of concern is relevant or germane to a proceeding if it falls within the scope of the challenged license application. The standards for admitting an area of concern are more lenient than for admitting contentions in Subpart G proceedings.
RULES OF PRACTICE: SETTLEMENT A party may ask a judge to participate in public meetings designed to facilitate settlement of the case. If a party seeks settlement negotiations in the judge's chambers, it must ask the Commission to authorize those negotiations.
RULES OF PRACTICE: SCHEDULING FILINGS In a Subpart L case, a presiding officer may propose ways of narrowing issues, of setting deadlines for completion of aspects of a case, of identifying issues for settlement on legal briefs, and for eliciting procedural suggestions from the parties.
RULES OF PRACTICE: STANDING (STATEMENTS OF MEMBERS)
' An organization seeking standing as the representative of one ofits members.
must submit a. written statement authorizing it to be the representative and stating other facts necessary to establish standing. Unless there are special P
circumstances, the Presiding Officer has discretion to consider written statements that do not meet the formal requirements for an affidavit.
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RULES OF PRACTICE: SUBPART L (CONSOLIDATION OF PARTIES)
A presiding officer may make reasonable arrangements to assure that the admission of multiple parties will not cause unnecessary redundancy in the presentation of the case. The parties may be required to make reasonable arrangements to coordinate their presentations.
MEMORANDUM AND ORDER (Ruling on Petitions and Areas of Concern; Granting Request for Hearing; Scheduling)
Memorandum This Memorandum explains why the Eastern Navaho Dine Against Uranium Mining (ENDAUM), the Southwest Research and Information Center (SRIC),
and Marilyn Sam and Grace Sam will be admitted as parties to this 10 C.F.R. Part 2. Subpart L proceeding. Other. petitions for a hearing are denied, and
- determinations are made concerning whether the parties' proposed areas of concern are germane.10 C.F.R. I 1205(h).
I.'
BACKGROUND A.
Description of the Project Hydro Resources, Inc. (HRI), has been granted a license (SUA-1508, January 5.1998) (License). Mark S. Pelizza, HRI's Vice President of Health, Safety and Environmental Affairs, describes key aspects of the licensed project as follows:8 HRI will mine uranium at the proposed sites using a technique called "in situ leact" solution mining. Solution mining for uranium is conducted underground in an underground zone where, over millions of years, small grains of relatively inscluble uranium salts have been deposited upon and among other materials such as sand. The uranium has become fixed at these locations when, over millions of years, dissolved uranium salts moving in the ground water encountered at these specine locations other naturally-occurring chemicals (reductants) which caused the water-soluble uranium to become relatively insoluble.
To recover this uranium from a specine mine location, HRI installs two groups of water wells: wells to inject a mixture of ground water, washing soda (Na CO ) or bicarbonate 2 3 (NaHCO ) and oxygen, and nearby, wells to extract the injected water solution aner uranium 3
8 Attachment A to " Response of Hydro Resources. Inc. to Requests for Hearing." February 25.1995 (HR1 Response). Affidavi;'of Mark S. Pelir.za at 6-7,111411.
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has dissolved in it. The injected mixture causes the relatively insoluble uranium salts to j.
become water soluble again, and the extraction wcils pull the solution of ground water and dissolved uranium to the surface, where the uranium salts are removed in something which resembles a large water softener. After the uranium salts are removed, most of the water is returned to the zone from which it was drawn.
It is economically and environmentally important for HRI to ensure that the mixture of l
l ground water, washing soda, oxygen and uranium not leave the immediate mining area: the escape of such fluid would waste recoverable uranium and the energy required to produce it, but more important, such an escape could potentially contaminate ground water elsewhere.
Many steps are taken to control the movement of these Ruids:
- (a) Slightly more liquid is extracted than is injected in the mining area, thus causing a cone oflower pressure, or " pressure sink." within the mining zone inside the well field.
- (b) Using a ring of " monitor wells" which surround the mine tone, HRI keeps watch on the " pressure sink" in the. mining zone.
(c) HRI also momtors the pressure in its injection and extraction wc!!s: and, it can, if
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needed, reverse a potential " escape" (called an " excursion") of mining limds, by quickly changing the pressures in those wells to retura fluids into the " pressure sink."
B.
Procedural History On November 14,-1994, a " Notice of Availability of Draft Environmental Impact Statement: Notice of Opportunity for Hearing"(" Notice") was published
-in the Fede al Register concerning an application by HRI to construct and operate an in-situ leach mining project in McKinley County, New Mexico. 59 Itd. Reg. 56,557.
The Notice in the Federal Register stated that: (a) the NRC, in cooperation with the U.S. Bureau of Land Managen.ent (BLM) and the U.S. Bureau of Indian Affairs, had published a Draft Environmental Impact Statement ("DEIS")
that was available for inspection and comment; (b) four principal alternatives (described in the Notice) h td been considered in the DEIS; and (c) any person
. whose interest may be Wceted by the application for source and byproduct l
material' licenses of HRI may file a request for hearing within 30 days, in accordance with the provisions of 10 C.F.R. 6 2.i205, In response to the Notice, requests for hearing and/or other relief were/
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. filed by (1) Zuni Mountain Coalition ("ZMC"), (2) Dind CARE, (3) Southwer.
Research and Information' Center. ("SRIC"), (4) Water Information Netwouc
' (" WIN"), (5) Mervyn Tilden, (6) Bernadine Martin, and (7) Grace and Marif yn -
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' Sam? A presiding officer was designated on December 21, 1994, to rule on L
2 3ee Mernorandum from J. Hoyle, Actmg Secretary (NRC) to B. Cetter, Jr., Chief Adminiaative Jud J (NRC),
t dated December 16,1994, enclosing (1) Leuer from M. Jones and M. Tilden (Zuni Mountain Coalitir a), to the Executive Director for operations (NRC), dated Decernber 12.1994 ("ZMC 1994 tener"); (2) letor from L Continurdi 264 l'
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6e petitions for hearing under 10 C.F.R. Part 2, Subpart L, and conduct any nearing ordered. " Hydro Resources, Inc.: Designation of Presiding Officer,"
$9 Fed. Reg. 66,979 (Jan. 8,1995). Finding that "most of the petitions are in some regard deficient [because they) do not set forth information or arguments concerning.,, judicial concepts of standing," the Presiding Officer ordered the aforementioned Petitioners to file amended hearing requests setting forth arguments regarding standing and areas of concern to be in-hand by January 25, 1995. LBP-95-2,41 NRC 38,40-41 (1995))
On January 19,1995, SRIC, for itself and others (Dind CARE, Mr. Tilden.
ZMC, and WIN), requested that the deadline for filing amended petitions be extended.' The Presiding Officer granted the unopposed request for extension
.of the deadline for submitting amended hearing requests and ordered that the amended requests " setting forth arguments concerning standing and areas of concern as prescribed by 10 C.F.R. 6 2.1205.., be received by the other participants no later than close of business on February 15, 1995."
Memorandum and Order (Revising Schedule for Filings), dated January 20, 1995 (unpublished), at 2.
By letter dated February 13,1995, ZMC " amended" its petition and requested that the deadline for filing amended petitions be set after public meetings to be held on the DEIS. Letter from M. Jones to B. Cotter, Jr., dated February 13, 1995. In correspondence dated February 15,1995, Din 6 CARE provided additional information to support its hearing request,8 Eastern Navajo-Din 6 Against Uranium Mining (ENDAUM) filed a petition to intervene, stating that it was the organization that Bernadine Martin represented in her letter of December 14,1994,' and Mervyn Tilden submitted an amended request. SRIC, WIN, and
. Grace and Marilyn Sam did not file " amended" requests.
HRI opposed all the hearing requestsJ Counsel for the Staff, however, informed the Presiding Officer that the Staff did not wish to participate as a Goodman (Dind CARE) to Chief, High tevel Weste and Uranium Recovery Branch (NRC), dated December 14,1994 ("Dind CARE 1994 Letter"); (3) Letter from W. Robinson and C. Shuey (Southwest Research and Infornuaion C, ar) to Secretary and J. Holonich (NRC), dated December 14.1994 ("SRIC Request"); (4) leuer from L. Bird (Water Information Network) to Secretary (NRC), dated December 14,1994 (" WIN tener"); (5)
Letter from M. Tilden to Secretary (NRC), dated December 14,1994 ("rilden 1994 tetter"); (6) letter from B.
Martin to J. Hoyle (NRC), dated December 13,1994 ("Marun Letter"); and (7) letter from O. Sam and M. Sam to Secretary (NRC), dated December 14,1994 ("Sams Lener").
3 The order explained that "[sJtanding means that 'they must show that the intended acdon will cause injury in fact to petitioner's interests,,.' which are protected by the Atomic Energy Act or the National Environmental Policy Act." LBP-95 2,41 NRC at 40. cirty Umerco Mineratr Corp., LBP 94-18,39 NRC 369, 370 (1994).
"teuer from C, Shuey, SRIC, to B. Cotter, NRC, dated January 19,1995 (*'Five Petitioners Extension Request")
(extension sequested for SRIC, Dind CARE, Tilder', ZMC, and WIN).
3 tetter to B. Couer from Lori Goodrnan. Dme CARE, dated Rbruary 15,1995 (Dind CARE Amendment).
'"htitioner Eastern Navajo Dine Against Uranium Mining Request for Evidentiary Hearing and Petition for leave to Intervene," dated February 15,1995 (ENDAUM Petition).
7" Response of Hydro Resources, Inc. to Requests for Hearing," dated February 25,1995 (HRI Response).
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party in the proceeding and, thus, would not respond to the various requests.
Letter from S. Turk to B. Cotter, dated March 8,1995.
ZMC subsequently responded to HRI's assertions that its petition was de-l ficient. Letter from M. Jones to B. Cotter, dated March 2,1995. ENDAUM, attaching affidavits on standing, filed a motion to permit its response to HR"s assertion that all hearing requests be denied. " Motion of Eastern Navajo Dine Against Uranium Mining to Respond to the Request of Hydro Resources Inc.
to Deny all Petitions for an Evidentiary Hearing," dated March 20,1995 ("EN-DAUM Motion / Response").
On September 13,1995,a the Presiding Officer concluded that there was little merit in going forward in the proceeding until the Staff review of the application and the hearing file were complete, and ordered the.t the proceeding be held in abeyance until completion of the Staff's review. Subsequently, ENDAUM and SRIC retained counsel and jointly filed a second amended request for hearing, accompanied by a motion requesting that its filing replace any of the previous requests filed by the two organizations. " Petitioners ENDAUM and SRIC's Second Amended Request for Hearing, Petition to Intervene, and Statement of Concerns," dated August 19,1997 ("E/S Second Amended Request");
" Petitioners ENDAUM and SRIC's Motion for Leave to Amend Request for Hearing, Petition to Intervene, and Statement of Concerns and Brief in Support of Motion," dated August 19,1997 (" Joint Motion to Amend")?
In correspondence dated March 14,1997, December 5,1997, and January 5, 1998, the Staff forwarded copies of the Final Environmental Impact Statement
("FEIS"), the Safety Evaluation Report ("SER"), and the source material license (SUA-1508, dated January 5,1998) (License), for the above-captioned facility.S In September 1997, the Staff requested leave to participate as a party to the
. proceeding pursuant to 10 C.F.R. 65 2.1213 and 2.1237. "NRC Staff's Request for Leave to Participate as a Party to the Proceeding," dated September 4,1997.
The Staff was admitted as a party to the proceeding with respect to all issues.
Memorandum and Order (Admission of Staff and Scheduling), dated September 19,1997 (unpublished), at 4-6. In addition, the Presiding Officer found that 8 Menorandum and order (Proceeding Status), dated September 13.1995 (unpublished).
'The Presiding Officer derued HRI's motion to stnke the appearance of counsel on behalf of SRIC because of SRIC's failure to file an amended petition by February 15, 1995, and indicated that its failure to amend would usult in "no greater consequence than to have [sRICJ's original pection serve as the basis" for intervention.
