ML14180A025

Petitioner'S Motion for Recusal of Commissioner Magwood from Participating in the Consideration of Petition to Intervene and Request for Hearing

ML14180A025
Person / Time
Site:	Fort Calhoun
Issue date:	06/27/2014
From:	Taylor W Wallace L. Taylor, Attorney at Law
To:	NRC/OCM
SECY RAS
References
50-285-LA, Pending, RAS 26123
Download: ML14180A025 (7)

Text

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 50-285 OMAHA PUBLIC POWER DISTRICT )

) June 27, 2014 FORT CALHOUN STATION, UNIT 1 )

PETITIONERS MOTION FOR RECUSAL OF COMMISSIONER MAGWOOD FROM PARTICIPATING IN THE CONSIDERATION OF PETITION TO INTERVENE AND REQUEST FOR HEARING Comes now the Petitioner, Sierra Club, and pursuant to 28 U.S.C. § 455 and pertinent precedent and policy of the Nuclear Regulatory Commission, moves for the recusal of Commissioner William Magwood from any participation in the docketing, deliberations over, and determination of any issues raised by the Sierra Clubs Petition to Intervene and Request for hearing filed in this docket on April 25, 2014.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 118 3rd Ave. S.E., Suite 326 Cedar Rapids, Iowa 52401 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 1

MEMORANDUM BACKGROUND FACTS On April 25, 2014, the Sierra Club filed a Petition to Intervene and for Adjudicatory Hearing to require a license amendment for the Fort Calhoun Station. The Petition presented four contentions regarding safety issues at Fort Calhoun that would require a license amendment. The Petitioner understands that the Petition has been referred to the Commission for appropriate action.

Commissioner William Magwood now holds employment outside the Commission which has fatally compromised his ability to function as an independent regulator of nuclear safety. He has accepted the position of Director-General with the Organisation for Economic Co-Operation and Developments Nuclear Energy Agency (NEA). The NEA actively promotes the development of the production and uses of nuclear energy, and its policies are set by member governments. The objective of the Agency is to assist its member countries in maintaining and further developing, through international co-operation, the scientific, technological and legal bases required for a safe, environmentally friendly and economical use of nuclear energy for peaceful purposes. 2013 NEA Annual Report, p.

2, www.oecd-nea.org/pub/activities/ar2013.ar2013.pdf.

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On June 18, 2014, the Sierra Club joined 33 other organizations in sending a letter to Commissioner Magwood describing in more detail why his employment with the NEA creates a conflict of interest with his duties as an NRC Commissioner. A copy of that letter is hereto attached and by this reference made a part hereof.

APPLICABLE LEGAL PRINCIPLES The standards governing recusal of NRC adjudicators are the same as those for the federal judiciary. In Re Three Mile Island Alert, 771 F.2d 720, 738 (3d Cir. 1985),

citing Houston Lighting and Power Co. (South Texas Project, Units 1 and 2, CLI-82-9, 15 NRC 1363, 1365 (1982). An NRC Commissioner, when making a decision in a licensing proceeding, is an adjudicator.

In Three Mile Island Alert, the court observed:

A judge must disqualify himself if he . . . has a personal bias or prejudice either against [a party] or in favor of any adverse party, 28 U.S.C. Sec. 144.

The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.

United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). A rarely invoked exception to the extrajudicial source rule requires recusal when a judge displays pervasive bias, regardless of the source of the bias. Houston Lighting and Power Co. at 1366. Finally, a judge must also disqualify himself if . . . his impartiality might reasonably be questioned, 28 U.S.C. Sec. 455(a). This test calls for recusal where a reasonable man knowing all the circumstances would 3

harbor doubts concerning the judges impartiality.

United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.

1983).

Id. at 738-739.

These same principles have been explicitly recognized in NRC law and practice. The objective standard is whether a reasonable person knowing all the circumstances would be led to the conclusion that the judges (or a Commissioners) impartiality might reasonably be questioned. Public Serv. Elec. & Gas Co. et al. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 21-22 (1984); Hydro Res., Inc. (2929 Coors Rd, Suite 101, Albequerque, N.M. 87120), CLI-98-9, 47 NRC 326, 331 (1998).

Section 455(a) requires a showing that would cause an objective, disinterested observer fully informed of the underlying facts [to] entertain significant doubt that justice would be done absent recusal. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC __(Aug.

27, 2010)(Slip op. at 6)(quoting In Re Aquinda, 241 F.3d 194, 201 (2d Cir. 2001)).

Although by its terms the statute does not apply to NRC adjudicators, the Commission and its adjudicatory boards have applied 28 U.S.C. §§ 144 and 455 in deciding motions for disqualification under 10 C.F.R. § 2,313.

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Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc., supra (slip op at 2); Houston Lighting &

Power Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982).

Based on the foregoing, an NRC judicial official must step aside if a party to the proceeding files a timely and sufficient affidavit that the official before whom the matter is pending has a personal bias or prejudice either against that party or in favor of an adverse party. Public Serv. Elec. & Gas Co. et al. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20 (1984).

Commissioner Magwood finds himself in exactly that position. The NEA, by whom he is now employed, has the goal of promoting nuclear power. The NRC, where he also sits as a Commissioner, has the duty to regulate the nuclear industry. These two roles present a clear conflict of interest and clearly presents a situation where Commissioner Magwoods impartiality might reasonably be questioned. Three Mile Island Alert, supra.

The Energy Reorganization Act of 1974 separated the functions of promoting nuclear power and regulating the nuclear industry between the Department of Energy and the NRC for the very reason that the two functions are incompatible. Thus, Commisioner Magwoods dual roles are 5

incompatible and create a conflict from which he must recuse himself.

CERTIFICATION OF 10 C.F.R. § 2.323 CONSULTATION On June 27, 2014, counsel for the Petitioner sent counsel for the NRC staff, counsel for OPPD, and counsel for amicus curiae an e-mail, requesting their consent to the filing of this Motion and asking whether a conference was necessary. All counsel responded that they all have no position on the motion and saw no need for a conference.

WHEREFORE, Petitioner respectfully requests that Commissioner Magwood recuse himself immediately and permanently from any determination of the Petition to Intervene and for Adjudicatory Hearing in this case.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 118 3rd Ave. S.E., Suite 326 Cedar Rapids, Iowa 52401 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com ATTORNEY FOR PETITIONER 6

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

) Docket No. 50-285 OMAHA PUBLIC POWER DISTRICT )

)

FORT CALHOUN STATION, UNIT 1 )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing MOTION FOR RECUSAL OF COMMISSIONER MAGWOOD, dated June 27, 2014, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, on this 27th day of June, 2014.

/s/ Wallace L. Taylor WALLACE L. TAYLOR Law Offices of Wallace L. Taylor 118 3rd Ave. S.E., Suite 326 Cedar Rapids, Iowa 52401 319-366-2428;(Fax)319-366-3886 e-mail: wtaylorlaw@aol.com 7