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{{#Wiki_filter:UNITED STATES OF AMERICA LBP-18-6 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
{{#Wiki_filter:UNITED STATES OF AMERICA LBP-18-6 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of  
Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of INTERIM STORAGE PARTNERS LLC (WCS Consolidated Interim Storage Facility)
 
Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 December 13, 2018 MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board)
INTERIM STORAGE PARTNERS LLC  
Before the Board is a motion by some petitioners (the Moving Petitioners) to disqualify each of the Boards three members.1 The NRC Staff opposes the motion,2 and the other participants have not responded.3 Because the Moving Petitioners have not cited a valid legal basis for disqualification of the Board, we deny the motion and refer it to the Commission as required by 10 C.F.R. § 2.313(b)(2).
 
1 Motion of Sierra Club, Dont 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 (SEED) Coalition and Leona Morgan, Individually for Disqualification of Atomic Safety and Licensing Board (Nov. 26, 2018) [hereinafter Motion].
(WCS Consolidated Interim Storage Facility)  
2 NRC Staff Response to Motion for Disqualification of Atomic Safety and Licensing Board (Dec.
 
Docket No. 72-1050-ISFSI  
 
ASLBP No. 19-959-01-ISFSI-BD01  
 
December 13, 2018 MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board) Before the Board is a motion by some petitioners (the Moving Petitioners) to disqualify each of the Board's three members.
1 The NRC Staff opposes the motion, 2 and the other participants have not responded.
3 Because the Moving Petitioners have not cited a valid legal basis for disqualification of the Board, we deny the motion and refer it to the Commission as required by 10 C.F.R. § 2.313(b)(2).
1 Motion of Sierra Club, 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 (SEED) Coalition and Leona Morgan, Individually for Disqualification of Atomic Safety and Licensing Board (Nov. 26, 2018) [hereinafter Motion].
2 NRC Staff Response to Motion for Disqualificati on of Atomic Safety and Licensing Board (Dec.
6, 2018).
6, 2018).
3 The Moving Petitioners represent that, when they solicited the agreement of other counsel, as required by 10 C.F.R. § 2.323(b), "[c]ounsel for Interim Storage Partners LLC and the NRC Staff declined to consent, stating that the disqualification request does not state a lawful reason."  Motion at 6. Reportedly, the other petitioners took no position. Id.     BACKGROUND This proceeding involves a license application to construct and operate a consolidated interim storage facility for spent nuclear fuel and high level nuclear waste in Andrews County, Texas. The Board is comprised of three Administrative Judges who were appointed by the Chief Administrative Judge to preside over the proceeding.
3 The Moving Petitioners represent that, when they solicited the agreement of other counsel, as required by 10 C.F.R. § 2.323(b), [c]ounsel for Interim Storage Partners LLC and the NRC Staff declined to consent, stating that the disqualification request does not state a lawful reason.
4 Previously, the same three Administrative Judges were appointed by the Chief Administrative Judge to preside over a proceeding that involves a license application for another consolidated interim storage facility that would be constructed and operated in Lea County, New Mexico.
Motion at 6. Reportedly, the other petitioners took no position. Id.
5 To date, the Board has not issued a substantive ruling in either proceeding. The Moving Petitioners do not allege bias based on the conduct of any Board member. Rather, they allege that appointment of the same three Administrative Judges to both the New Mexico proceeding and to this proceeding "suggests the appearance of bias and requires appointment of a different [Atomic Safety and Licensing Board (ASLB)] panel to preside over this case."
BACKGROUND This proceeding involves a license application to construct and operate a consolidated interim storage facility for spent nuclear fuel and high level nuclear waste in Andrews County, Texas. The Board is comprised of three Administrative Judges who were appointed by the Chief Administrative Judge to preside over the proceeding.4 Previously, the same three Administrative Judges were appointed by the Chief Administrative Judge to preside over a proceeding that involves a license application for another consolidated interim storage facility that would be constructed and operated in Lea County, New Mexico.5 To date, the Board has not issued a substantive ruling in either proceeding.
6 According to the Moving Petitioners, while the two storage facility proposals "have some similarities to one another," in other ways they differ.
The Moving Petitioners do not allege bias based on the conduct of any Board member.
7 Likewise, although the Moving Petitioners acknowledge the similarity of some of the anticipated legal issues, they caution that decisions nonetheless "will have to be made in light of the individual facts of the respective license requests."
Rather, they allege that appointment of the same three Administrative Judges to both the New Mexico proceeding and to this proceeding suggests the appearance of bias and requires appointment of a different [Atomic Safety and Licensing Board (ASLB)] panel to preside over this case.6 According to the Moving Petitioners, while the two storage facility proposals have some similarities to one another, in other ways they differ.7 Likewise, although the Moving Petitioners acknowledge the similarity of some of the anticipated legal issues, they caution that decisions nonetheless will have to be made in light of the individual facts of the respective license requests.8 Therefore, they conclude, the two adjudications must be assigned to separate, non-overlapping ASLB panels to dispel any appearance or suggestion that the 4 Establishment of Atomic Safety and Licensing Board: Interim Storage Partners LLC, 83 Fed.
8 Therefore, they conclude, the two adjudications must be assigned to "separate, non-overlapping ASLB panels to dispel any appearance or suggestion that the 4 Establishment of Atomic Safety and Licensing Board: Interim Storage Partners LLC, 83 Fed. Reg. 59,424 (Nov. 23, 2018).
Reg. 59,424 (Nov. 23, 2018).
5 Establishment of Atomic Safety and Licensing Board: Holtec International, 83 Fed. Reg. 55,578, 55,578-79 (Nov. 6, 2018).
5 Establishment of Atomic Safety and Licensing Board: Holtec International, 83 Fed. Reg.
55,578, 55,578-79 (Nov. 6, 2018).
6 Motion at 1.
6 Motion at 1.
7 Id. at 2.