Memorm.Jum and order (Denying Motion to strike), dated January 29,1997 (unpublished), at 3. The amended petition presented. for the &st ume, affidawns by Raymond Morgan and talma Charles to support SRIC's standing. alleging that they would be injured by trucks hauling yellowcake and that their water supply would be adversely affected. see. e.g., joint Motion to Amend at 3132.
"NRC Staff's Supplemental Status Report Concernmg its Review of the in Situ Leachate Mine Application Filed by Hydro Resources. Inc dared March 14. 1997, forwarding Final Environmental impact statement to Construct and Operate the Crownpoint Uranium solution Mining Project. Crownpoint. New Mexico, NURPG 1508, deed February 1997 (*'FEIS"). txtter from L Hull to Judge Cotter. December 5.1997; letter from J. Hull to Judges Cotter and Murphy. January 5.1998. tetter from J.J. Holonich to R.F. Clement, HRI. January 8,1998.
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the ugust 19,1997 joint motion to amend, and a second amended ENDAUM
'and SRIC petition,' were premature until the issuance of the SER. Id. at 3. The Presiding Officer later ruled that the issuance of the SER on December 5,1997, was a basis to litt the'2-year suspension of the proceeding and allowed all
. Petitioners, including ENDAUM and SRIC, "to amend their hearing requests on L he basis of any new information found in the SER, the... FEIS... and t
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- other documents exchanged between the Applicant and the NRC Staff," stating.
that.
. Anunded hearing requests'shall adhere strictly to 'tte requirements of 10 CFA 5 2,1205(e) and should address the deternunations the Presiding Officer is required to make
~ by 10 CSA 6 2.1205(h) in deciding whether to adrnit a petitioner as a party to this pro-ceeding. ~
L3P-97-23, 46 NRC 311, 311-12 (1997). The Presiding Officer also made it clear that any petition filed by the Eastern Navajo Allottees Association -
(" Allottees") would be late under 10 C.F.R.12.1205 (d) and (k) and would.'
have to meet the late-filing criteria of 10 C.F.R. 6 2.1205(l)(1)(i) and (ii). Id.
at 3.
Subsequently, the Eastern Navajo Allottees Association (Allottees) tiled a '
" Petition to Intervene," dated January 5,1998 (" Allottees Petition"). ENDAUM
' and SRIC jointly filed another amended petition," as did Mervyn Tilden.82 At HRI's and the Staff's request, the Board extended the deadline for submission of responses to intervention petitions and further stated that the Staff's response to original and amended petitions should, to the extent possible, avoid addressing
- duplicate points in original and amended petitions. LBP-98-4,47 NRC 17,19
'20 (1998).
Responses to the requests" for a hearing were filed by HRI and the Staff:
HRI, " Response to Petitions to Intervene " February 19,' 1998; Staff, " Response to Requests for Hearing and/or Other Relief Filed by [ named parties]," March 5,1998 (Staff Response).
M H ENDAUM's and SRIC's Third Amended Hearing Request and Petidon to Intervene " dated January 16,1998
("ENDAUM/SRIC Third Request *?. The Staff does not object to this request to amend ENDAUM's and SRIC's previous hearing requests given (I, the explanation provided as to the relauonship between the initial and arnended concerns and (2) that they have addressed the Commission's laae-filing criteria. See joint Motion to Arnend at 11 31.
l 12" Petitioner Mervyn Tilden's Notice of Submission of Second Amended Petition to Intervene. Statement of I
Concerns. Position Staiement, and Request for Temporary Restraining order (TRo)," dated Jaimary 16.1998.
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'IL ANALYSIS OF STANDING AND PARTICIPATION A'
Legal Requirements for Standing 3 Pursuant to 10 C.F.R. 6 2.1205(c), interested persons may request a hearing on the grant of a proposed source or byproduct materials license under the Commission's informal hearing procedures set forth in 10 C.F.R. Part 2. Subpart L. Such requests for hearing are to be filed within 30 days following publication
' of a Federal Register notice, where (as here) a notice has been published.10 C.F.R. I 2.1205(c)(1).
It is fundamental that any person who wishes to request a hearing or to f
intervene in a Commission proceeding must demonstrate that he or she has standing to do so..Section 189a(1) of the Atomic Energy Act ("AEA"),42 U.S.C. 4 2239(a), provides that:
In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license.., the Commission shall grant a hearing upon the request of any person whose
. interest may be afected by the proceeding. and shall admit any such person as a party to such proceeding.
Id. (emphasis added) '
- In addition, pursuant to 10 C.F.R. 6 2.1205(e), where a request for hearing
- is filed by any person other than the applicant in connection with a materials licensing action under 10 C.F.R. Part 2, Subpart L, the request for hearing must describe in detail:
' (1) The interest of the requestor in the proceeding; (2) How that interest may be affected by the results of the proceeding, including tle reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in [l2.1205(h)];
(3) The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding; and (4) The circumstances establishing that the request for a hearing is timely in accordance with [I2.1205(d)l.
Pursuant to 10 C.F.R, 6 2.1205(h), in ruling on any request for hearing filed under:10 C.F.R.12.1205(d), the Presiding Officer is to determine "that the specified areas of concern are germane to the subject matter of the proceeding and that the petition is timely." The rule further provides as follows:
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' 'ihe presiding officer also shall determine that the requestor meets the judicial standards for standing and shall consider, among other factors-
- 13 This section leans heavily on the Staff Response, which ofrered me a scholarly discussion of the law. I have not takaa exception to any of the staff's views in this section.
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(1) The nature of the requestor's right under the [AEA] to be rnade a party to the proceeding; (2) The nature and extent of the requestor's property, financial. or other interest in the proceeding; and (3) The possible effect of any order that rnay be entered in the proceeding upon the requestor's interest.
In order to determine whether a petitioner has met these standards and is entitled to a hearing as a matter of right under section 189a of the Act, the Commission applies contemporaneous judicial concepts of standing. See, e.g.,
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Sta-tion), CLI-92-2,35 NRC 47,56 (1992), review denied sub nom. Environmental
& Resources Conservation Organization v. NRC,996 F.2d 1224 (9th Cir.1993);
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 25,18 NRC 327,332 (1983); Envirocare of Utah, Inc., LBP-92-8, 35 NRC 167, 172 (1992).
Further, it has been held that in order ta establish standing, the petitioner must establish (a) that he personally has suffered or will suffer a " distinct and palpable" harm that constitutes injury in fact; (b) that the injury can fairly be j
traced to the challenged action; and (c) that the injury is likely to be redressed by a favorable decision in the proceeding.
- Dellums v. NRC, 863 F.2d 968,971 (D.C. Cir.1988); Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CL1-93-16, 38 NRC 25, 32 (1993); Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 81 (1993);
Envirocare, supra, 35 NRC at 173.
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The United States Supreme Court has recently iterated the " irreducible constitutional minimum" requirements for standing are that the litigant suffer j
an " injury-in-fact" which is " concrete and particularized and... actual or j
imminent, not conjectural or hypothetical," that there is a causal connection between the alleged injury and the action complained of, and that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S.154,167, 117 S. Ct. I154,1163 (1997). See also Lujan v. Defenders of Wildlife,504 U.S.
555 (1991). In addition to this constitutional component of standing, there are
" prudential" (i.e., judicially self-imposed) standing requirements, one of which is that the litigant's asserted interests must arguably fall within the " zone of interests" of the governing law, See Bennett,117 S. Ct. at 1167. See also Port ofAstoria v Hodel. 595 F.2d 467,474 (9th Cir,1979).
The Commission applies the constitutional and prudential aspects of the
' standing doctrine. See, e.g., Vogtle, CLI-93-16, 38 NRC at 32 (to show an
- interest in the proceeding sufficient to establish standing, a petitioner must l' A presiding of6cer has the authority to approve, deny, or condition any licensing action that comes under his or her jurisdiction. see, e.g.. seymoyah furtr corp., L.BP %I2. 43 NRC 290. 296 (1996).
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i show that the proposed action will cause " injury in fact" to its interest and that its interest is arguably within the " zone of interests" protected by the statutes governing the proceeding); Public Service Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14,34 NRC 261,266 (1991) (citing Three Mile Island, supra,18 NRC at 332).
Requirements for standing have been applied to requests for hearing in nu-merous informal Commission proceedings held under Subpart L. See, e.g., Se-quoyah fuels Corp. (Gore, Oklahoma Site Decontamination and Decommis-sioning Funding), LBP-94-5, 39 NRC 54, 66-67 (1994); Babcock and Wilcox Co. (Pennsylvania Nuclear Services Operations, Parks Township, Pennsylvania),
LBP-94-4,39 NRC 47,49 (1994); Babcock and Wilcox, LBP-93-4, supra, 37 NRC at 80-81; Umerco Minerals Corp., LBP-92-20,36 NRC 112,115 (1992);
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Sequoyah fuels Corp., LBP-91-5,33 NRC 163,164-65 (1991); Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30,30 NRC 311,312-13 (1989).
Purely economic interests (i.e., interests not related to harm from adverse environmental impacts of a proposed action are not within the zone of interests protected by the AEA or the National Environmental Policy Act ("NEPA"),
j 42 U.S.C. 0 4231 et seq.) do not confer standing. See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47, 56 (1992); Public Service Co. of New Hampshire (Seabrook Station, Unit 2), CL1-84-6,19 NRC 975,978 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789,20 NRC 1443,1447 (1984).
A petitioner must have a "real stake" in the outcome of the proceeding to establish injury-in-fact for standing. Hourton Lighting and Power Co.
(South Texas Project, Units 1 and 2), LBP-79-10,9 NRC 439,447-48, ag'd, ALAB-549, 9 NRC 644 (1979). - While the petitioner's stake need not be a
- " substantial" one, it must be " actual," " direct " or " genuine." Id. at 448. A mere academic interest in the outcome of a proceeding or an interest in the litigation is insufficient to confer standing; the requester must allege some injury that will occur as a result of the action taken. Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74,16 NRC 981,983 (1982), citing Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Sta: ion), ALAB 328,3 NRC 420,422 (1976); id., LBP-82-26,15 NRC 742,743 (1982). Similarly, an abstract, hypothetical injury is
- insufficient to establish standing to intervene. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229,252 (1991), ag'd in part on other grounds, CLI-92-11, 36 NRC 47 (1992).
A person may obtain a hearing or intervene as of right on his own behalf but Lnot on behalf of other persons whom he has not been authorized to represent.
See, e.g., Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units i
1 and 2), CL1-89-21,30 NRC 325,329 (1989) (individual could not represent plant workers without their express authorization); Tennessee Valley Authority 270 l
__mm___...
(Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418,1421 (1977)
-(mother could not represent son attending university unless he is a minor or under legal disability); Combustion Engineering, Inc. (Hematite Fuel Fabrication Facility), LBP-89-23, 30 NRC 140,145 (1989) (legislator lacks standing to intervene on behalf of his constituents).
An organization may meet the injury-in-fact test either (1) by showing an effect upon its organizational interests, or (2) by showing that at least one of its members would suffer injury as a result of the challenged action, sufficient to confer upon it " derivative" or " representational" standing. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549,9 NRC 644, 646-47 (1979), ag'g, LBP-79-10,9 NRC 439,447-48 (1979). An organization seeking to intervene in its own right must demonstrate a palpable injury in fact '
to its organizational interests that is within the zone of interests protected by the AEA or NEPA. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521, 528 301991). Where the organization relies upon the interests of its members to confer standing upon it, the organization must show that at least one member (with standing in an individual capacity) has authorized the organization to represent his or her interests in the proceeding. Id.t Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-94, 396 (1979); Babcock and Wilcox, LBP-94-4, supra, 39 NRC at 50. Finally, an individual who files a request for hearing on behalf of an organization must show that he or she has been expressly authorized by the organization to represent its interests in the proceeding. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 583 (1978); see also Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2), LBP-90-29,32 NRC 89, 92 (1990).85 The question of whether proximity to a nuclear facility (or a site at which the possession of nuclear materials is authorized) is sufficient to confer standing upon an individual or entity has been addressed in numerous Commissiua decisions. While residence within 50 miles of a nuclear power reactor often has been sufficient to confer standmg in construction permit or operating license proceedings, such distance is not necessarily sufficient to confer standing in other types of proceedings. In reactor license amendment proceedings and materials license proceedings, a petitioner must demonstrate that the risk of injury resulting from the contemplated action extends sufficiently far from the facility so as to have the potential to affect his interests. See, e.g., Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24,22 NRC 97,99 (1985), ag'd on other grounds, ALAB-816,22 NRC 461 (1985)(risk ofinjury from proposed 15 : has also been held that the alleged injury in fact to the member must fall within the purposes or the 1
organization. Curators of #As University of Musouri. LBP-9418,31 NRC $59,565 (1990).
