ML18340A178

NRC Staff Response to Motion for Disqualification of Atomic Safety and Licensing Board

ML18340A178
Person / Time
Site:	Consolidated Interim Storage Facility
Issue date:	12/06/2018
From:	Kirkwood S B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 19-959-01-ISFSI-BD01, RAS 54679, WCS CISF 72-1050-ISFSI
Download: ML18340A178 (8)

Text

1 December 6 , 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

) ) ) Docket No. 72

-1050 INTERIM STORAGE PARTNERS ) ) (WCS Consolidated Interim Storage

) Facility) ) NRC STAFF RESPONSE TO MOTION FOR DISQUALIFICATION OF ATOMIC SAFETY AND LICENSING BOARD INTRODUCTION Pursuant to 1 0 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission hereby responds to the "Motion of Sierra Club, Don't Waste Michigan, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development (SEED) Coalition and Leona Morgan, Individually (collectively, the "Joint Petitioners") for Disqualification of Atomic Safety and Licensing Board", filed November 26, 2018. Because the Joint Petitioners do not set forth sufficient facts to cause an objectively reasonable person to question the Board's impartiality, they do not satisfy the Commission's standard s for judicial disqualification. The motion should therefore be denied.

BACKGROUND By letter dated April 28, 2016, Waste Control Specialists, LLC (WCS) tendered a specific license application under 10 C.F.R. Part 72 requesting authorization to construct and operate a consolidated interim storage facility (CISF) for spent nuclear fuel and reactor

-related 2 greater-than-class-C low-level radioactive waste in Andrews County, Texas.

1 On April 18, 2017, WCS requested that the NRC temporarily suspend all review activities associated with its application, and the next day WCS and the NRC Staff jointly requested that the then pending hearing opportunity be withdrawn.

2 By letters dated June 8 and July 19, 2018, WCS requested that the NRC resume its review of its application, and it provided a revised application, reflecting, among other changes, a new applicant, Interim Storage Partners, a joint venture between WCS and Orano CIS, LLC.

3 The NRC thereafter published a notice of opportunity to request a hearing and petition for leave to intervene for the Interim Storage Partners application in the Federal Register

.4 The Joint Petitioners have filed two separate Petitions to Intervene in this proceeding

.5 On November 16, 2018, the Board, comprised of Judge Paul Ryerson, Judge Nicholas Trikouros, and Judge Dr. Gary Arnold, was appointed to preside over this proceeding.

6 These three judges also comprise the Licensing Board appointed to preside in the ongoing Holtec proceeding, regarding a specific license application under 10 C.F.R. Part 72 requesting authorization to construct and operate a consolidated interim storage facility in Lea County,

1 Interim Storage Partners Waste Control Specialists Consolidated Interim Storage Facility, 83 Fed. Reg. 44,070 (Aug. 29, 2018).

2 Waste Control Specialists

, LLC (Consolidated Interim Storage Facility), CLI-17-10, 85 NRC 221, 221 (2017). 3 83 Fed. Reg. at 40,070.

4 Id., corrected, 83 Fed. Reg. 44,6 80 (Aug. 31, 2018) (noting that the correct deadline to file intervention petitions is October 29, 2018), 83 Fed. Reg.

45,288 (correcting the title of the August 31, 2018 correction).

5 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club (Sierra Club Petition) (Nov. 13, 2018) (ADAMS Accession No.

ML18317A410); Petition of Don't Waste Michigan, Citizens' Environmental Coalition, Citizens for Alternatives to Chemical Contamination, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development Coalition, and Leona Morgan. Individually, to Intervene, and Request for an Adjudicatory Hearing (Nov. 13, 2018) (ML18317A433).

6 Establishment of Atomic Safety and Licensing Board: Interim Storage Partners LLC, 83 Fed. Reg. 59,424 (Nov. 23, 2018).

3 New Mexico.7 The identical composition of the Licensing Boards in the two proceedings forms the sole basis for the Joint Petitioners

' motion. DISCUSSION I. Applicable Legal Standard Pursuant to the NRC's rules of practice, a party may move that a Board member disqualify himself.