7 Id. at 2.
8 Id. at 4.
8 Id. at 4.
complex and controversial decisions in one case are being made, but in short-shrift or summary fashion, by the same judges in the other . . . case."
complex and controversial decisions in one case are being made, but in short-shrift or summary fashion, by the same judges in the other... case.9 ANALYSIS The controlling statute is 28 U.S.C. § 455(a), which provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.10 The professed concern, however, must be objectively reasonable. What must be determined in applying section 455(a) is whether the facts presented might lead a fully informed reasonable person to question [the judges] impartiality in the present proceeding.11 While the Moving Petitioners have a right to impartial judges, they do not have a right to the judge of their choice.12 The Moving Petitioners cite no case from any jurisdiction that has ever held assigning cases with some factual or legal similarities to the same judge or judges raises a reasonable question of bias, and the Board is aware of none. On the contrary, arguments much like the Moving Petitioners have been rejected both by another Licensing Board and by the Commission.13 9 Id. at 6.
9 ANALYSIS The controlling statute is 28 U.S.C. § 455(a), which provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
10 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 203 (2010) (finding that while the statute is not specifically aimed at administrative judges, it provides a helpful framework for assessing a motion for disqualification); Hydro Res., Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 87120), CLI-98-9, 47 NRC 326, 331 (1998); Pub. Serv. Elec. & Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20-21 (1984).
10 The professed concern, however, must be objectively reasonable. What must be determined in applying section 455(a) is whether the facts presented "might lead a fully informed reasonable person to question [the judge's] impartiality in the present proceeding."
11 While the Moving Petitioners have a right to impartial judges, "they do not have a right to the judge of their choice."12 The Moving Petitioners cite no case from any jurisdiction that has ever held assigning cases with some factual or legal similarities to the same judge or judges raises a reasonable question of bias, and the Board is aware of none. On the contrary, arguments much like the Moving Petitioners' have been rejected both by another Licensing Board and by the Commission.
13 9 Id. at 6.
10 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 203 (2010) (finding that while the statute is not specifically aimed at administrative judges, it "provides a helpful framework" for assessing a motion for disqualification); Hydro Res., Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 87120), CLI-98-9, 47 NRC 326, 331 (1998); Pub. Serv. Elec. & Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20-21 (1984).
11 Hope Creek, ALAB-759, 19 NRC at 22.
11 Hope Creek, ALAB-759, 19 NRC at 22.
12 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 568, aff'd sub nom. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985).
12 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 568, affd sub nom. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985).
13 See, e.g., Pub. Serv. Elec. & Gas Co. (Atlantic Nuclear Generating Station, Units 1 & 2), LBP-78-5, 7 NRC 147, 148-49 (1978) (denying a motion for disqualification for, among other things, frivolously challenging the objectivity of the Board); Pac. Gas & Elec. Co. (Diablo Canyon The Moving Petitioners set forth no reasonable grounds for their fear that the Board will be unable to distinguish between the facts of separate cases, or that we will address in one case only in "short-shrift or summary fashion" issues that have been addressed in the context of the other case.
13 See, e.g., Pub. Serv. Elec. & Gas Co. (Atlantic Nuclear Generating Station, Units 1 & 2), LBP-78-5, 7 NRC 147, 148-49 (1978) (denying a motion for disqualification for, among other things, frivolously challenging the objectivity of the Board); Pac. Gas & Elec. Co. (Diablo Canyon The Moving Petitioners set forth no reasonable grounds for their fear that the Board will be unable to distinguish between the facts of separate cases, or that we will address in one case only in short-shrift or summary fashion issues that have been addressed in the context of the other case.14 Indeed, as counsel for the Moving Petitioners represent many of the same petitioners in both cases, they should have opportunities to point out material differences.
14 Indeed, as counsel for the Moving Petitioners represent many of the same petitioners in both cases, they should have opportunities to point out material differences. Not only does the Moving Petitioners' motion fail to raise a lawful ground for disqualification, but its fundamental premise would appear to challenge established practices throughout the federal system that are designed to promote the efficient administration of justice. Rather than disperse cases that present common issues, federal courts routinely consolidate them. Thus, cases that "involve the same parties" or "are based on the same or similar claims" or "present common issues of fact" are regularly assigned or transferred to the  
Not only does the Moving Petitioners motion fail to raise a lawful ground for disqualification, but its fundamental premise would appear to challenge established practices throughout the federal system that are designed to promote the efficient administration of justice. Rather than disperse cases that present common issues, federal courts routinely consolidate them. Thus, cases that involve the same parties or are based on the same or similar claims or present common issues of fact are regularly assigned or transferred to the same judge.15 Nuclear Power Plant, Units 1 & 2), CLI-80-11, 11 NRC 511, 512-13 (1980) (denying a petition for review to disqualify a board member because the movant proffered no evidence of bias).
14 Motion at 6.
15 See, e.g., U.S. Ct. Fed. Claims R. 40.2; D.D.C. Loc. R. 40.5; S.D.N.Y. R. 13; E.D.N.Y. R.
50.3.1; see also 28 U.S.C. § 1407(a) (transfer for coordinated or consolidated pretrial proceedings civil actions involving one or more common questions of fact).
ORDER The Moving Petitioners motion to disqualify the Board is denied.
As required by 10 C.F.R. § 2.313(b)(2), the motion is referred to the Commission.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE Nicholas G. Trikouros ADMINISTRATIVE JUDGE Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland December 13, 2018
/RA/
/RA/
/RA/