I l
271 i
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L
l L
l I
spent fuel pool expansion was not demonstrated where petitioner resided 43 miles from the facility); cf Sequoyah Fuels Corp., LBP-94-5, supra, 39 NRC at 67-91 (residence adjacent to contaminated fuel fabrication facility might not be sufficient to confer standing if the proposed action has no potential to affect the requeste s interests); Babcock and Wilcox, LBP-94-4, supra, 39 NRC at
/
5152 (standing and injury in fact can be inferred in some cases by proximity to the site, but a greater demonstration of injury may be required where the activity has no obvious offsite implications): Babcock and Wilcox, LBP-93-4,
' supra,37 NRC at 83-84 & n.28 (petitioners' residences within one-eighth of a mile to approximately 2 miles from a fuel fabrication facility were insufficient to confer standing in a decommissioning proceeding, absent "some evidence of a causal link between the distance they reside from the facility and injury to their legitimate interests"); see also Northern States Power Co. (Pathfinder Atomic Plant). LBP-90-3, 31 NRC 40, 44-45 (1990) (persen who regularly commutes past the entrance to a nuclear facility once or twice a week possessed the requisite interest for standing).
- While Native Asnericans have a unique relationship with the federal govern-ment,87 they must satisfy NRC requirements for standing in order to be admitted as a party to an NRC proceeding. See, e.g, Umetco Minerals Corp., LBP-94-18, 39 NRC 369 (1994). The policy that greater participation be afforded minority or low-income groups, Executive Order 12898," Federal Actions to Address En-vironmental Justice in Minority Populations and Low-Income Populations," 59 Fed. Reg. 7629, 7630 (Feb.16,1994), 3 C.F.R. I 859 (1995), requires that an EIS analyze social and environmental impacts on minority and disadvantaged
. communities. Louisiana Energy Services, L.P. (Claiborne Enrichment Center),
CLI-98-3,47 NRC 77,101-02,109 (1998), passim.
In reviewing affidavits with respect to standing, a decision maker should
" avoid 'the familiz.r trap of confusing the standing determination with the j
assessment of petitioner's case on the merits,*" Sequoyah fuels Corp. (Gore, j
Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-5.
j 39 NRC 54 (1994) (citing City of Los Angeles v. National Highway Traf]ic Safety Administration, 912 F.2d 478,495 (D.C. Cir.1990) (citations omitted)),
,aff *d, CLI-94-12,40 NRC 64 (1994); Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Unit 1), CL1-93-21,38 NRC 87,95 n.10 (1993) (standing
In adopting Subpart L. the Commission considensd whether proximity to a materials license facility is sufficient to establish standing. NotiRr that it had already rejected the 50-mile rule for materials licensing, the Commission further rejected a suggested presumption that persons who reside and work outside a Sve-mile radius of a materials site would not have standing. The Conunission stated, "[t]he standing of a petitioner in each case should be detertnined based upon the circumstances of that case as they relate to the factors set forth in (10 C.F.R. 12.120$(g)}? statement of Consideration, " Informal Hearing Procedures for Materials Lkenning Adjudications?
54 IM Reg. 8269 (reb. 28,1989); see also id., Proposed Rule,52 IM Reg. 20,089,20,090 (May 29,1987).
U This unique relationship has limited applicabHity to this case. This ruling is consistent with the Presiding
)
of5cer's Memorandum and Order, LBP.98-5,47 NRC 119,136 (1998), appealpending.
272 l
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b I
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' requires more than general interests in the cultural, historical, and economic resources of a geographic area), citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).
In cases withc,ut obvious offsite implications, a petitioner must allege some l
specific " injury in fact" will result from the action taken. Florida Power and
' Light Co. (St. Lucie Nuclear Power Plant,' Units 1 and 2), CLI-89-21, 30 i
- NRC 325, 329-30 (1980); Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473. 7 NRC 737,743 (1978).
4
' Petitioners need not specify their concerns in detail until they have been given i
access to a hearing file. Babcock and Wilcox, LBP-94-4, supra, 39 NRC at 52.
B.. C' nclusions About Sonw Aspects of Standing -
i o
It is important to define the scope of this proceeding before determmmg F
l whether Petitioners suffer from an " injury in fact" or whether " areas of concern" 4
are germane to this proceeding. The Staff's suggestion concerning the scope of n
the hearing is:
This proceeding involves the application of HRI to construct and operate facilities for in situ j
leach uranium mining (also called solution mining) and processing at Church Rock, Unit I
~
and Crownpoint sites in McKinley County, New Mexico,in accordance with both a source and byproduct material license issued by the NRC.is
- This is consistent with the Notice of Opportunity for Hearing 59 Fed. Reg.
. 56,557 (Nov.14,1994). That notice stated, in relevant part:
HRI's proposal is to lease areas near Crownpoint and Churchrock, New Mexico, and to use existing and new surface facilities in processing plants for extracting uranium from aqueous mining solutens... As documented in the DEIS, the review group determined that the applicant's proposal to conduct solution mining to extract uranium in the lease areas i
is generally accepuible... Pursuant to $2.t205(a), any person whose interest may be affected by this proceeding may file a request for a hearing....I'[ Emphasis supplied.]
Because this definition of the proposal includes all the sites, despite restnc-tions contained in the license, a petitioner may gain standing by alleging that
- injury in fact will occur from mining conducted at any of the sites.
HRI has taken a different position on standing than the one I have adopted.
~
LHRI concludes that the licensing process, which it describes in detail, provides assurance that "there must be no degradation in the safety or environmental i
i l 18 staff Response at 20.
I'59 red. Reg. at 56.558.
~273 1
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\\
i
l commitments made in the (COP] or in the approved reclamation plan."20 It l
buttresses this argument by pointing to the role of the Environmental Protection Agency under the Safe Drinking Water Act, and it concludes that "by definition, HRI's proposed... operations will not hann sources of drinking water." Thus, HRI takes credit for the regulatory process, even though that process will operate in the future. It is no wonder then that, when HRI applies this standard, it concludes that no petitioner har demonstrated " injury in fact."
I have concluded that this proceeding must examine the HRI application.
It therefore includes all the sites at which in situ leach mining is to be conducted, including sites on which radioactive wastes may be discharged. It is my responsibility to determine whether petitioner's interests are adequately l
.orotected. I may not properly delegate that responsibility to the Staff or to the l
EPA. If necessary facts are not now available because the site has not yet been edequately characterized, then there is a lack of assurance about the impact of this project and there is reason to find injury in fact.
The license sought by HRI (SUA-1508, January 5,1998) (License) was filed with the Presiding Officer on January 8,1998, with a cover letter written by Joseph J. Holonich. The license contains conditions imposed by the Staff. Those conditions are binding on HRI Some of the license conditions imposed by the Staff indicate information the Staff must still be provided before the request.-d license activities may be authorized. In this regard, I note that Staff has required:
The licensee shall submit an NRC-approved surety arrangement to cover the estimated costs of decommissioning, reclamation and groundwater restoration;21 Injection well operating pressures shall be maintained at less than formation fracture l
pressures, and shall not exceed the well's mechanicalintegrity test pressure;22 Prior to injection of lixiviant in a well field, groundwater pump tests shall be performed to determine if overlying aquitards are adequate confining layers, and to confirm that horizontal monitor wells for that well field are completed in the Westwater Canyon aquifer,23 Prior to injecting fixiviant at a site, orprocessing licensed material at the crownpoint site, HRt shall provide and receive NRC acceptance -for that site - information, calculations and analyses to document the adequacy of the design of waste retention ponds and their associated embankments (if applicable), liners, and hydrologic site characteristics.
24 [ Emphasis added.]
20 HRI1(esponse at 10-11.
2i LJcense at 2; see also kl. at 3 (updated surety arrangement also required).
22 /d. at 4 (i10.3).
23 14 at 8 (I10.23).
24 Id (i10.26).
274 i
l
Prior to the injection of fixiviant at the Crownpoint site. the licensee shall.
e (make changes in the water supply systemfor Crownpoint. These changes include capping existing water wells and finding replacement wells that will provide the same quality of water.]u [ Emphasis added.]
I note that these licensing conditions, particularly the last two, indicate that the experts working for the Staff have not yet been persuaded by the licensee that it already has the information with which to design and implement safe, environmentally appropriate operations. The Staff is waiting for further infortnation about this site before it exercises its discretion about whether to permit either injecting lixiviant at a site or the processing of licensed material.
Petitioners are not confident that the Crownpoint water supply will be ade-quately protected, as the design of the project is far from complete. Petitioners are not required to rely on the good will of HRI, the future decisions of the Staff of the Nuclear Regulatory Commission, or the staff of the Environmental Protection Agency. Petitioners who demor. strate that they rely on water supplies adjacent to the in situ leach mining project have a right to a hearing. They may challenge this project based on reasonably specific operating plans, which are not yet developed. Because knowledge of the relevant rock formations is still rudimentary and plans are incomplete, there are enough reasonable doubts to establish " injury in fact." I have determined that, for the purpose of determin-ing standing, anyone who uses a substantial quantity of water personally or for livestock from a source that is reasonably contiguous to either the injection or processing sites has suffered an " injury in fact."
In making a determination of standing, I have exercised my discretion not to examine whether Petitioners have complied with state affidavit requirements concerning their str:.:ments of residence or injury in fact. It is enough that individuals and grops have filed these pleadings, whose veracity is assured both by the honor of the people making the statements and by legal penalties for false statements to a government agency, Thus, I have determined that these statements satisfy the requirement that groups disclose the name and address of at least one member with standing to intervene so as to afford the other litigants the means to verify that standing exists. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 535,9 NRC 377, 389-400 (1979) (at 396, the Appeal Board required a " specific representational authority" without mentioning a need for an affidavit); Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 1), LBP-96-1,43 NRC 19,23 (1996)
(accepting a list of members' names and addresses - part of the " Corrected U ld at 9 (610.27A).1his section also requires coordination with all the appropriate agencies and regulatory authorities.
275 i
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f I
Request"- as the basis of standing for one party, without mentioning that the list was in aftidavit form) ne following Table summarizes my determinations about the admission of l
parties:.
REASONS GOVERNING STANDING OF PARTIES (Preliminary to Examining Areas of Concern, 2
Party Organizational People Irdttry in Fact '
Admit?27 Purpose Represented (one or more)
ENDAUM To protect drinking Larry King Use water, live V2 Yes water and livestock Mitchell Capitan mile from uranium from radiologL:al Herbert Enrico processing, graze and nonradiological Grace A. Tsosie '
livestock on land contaminants 2s Calvin Murphy abutting Churchrock
[Bernadine Martim and Unit I no finding about injury in fact]8 SRIC Provides public Raymond Morgan Use water -
Yes 31 information on LaLora Charles the environment, including development of uranium under Indian landsM ZMC Environmental group None (no No authorization to 32 represent anyone (Continued) 26 1 have determined that an " injury in fact" is suffered by anyone using water from the Crownpoint water supply orgrazing animals in close proximiry to one of the areas used for injection mining or application ci waste.
My determinauons we based solely on injury to represented individuals. HRI would not have me admit any parties. Staff agrees with my deterrninations except with respect to SRIC and to Marilyn Sam and Grace Sam;
' Staff woutd not admit those Petinoners as parties.
2: E/S Second Amended Request at 7.
"See letter of Bernadine Martin, Dece.nber 13, 1994. Exhibit B ENDAUM Response (March 20, 1995);
Exhibits Atta:hed to the Motion of Eastern Navajo Dind Against Uraniurn Mining to Respond to the Request of Hydro Resources Inc. to Deny Mi Petit;ons for an Evidentiary Hearing (ENDAUM's Motion / Response).
