ML20126M782

Memorandum & Order Re Nuclear Engineering Co Application for Renewal & Amend of License to Operate LLRW Waste Burial Site Near Sheffield Il.Motion to Disqualify Remick as Board Member Denied

ML20126M782
Person / Time
Site:	02700039
Issue date:	09/05/1978
From:	Du Flo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NUCLEDYNE ENGINEERING CORP.
Shared Package
ML20126L908	List: ML20126L904 ML20126M048 ML20126M081 ML20126M089 ML20126M689 ML20126M749 ML20126M782 ML20126M803 ML20126M821 ML20126M881 ML20127A089 ML20127A275 ML20127A320 ML20127A475 ML20127A649 ML20127B448 ML20127B815 ML20127P538
References
FOIA-92-71 NUDOCS 9301110101
Download: ML20126M782 (7)

Text

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a UNITED STATES OF AMERICA @'@

NUCLEAR RE'GULATORY COMMISSION 8 4 d

ATOMIC SAFETY AND LICENSING APPEAL BOARD 2 e$N Alan S. Rosenthal, Chairman Richard S. Galzman @ '

Dr. W. Reed Johnson 4 to sI l ' '

SEn s

~) SEP 6 1978 In the Matter of )

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NUCLEAR ENGINEERING COMPANY, INC. ) Docket No. 27-39

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(Shef field, Illinois Low-Level )

Radioactive Waste Disposal Site) ) ,

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Messrs. William J. Scott, Attorney General of Illinois, and Dean Hansell, Assistant Attorney General of Illinois, Chicago, Illinois (Mr.

Russell R. Eggert and Ms. Susan N. Sekuler, Chicago, Illinois, of counsel), for the inter-venor State of Illinois.

Mr. John M. Cannon, Chicago, Illinois, for the intervenor Chicago Section, American Nuclear Society.

Messrs. Troy B. Conner, Jr. and Mark J. Wetterhahn, Washington, D.C., for the licensee Nuclear .

Engineering Company, Inc. ,

Mrs. Ellen Silberstein 'Friedell for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER September 5, 1978

( ALAB - 4 94)

1. This proceeding involves the Nuclear Engineering .

Company's application for renewal and amendment of its license to operate a low-level radioactive waste burial ,

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1 PDR FOIA-MESTER92-71 PDR-.

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site near Sheffield, Illinois. One of the parties is the Chicago Section of the American Nuclear Society 1/

(Chicago section) . In view of this circumstance, another party, the State of Illinois, seeks to disqualify Dr. Forrest J. Remick from further service as a member of the Licensing Board assigned to the proceeding because he is a member of the American Nuclear Society (ANS) . -

,', According to Illinois ' disqualification motion, although

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he is a Pennsylvania resident and does not belong to the Chicago Section Because the Society intends to adduce evidence on matters which go beyond the narrow interests of the Chicago Section * ** , Dr . Remick's affiliation with the Soc,iety raises at least the appearance of impropriety. While the State is in no way suggesting that Dr. Remick would act in other than complete good f aith, in f airness to all parties to this proceeding, as well as to the process itself, Dr. Remick should be disqualified as a member of this Licensing Board. _

1/ The Licensing Board initially denied the Chicago

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Section's petition for leave to intervene. On the appeal taken from that denial, we agreed with the Board below that the Chicago Section lacked standing to intervene as a matter of right but nonetheless determined that it should be given another opportunity to demonstrate that it should be allowed to partici-pate as a matter of discretion. ALAB-473,-7 NRC (May 3, 1978). The Chicago Secticn availed itselI~-

of that opportunity and was admitted as a party by Licensing Board order of June 20, 1978. ,

2/ Dr. Remick is a part-time technical member of the Atomic Safety and Licensing Board Panel, from which the licensing boards for particular proceedings are drawn. He is principally employed by the Pennsylvania State University in State College.

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The motion was opposed by the Chicago Section, the licensee and the NRC staff. On August 16, 1978, the Licen-sing Board entered an order in which it expressed- the unanimous view that there was no reason why Dr. Remick should be disqualified and therefore referred the motion 3/

to us for determination. ~~ On full consideration of the arguments of the respective parties , we reach the same conclusion.

2. In the Midland proceeding, we canvassed the statu-tory and judicial authority respecting the grounds on which disqualification of a member of an adjudicatory body such 3/ 10 CFR 2.704 (c) explicitly requires such a refer-

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ral in circumstances where the Licensing Board does not grant a motion to disqualify one of its members and the member in questien does not recuse himself.

As the Licensing Board pointed out, Section 2.704(c) also requires that a disqualification motion "be sup-ported by affidavits setting forth the alleged grounds We have held that this require-i for disqualification".

ment must be observed even if the motion is founded wholly on matters of public record. Duauesne Light Co.

(Beaver Valley Power Station, Units 1 and 2) , . ALAB-172, 7 AEC 42, 43 fn. 2 (1974). By motion filed Aughst 25, i

1978, Illinois has sought to supply the missing af fida-vit. The document submitted, however, though signed l

! by counsel of record, does not bear the attestation of a notary or other official authorized to administer Nonetheless, the absence i caths and is thus inadequate.

of an affidavit here is not crucial. The Illinois' mo-tion is founded on a fact to whfch the Board itself had called attention in its March 1, 1978 order ruling l

! upon various intervention petitions (at fn. 2). Further

! in light of the narrow scope of the State's challenge to Dr. Remick's continued participation, an affidavit was not needed to reduce "the likelihood of an irres-ponsible attack upon the probity Beaver or objectivity vallev, of the Board member * *

• in question" .