same judge.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of  
15     
)  
 
)
Nuclear Power Plant, Units 1 & 2), CLI-80-11, 11 NRC 511, 512-13 (1980) (denying a petition for review to disqualify a board member because the movant proffered no evidence of bias).
INTERIM STORAGE PARTNERS LLC  
14 Motion at 6.
) Docket No. 72-1050-ISFSI  
15 See, e.g., U.S. Ct. Fed. Claims R. 40.2; D.D.C. Loc. R. 40.5; S.D.N.Y. R. 13; E.D.N.Y. R. 50.3.1; see also 28 U.S.C. § 1407(a) (transfer for coordinated or consolidated pretrial proceedings "civil actions involving one or more common questions of fact"). ORDER The Moving Petitioners' motion to disqualify the Board is denied. As required by 10 C.F.R. § 2.313(b)(2), the motion is referred to the Commission. It is so ORDERED. THE ATOMIC SAFETY  AND LICENSING BOARD
)
________________________ Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
(WCS Consolidated Interim Storage Facility) )  
________________________ Nicholas G. Trikouros ADMINISTRATIVE JUDGE
)
________________________ Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland December 1 3, 2018 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of       )  
        )
INTERIM STORAGE PARTNERS LLC   )         Docket No. 72-1050-ISFSI  
          )
(WCS Consolidated Interim Storage Facility)   )         )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board) - LBP-18-6 have been served upon the following persons by the Electronic Information Exchange:
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board) - LBP-18-6 have been served upon the following persons by the Electronic Information Exchange:
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001  
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Paul S. Ryerson, Chair Administrative Judge E-mail: paul.ryerson@nrc.gov Nicholas G. Trikouros Administrative Judge E-mail: nicholas.trikouros@nrc.gov Dr. Gary S. Arnold Administrative Judge E-mail: gary.arnold@nrc.gov Joseph McManus, Law Clerk Taylor Mayhall, Law Clerk E-mail: joseph.mcmanus@nrc.gov taylor.mayhall@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O16-B33 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O16-B33 Washington, DC 20555-0001 Hearing Docket E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Patrick Moulding, Esq.
 