M E/S Second Amended Request at B.
3314 at 911.
i 32 Zuni Mountain Coahtion (ZMC), February 13,1995. This letter mentions that Mr. Mervyn Tilden is a ZMC board member, but it does not contain Mr. Tilden's authonzation to repreft his 1
276
REASONS GOVERNING STANDING OF PARTIES (Continueid)
(Prelhnimary to Examining Areas of Concern)-
3 Party
. Organizational People Iq)ury in Fact '
Admit?27 Purpose Represented (one or suore)
WIN 33 L
. Environmental None No ~
C
. organization
- Dind
. The purposes d the None (no No -
. CARE' organization are not authorization to 3
described.
represent anyone ')
Mervyn -
.N.A.
Self Vague cirims of
'No -
Tilden33 water use (discussed '
below)
Eastern.
To promote and.
- Many people' Injury if the license No (not Navajo.. preserve mineral
' rded affidavits of
- is denied timely)
[
. Allottees ' leases with Licensee - authorization -
3 Marilyn
. N.A.
Selves Use of water Yes37
' Sam,
' Grace Sam
'The Eastern Navaio Allottees represent individuals who have sold mineral
.. rights to Licensee. :1 have decided to deny them standing in this proceeding because their petition is untimely. See pp. 278 ff.
s Mr. Mervyn Tilden made vague claims of use of water. Specifically, as the Staff accurately summarized in its Response, On hbruary 15.1995, Mr. Tilden submitted an amended hearing request.3s Together, [Mr.
Tilden's].,, December 1994 and Rbruary 105 letters make the following factual claims relevant to Mr. Tilden's standing: (1) Mr. Tilden lives in a house he owns in Cl, arch Rock, New Mexico, about five miles south of flRI's Churchrock minirig site (on land held in trust
- by the United States f the Navajo Nation); (2) he uses the areas in which IIRI proposes to 33 Water Information Network letter of December 14,199% attached to the Memorandum from John C. Hoyle to B. Paul Couer, Jr., December 16,1994.
3dlmuer for Dind CARE, December 14,1994. It is not clear whether Dind CARE is seriously interested in -
parecipatmg in a formal proceedag.
38 Mr. Tilden,*s leaer of February 15,1995, was sent by facsimile transmission from the Zuni Mt. Coalition, but it does not state that Mr. Tilden authorizes the coalition to appear for him. Mr. Tilden appears to want to appear
. for himself. For reasons discussed below,I End that Mr.Tilden does not have standing.
L 36 Esatern Navrjo Allotters Association. Petition for leave to Imervene, January 5.1998.
J. 33 Marilyn Sara and Orace Sam Gled a letter on December 14,1994 1 End that the letter presents sufficient
- ground for standing. However, these people have not Sled any documents since the SER and EIS were 61ed, and they may not be interested in appearing as a party in a public hearing. Consequently, I will require them to state in wnting whether or not they choose to participate in the hearing.
3'1he letter from Mr. Tilden, dated February 15,1995, was not made part of the formal Bles until March 4, i 48.
277 s
g..
I 2
L 4
e
______m_-_____:~._____:-_________:.____..__m._.________..______m_._____.__________m___-________._____.._____________m__,____._._.__._:.______._______________
_.________.____..__________.m._______._______
1 l
mine for recreational, occupational,3' and spintual purposes, and on occasion he eats " ment from animals that may graze on and around the Church Rock site" (Tilden 1994 letter, at 1); and (?) he uses drinking water from " area squifers."
i After reviewing Mr. Tilden's areas of concern, I agree with the Staff that Mr.
Tilden has not shown any " plausible or realistic way by which radiological harm j
could occur specifically to Mr. Tilden." Had Mr. Tilden demonstrated that he would continue to use water from the Crownpoint water supply, that would be enough to provide a basis for standing. However, much of the area Mr. Tilden says he has used will be fenced off by HRI and it is not at all clear that he is personally at risk because he or his livestock will continue to drink or use water from Crownpoint or another arguably affected well.
I have determined that individuals who use water nearby to the HRI site have established standing because of the personal risk to them. Accordingly, it
'vas not necessary to determine whether any petitioner should be considered to have suffered injury in fact due to any other interest. Failure to consider these additional grounds is not a commentary on their sufficiency. One application of this rule is that ENDAUM's standing was affirmed because four individuals used water that could be affected by in situ injection mining. Since these individuals met the tests for standing, it became irrelevant whether or not Bernadine Martin was considered to have established grounds for standing. Consequently, there is no purpose in analyzing more closely some of her assertions, which go beyond safe drinking water. There is no current controversy concerning whether Bernadine Martin suffered injury in fact. If her standing becomes relevant at some later time, it may be considered on another day.
C.
Timeliness I find that the petitions of ENDAUM, SRIC, and Grace and Marilyn Sam are timely.' As the Staff has indicated, at 33 n.31, of its Response to Requests for Hearing:
ENDAUM and SRIC requested permission to replace all of their previously filed petitions I
and concerns in order to avoid confusion (E/S Second Amended Request at 1-2). Tley alleged that their previous request was filed by Bernadine Martin in December 1994 (on behalf of citizens who later adopted the name ENDAUM), by the SRIC Request and the ENDALM Motion / Response late-filed on l'ebruary 15,1995. Inasmuch as ENDAUM was
. organized after the deadline for hearing requests. a member filed timely, the proceeding was held in abeyance, and the second amended filing was after consultrJon with counsel and experts, the Staff does not oppose these filings on lateness grounds since it is apparent I'la this regard he travels on local roads in his duties as a journalist and local community activist 278
l.
F the delays were excusable and did not unduly prejudice HRI or the Staff. Sec 10 C.F.R. -
L i1.1205(k)(1).
I t
. For reasons stated by the' Staff, I find that ENDAUM is a successor in interest '
to Bernadine Martin, who' filed a timely petition. Subsequent amendments,-
' including amendments to describe injuries to other members, do not make these.
L
' petitions late. In addition,I find.that the second amended filing may be received;
. it represents changes made after conferring with counsel and experts and it has L;.
M - not delayed the proceeding.'..,.
f Of the participants now before us, only the Eastern Navajo Allottees As-sociation (Allottees) Sled its intervention petition' out of time. Its intervention
. petition was submitted more than 3 years beyond the deadline specified in the.
.i l
agency's November 14,1994; notice of opportunity for hearing. Sce 59 Fed.
Reg. at 56,557. ' Allo' tees therefore must demonstrate that bofh factors in 10 '
t C.FA i120$(l)(1),veigh in favor of permitting late filing." For the reasons outlined below, we find Allottees has failed to meet its burden in this regard.
On the first factor'- excusable delay - Allottees fail to make a persuasive showing. Allottees make no assertions regarding the adequacy of the agency's notice in the Federal Register. That notice generally is considered constructive -
notice to all residents of the United States.' See 44 U.S.C. 51508. Allottees
' claim that they "recently became aware of. bulky filings made on behalf of--
ENDAUM and Southwest Resource Information Center ("SRIC") which...
. greatly distort and misrepresent the record established by the FEIS for HRI's.
. project." Although Allottees do_not rnention it, the filing to which they refer.
appears to have been made on August 19,1997, fully 5 months prior to.the Allottee's filing. Thus, neither the 3-year delay nor the 5-month delay has been i
[
adequately explained.. Under 10 C.F.R. 62.1205(l)(1), that is the end of my b
inquiry. Allottees may not be admitted as a party. Accordingly, under 10 C.F.R. -
6 2.1205(l)(2),- Allottees' request will be treated as a petition under 10 C.F.R.
-l2.206 and referred for appropriate disposition.
J 1
a III. CONCLUSIONS ABOUT " AREAS OF CONCERN"
. Pursuant to 10 C.F.R. 6 2.1205(c), where a request for hearing is filed by any i
- person other than the applicant in connection' with a materials licensing actiod
. under 10. C.F.R. Part 2, Subpart L, the request for hearing must describe in j
' detail:
" Although there apparendy is no' de6nitive authority on whether a Sling seeking discretionary intervention
. subeniaod beyond the deadline fur 6 ling intervention petitions amat meet the late-61ing standards, we And nothing
. In the general terms of 10 C.F.R. 62.714 governing intervention peutions that would exernpt a discretionary
")
intervention request fronn its late-61ing provisions.
279 l
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.[
7
/
t -
.w O. '
(3) The requestor's area of concem about the licensing activity that is the subject matter of the proceeding;.,,
Pursuant to 10 C.F.R. 6 2.1205(h), in ruling on any request for hearing filed under 10 C.F.R. 52.1205(d), the Presiding Officer is to determine "that the specified areas of concern are germane to the subject matter of the proceeding
." Any area of concern is germane if it is relevant to whether the license should be denied or conditioned. For example, a concern about the quality of water is germane if HRI's project, including activities that require further NRC or EPA approval, could affect it. If a petitioner alleges a deficiency in the EIS, then that concern is germane. If a petitioner alleges a deficiency in the method for monitoring to detect excursions, then that concern is germane. It is not necessary to determine the merits of a concern in order to determine that it is germane.
Assuredly, this standard differs from assessments of " contentions" in formal proceedings. The informal standard is far easier to meet. In this regard, I consider HRI to be too rigorous in its arguments about the admission of areas of concern.'
At this stage of the proceeding, the admission of an area of concern is fairly straightforward. The consequence of admitting an area of cor. ern may be limited because I will propose that, after the Staff makes the Hearing File available and, subsequently, after substantial relevant information becomes available, Interveners must demonstrate that they have identified contentions
'.that would be admissible under 10 C.F.R. Q2.714(b)(2) before they will be permitted to make full written filings offering proof. Accordingly,I will briefly analyze areas of concern presented by the parties, beginning with the following table, which summarizes the areas of concern of ENDAUM and SRIC and states whether they appear to be germane to this proceeding:
Areas of Concern Germane?
License application is disjointed, incoherent, No. This is not an objection to the action and contradictory that will be licensed. This concern may 42 be discussed with the Staff, which may consider how to improve the orderliness of the hearing record that it will assemble and file.
43
- Deferrals of important safety issues No. This may be a reason for keeping our record open or for other procedural relief.
'I See HRI's Response at 33 34.
42 ENDAUM and SRIC's Motion for trave to Arnend. etc., August 19.1997 (ENDAUM Petition to Arnend) at 17-28.
83 /d. at 29 30.
280 t
1 I.
I Areas of Concern Germane?
Performance-based licensing'4 Yes. See footnote,43 Degradation of the Crownpoint and Church Yes.
Rock water supplies, threatening public health and violating the Sa'e Drinking Water Act (SDWA)"
l Inadequate monitoring for excursions, not Yes.
In compliance with Staff Technical Position WM-8102 and speculative because of uncertain ore body geometry" Improper guidance defining excursions, Yes.
resulting in inadequate protection of drinking 4s waten Inadequate groundwater restoration standards Yes.
(restore to baseline water quality or "as close as feasible")*
fitilure to demonstrate that adequate restoration Yes.
(particularly for U-236 and uranium) can be achieved" Failure to protect groundwater from liquid Yes.
83 waste disposa1 s2 Improper uranium drinking water standards Yes. This appears to be solely a legal question requiring briefing.
Failure to obtain proper permits from the Yes. Proper local permits must be 53 obtained.10 C.F.R. 6 20.2007; Materials Navajo nation License 19.14.
'4 14 at 30-32.
'8 Clawland Electric illummating Co. (Perry Nuclear Power Plant Unit 1), C11-93-21,38 NRC 87, 93-94 (1993). (An injury alleged to occur because of a change in agency procedure any be the basis for a contention or, by inference, an area of concern.)
"ENDAUM Peution to Anund at 3348,70-75.
'7 1d at 49 53,54 58,60-61.
4sid at 53.
"/d at 59-60,61-67.
50 Id at 67-69-.
51/d at 76-95.
$2/d at 89.
33 14 at 90, 92, passim.
281
.E
p-l
[
I Areasif Concern
- Gerasene?
. Failure to " clearly demonstrate" that '.
Yes.
. groundwater will be protected from liquid s waste disposal facilities (Appendix A to 10 l.
