ML062420487

2006/08/30-LB Notice of Recusal of Judge Nicholas Trikouros

ML062420487
Person / Time
Site:	Pilgrim
Issue date:	08/30/2006
From:	Nicholas Trikouros Atomic Safety and Licensing Board Panel
To:
Giitter, R L
References
50-293-LR, ASLBP-06-848-02-LR, RAS 12172
Download: ML062420487 (7)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED USNRC ATOMIC SAFETY AND LICENSING BOARD PANEL AU~US~ 30,2006 (1 :00pm) OFFICE OF SECRETARY Before Administrative Judges: RULEMAKINGS AND ADJUDICATIONS STAFF Ann Marshall Young, Chair Dr. Richard F. Cole Nicholas G. Trikouros SERVED August 30,2006 ENTERGY NUCLEAR GENERATION ASLBP NO.

06-848-02-LR COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC. August 30, 2006 In the Matter of:

NOTICE OF RECUSAL OF JUDGE NICHOLAS TRIKOUROS Docket No. 50-293-LR I. Background During a July 27, 2006 licensing board teleconference with the parties to this proceeding, I disclosed that prior to joining the Atomic Safety and Licensing Board Panel (the Panel) I was a principal in a consulting company that performed certain analytical services for Entergy regarding a spent fuel pool for a pressurized water reactor owned and operated by Entergy.'

Further details concerning this consulting assignment, including my involvement therein, are set forth in the written Disclosure Statement I filed for the record in this proceeding.' A copy of that Disclosure Statement is attached hereto. Motions seeking my disqualification as an Administrative Judge in this proceeding were filed on August 4, 2006, by both Pilgrim Watch3 and the Massachusetts Attorney General4 on the grounds that the information provided in my Disclosure Statement evidenced that the services my consulting company performed for Entergy were relevant to an issue in dispute in this proceeding and, therefore, my recusal from this licensing board is required. Entergy opposed ' Tr. at 489-492. ' Disclosure Statement of Judge Nicholas Trikouros Regarding the Pilgrim License Renewal (July 27, 2006), ADAMS accession No. MLO62120730.

& Motion on Behalf of Pilgrim Watch for Disqualification of Judge Nicholas Trikouros in the Pilgrim Nuclear Power Station Re-Licensing Proceeding (Aug. 4, 2006)

("Pilgrim Watch Motion"). " Massachusetts Attorney General's Motion for Disqualification of Judge Nicholas Trikouros (Aug. 4, 2006) ("Mass. AG Motion").

the motion, and the NRC Staff declined to take a p~sition.~

After carefully considering the motions, I have decided to recuse myself from this proceeding. I take this action, consistent with established judicial standards, to avoid an appearance of partiality, not because there is any serious question regarding my actual impartiality in this case. II. Discussion The facts here do not present either a conflict of interest issue or an issue of actual partiality or bias6 At best, the facts present a debatable question as to "whether a reasonable person knowing all of the circumstances would be led to the conclusion that the [my] impartiality might reasonably be q~estioned."~ Thus, this is a decision that must be analyzed pursuant to 28 U.S.C. 9 455(a), which provides that:

"[alny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A number of the reasons that previously led me to conclude that no "reasonable person knowing all of the circumstances would conclude that my impartiality might reasonably be questioned" were set forth in my Disclosure Statement and need not be repeated here. I still believe those are valid, objective reasons to conclude that my impartiality in this proceeding cannot reasonably be questioned.

However, as I reviewed those reasons in light of the parties' arguments and relevant case law, I concluded that one critical fact militates against my initial conclusion.

That fact is that the work product generated by the services my company performed for Entergy ultimately found its way into the National Academy of Science report that is specifically referenced in the petitioners' contentions and, therefore, appears to bear a nexus to this proceeding. Unlike Judge Carpenter's work product in Hope Creek, my company's See Entergy's Response to Motions for Disqualification of Judge Nicholas Trikouros (Aug. 14, 2006) ("Entergy's Response"). Although the Massachusetts Attorney General suggests that I may have pre-judged the merits of their contention (see Mass. AG Motion at 6), that suggestion is bereft of factual support. Cf. Pilgrim Watch Motion at 6 ("Pilgrim Watch does not assert any actual bias or partiality on the part of Judge Trikouros"). The Massachusetts Attorney General also asserts that my impartiality may reasonably be questioned because I may, at some future date, "seek employment as a consultant to Entergy" (Mass. AG Motion at 6). Pilgrim Watch declines to adopt this argument and rightfully so.

