ML19331A748
| ML19331A748 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/07/1973 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007210754 | |
| Download: ML19331A748 (8) | |
Text
,
' .u
- .. L 50 'bd'$,000
- :u JANUARY 7, J,,
-2,
[, - UNITED STATES OF AMl:RICA
((7
^ ATOMIC ENERGY COMMISSION (U .
' ' ' O, , $$B170111: TIIE ATOMIC SAFETY AND LICENSI!!G POAPD In the Matter of )
) _ _ ~ _
) Docket . 50-329 ,'
CONSUMERS POWER COMPANY )
50-3.10
)
(ftidiand Plant, Units 1 and 2) )
MOTION AND SUPPORTING ARGUMENT TO REQUIRE TIIE PRESIDING OFI'ICER TO ~ ~
RECALL AND REVOKE Tile INITIAL DE-CIS. ION AND TO DECLARE THE ATOMIC __
.S.A. Fig,,A_ND_L_IC,ENSING DOA,RD,, BIAS ED * * .
Caqinaw Valley, et al., Intervenors (hereinaflor re-ferred to as the "Intervenors"),* hereby move the Atomic Safety and Licensing Board for'the entry of an Order re-quiring the presiding officer of said Board to recall and to revoko its Initial Decision In the Matter of CONSUMERS PCWl'R COMPANY (Midland Plant, Units 1 and 2), Docket Nos.
- Designation of Saginaw Valley, et al., Intervenors, in-cludes the following.Intervenors: Saginaw Valley Nuc1 car Study Group, Citi:: ens Committee for Environmental Protec-tion of Michigan, Sierra Club, United Automobile Workers of America, West Michigan Environmental Action Council, and finiversity of Michigan Environmental Law Society.
- The Supporting Affidavit of Myron M. Cherry is at Lached hereto.
EOO7210.),f[ h
50-329.and 50-33.0, issued under date of December 1,1, 1972, to declare the Atomic Safety and Licensing Board biased, and to refer these dockets to the Commission for th2 ar-pointment of a new Board with instructions to have a new hearing on all relevant issues. The grounds for thir, 4
motion a re as follows :
- 1. Under Atomic Energy Commission Regulation 10 CFR 2.718, a presiding officer has the duty, inter alia, to conduct a fair and impartial hearing according to law. He
~
also has all powers necessary to this end including the p6wr r to take any other action consistent with the Atomic I:ncrgy Act and sections 551 to 558 of Titic 5 of the United States Code (5 U.S.C. 551-558). 10 CFR 2.718 (1) .
- The presiding officer has the power to reopen a proceed-in,; fvr the reception of further evidence at any time prior t o Ini t ial Decision. 10 CFR ,2. 718 (j) . IIere we are not asi:ing for a reopening of the proceeding to take further evidence:
rather, we are asking for a fair application of the presid-ing officer's duty to conduct a fair and impartial hearing according to law which includes the issuance of a fair and impartial Initial Decision. Section 2.718 (1) of the Rules obviously grants the presiding officer power to award the relief here requested. If the presiding officer deems him-sel f without authority to consider this motion, he should (continued)
,2. Accurel.inrJI y, the prenidine; ol' f i cer han au t ho ri t ',
I r, t .1 k e - : ct ion connintent with 10 CFR 2.704 (c) and 5 U.S.".
<;'. 's. f l . ) . Unrie:r 10 CFR 2.704 (c) , a party r.ay trove tha t t'-
preniding officer disqualify himself when a party deems the presiding officer to be disqualified. Under 5 U.S.C.
SS 5G (b) , a party can move at any time for the disqualifica-
. tion of presiding or participating officers on grounds of bias. In order to conduct the fair hearing required pur-nuant to 10 CFR 2.718, the presiding officer in this case must decla re the Atomic Safety and Licensing Board biased and must t.hereby ' recall and revoke the Initial Decision. -
The grour ds for this bias will be elaborated in this motion, i n f ra , and in the attached affidavit in support.of this motion.
- 3. As additional authority for the actions requented by Intervonors, this motion may be treated as a petition (continued)
(and we request in such circumstance) that this motion be immediately referred or certified to the Appeal Board or the Commission, as appropriate. Copies of this motion have been sent to such bodi'e s to facilitate any such re-ferral or certification. See 10 C.F.R. SS 2.730(f) and 2.71H(i). In addition and becausc Exceptions to the Initial Decision must be filed by January 15, 1973, unless advice ta the contrary is received, we will treat.this motion as having
~1'een denico for purposes of appeal.
i
fi1ed by a party wit.hin 1or [.considerat. ion which may be 10 CPP ?.771(a).