C.F.R. Part 40f'.
inadequate Anancial surety for the proposed '
Yes.
88 restoration and reclamation plan
, l HRI not qualined by experience and training '
Yes.87 8
( Failure to comply with regulatieis and with -
Yes.
L
. Regulatory Guide 3.46 concerning shipping.
l radioactive or hazardous rnaterials58 ^
Inadequate air eminions control and the effect '
' Yes.
- of socirculating redon in the mining solution?
jl s Violation of the National Historic Preservation Yes. This issue is primarily legal, not Act by not identifying historic properties or -
factual -
consulting with the Navajo Nation Historic i
Preservation Department" P
l Violation of the Native American Graves Yes. This issue is primarily legal, not lf Protection Act by failing to comply with factual.
' consultation and concurrence requirements'!
Incomplete information in the EIS on the risk
-Yes.
L:,
- of adversely affectics drinking wateru?
' lacompleteness of the EIS because of the lack
-Yes.
. of detailed design information" --
i.
I
<1 I-
- $4/d at 90-91 i
55 /d at 96-101, 881d at 102-05.
F 87'Ihe SPJt, of December 4,1997, at 3 8, appears to rely on as organizational plan and a set of minimum
. position quali6 cations to assure quali6 cation by experience or training. The information presented by ENDAUM..
- does not specify why this is ' ',
he information appears to be elevant to some of ha other concerns, such
. as ihs difficuhy of adequale restoration, but it may have to 6ad more speciAc evidence la order to support its claim
[
o about lack of quahacations or character. la particular, its allegations about URI do not seem to be adequately documnased to justify adjudicating that complex collaseral issue.
e
< 88BNDAUM Fwhion to Amend at 106-08..
J f#14 at 109-1$,1 l
' 'Old at 116 26.
l
~ 'Ild at 127 31; L814 at 132 39,148 51, 181d at 14041.
282 1-d i_______.____li_________.____.___'..______..[__.__'_____.___._____
V O
.(
l
- Anwes of Concera' Germane?
Failure of the EIS to consider the risk' ~
'Yes.
of adverse impacts on the project from a downturn in the market for uranium, failme
- to complete adequate cosebenefit analysis,' and '
- miscellaneous matters **
Violation of IJ.S. trust obligations to the.
' No. This area of concern is redundant.
Navajo Nation and its members.65 -
' On its face, it rests on each of the other.
~
concerns. By handling the other concerns,~.
this area is resolved.86 j
y.
j Marilyn and Grace Sam (the Sams) have been admitted as parties, subject t
L to their confirming their interest by letter. To the extent that the concerns 'of the Sams are identical to ENDAUM's, those concerns have been found to be
- germane.
f he Sams allege that, "The Project's transportation'of contaminated materials by truck over long distances threatens the safety of people living, working, and l'
' traveling in the area, including us."*7 This area of concern is germane..Afteri
- 7. the hearing record is filed, the Sams will need to show 'either that the EIS does not adequately cover this issue or that there are ways that the protection of the public is not adequate even though the shipping containers, which must conform with government safety regulations, are designed to withstand accidents without
[,
e releasing radioactive materials.
l b The Sams are concerned that this proposal "does not address how existing L
Contamination of the area on and around the Church Rock' site will be cleaned fup."" That concern is not germane to this proceeding. HRI may not unduly
? damage the environment. Unless there is some project-related reason, a licensee is not required to clean up problems that it did not create.
1The Sams also allege that," Accidents during mining and processing of the
- uranium would pose a threat to people present in the area around the Project site."" This area of concern is germane but undocumented.. After the Hearing
^
- File is made available, the Sams will need to show that there are one or more,
' problems in the Licensee's procedures that unnecessarily create radiation risks j
to people around the Project site. I do not now know of any problems.of this -
L nature.
M at 152-s3.'
'8 M at 184 86.-
This ruling is consissent with the Presiding'of6cer's Mernorandum and order, tBP-98-5,47 NRC at 1%
66
'I temer of Orace som and Marilya sam, December 14,1994 (anached to Memorandum from John C. Hoyle to B. Pal Comer, Jr., December 16,19981 -
- M at 2.
' *1Md.
283 Iq b
__.-m.
___,_m
_____-i.--___ -.
z_
.I
- ____ _ 7 -
r I
Finally, the Sams allege that," pproval of the Project would further compli-3 l cate the jurisdictional dispute between the Navajo Nation.... [and others]."5 -
- This concern is not germane. This project will be completed if it is appropriate
> under the laws It is not acceptable for me to reject or modify a project because P
'.it will cause controversy.-
! In ' this proceeding, -I :may consolidate l parties. ' 10 C.F.R.' 6 2.1205(m).
' Pursuant to this authority,'I suggest to Marilyn and Grace Sam that, if they.
< desire to continue as n' party, they confer with the other Interveners so that their efforts may be coordinated in onder to avoid unnecessary duplication.
IV. PIhN' FOR THIS PROCEEDING This proceeding has the potential to be complex, contentious, and expensive.
The purpose of this section of this Memorandum is to provide a blueprint,' which l
may be improved by motion, to make this proceeding both fair and effective.
I have identified the following ways that the parties may cooperate in avoiding.
unnecessary expense and simplifying my task so that I can effectively attend to the merits of this controversy:
1
.; Individual parties, or a group of parties who have consulted together, may nominate legal issues that may be decided by legal briefs rather than by factual presentations. To facilitate decisions based on legal briefs, the
- parties may consider reaching brief factual stipulations.
4. Interveners may confer to decide how they can best cooperate to present their case to the Presiding Officer clearly and without unnecessary.
1 redundancy or duplication; 'Ihey should provide the Presiding Officer with the result 'of their conference.
.'. The parties may confer with the Staff about the ENDAUM and SRIC -
" concerns" about having an orderly record, so that the Staff may organize
. the record in a manner that is useful to the parties...Whenever feasible,
-the record should be made available in a form that can be searched by H
Leomputer by the parties and the Presiding Officer.
1Whenever feasible, the parties'should make their filings available in a (form that can be'scarched by computer by the parties and the Presiding Officer.
. c HRI and the Staff will file a schedule providing that,' subsequent to.
. the time the Hearing File is made available, the Presiding Officer and -
the parties will be informed as early as fearible about. substantial new t information that is developed by HRI or the Staff. If necessary, Licensee
- 0
' "lMd I
'284 L
j;
_.g L _i_- _ x_
1 ML -
and Staff may propose the use of a protective order covering early release of information.
The parties may confer on a realistic set of targets for completing the different phases of this case and for completing the entire case.
He parties may conduct exploratory talks to determine whether their interests may be met through a settlement of this case.18 I would be pleased to facilita2 6.ese discussions, providing they will be held in j
a public forum. If the parties prefer to negotiate in private, they may request the appointment of a settlement judge to assist them in their efforts; or they may request special permission from the Commission for me to assist Qcm in private discussions. I assure the parties that I can participate in mediation and then, if the negotiations fail, disregard all facts that are not in the record.
I eacourve the parties to confer together to develop innovative ideas that ma).:rease the fairness and efficiency of this proceeding.
A telephone prehearing conference will be held at 2:00 p.m. EDT on May 28,1998. Parties may present agreements or separate !<iews on the scheduling of the case or on procedures suggested in this Memorandum.
he telephone conference is scheduled to last for 2 hcurs, subject to change as required.
After the hearing record is made available, I plan ta come to New e
Mexico for a site visit and second prehearing conference concerning the narrowing oflitigable issues. In the evening after the first session of the prehearing conference, I plan to ask members of the pablic to address me for no more than 6 minutes each. These presentations will not be on the record and cannot be considered in the determination of this case, but they will permit me to become familiar with local sentiment. If important substantive concerns come to my attention, I may ask that a party proile a response for the record.
The following schedule specifically relates to facts contained in the hear-ing record. Additionally, the schedule contains time spans that are pro-posed for implementation as significant additional facts are added to the hearing record. These deadlines and steps are established tentatively, subject to discussion with the parties at the telephone prehearing con-ference:
73 1n HRis Response to the Navajo Nat s's Mouon. riled before the Comnnasion on May 4,1997. HRI acknowledged on pages 3-4:
... HR! understands that it is ernbarking on a long-terro project that will require the conunued support of New Mexico and the Navajo Nation, and therefore tHRI] plans to cooperute fully with both sovereigns on a!! rrgulasory Lrsun, not just those involving cultural resources.
Thus. HRI acknowledges a possible basis for fruitful settlement riegotiauons both with interested governrnents and with its neighbors who have becone parties to this case.
285 i
Tentative Schedule for Case June 13,199872 The service list shall rec.ne the hearing file from the Staff.
28 days after fad 2 Proposedfor discussion as a case management become available73 rool: The service list shall receive from Interveners contentions that are based on the hearing record, in its present state, and that meet the requirements of 10 Cf.R 9 2.714(b)(2). Interveners may also file on this date a clear statement concerning alleged deficiencies in the hearing record or questions they request the Presiding Officer to ask of Licensee or the Staff.
49 days after facts The service list shrdi receive from the Licensee its become available response to Intervenor filings and questions it may wish the Presiding Officer to ask of the Interveners.
56 days after facts The service list r. hall receive from the Staff its response become available to Intervenor filings.
77 days after facts The service list shall receive from the Presiding Officer become available his rulings on Intervenor filings 107 days der facts The service list shall receive from the Interveners their become available written filings, in conformance with 10 CF.R. 6 2.1233.
128 days after facts The service list shall receive from the Licensee its become available written filings,in conformance with 10 Cf.R.12.1233.
135 days after facts The service list shall receive from the Saffits written become available filings, in conformance with 10 C.F.R. 6 2.1233.
165 days after the last The service list shall receive from the Presiding Officer significant facts becone his decision deciding this case.-Ghis date is, of course, available subject to extension for cause.)
Order For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 13th day of May 1998, ORDERED, that:
1.
The following parties are admitted:
Eastern Navaho Dine Against Uranium Mining (ENDAUM),
s Southwest Research and Information Center (SRIC),
Marilyn Sam and Grace Sam, l
I 72 Filings should be received on the first business day following a deadline that falls on a nonbusiness day.
73 %e first available facts will be in the Hearing File. That file will be supplenunted from time to ame as substarial new information becomes available.
l 286 1
l 1
i l
I 1
' ~
f 2.. The following petitions are denied: the Zuni Mountain Coalition (ZMC),
d Dind CARE, Mervyn Tilden, Water Information Network (WIN), and the Eastern
- Navajo Allottees.
J 3.
Marilyn Sam and Grace Sam shall,'on or before May 26, cerve their statemer.t that they wish to participate as a party to this proceeding. If they do not. serve a timely statement, I will assume that they are not interested in participating as a party. If they are not a party, they may participate in making a limited appearance before me when that becomes appropriate.
.4.' : A prehearing conference will be held by telephone at 2:00 p.m. EDT
- on May 28,.1998.' The parties are required to notify the Presiding Officer in advance of the telephone number to use in reaching them and they are required
-- to attend. Pames may present agreements or separate views.
5.
Ruling on Areas.of Concern, set forth beginning on p. 280, are adopted.
6.
'Ihe petition of the Eastern Navajo Allottees is referred to the Staff of-z the Nuclear Regulatory Commission for appropriate disposition under 10 C.F.R.
I 2.206.
' 7.
The Staff shall make the Hearing File available pursuant to 10 C.F.R.
. I 2.1231(r.).
' 8. Motions for reconsideration of this Order may be filed no later than 10
. days from the date stamped on the first page of this Memorandum and Order as
- the date of senice.
- 9. -Within 10 days of the service of this Order, appeals may be filed by parties that have been dismissed or by parties objecting to the granting of a petition ts intervene pursuant 10,10 C.F.R. 6 2.1205(o). Parties filing motions '
for reconsideration regarding their dismissal as parties may defer filing an appeal
' until after the motion' for reconsideration has been determined.
BY THE PRESIDING OFFICER Peter B. Bloch
' ADMINIS.RATIVE JUDGE
- Rockville, Maryland i-
[ '. '
f i.