8 The motion "must be supported by affidavits setting forth the alleged grounds for disqualification.

"9 The relevant statutory foundation for the NRC's rule on disqualification of a Board member is found in 28 U.S.C. § 455.10 The standard for disqualification is one of objective reasonableness: "[W]hat must be decided in the application of [28 U.S.C. § 455(a)] is whether [the specific facts presented] might lead a fully informed reasonable person to question [the judge's] impartiality in the present proceeding."11 Further, the alleged partiality must stem from an extrajudicial source and must result in an opinion on the merits; preliminary assessments, statements, and questions based upon material properly before a judge in a proceeding do not compel disqualification.12 While litigants have a right to an impartial adjudicator, "they do not have a right to the judge of their choice."13

7 Establishment of Atomic Safety and Licensing Board: Holtec International, 83 Fed. Reg. 55,578 (Nov. 6, 2018). 8 10 C.F.R. § 2.313(b)(2). 9 Id. 10 See Public Service Elec. and Gas Co. (Hope Creek Generation Station, Unit 1), ALAB

-759, 19 NRC 13, 20-21 (1984). 11 Id. at 22. 12 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI 9, 15 NRC 1363, 1365 (1982). 13 Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI 5, 21 NRC 566, 568

-69 (1985), aff'd sub nom. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985).

4 II. The Joint Intervenors have not alleged facts to cause a reasonable person to question the Board's impartiality.

In effect, the Joint Intervenors are asserting that they disagree with the way the Atomic Safety and Licensing Board Panel has chosen to allocate its adjudicatory resources. They make reference to the number of intervenors and contentions pending in this and the Holtec proceeding and observe that multiple panels were convened for the Yucca Mountain proceeding.14 Joint Petitioners assert that "

[a]ppointment of the identical licensing panel to adjudicate each of these wholly

-separate CISF cases poses the appearance of bias."15 They base their allegation of bias on the fact that there are differences between the two CISF applications.16 The Joint Intervenors state that because of the differences between the two applications, the Licensing Board cannot fairly adjudicate the two applications on their individual merits, creating the appearance that "complex and controversial decisions in one case are being made, but in short

-shrift or summary fashion, by the same judges in the other CISF licensing case."17 Ultimately, the motion question s the judgment of the appointing authority in appointing identical panels to the two proceedings.

Agency precedent has previously rejected the idea that different licensing board membership is required for proceedings that may bear some relationship to one another. For example, Licensing Board s with the same judges were appointed both to the Offshore Power Systems manufacturing proceeding and the Atlantic Nuclear Generating Station proceeding, wherein the Atlantic applicant sought to purchase units manufactured by Offshore Power

14 Motion of Sierra Club, Don't Waste Michigan, Nuclear Energy Information Service, Public Citizen, Inc., San Luis Obispo Mothers for Peace, Sustainable Energy and Economic Development (SEED) Coalition and Leona Morgan, Individually for Disqualification of Atomic Safety and Licensing Board at 3 (Nov. 26, 2018) (ML18330A299)

. 15 Id. at 4. 16 Id. 17 Id. at 6.

5 Systems. Much like the present case , the Atlantic petitioner sought to have the licensing board disqualified based solely on the fact that its membership was identical to the Offshore Power Systems board, a motion that was rejected.18 Similarly, the Commission rejected an attempt to have an Appeal Board member removed from a reactor operating license proceeding based solely on the fact that the member was also part of the construction permit proceeding

.19 Indeed, historical Panel practice indicates nothing unusual in having overlap in Board membership where the proceedings have some commonality. For example, there were fou r individual enforcement proceedings that arose out of the Davis

-Besse reactor vessel head degradation matter. Three of the individual enforcement proceedings had identical licensing board members.20 Similarly, while the Joint Petitioners suggest that the current pendency of two CISF applications is an "unprecedented" situation,21 the circumstance is not uncommon in NRC jurisprudence. For example, several contemporaneous proceedings associated with applications f or combined licenses (COLs) for an identical reactor design were ongoing

i n the Bellefonte , Vogtle , Lee , Summer , Harris , Turkey Point , and Levy County COL proceedings, five Panel members (Judges Baratta, Bollwerk, Kennedy, Murphy, and Trikorous) served on more than one of the designated Boards.22 In sum , in proceedings involving technical, factual, or

18 See Public Service Electric and Gas Co. (Atlantic Nuclear Generating Station, Units 1 & 2), LBP 5, 7 NRC 147, 148-49 (1978) (denying motion for, inter alia, failing to explain how having the same Board composition would lead to prejudgment of issues in the proceeding and for "being frivolous in barrenly challenging the objectivity" of the Board)

. 19 See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2

), CLI-80-11, 11 NRC 511 (1980).

20 In the Matter of Steven P. Moffitt; Establishment of Atomic Safety and Licensing Board, 71 Fed. Reg.

14 ,958 (Mar. 24, 2006); In the Matter of Dale L. Miller; Establishment of Atomic Safety and Licensing Board, 71 Fed. Reg. 14

,958 (Mar. 24, 2006); In the Matter of David Geisen; Establishment of Atomic Safety and Licensing Board, 71 Fed

. Reg. 14 ,958 (Mar. 24, 2006).