Mauri Lemoncelli, Esq.
Paul S. Ryerson, Chair  
 
Administrative Judge E-mail: paul.ryerson@nrc.gov Nicholas G. Trikouros  
 
Administrative Judge  
 
E-mail: nicholas.trikouros@nrc.gov Dr. Gary S. Arnold  
 
Administrative Judge  
 
E-mail: gary.arnold@nrc.gov Joseph McManus, Law Clerk Taylor Mayhall, Law Clerk E-mail: joseph.mcmanus@nrc.gov taylor.mayhall@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication  
 
Mail Stop: O16-B33 Washington, DC 20555-0001  
 
E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O16-B33 Washington, DC 20555-0001  
 
Hearing Docket  
 
E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Patrick Moulding, Esq. Mauri Lemoncelli, Esq.  
 
Sara Kirkwood, Esq.
Sara Kirkwood, Esq.
Emily Monteith, Esq.
Emily Monteith, Esq.
Alana Wase, Esq.
Alana Wase, Esq.
Joe Gillespie, Esq. Thomas Steinfeldt E-mail: patrick.moulding@nrc.gov
Joe Gillespie, Esq.
 
Thomas Steinfeldt E-mail: patrick.moulding@nrc.gov mauri.lemoncelli@nrc.gov sara.kirkwood@nrc.gov emily.monteith@nrc.gov alana.wase@nrc.gov joe.gillespie@nrc.gov thomas.steinfeldt@nrc.gov  
mauri.lemoncelli@nrc.gov sara.kirkwood@nrc.gov emily.monteith@nrc.gov alana.wase@nrc.gov joe.gillespie@nrc.gov thomas.steinfeldt@nrc.gov


Docket No. 72-1050-ISFSI MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board)
Docket No. 72-1050-ISFSI MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board)
LBP-18-6   2Counsel for Beyond Nuclear Diane Curran, Esq.
LBP-18-6 2
Harmon, Curran, Spielberg and Eisenberg  
Counsel for Beyond Nuclear Diane Curran, Esq.
 
Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Mindy Goldstein, Esq.
1725 DeSales Street NW, Suite 500 Washington, DC 20036  
Caroline Reiser, Esq.
 
Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 E-mail: magolds@emory.edu caroline.j.reiser@emory.edu Diane DArrigo Nuclear Information and Resource Service (NIRS) 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 Email: dianed@nirs.org Karen D. Hadden Executive Director, Sustainable Energy and Economic Development (SEED) Coalition 605 Carismatic Lane Austin, TX 78748 E-mail: karendhadden@gmail.com Counsel for Interim Storage Partners LLC Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Stephen Burdick, Esq.
E-mail: dcurran@harmoncurran.com   Mindy Goldstein, Esq.
Caroline Reiser, Esq.  
 