I 287 l-4 t
20
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--__-__.___n-,---
J
Cite as 47 NRC 288 (1998)
UNITED STATEG OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Refore Adminletrative Judges:
G. Paul Bollwerk, lil, Chairman Dr. Jerry R. Kline Dr. Peter S. Lam in the Matter of Docket No. 72-22-ISFSl (ASLBP No. 97 732-02-ISFSI)
PRIVATE FUEL STORAGE, LLC.
(Independent Spent Fuel Storage installation)
May 18,1998 In this proceeding concerning th.: application of Private Puel Storage, L.L.C.,
under 1 0.F.R. Pa-t 72 to construct and operate an independent spent fuel storage mstallation (ISFSI), the Licencing Board rules on motions for reconsid-eration and/or clarification of its decision in LBP-98-7,47 NRC 142 (1998),
admitting pnties and contentions.
LICm.NSING BOARD (S): RESPONSIBILITIES (EXPLANATION OF REASONS FOR DECISION OR RULING)
L
' RULES OF TRACTICE: CONTENTIONS (EXPLANATION OF REASONS FOR RULING ON ADMISSIBILITY); DECISIONS OR RULINGS (EXPLANATION OF REASONS)
In the context of the record before the presiding officer, including the arguments of the participants, if the presiding officer's reasons for rejecting i
. an intervenor's contentions,"'may reasonably be discerned,'" Motor Vehicle Manufacturers Ass'n of the United States v. State Farm Mutual Automobile Insurance Co.,463 U.S. 29,43 (1983) (quoting Bowman Transportation, Inc. v.
i 288 l-1
__-__-______--_J
I l
Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286 (1974)), the presiding officer has provided an adequate explanation for that decision.
MOTION FOR RECONSIDERATION: RAISING MATTERS FOR FIRST TIME RULES OF PRACTICE: MOTIONS FOR RECONSIDERATION (RAISING MATTERS FOR FIRST TIME)
If a party seeks to rely on information as a basis for admitting or rejecting a contention that clearly falls outside the sta:ed scope ofits original arguments, this is an impermissible ground for seeking reconsideration. See Louisiana Energy Services LP. (Claiborne Enrichment Center), CLI-97-2,45 NRC 3,4 (1997)
{
. (reconsideration motions may not rest on a "new thesis").
MOTION FOR RECONSIDERATION: RAISING RELATED 1
MATTERS RULES OF PRACTICE: MOTIONS FOR RECONSIDERATION (RAISING RELATED MATTERS)
When similar aspects of other contentions have been rejected, consistency concerns counsel that the presiding officer consider a renewed argument regard-ing a comparable component of cn admitted contention to ensure the presiding officer has not overlooked a similar matter. See Philadelphia Electric Co. (Lim-erick Generating Station, Units 1 and 2), LBP-83-25,17 NRC 68',687 (1983)
(reconsideration asks that the deciding body take another look at existing evi-dence because evidence has been misunderstood or overlooked).
RULES OF PRACTICE: CONTENTIONS (SUPPORTING INFORMATION OR EXPERT OPINION; NEED TO EXPLAIN SIGNIFICANCE OF SUPPORTING DOCUMENTS)
Attaching a document in support of ri conte.ntion without any explanation of its significance does not provide an adequate basis for a contention. See Iouisiana Energy Services, LP. (Claiborne Enrichment Center), LBP-91-41,34 NRC 332,338 (1991).
289 l
i
MEMORANDUM AND ORDER (Ruling on Motions for Reconsideration of LBP-98 7)
Four of the parties to this proceeding, Interveners Ohngo Gaudadeh Devia (OGD) and the State of Utah (State or Utah), Appliennt Private Fuel Storage, L.L.C. (PPS), and the NRC Staff have filed motions requesting teconsidera-tion and/or clarification of portions of our rulings in LDP-98-7,47 NRC 142 (1998). See Motion and Memorandum of [OGD] Requesting Reconsideration of
. Contentions (Apr. 29,1998) [ hereinafter OGD Reconsideration Motion]; [ State]
Motion for Clarification and Reconsideration of LBP-98-7 (May 6,1998) [here-inafter State Reconsideration Motion]; Applicant's Motion for Reconsideration and Clarification (May 6,1998) [ hereinafter PFS Reconsideration Motion]; NRC Staff's Motion for Partial Reconsideration of LBP-98-7 (May 6,1998) [here-inafter Staff Reconsideration Motion]. In addition, these parties, as well as
- Interveners Castle Rock land & Livestock, L.C.. and Skull Valley Co., Ltd.
(collectively Cast e Rock), have filed pleadings in response to these motions.'
l See [OGD] Response to Applicant's Motion for Reconsideration of Contentions (May 11,1998) [ hereinafter OGD Reconsideration Response]; State's Response to Motions for Reconsideration (May 13,1998) [ hereinafter State Reconsider-ation Response]; [ Castle Rock] Response to Motion for Reconsideration (May 13,1998) [ hereinafter Castle Rock Reconsideration Response]; Applicant's Re-sponse to NRC Staff, [ State], and OGD Motions for Reconsideration and Clarifi-cation (May 13,1998) [ hereinafter PFS Reconsideration Response]; NRC Staff's Response to Motions for Reconsideration of LBP-98-7, Filed by the Applicant, the [ State] and [OGD] (May 13,1998) [ hereinafter Staff Reconsideration Re-sponse].
As is detailed below, we grant in part and deny in part the reconsiders-tion / clarification request of PFS, and deny the requests of OGD, the State, and the Staff.
I.
COMMON ISSUES A.
Licensing Board's Contention Admissibility Explanations In their motions, various parties raise two " common" issues. Both OGD and the State assert, with the Staff's apparent acquiescence, that the Board's explanation ofits reasons for rejecting some of their contentions is too terse and requires further explication. See OGD Reconsideration Motion at 2 n.1; State Reconsideration Motion at 2-6; Str.ff Reconsideration Response at 3-4. We do not agree. In the context of the record before us, including the arguments of the participants, our reasons for rejectinF their contentions " *may reasonably be 290 i
l!-
i I
discerned,'" biotor Vehicle hfanufacturers Association of the United States v.
State Farm Afutual Automobile Insurance Co.,463 U.S. 29,43 (1983)(quoting Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S.
281,286 (1974)), f om our April 22,1998 issuance and so are adequate. We also note in this regard that their reliance on authority relating to " initial decisions" is not applicable to our nonmerits determination of whether their contentions meet the agency's procedural admissibility threshold.
B.
Utah B For their part, both PFS and the Staff assert that our admission of contention Utah B relating to licensing of the Rowley Junction intermodal transfer point (ITP) was in error. See PFS Reconsideration Motion at 2-5; Staff Reconsiders-tion Motion at 2-10. They contend that, notwithstanding the unresolved question j
of the PFS role in operating the ITP, there is no basis for concern because the coverage afforded under 10 C.F.R. Part 71 to Commission " licensees" and com-mon or contract " carriers" relative to the transportation of nuclear materials will not leave a regulatory gap. The State disagrees, asserting the contention raises unresolved legal and factual issues. See State Reconsideration Response at 2-8.
We see nothing in the arguments of PFS and the Staff that gises us cause to dismiss what appears to be essentially a legal contention at this nonmerits stage of the proceeding.1'Accordingly, as they relate to Utah B, their reconsideration requests are denied.
II. INDIVIDUAL PARTY ISSUES In addition to these " common" issues, OGD, the State, and PFS also seek reconsideration or clarification of matters relating to the Board's rulings on certain specific contentions whose admission they either sponsored or opposed.
We address these matters below.
I A.
OGD Reconsideration Requests OGD seeks reconsideration of our decision rejecting three of its contentions, OGD B, OGD J, and OGD N. As to each, it again asserts there was sufficient basis to support admission. See OGD Reconsideration Motion at 2-6. The Applicant opposes all three requests as does the Staff, notwithstanding its i
original position that OGD J was admissible. See PFS Reconsideration Response at 23-30; Staff Reconsideration Response at 6-11.
I They are of course, free to renew their arguments in susnmary disposition motions at the appropnate tinu, 4
I
)
291 i
l i
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L
y-i l-
-]1.
OGD B '
With regard to OGD B, to the extent OGD now seeks to rely on emergency l
' planning at the ITP as a basis for its contention, this clearly falfs outside the stated scope of its original contention, making it an impermissible ground for seeking reconsideration.. See Louisiana Energy Services, LP. (Claiborne Enrichment Center), CL1-97-2,45 NRC 3,4 (1997) (reconsideration motions L
may not rest on a "new thesis"). And as to its assertions the Applicant is not in compliance with the offsite notifica. ion and coordination requirements of 10 C.F.R. 6 72.32 and the provisions of the Emergency Planning and Community Right-to-Know Act of 1986,42 U.S.C. il 11001 11050, OGD provides nothing that causes us to change our initial ruling that in this regard the contention and its supporting bases failed to establish with specificity any genuine dispute; lacked i
adequate factual or expeit opinion support; and/or failed properly to challenge the PFS application. See LBP-98-7,47.NRC at 226-27.
. 2.'
OGDJ~
- Regarding OGD J, which concerns the purported failure of PFS to comply with all permits, licensas, and approvals required for the facility, the only stated
- basis for the contention other than the purported " trust responsibility" rationale
' rejected by the Board is found in the first sentence of the contention's basis.
- OOD has presented nothing that leads us to revise our conclusion the contention
- and this stated basis failed to establish with specificity any genuine dispute; 1rcked adequate factual'or expert opinion support; and/or failed properly to challenge the PFS application. See LBP-98-7,47 NRC at 231.
. 3.
OGD N -
- As for OGD N, which involves allegations of water supply contamination
.- and water table depletion, as the Staff points out, much of the i'iformation cited by OGD is new and thus cannot provide the appropriate basis for a
- reconsideration request. See Claiborre. CLI-97-2, 45 NRC at 4. Moreover,-
nothing presented in the reconsideration motion, whether old or new, gives us pause to change our ruling that the contention and its supporting bases failed to establish with specificity any genuine dispute; lacked adequate factual or expert opinion support; and/or failed properly to challenge the PFS application. See LBP-98-7,47 NRC at 232.
n
-s l.
I 292 I
2._.-.___
B.
State of Utah Reconsideration Requests As with OGD, the State seeks reconsideration of our rejection of three of its contentions, Utah J, Utah W, and Utah CC See State Reconsideration Motion at 6-20. PFS and the S;aff oppose all three requests. See PFS Reconsideration Response at 8-23; Staff Reconsideration Response at 4 5.
1.
Utah J In connection with Utah J, which concerns canister and fuel cladding inspec-tion and maintenance, the State asserts that in finding this contention inadmissi.
ble as an impermissible challenge to agency regulatory requirements or Eeneric determinations, the Board's reliance on PFS arguments regarding canister in-spection and repair, in particular its citation of 59 red. Reg. 65,898, 65,901 (1994), was misplaced. Also, the State declares PFS has failed to comply with the requirements of 10 C.F.R. ll 72.122(f),72.128(a)(1) by not proposing a "de-sign" feature that would allow onsite inspection and maintenance of canisters and cladding.
While significant portions of the State's reconsideration claims appear to be based on new materials, and thus inappropriate, see Claiborne, CLI 2, 45 NRC at 4, ultimately nothing it presents gives us cause to revise our determination regarding this contention. As both PFS and the Staff have documented, the contention and its rupporting bases impermissible challenge agency regulations or rulemaking-associated generic determinations and/or lack adequate factual or expert opinion support. See LBP-98-7,47 NRC at 189-90.
2.
Utah W, Paragraphs One, Three, Four, and Fire The State seeks reconsideration of our rejection of paragraphs one, three, four, and five of contention Utah W, which asserts generally that the PFS facility creates other adverse impacts not considered in the Applicant's Environmental Report, on the grounds that our rejection of these paragraphs is inconsistent with our rulings admitting other contentions. Indeed, the bases for these paragraphs reference other contentions we have admitted, specifically Utah K, Utah L, Utah N, and Utah T.