ALAB-172, supra, at fn. 2.

as a' licensing board may be sought. Our conclusion was that

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• an administrative trier of fact is subject to disqualification if he has a

• direct, personal, sWbstantial pecuniary interest in a result; if he has a " personal bias" against a participant; if he has served in a prosecutive or investigativo role with regard to the same facts as are in issue; if he has prejudged factual -- as distinguished from legal or policy -- issues; or if he.has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues. .g Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973). None of these bases has even arguably been shown to be present here.

It is of course not claimed that, by reason of his ANS membership, Dr. Remick has a pecuniary interest in the outcome of the proceeding, is personally biased against Illinois or another of the parties, or has prejudged f ac-tual issues. Rather, as we have seen, Illinois explicitly disclahns any suggestion that Dr. Remick "would act in other than complete good f aith" . It puts its entire reliance upon the " appearance of impropriety" which assertedly we'uld flow from his continued participation on the Licensing Board in the face of the AMS affiliation.

We can take official notice of the fact that the AMS is a professional organization of national scope. Its

membership (which according to the staff totals approxi-mately 13,000) is drawn from the ranks of _ (inter alia) industry, government, universities, nuclear medicine This being so, it facilities and research laberatories.

seems scarcely likely that anyone would presume that positions taken by the Chicago Section -- in litigation or otherwise -- reflect the viewpoints and interests of all of the members of that Section -- let alone the nation-

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wide ANS membership. We think it is unreasonable to conclude that, simply because of his ANS affiliation, a risk exists that a Pennsylvania State University faculty member would be partial to the litigating posture of an ANS Section (to which he does not belong) in a proceeding involving a distant waste burial site in which he has no

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interest.

4/ In this regard, it is our understanding that the

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by-laws of the Chicago Section preclude it from acting for or in the name of the ANS and also provide that no expression of the Section shall~ be considered 1 an expression of the ANS as a whole without prior approval of the latter's Board of Directors.

5/ This is true whether or not, as Illinois maintains,

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the Chicago Section proposes "to present- evidence of relevance to questions of national policy." For one thing, there is nothing to indicate that the Chicago Section's views on appropriate national policy would coincide with those of Dr. Remick. For another, in its August 16 order the Licensing Board stated that it would entertain no evidence of that character.

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" Illinois has not cited, and we have not discovered on our own, any authority to support its thesis that mem-bership in a national professional organization perforce disqualifies a person from adjudicating a matter to which a local chapter of the organization is a party. On the other hand, the staff has called attention to authority pointing in the opposite direction. In re Rhodes, 370 F.2d 411 (8th Cir.), certiorari denied, 386 U.S. 999 (1967)

'I hear disbar-(judicial members of an integrated bar may ment proceedings). See also, Abbott Labs. , Ross Labs.

Division _ v. tiLRB, 540 F.2d 662, 664-65 (4th Cir. 1976);

Overlook Nursing Home, Inc. v. United States, 556 F.2d 500, 503 (Ct. Cl. 1977).

The staff further provided the Licensing Board with a copy of a letter from the Acting Assistant Attorney Gen-eral in charge of the Antitrust Division of the Department of Justice to a judge of the District Court for the District of Columbia, cealing with whether membership in the Amer-ican Bar Association disqualified her from hearing an anti-trust action challenging the ABA's restrictions on adver-

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tising by lawyers. The letter stated that, in the view 6/ Letter from acting Assistant Att'orney General Joe Sims to Judge June L. Green, dated August 16, 1976, re United States of America v. American Bar Association (Civil Action No. 76-1182, D.C. D.C.).

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of the United States, " mere membership in the ABA, an _

association of approximately 200,000- attorneys, would-not create an' appearance of partiality on the part_of a judge hearing this matter" and thus would not require the judge 7/-

to disqualify herself by reason of 28 USC 455 (a) . In order for that Section to _ come into play, the lette'r con-tinued, the judge would have had to have been an active participant "in activities involving adoption or interpre-tation of the ABA's restrictions on advertising by lawyers."

Although needless to say we are not bound by that analysis here, it appears both sensible and in full conformity with the jurisprudence on the subject. It therefore commends itself to us in the analogous circumstances of.this case.

The motion to disqualify Dr. Remick is' denied.

It is so ORDERED.

• FOR THE APPEAL BOARD mne] f A Margpet E. Du Flo=

Secretary to the

• Appeal Board 7/ Section 455 (a) , added to the Judicial _ Code in 1974,

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provides that. " (alny * * * . judge * *

• shall disqualify _

himself'in any proceeding <in which his=imoartiality might reasonably be questioned".

• Because he is a l member of the American Nuclear Society -

(albeit not of the Chicago Section) , Dr. . Johnson did not participate ~in the consideration or disposition of: this motion. In view of the conclusions reached by his col-leagues, he will. participate in any-further matters _ coming before this Board-for decision.

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