Emory University School of Law  
 
Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322  
 
E-mail: magolds@emory.edu caroline.j.reiser@emory.edu Diane D'Arrigo Nuclear Information and Resource Service (NIRS) 6930 Carroll Avenue  
 
Suite 340  
 
Takoma Park, MD 20912 Email: dianed@nirs.org Karen D. Hadden Executive Director, Sustainable Energy and Economic Development (SEED) Coalition 605 Carismatic Lane Austin, TX 78748  
 
E-mail: karendhadden@gmail.com
 
Counsel for Interim Storage Partners LLC  
 
Morgan, Lewis & Bockius LLP  
 
1111 Pennsylvania Avenue NW Washington, DC 20004 Stephen Burdick, Esq.
Timothy Matthews, Esq.
Timothy Matthews, Esq.
Ryan Lighty, Esq.
Ryan Lighty, Esq.
Paul Bessette, Esq.  
Paul Bessette, Esq.
 
E-mail: stephen.burdick@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com paul.bessette@morganlewis.com Chris Hebner, Esq.
E-mail: stephen.burdick@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com paul.bessette@morganlewis.com Chris Hebner, Esq. City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283  
City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283 E-mail: chris.hebner@sanantonio.gov Counsel for Sierra Club Wallace Taylor 4403 1st Avenue S.E.
 
Suite 402 Cedar Rapids, IA 52402 E-mail: wtaylorlaw@aol.com Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Robert V. Eye Law Office, L.L.C.
E-mail: chris.hebner@sanantonio.gov Counsel for Sierra Club Wallace Taylor  
 
4403 1 st Avenue S.E.
Suite 402 Cedar Rapids, IA 52402 E-mail: wtaylorlaw@aol.com Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Robert V. Eye Law Office, L.L.C.
Robert Eye, Esq.
Robert Eye, Esq.
Timothy Laughlin 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 E-mail: bob@kauffmaneye.com
Timothy Laughlin 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 E-mail: bob@kauffmaneye.com tijay1300@gmail.com Counsel for Dont Waste Michigan, et al Terry Lodge, Esq.
 
316 N. Michigan Street Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com
tijay1300@gmail.com Counsel for Don't Waste Michigan, et al Terry Lodge, Esq.  
[Original signed by Herald M. Speiser ]
 
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of Debember, 2018}}
316 N. Michigan Street  
 
Suite 520  
 
Toledo, OH 43604  
 
E-mail: tjlodge50@yahoo.com
[Original signed by Herald M. Speiser     ]     Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13 th day of Debember, 2018}}

Latest revision as of 08:35, 5 January 2025

Memorandum and Order (Denying and Referring Motion to Disqualify Board) LBP-18-6
ML18347A393
Person / Time
Site: Consolidated Interim Storage Facility
Issue date: 12/13/2018
From: Gary Arnold, Paul Ryerson, Nicholas Trikouros
Atomic Safety and Licensing Board Panel
To: Morgan L
- No Known Affiliation, Citizens for Alternatives to Chemical Contamination, Citizens' Environmental Coalition, Don't Waste Michigan, Nuclear Energy Information Service, Public Citizen, San Luis Obispo Mothers for Peace, Sierra Club, Sustainable Energy & Economic Development Coalition
SECY RAS
References
72-1050-ISFSI, ASLBP 19-959-01-ISFSI-BD01, RAS 54696
Download: ML18347A393 (7)
v • d • e


Text

UNITED STATES OF AMERICA LBP-18-6 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Paul S. Ryerson, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of INTERIM STORAGE PARTNERS LLC (WCS Consolidated Interim Storage Facility)

Docket No. 72-1050-ISFSI ASLBP No. 19-959-01-ISFSI-BD01 December 13, 2018 MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board)

Before the Board is a motion by some petitioners (the Moving Petitioners) to disqualify each of the Boards three members.1 The NRC Staff opposes the motion,2 and the other participants have not responded.3 Because the Moving Petitioners have not cited a valid legal basis for disqualification of the Board, we deny the motion and refer it to the Commission as required by 10 C.F.R. § 2.313(b)(2).

1 Motion of Sierra Club, Dont 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 (SEED) Coalition and Leona Morgan, Individually for Disqualification of Atomic Safety and Licensing Board (Nov. 26, 2018) [hereinafter Motion].

2 NRC Staff Response to Motion for Disqualification of Atomic Safety and Licensing Board (Dec.

6, 2018).

3 The Moving Petitioners represent that, when they solicited the agreement of other counsel, as required by 10 C.F.R. § 2.323(b), [c]ounsel for Interim Storage Partners LLC and the NRC Staff declined to consent, stating that the disqualification request does not state a lawful reason.