The fatal flaw in the State's original claim was its apparent assumption that the admission of a safety issue concerning the adequacy of specific portions of We. Applicant's Safety Analysis Report or the need for permits or approvals that may relate to safety or other matters a fortiori creates a companion environmental issue. With regard to each of these paragraphs, having failed to make a specific, adequately supported showing that an admissible safety or other issue portends unanalyzed (or inadequately analyzed) but cognizable environmental 293 t
I I
I t
l l
a impacts, they were inadmissible as failing to establish with specificity any
)
genuine dispute; lacking adequate factual er expert opinion support; and/or failing properly to challenge the PFS application. See LBP-98-7,47 NRC at 201-02. The State presents nothing in its reconsideration request that causes us to revise this ruling.
i 3.
In seeking reconsideration of Utah CC, which asserts the PFS Environmental Report presents a one-sided cost benefit analysis, in addition to relying on the type of a fortiori " admission of other contentions" analysis we have rejected in section II.B.2 above, the State also asserts that the Commission's discussion of the adequacy of a "no-action alternative" analysis in Louisiana Energy Services, LP. (Claiborne Enrichment Center), CLI-98-3, 47 NRC -77, 97-99 (1998),
requires admission of this contention.
Whatever relevance the Commission's Claiborne analysis of the "no-action alternative" has for the State's admitted no-action alternative contention, Utah Z, we are unable to find it provides any basis for the admission of this contention.
As we noted in LBP-98-7,47 NRC at 204, the problem for the State with regard to this contention is its failure to establish with specificity any genuine dispute; to provide adequate factual or expert opinion support; and/or to properly challenge the PFS application. Once again, nothing in the State's reconsideration request gives us any reason to question our ruling in this regard.
C.
PFS Reconsideration Requests For its part, PFS seeks reconsideration or clarification relative to seven contentions, some of which encompass consolidated portions of contentions from other panies.
1.
Utah E/ Castle Rock 7/ Confederated Tribes F, Paragraphs Seven and Ten PFS first asks for reconsideration of the admission of two paragraphs, seven and ten, of consolidated contention Utah E/ Castle R.ock 7/ Confederated Tribes F, which concerns the adequacy of PFS's financial qualifications to construct and operate the proposed Skull Valley facility. See PFS Reconsideration Mo-tion at 5-9. The State, Castle Rock, and the Staff oppose the firr.t request, while the Staff, which originally did no* oppose the portions of the unconsolidated Utah, Castle Rock, and Confederated Tribes contentions we admitted, now sup-ports the Applicant's request regarding paragraph ten. See State Reconsideration 294 9
Pesponse at 813 Castic Rock Reconsideration Response at 1-5; Staff Recon-sideration Response at 12-13.
We deny the reconsideration request for paragraph seven concerning the Ap.
pli, cant's showing regarding the service agreements it will obtain from customers.
In light of the facial difference between the financial qualifications standards of 10 C.F.R. Parts 70 and 72, compare 10 C.F.R. 5 70.23(a)(5) with 10 C.F.R. 572.22(c), and what, at this juncture, are seeming distinctions regarding the scope of the commitments at issue, we are unable to say, as PFS asserts, that the Commission's decision in Louisiana Energy Services, LP. (Claiborne En-richment Center), CLI-9715,46 NRC 294,306-08 (1997), is controlling such that this portion of the contention should be dismissed ab initio.
With regard to paragraph ten, as far as we can ascertain, the PFS arguments I
regarding the provisions of the Nuclear Waste Policy Act of 1982, 42 U.S.C.
Qi 10131(a)(5),10222(a)(5)(b), and the Price-Anderson Act,42 U.S.C. 5 2210, j
are not ones it made previously in challenging this p:rtion of the contention, which was derived from Castle Rock 7, paragraph c. They thus constitute an l
inappropriate basis for a reconsideration. See Claiborne, CLI-97-2,45 NRC at 1
- 4. This PFS request is denied.2 1
2.
Utah H, Paragraphs Three Through Seven The Apphcant's 'next request is for clarification of our ruling admitting Utah I
H. paragraphs three through seven, concerning inadequate cask thermal design.
l PFS declares this should be limited to " site-specific issues - i.e., whether the [PFS facility] site conditions fall within the envelope of the cask vendors' designs..." PFS Reconsideration Motion at 10. The Staff does not oppose this request, while the State offers its own interpretation of the contention. See State Reconsideration Response at 13-15; Staff Reconsideration Response at 13.
)
We find the Applicant is correct in this regard, with the understanding that the site conditions at issue may include conditions resulting from the effects of the site specific cask interactions specified in the cortention.
3.
Utah V PFS also asks for reconsideration of our admission of Utah V, concerning environmental consideration of transportation-related impacts. PFS asserts that, consistent with 10 C.F.R. 5 72.108, our decision to admit the contention relative to the " weight" component of Table S-4,10 C.F.R. 5 51.52(c), should be circumscribed to include only consideration of regional impacts. See PFS 2 PFS is, of course, free to renew its arguments in a sununary disposit on nudon at de appropnaie tinw.
i 295
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Reconsideration Motion at 11-12. We do not agree. As the Staff points cut in opposing this PFS request, see Staff Reconsideration Response at 13-14, this siting regulation does nothing to circumscribe the agency's responsibility under the National Environmental Policy Act of 1969 (NEPA) to consider reasonably foreseeable environmental impacts, inclyded the potentially extra-regional impacts reflected in Table S-4.
4.
Utah Z In connection with our admission of Utah Z, concerning the no-action alternative, PFS declaies that we should exclude consideration of the impxts of " sabotage" and " cross-country transportation" as litigable bases. See PFS '
Reconsideration Motion at 13. The State opposes both these requests, while the Staff, which originally did not oppose admission of the contention, now supports dismissd of the contention's sabotage basis. See State Reconsideration Response at 194.1, Staff Reconsideration Response at 14-15.
Having rejected the sabotage-related aspects of other contentions, including Utah U and Utah V, consistency concerns counsel that we consider PFS's
- renewed argument regarding this component of the contention to ensure we have not overlooked a similar matter with respect to Utah Z. See Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), LBP-83-25,17 NRC 681,687 (1983) (reconsideration asks that the deciding bo y take another look at existing d
evidence because evidence has been misunderstood or overlooked). And in l
doing so, we find this aspect of the contention likewise is an impermissible challenge to the Commission's regulations or generic rulemaking-associated determinations. See LBP-98-7,47 NRC at 179.
l The same result is not appropriate for " cross-country transportation," how-I eser. As the Staff notes, see Staff Reconsideration Response at 15, because averting the transportation of spent fuel to the Skull Valley site is a reasonably foreseeable consequence of the no-action alternative, this is an impact that mer-its consideration under this contention.
5.
Utah DD/ Castle Rock 16, Paragraphs One and Three i
With respect to Utah DD/ Castle Rock 16, which concerns the PFS Environ-mental Report's discussion of species and ecology impacts, the Applicant asks l
for clarification that the Board intended to limit paragraphs one and three sim-l ply to the specific species identified. See PFS Reconsideration Motion at 13-15.
Although, as the Staff points out, see Staff Reconsideration Response at 15, this I
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- seemingly was clear from the Board's action on the contention, we nonetheless verify that this is the intended limitation?
6.
Castle Rock 17, Paragraph b and e Paragraphs b and e of Castle Rock 17, which concern the adequacy of the PFS Environmental Report's discussion of the Salt Lake Valley population and the potential impacts on a national wilderness area in the vicinity of the proposed PFS facility, also are the subject of the PFS reconsideration request.
In both instances, PFS renews its assertions there was an inadequate basis for the admission of these na*9.- -f 'b cantention. See PFS Reconsideration Motion et %!7. Lastle Rock opposes these requests, while the Staff, which initially supported admission of both paragraphs, now agrees with PFS's position. See Castle Rock Reconsideration Response at.t8; Staff Reconsideration Response at 15-16.
Again, given our rejection of related assertions relative to Castle Rock 9 and
. Utah W, considerations of consistency warrant further consideration of PFS's arguments. And after reviewing the particular parts of the contention's basis tl.*t supported these paragraphs, which constituted only two sentences, we conclude the Applicant is correct with regard to the admissibility of both paragraphs.
Relative to paragraph b, Castle Rock's claims concerning the adequacy of the consideration of regional population impacts in the PFS Environment al Report hinge on the otherwise unsupported allegation that the 50-mile radius used by
]
PFS in reliance on the Staff's standard review plan for independent spent fuel
]
storage installations, see Office of Nuclear Materials Safety and Safeguards, U.S.
I Nuclear Regulatory Comm'n, Standard Review Plan for Spent Fuel Dry Storage Facilities, NUREG-1567, app. B, at i B.4.2.2 (Draft Oct.1996), is " misleading."
J Looking again at the basis for this paragraph, we fina it fails to establish with specificity any genuine dispute; impermissible challenge, the Commission's regulations or generic rulemaking-associated determinations; lacks adequate factual or expert opinion support; and/or fails properly to challenge the PFS application. See LBP-98-7,47 NRC at 178-79,180-8L in connection with paragraph e, although Castle Rock in its reconsideration response provides a discussion of the potential impets of the PFS facility on the Deseret National Wilderness area, this clearly is new material that is not j
l 3 1n addition, the Stare a:,ks that we reword paragraph one of the contention to make 11 cicar the contention is not limited to only one peregrine falcon with a nest or nests on the Timpic Srsings wildhfe Management Area. See l
state Reconsiderauon Response at 22-23. We adopted the existing contention language based on our understanding it reflects the negotiated agreement of the State and PFS. See Tr. at 822; ticensing Board Memorandum and Ord-I (Contention Revisions and Transcript Corrections) trsb. 9.1998) at 1-2 & attach.1 (state of Utah Coutennorv 4 through DD at 16)(unpublished). At this point we are not inclined to make any further revisions to the langug;
'j of this contentien absent an additional agreement between the parties.
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appropriate grist for the reconsideration mill.' See Claiborne, CLI-97-2,46 NRC at 4. As to the original contention, upon reconsideration we find its conclusory discussion c4arding impacts at the national wilderness area was inadequate to support admi.sion as failing to establish with specificity any genuine dispute; lacking adequate factual or expert opinion support; and/or failing properly to challenge the PFS application. See LBP-98-7,47 NRC at 178-79,180-81.
~ Appendix A to this Memorandum and Order includes the language of Castle Rock 17, as revised per these rulings.
. 7, OGD 0 In seeking reconsideration of OGD O, which is an " environmental justice" contention, PFS renews its claims regarding a lack of basis. Specifically, it asserts there is no basis whatsoever for consideration of two of the facilities listed in the contention because, unlike the other listed facilities, the Petitioner failed to provide e.ny information on hazardous wastes or other harmful substances on those sites. See PFS Reconsideration Motion at 19-20. The OGD and the Staff oppose this request, See OGD Reconsideration Response at 4; Staff Reconsideration Response at 16. Premised on ensuring that this lack of suppor*ing information is not overlooked. PFS's point is valid. Accordingly,
.we delete the references to the Utah Test and Training Range South and the Utah Test and Training Range North from the contention.8 Appendix A to this Memorandum and Order sets forth the language of the revised contention.
Also with respect to this contention, again seeking to ensure a lack of supporting information is not overlocked, PFS asserts, with the Staff's support and in the face of OGD opposition, thtt Envuonmental Protection Agency (EPA) sites on a map referenced without further explanation in basis five of the contention and attached a* Exhibit 20 to OGD's November 24,1997 contentions pleading should not be considered as within the litigable scope of this contention.
l See PFS Reconsideration Motion at 20; OGD Reconsideratan Response at 3-4; Staff Reconsideration Response at 16. The Board agrees that attaching a document in support of a contention without any explanation of its significance does not provide an adequate basis for a contention. See louisiana Energy Services, LP. (Claiborne Enrichment Center), LBP-91-41, '34 NRC 332, 338 4 Castis Rock may, however. wish to submit this informauon as part of any comments it may taake to the Staff j
regarding the scope and substance of the Staff-prepared envimamentalirnpact mitement. See 63 red. Reg. 24.19 f, 24.198 (1998).
8 The Staff opposes this request on the % sis of Exhibits 25 and 26 attached to OGD's Novenber 24, 1997 contentions pleading These exhibits, which OOD does not refercoce in its reconsideration response, appear ugglicable to the Tcaele Army Depot rather than the north snd south Utah Test and Training Ranges. If there remains some question in this regard, the matter should be bror;ht to the teoard's attention promptly.