21 Motion at 2.

22 See Tennessee Valley Authority; Establishment of Atomic Safety and Licensing Board

, 73 Fed. Reg.

35 ,714 (June 24, 2008) (Bollwerk, Baratta, Sager);

Southern Nuclear Operating Company; Establishment of Atomic Safety and Licensing Board, 73 Fed. Reg. 74

,532 (Dec. 8, 2008) (Bollwerk, Trikouros, Jackson);

Duke Energy Carolinas, LLC: Establishment of Atomic Safety and Licensing Board, 6 legal similarities, it is common practice for the Panel to appoint either identical boards, or boards that have some common membership. Given this history, the Joint Petitioners identify nothing about the mere fact of overlapping Board membership that presents either bias or the appearance of bias , on the part of the Board or any individual member. As the Atomic Energy Commission stated, "[n]o realist would expect those vested with decisional responsibility to approach their tasks with minds untouched by experience and reflection so as to be obliged to treat every event as unprecedented."23 Given the lack of any other particularized basis in the motion for challenging the Board's objectivity, accepting the Joint Petitioners

' proposition that simply appointing identical board s to similar proceedings constitutes the appearance of bias would upend longstanding precedent. The Joint Petitioners have not raised any specific concerns about the Board's or Board members' ability to be objective and fair in the adjudicatory process

.24

73 Fed. Reg. 40

,394 (July 14, 2008) (Ryerson, Trikouros, Murphy);

South Carolina Electric & Gas Company, Acting for Itself and as Agent for the South Carolina Public Service Authority (also Referred to as Santee Cooper); Establishment of Atomic Safety and Licensing Board, 73 Fed. Reg. 79

,196 (Dec. 24, 2008) (Abramson, Kennedy, and Jeffries)

Progress Energy Carolinas, Inc.; ASLBP No. 08

-868-04-COL-BD01; Establishment of Atomic Safety and Licensing Board, 73 Fed. Reg. 49

,497 (Aug. 21, 2008)

(Abramson, Kennedy, Kastenberg)

Florida Power and Light Company; Establishment of Atomic Safety and Licensing Board, 75 Fed. Reg. 54

,400 (Sept. 7, 2010) (Hawkens, Kennedy, Burnett)

Progress Energy Florida, Inc.; Establishment of Atomic Safety and Licensing Board, 74 Fed. Reg. 9113 (Mar

. 2, 2009) (Karlin, Baratta, Murphy).

23 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit No. 1

), 4 AEC 441, 443 (1970).

24 The Joint Intervenors observe that the currently suspended Yucca Mountain administrative litigation, a complex case involving a large number of admitted contentions, "involved three separate [licensing boards] at its peak." Motion at 3. The Joint Intervenors suggest that this adjudication will be sufficiently complex as to warrant the establishment of multiple boards. The future establishment of multiple boards is not precluded in either this or the Holtec matter. If a hearing is granted in either case, the Chief Judge has the authority to establish multiple boards, provided that

"(1) the proceeding involves discrete and separable issues; (2) the issues can be more expeditiously handled by multiple boards than by a single board; and (3) the multiple boards can conduct the proceeding in a manner that will not burden the parties unduly.

" Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-7, 47 NRC 307, 310

-12 (1998).

7 CONCLUSION As discussed above, because the Joint Petitioners have failed to identify any basis to disqualify the Licensing Board in this matter, the motion to do so should be rejected.

Respectfully submitted, /signed (electronically) by/

Sara Brock Kirkwood Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O

-14 A44 Washington, DC 20555

-0001 (301) 287-9187 Sara.Kirkwood@nrc.gov Dated at Arlington, VA this 6th day of December

, 2018.

8 Dec 6, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

) In the Matter of

) Docket No. 72

-1050 Interim Storage Partners

) (WCS Consolidated Interim Storage

) Facility) ) CERTIFICATE OF SERVICE I hereby certify that the 'NRC STAFF RESPONSE TO MOTION FOR DISQUALIFICATION OF ATOMIC SAFETY AND LICENSING BOARD

' has been filed through the E-Filing system in the above captioned proceeding this 6 th day of December, 2018.

/Signed (electronically) by/

Sara Kirkwood Counsel for the NRC staff U.S. Nuclear Regulatory Commission Mail Stop O

-14 A44 Washington, DC 20555

-0001 (301) 287-9187 Sara.Kirkwood@nrc.gov Dated at Arlington, VA this 6th day of December, 2018