Motion at 6. Reportedly, the other petitioners took no position. Id.

BACKGROUND This proceeding involves a license application to construct and operate a consolidated interim storage facility for spent nuclear fuel and high level nuclear waste in Andrews County, Texas. The Board is comprised of three Administrative Judges who were appointed by the Chief Administrative Judge to preside over the proceeding.4 Previously, the same three Administrative Judges were appointed by the Chief Administrative Judge to preside over a proceeding that involves a license application for another consolidated interim storage facility that would be constructed and operated in Lea County, New Mexico.5 To date, the Board has not issued a substantive ruling in either proceeding.

The Moving Petitioners do not allege bias based on the conduct of any Board member.

Rather, they allege that appointment of the same three Administrative Judges to both the New Mexico proceeding and to this proceeding suggests the appearance of bias and requires appointment of a different [Atomic Safety and Licensing Board (ASLB)] panel to preside over this case.6 According to the Moving Petitioners, while the two storage facility proposals have some similarities to one another, in other ways they differ.7 Likewise, although the Moving Petitioners acknowledge the similarity of some of the anticipated legal issues, they caution that decisions nonetheless will have to be made in light of the individual facts of the respective license requests.8 Therefore, they conclude, the two adjudications must be assigned to separate, non-overlapping ASLB panels to dispel any appearance or suggestion that the 4 Establishment of Atomic Safety and Licensing Board: Interim Storage Partners LLC, 83 Fed.

Reg. 59,424 (Nov. 23, 2018).

5 Establishment of Atomic Safety and Licensing Board: Holtec International, 83 Fed. Reg.

55,578, 55,578-79 (Nov. 6, 2018).

6 Motion at 1.

7 Id. at 2.

8 Id. at 4.

complex and controversial decisions in one case are being made, but in short-shrift or summary fashion, by the same judges in the other... case.9 ANALYSIS The controlling statute is 28 U.S.C. § 455(a), which provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.10 The professed concern, however, must be objectively reasonable. What must be determined in applying section 455(a) is whether the facts presented might lead a fully informed reasonable person to question [the judges] impartiality in the present proceeding.11 While the Moving Petitioners have a right to impartial judges, they do not have a right to the judge of their choice.12 The Moving Petitioners cite no case from any jurisdiction that has ever held assigning cases with some factual or legal similarities to the same judge or judges raises a reasonable question of bias, and the Board is aware of none. On the contrary, arguments much like the Moving Petitioners have been rejected both by another Licensing Board and by the Commission.13 9 Id. at 6.

10 See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 203 (2010) (finding that while the statute is not specifically aimed at administrative judges, it provides a helpful framework for assessing a motion for disqualification); Hydro Res., Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 87120), CLI-98-9, 47 NRC 326, 331 (1998); Pub. Serv. Elec. & Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20-21 (1984).

11 Hope Creek, ALAB-759, 19 NRC at 22.

12 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 568, affd sub nom. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720 (3d Cir. 1985).

13 See, e.g., Pub. Serv. Elec. & Gas Co. (Atlantic Nuclear Generating Station, Units 1 & 2), LBP-78-5, 7 NRC 147, 148-49 (1978) (denying a motion for disqualification for, among other things, frivolously challenging the objectivity of the Board); Pac. Gas & Elec. Co. (Diablo Canyon The Moving Petitioners set forth no reasonable grounds for their fear that the Board will be unable to distinguish between the facts of separate cases, or that we will address in one case only in short-shrift or summary fashion issues that have been addressed in the context of the other case.14 Indeed, as counsel for the Moving Petitioners represent many of the same petitioners in both cases, they should have opportunities to point out material differences.

Not only does the Moving Petitioners motion fail to raise a lawful ground for disqualification, but its fundamental premise would appear to challenge established practices throughout the federal system that are designed to promote the efficient administration of justice. Rather than disperse cases that present common issues, federal courts routinely consolidate them. Thus, cases that involve the same parties or are based on the same or similar claims or present common issues of fact are regularly assigned or transferred to the same judge.15 Nuclear Power Plant, Units 1 & 2), CLI-80-11, 11 NRC 511, 512-13 (1980) (denying a petition for review to disqualify a board member because the movant proffered no evidence of bias).