As Entergy correctly states: "Adoption of this [argument] supplied by the Massachusetts Attorney General could . . . essentially disqualify anyone with relevant technical experience, which would run counter to the reason for having technical judges on licensing boards" (Entergy's Response at 9 n.23). Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit I), ALAB- 759, 19 NRC 13, 22 (1 984) (quoting Houston Liahtinq & Power Co. (South Texas Project, Units 1 & 2), CLI-82-9, 15 NRC 1363, 1366 (1 982)).

consulting work has no connection with the Pilgrim plant.' However, the unique combination of factors in this case - most notably, the reference to the work performed by my company on behalf of Entergy - does create the appearance that there is some relation to this proceeding and may give rise to an appearance of partiality.

This factor is determinative in my decision to recuse myself. The Atomic Safety and Licensing Board is perhaps the most unique administrative adjudicatory body to be found anywhere in our government's executive branch agencies. What makes it unique is the statutory requirement of Section 191 of the Atomic Energy Act (Act) that licensing boards be comprised of three members, two of whom shall be technical expert^.^ Section 191 was added to the Act in 1962 as part of a series of amendments that Congress adopted to improve the regulatory process in nuclear licensing activities.

The purpose of Section 191 was clearly stated in the Senate Report addressing the amendments: Membership.- A Board will consist of three members, "two of whom shall be technically qualified" and one of whom shall be "qualified in the conduct of administrative proceedings." Board members could be appointed by the Commission from private life or designated from the staff of the Commission or another Federal agency.

It is expected that the two technically qualified members will be persons of recognized caliber and stature in the nuclear field." Petitioners discount the fact that the spent fuel pool analyses performed by my company for Entergy only concerned a plant other than Pilgrim and one that is generically different from Pilgrim. Thus, they incorrectly contend that my objectivity regarding a contention concerning Pilgrim's spent fuel pool would be prejudiced by my company's earlier work.

' Pub. L. NO. 87-61 5, 5 1, 76 Stat. 409, 409 (1 962). Section 191 of the Atomic Energy Act of 1954, as amended, 42 USC 2241. '" S. Rep. No. 87-1 677 (1 962), reprinted in 1962 U.S.C.C.A.N. 2207, 221 1. Again, several pages later in the same Senate Report: "It is the committee's intent in authorizing the Atomic Safety and Licensing Board to facilitate bringing to bear technical expertise in the resolution of the difficult scientific and technical problems associated with atomic energy licensing.

It is also the committee's hope that the use of the Board will facilitate safety determinations and further enhance public confidence in such determinations" (id. at 221 5).

It must be understood and accepted by parties to ASLB proceedings that to be technically expert in the nuclear field, one must have worked extensively in the nuclear field.

This point should be self-evident.

Entergy's rebuttal of the petitioners' arguments in this regard (see supra note

6) is persuasive." FOR THE ATOMIC SAFETY AND LICENSING BOARD12 Nicholas G. Trikouros ADMINISTRATIVE JUDGE Rockville, Maryland August 30, 2006 " See Entergy's Response at 8-9. l2 Copies of this Order and its attachment were sent this date by Internet e-mail transmission to all participants or counsel for participants.

- -- p-pp-- --- - .- -- Hearl-gDocket - J~dge Trikouros clsclosure statement regaCdirg the Pllgrlm LR Hearmg Request wrnd 1 - pp- -- -- Page 1 I - DOCKETED USNRC July 27, 2006 (1:53pm))

OFFICE OF SECRETARY DISC'LOSIJRE ST.4TEMENT OF JUDGE h'ICI-IOLAS PKIKOUKOS RULEMAKINGS AND REG:\RI)LNG TIE PLLGRLVi LICENSE KEXEW.4L APPLICATIOS ADJUDICATIONS STAFF E:~rly in 2004. Pnnlyon Technolo_rics, of which I was a PI-incip:~l.

was commissioned by Enterg, n'o~tlicxit to PI.O\ 1i1e best estimate scparate el.l'eit\

c\.aluatinns

01. tlii. tiliir. av;~ilahlc 1;~ rccovc.ry nc~ions gikr~i a loss of coolant fl-om potential malicious Acts in an Entrrgy-owned pl-essu~izctl

\\ ater reactor spcnt fuel pool. Scenarios considered includzcl

\,a~-ious degrees of pxtial uuco\.ery of spent fuel as well as complete di-ainage of the pool. LS'hile I was not the principal investigator.