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(1991). Thus, the impact of the EPA sites is not a matter subject to litigation within the scope of this contention.
IIL CONCLUSION We reject the reconsideration / clarification requests of (1) OGD and the State for a further explication of the reasons for our rejection of certain of their contentions; (2) PFS and the Staff for dismissal of Utah B; (3) OGD for
- admission of OGD B, OGD J, and OGD N; (4) the State for admission of Utah J, paragraphs one, three, f6er and five of Utah W, and Utah CC; (5)
PFS for dismissal of paragraphs sever, and ten of consolidated contention Utah E/ Castle Rock 7/ Confederated 'llibes F; (6) PFS for the limitation of Utah V, to the environmental consideration of transportation-related regional impacts; and (7) PFS for dismissal of the cross-country transportation-related aspects of Utah Z. Further, we grant the PFS reconsideration requests for dismissal of (1) the sabotage-related aspects of Utah Z; (2) Castle Rock 17, paragiaphs b and e; and (3) certain facilities or sites from consideration in connection with the environmental justice claims of OGD O. We also provide the clarification requested by PFS legarding our rulings admitting (1) Utah H, paragraphs three through seven; and (2) Utah DD/ Castle Rock 16, paragraphs one and three.
For the foregoing reasons, it is, this 18th day of May 1998, ORDERED, 1.
That the April 29,1998 and May 6,1998 reconsideration / clarification motions of OGD, the State, and the Staff are denied.
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- 2.. That the May 6,1998 reconsiderationklarification motion of PFS is granted in part and denied in part in accordance with the rulings in sections
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I.B and II.C above.-
THE ATOMIC SAFETY AND l
LICENSING COARD6 O. Paul Bollwerk III ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland
' May 18,1998 l
6 Copies of this Memorandum and Order were sent this date to cournal for the Applicant PFS. and to coumel for Petitioners Skull Valley Band of Goshure Indiam OOD, Confederand Tribes of the Ooshute Reservaan, Castle
- Rock, and the Stale by Internet e-mail tranurnission; and to enuosal for the Staff by e neil through the agency's wide area network systern.
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ATTACllMENT A CONTENTIONS REVISED PER RULINGS ON REQUESTS FOR RECONSIDERATION OF LDP-98 7
{
1, CASTLE ROCK 17 - Inadequate Consideration of Land Impacts CONTENTION: The Application violates NRC regulations and NEPA because the ER does not adequately consider the impact of the facility upon such critical matters as future economic and residential development in the vicinity, potential differing land uses, property values, the tax base, and the loss of revenue and opportunity for agriculture, recreation, beef and dairy production, residential and commercial development, and investment opportunities, all of which have constituted the economic base and future use of Skull Valley and the economic interests of Petitioners, or how such impacts can and must be mitigated, see, e.g.,
10 C.P.R.19 72.90(e),72.98(c)(2) and 72.100(b), in that:
the ER does not recognize the potential use of the areas surrounding the PFSF for a.
residential or commercial development; b.
the ER fails to consider the effect of the PFSF on the present use of Castle Rock's lands for farming, ranch operations and residential purposes or the projected use of such lands for dairy operations, residential development, or commercial development; and c.
the ER provides no, or inaccurate, information on the economic value of current agricuhural/ ranching operations conducted on Castle Rock's lands.
l 2.
OGD O - Environmental Justice Issues Are Not Addressed CONTENTION: The license application poses undue risk to public health and safety because it fails to sddress environrnental justice issues. In Executive Order 12898,3 C.F.R.
859 (1995) issued February 11, 1994, President Clinton directed that each Federal agency "shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproponionately high and adverse human health or environmental effects l
of its programs, policies and activities on trJnority populations and low-income populations j
i in the United States." It is not just and fair that this community be made to suffer more l
environmental degradation at the hands of the NRC, Presently 'he area is surrounded by a ring of environmentally harmful companies and facilities. Within a radius of thirty-five (35) miles the members of OGD and the Goshute reservation are inundated with hazardous waste from: Dugway Proving Ground, Deseret Chemical Depot, Tooele Army Depot, Envirocare Mixed Waste storage facility, APTUS Hazardous Waste incinerator, and Grassy Mountain Hazardous Waste Landfill.
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Cite as 47 NRC 302 (1998)
LBP-98-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
I Peter B. Bloch, Presiding Offcer Thomas D. Murphy, Special Assistant in the Matter of Docket No. 40-8968-ML (ASLBP No. 95-706-01 ML)
(Re: Leach Mining and Milling License)
HYDRO RESOURCES,INC.
(2929 Coors Road, Suite 101, Albuquerque, NM 87120)
May 26,1998 An administrative judge rules that he should not be disqualified as a judge l
because of employment negotiations that had been terminated over 6 months previously with the law firm that represents Licensee in this case. He states that j
the motion for disqualification inappropriately relies on 5 C.F.R.126;5.6(M(a),
which bars a government employee from serving in a mat'.er if it will nave a l
" direct and predictable effect on the financial interests" of an employee that "is seeking" employment.
MEMORANDUM AND ORDER (Denial of Motion to Disqualify Presiding Officer)
Memorandum On April 29, 1998, the Eastern Navaho Din 6 Against Uranium Mining (ENDA(JM) and the Southwest Research and Information Center (SRIC) filed 302 L________.______________________-._
a " Motion for Disqualification or, in the Alternative, Full Disclosure" (Motion)
The Staff of the U.S. Nuclear Regulatory Commission (Staff) opposed this motion in its " Response to Motion for Disqualification," May 15,1998I (Staff Response). The Presiding Officer has decided that he should not be disqualified, but he also chooses to make some additional voluntary disclosure.
He motion relies on the following voluntary disclosure made by the Presiding Officer in a Memorandum of April 14, 1998:
The purpose of this memorandam is to inform the parties that I have in the past had employment discussions with Shaw, Pittman. Potts and Trowbridge, which is appearing as a lawyer for Hydro Resources, Inc. Those discussions terminated some time in August or September,1997, and do not affect my impartiality in serving as Presiding Officer in this case. Compare 5 C.F.R. II2652.604,2635.606.
The motion does not provide any further factual basis for disqualifying the Presiding Officer.
I.-
Legal Precedent Suggested in the Motion A,
Case Law The motion relies on a series of cases, none of which supports disqualification of a Presiding Officer on the current facts.2 First is Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759,19 NRC 13,20 (1984). In that case Administrative Judge James H. Carpenter was disqualified from judging the Hope Creek project because he had previously served as a consultant on that project, even though the work he had done was irrelevant to the admitted contentions. He Hope Creek case cites another case in which Administrative Judge Ernest E. Hill of the Nuclear Regulatory Commission was reinstated as judge after being disqualified by the Appeal Board. The Commission found that a judge should not be disqualified for a statement he had made in the course of a proceeding. The Commission limited disqualification to bias arising from extrajudicial source-.
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-8; 9,15 NRC 1363,1365-67 (1982).
Interveners cite two Supreme Court cases in support of their argument. In Liljeberg v. Health Services inquisition Corp., 486 U.S. 847, 859-61 (1988),
- Judge Robert Collins had been a trustee of a university that stood to benefit from ac judgment he had entered in a case. In Liteky v. United States, 510 U.S. 540, I Hydro Resources. Inc., has notiiled a response and takes no position on the motium. Telephone conversauon with Anthony Thompson, Shaw. Pittman. Potts, and Trowbridge. May21,1998.
j
- ses Staff Pesponse at 2.
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548,553 n.2 (1994), the court determined that a judge should not be recused for decisions he made in the course of a case. Neither of these es supports the proposition for which they are cited, dismissal for a "t ppearance" of personal bias or prejudgment of factual issues.
l Similarly, In re Corfinental Airlines Corp., 901 F.2d 1259,1262 (5th Cir.
I 1990), cert. denied,113 S. Ct. 87 (1992), was a case in which a law firm hired a l
judge 2 months after it had asked thejudge to join the firm. The day the firm first made an offer to the judye was the dayfollowing the day when thejudge awarded the firm $700,000 in legalfees. That case involved inappropriate conduct on the part of a judge, notjust a " mere appearance" of personal bias. Another case resulting in the disqualification of a judge for improper employment discussions with a litigant is Pepsico Inc. v. McMillen, 764 F.2d 458,460-61 (7th Cir.1985).
In Pepsico, a headhunter 1 ?de an employment inquiry to a party on the judge's behalf during the course of a case.
Hall v. Small B, tiness Administration, 695 F.2d 175,178,180 (5th Cir.
1983) required that a judge be recused because his principal law clerk, whom he permitted to participate in the matter, had been eligible to be a member of the plaintiff class in the litigation. This involves an actual conflict of interest by an active member of the Judge's staff. Another case involved an even more direct conflict of interest. In Amos Treat & Col. v. SEC, 306 F.2d 260, 267 (D.C. Cir.1962), a Commissioner of the Securities and Exchange Commission (SEC) was barred from acting in the capacity of a judge on a case in which he had previously been director of the SEC branch that served as the prosecutor in the case.
B.
Regulatory Authority The motion inappropriately relies on 5 C.F.R. 6 2635.604(a), which bars a government employee from serving in a matter if it will have a " direct and predictable effect on the financial interests" of an employee that "is seeking" employment.3 (Emphasis supplied.) In this case, the Presiding Officer is not seeking employment with the law firm involved in the case. Discussions of employment were terminated over 7 months prior to the assignment of the Presiding Officer to this case. The Presiding Officer no longer has an interest in being employed by the firm.
The motion also relies on 28 U.S.C.1455(a), which states that "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
(Emphasis supplied.) It is clear that this provision does not extend to all 3 ser Staff Response at 13.
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dissatisfaction with a judge. It is implicit in being a judge that parties become
- dissatisfied with judges' actions. Emotion runs high. Judges are subject to harsh judgment. What is required for disqualification is not just a suspicion of partiality but a reasonable basis for questioning the judge's impartiality.
Under the circumstances, I do not sustain the argument that there is a reasonable appearance of bias in favor of the party represented by Shaw, Pittman, Potts & Trowbridge.' It is important that a judge consider a recusal i
motion carefully and deliberately and that he refrain from improperly granting or denying such motions. Granting motions too easily is improper, for this might encourage motions for disqualification by parties who prefer a different judge. If overdone, such motions may seriously impact the efficient and timely processing of cases.
'Ihe motion to disqualify shall be denied.
II. Additional Disclosure l
In order to provide additional assurance to the Interveners in this case, I have decided to make an additional disclosure. I do not think this disclosure is required by law,5 but I prefer to operate in as public a manner as possible. I make this statement in order to clear away doubts, reasonable or unreasonable:
In the Spring of 1997, I began looking for employment. I made many contacts both within
. and outside the Nuclear Regulatory Commission. Shaw, Pittman, Pctts and Trowbridge was one of several pantial employers with whom I spoke. I had several contacts with Mr.
Ernest Blake and one lunch with Mr. Cempbell Killifer of Shaw. P ttman. Although I made no notes, there were a total of about four luncheons and about six phone cans to these two gentlemen. While I was at the firm's offices. I recall speaking to two other employees who have appeared before me in other cases. I have never met any of the attorneys working on the Hydro Resources, Inc. other than in the course of this case.
At no time did I accept anything of value, including lunch. 'Ihe discussions with Shaw, Pittman were terminated in August or September by a phone call from Mr. Ernest Blake, stating that his firm was not interested in my services. There are no further employment discussions and I have no intention of seeking employment with that firm.
Order For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 26th day of May 1998, ORDERED that:
4 It is not clear why a person who has been denied employment by a law firm would be biased in favor of that
. law firm in a future case.
8 See stafr Response at 2.
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The motion filed by ENDAUM and SRIC on April 29,1998, " Motion for Disqualification or, in the Alternative, full Disclosure," is denied. The j
Presiding Officer does not disqualify himself. He does make an additional voluntary disclosure beginning on p. 305 of the Memorandum.
Peter B. Bloch ADMINISTRATIVE JUDGE Rockville, Maryland l
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