14 Motion at 6.

15 See, e.g., U.S. Ct. Fed. Claims R. 40.2; D.D.C. Loc. R. 40.5; S.D.N.Y. R. 13; E.D.N.Y. R.

50.3.1; see also 28 U.S.C. § 1407(a) (transfer for coordinated or consolidated pretrial proceedings civil actions involving one or more common questions of fact).

ORDER The Moving Petitioners motion to disqualify the Board is denied.

As required by 10 C.F.R. § 2.313(b)(2), the motion is referred to the Commission.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE Nicholas G. Trikouros ADMINISTRATIVE JUDGE Dr. Gary S. Arnold ADMINISTRATIVE JUDGE Rockville, Maryland December 13, 2018

/RA/

/RA/

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

INTERIM STORAGE PARTNERS LLC

) Docket No. 72-1050-ISFSI

)

(WCS Consolidated Interim Storage Facility) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board) - LBP-18-6 have been served upon the following persons by the Electronic Information Exchange:

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 Paul S. Ryerson, Chair Administrative Judge E-mail: paul.ryerson@nrc.gov Nicholas G. Trikouros Administrative Judge E-mail: nicholas.trikouros@nrc.gov Dr. Gary S. Arnold Administrative Judge E-mail: gary.arnold@nrc.gov Joseph McManus, Law Clerk Taylor Mayhall, Law Clerk E-mail: joseph.mcmanus@nrc.gov taylor.mayhall@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O16-B33 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O16-B33 Washington, DC 20555-0001 Hearing Docket E-mail: Hearing.Docket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Patrick Moulding, Esq.

Mauri Lemoncelli, Esq.

Sara Kirkwood, Esq.

Emily Monteith, Esq.

Alana Wase, Esq.

Joe Gillespie, Esq.

Thomas Steinfeldt E-mail: patrick.moulding@nrc.gov mauri.lemoncelli@nrc.gov sara.kirkwood@nrc.gov emily.monteith@nrc.gov alana.wase@nrc.gov joe.gillespie@nrc.gov thomas.steinfeldt@nrc.gov

Docket No. 72-1050-ISFSI MEMORANDUM AND ORDER (Denying and Referring Motion to Disqualify Board)

LBP-18-6 2

Counsel for Beyond Nuclear Diane Curran, Esq.

Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Mindy Goldstein, Esq.

Caroline Reiser, Esq.

Emory University School of Law Turner Environmental Law Clinic 1301 Clifton Road Atlanta, GA 30322 E-mail: magolds@emory.edu caroline.j.reiser@emory.edu Diane DArrigo Nuclear Information and Resource Service (NIRS) 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 Email: dianed@nirs.org Karen D. Hadden Executive Director, Sustainable Energy and Economic Development (SEED) Coalition 605 Carismatic Lane Austin, TX 78748 E-mail: karendhadden@gmail.com Counsel for Interim Storage Partners LLC Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Stephen Burdick, Esq.

Timothy Matthews, Esq.

Ryan Lighty, Esq.

Paul Bessette, Esq.

E-mail: stephen.burdick@morganlewis.com timothy.matthews@morganlewis.com ryan.lighty@morganlewis.com paul.bessette@morganlewis.com Chris Hebner, Esq.

City of San Antonio, TX P.O. Box 839966 San Antonio, TX 78283 E-mail: chris.hebner@sanantonio.gov Counsel for Sierra Club Wallace Taylor 4403 1st Avenue S.E.

Suite 402 Cedar Rapids, IA 52402 E-mail: wtaylorlaw@aol.com Counsel for Fasken Land and Oil and Permian Basin Land and Royalty Owners Robert V. Eye Law Office, L.L.C.

Robert Eye, Esq.

Timothy Laughlin 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 E-mail: bob@kauffmaneye.com tijay1300@gmail.com Counsel for Dont Waste Michigan, et al Terry Lodge, Esq.

316 N. Michigan Street Suite 520 Toledo, OH 43604 E-mail: tjlodge50@yahoo.com

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of Debember, 2018

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