I did pr-ovide ;I rnanagcnrent ove~view of the project and was consulted I-egarding niodeling

~lssul npions ;111d I~C vi;~hility ol thc I-CSIII ts as t1ic.y pl-ogrcsseil.

Tlic. M.oI-C\ WJS co~iiple~r~l I 11 2005. Entergy provided preliminarl resulls from this wol-k in a presentation to the National Academy of Sciences (h'.ASj in Wash D.C. on May 10. 3004, in which L participated as one of several presenters.

I ha\e had no other communic;ltions u:ith the Nnt~onal Acadi.my prior to or since that cIi11,. /\s i( t~lrncd out, hl;~lt'men(s regal-ding tlicsc PI-csen(i~tions wcrc includcd in suppo~-t of ~l~e findings in Sect~on 3 of the subsequent PiAS I-cport entitled "Safety and Security of Comniercial Spent Nuclear Fuel Storage: Public Report." which tias heen referenced in the contentions of the Massachusetts Attorney General and Pilgrim Watch in this case. 1 have ev;rl~~arcd tlw Inlpact of Iny i~~volvement in tl~c technic,~l i-ffort descl-ihcd abo\e and 1 I~avc concluded that a reasonable person, knowins all of tlie relevant [acts and circumstances ahout my work for E~itcrg~ would ha~e no reasonable basis to question my impartiality in this case. The work was nor associated with the Pilgrim Nuclear Plant nor with any other boiling water reactor. The study was pc.~-for lncd in an indcperident manner usin? a con-~rnonly azccptrtl mcrliodology.

Miz hird complete h-zcclom to choose he ~ixtliodology.

tlic modeling inputs and the analysis assumptions.

At Entergy's request, the final documentation of this \cork was providcd to the XRC Staff. This w:~?:just onc of many technical ti~sks ~-t.g:tr-ding spent fucl pool cooling tIi:~t 1 li:~vc bcrn associa~ed with thl-ougliout my career. Ttic hackground understanding 1 bring to my current adjudicatory role was generated in part by carrying out consulting work for mol-c than a dozen clients in the nuclear industry.

including Entergy. This work put me in a better positior, to fulfill one of Lhe responsibilities as a Licensing Board Judge. i.e.. to review and to question the material prcxnted irorn a kr~owledgc;rblc tccl~nical pel-spcclive.

The above circumstances will not affect my imparti;dity or independence of judgment in this case. but I have concl~~ded that disclosure was necessary to avoid the possibility of any rnis~~~~derstaiidi~~~

01- mispcrcsption.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Docket No. 50-293-LR In the Matter of ) ) ENTERGY NUCLEAR OPERATIONS, INC. ) ) ) (Pilgrim Nuclear Power Station) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB NOTICE OF RECUSAL OF JUDGE NICHOLAS TRIKOUROS have been served upon the following persons by U.S.

mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the General Counsel Susan L. Uttal, Esq. Marian L. Zobler, Esq. Mail Stop 1 5 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Dianne Curran, Esq. Harmon Curran, Spielberg

& Eisenberg, L.L.P.

1726 M. Street N.

W., Suite 600 Washington, D.C. 20036 Docket No. 50-293-LR LB NOTICE OF RECUSAL OF JUDGE NICHOLAS Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 021 08 Molly H. Bartlett, Esq. 52 Crooked Lane Duxbury, MA 02332 Mary E. Lampert Director of Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Terence A. Burke, Esq. Entergy Nuclear 1340 Echelon Parkway Mail Stop M-ECH-62 Jackson, MS 3921 3 Paul A. Gaukler, Esq.

David R. Lewis, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, N.W. Washington, DC 20037-1 128 Sheila Slocum Hollis, Esq.

Town of Plymouth MA Duane Morris, LLP 1667 K. Street, N.W. Suite 700 Washington, D.C. 20006 Mark D. Sylvia Town Manager Town Manager's Office 11 Lincoln Street Plymouth, MA 02360 d* Office of t secret6ry

,$. of 7yQ-Q the mmission Dated at Rockville, Maryland this 30th day of August 2006