10 dayn a f ter the date of the decision.
f t.
in true that, since the decision in thic ca p w.i s r '.n -
more than 10 days have clapsed dered December 14, 1972, However, good cau.7c af t r the date of the decision.
Intervenors did exists to waive the 10-day limitation.
1972, not receive the Initial Decision until December 18, and therefore did n et have suf ficient time to file this - .
Morcover, as petition for reconsideration until now. -
will be indicated, Intervenors did not become fully aware ren- ,'
of the grounds of bias which until Docenibor 29, 1972,
~
til der this petition necessary, and did not know un January 5, 1973 that the Regulatory Staff would itsel f refuse to take action consistent with this motion.
4.
The test which must bc 7.oplied in order to dis-qualify for bias has been succinctly stated as being d hat (the whether "a disinterested observer may conclu e t has in some meas-agency [or presiding officer or Board} }
i lar ure adjudged the facts as well as the law of a part cu Gillican, Wil l &_ f[gh, v.
case in advance of hearing it."
469 (2d Cir. ) , cort ._ den ied_, 361 U.S.
SUq:, 267 P.2d 461, G96 (1959). That test has been cited and followed in the case In parti -lar, as will be chewn, mImcrous cases.
_e_
s
{
i.
o f TM:a c_o , I n_c ., v . FTC, 336 P.2d 754 (D.C. Cir. I N41, vacat orl and romanded on other groundn, 381 17.S. 73's (1965), states the law applicable to this cas.. There, F.T.C. Chairman Dixon made a speech before the National Congress of Petroleum Retailors while a case against Texaco was pending before the examinor on romand. After rentating the Gilligan test for disqualification, the court stated: - --
"A disinterested reader of Chairman iDixon's speech could hardly fail to conclude that to -
i had in some measure decided in advance that _ ,,
Texaco had violated the Act." 336 F.2d at . -J~
760.
The court further stated that such an administrative hear-ing "must be attended, not only with overy c1cment of fair-ness but with the very appearance of complete fairness,"
citing Amos Treat & Co. v. SEC, 306 F.2d 260, 267 (D.C.
Cir. 1962). Chairman Dixon's participation in the Texaco cane was thereby hcid to be a denial of duc procesn of law.
It follows that, if the presiding officer or the Board in the Midland dockets had in some measure decided in advance that applicant was entitl2d to construction permit s or that a fair and objectivo NEPA or safety hearing
. .- )
S I cou lil not be h.u l, then bian is cl ea rly c::Labl i::he d innile r
- t. lie- law approved by the Supreme Court of thr Uni. teel r.t: ate - .
In Cinderella Career and Finirhino Schoo_lt:, In ci. v.
FTC, 425 F.2d 583 (D.C. Cir. 1973), the court was once again confronted with a situation in which Chairman Dixon had indicated prejudgment of the case on his part. Thus, once again Chairman Dixon, while a case was pending before the agency, made a speech concerning his views _ of law and __
fact involved in a prococding which he did not mention by name. Holding that the Chairman's participation in the -
case amounted to a denial of due process, the court vacated ~ ,
the order of the Commission and romanded the case, desnite the fact that Chairman Dixon's vote was not necessarv for a maiority. The coort stated:
l "It is appalling to witness such insensitivity to the requirements of due process .... The rationale for remanding the case despite the fact that former Chairman Dixon's vote was not necessary for a ma-jority is well established:
"' Litigants are entitled to an impartial tribunal whether it consists of one man l
l Chairman Dixon was reprimanded for speeches to limit ed audiences. Ucre, as set forth in the supporting A f fidavit, the presiding of ficer set forth in detail hic views and pi c iudomont for all the world to see as to a particular m!it i t r then pending be fore him.
-G-
a* . . ,
or twenty and chcro is no way which we know of wherchy the influence of one upon the others can be quantitively measured.'
"nerkshire TW.plovces Asn'n of nerknhire nnittinn Milln v. NLRn, 121 F.2d 235, 239 (3d Cir. 1941)."
425 F.2d at 591, 592.
The Court stated that ChairmLn Dixon had cxercised quen-
- tionab]c discretion and very poor judgment indeed:
"... in directing his shafts and squibs at a casc- --
awaiting his official action." Id. at p. 591. ,
- 5. It in clear that upon an examination of the tranneript record in the present case, and upon a review
~
of the article written by Arthur W. Murphy, Chairman of the Licensing Board, entitled "The National Environmental Policy Act And The. Licensing Process: Environmentalis t Magna Carta Or Agency Coup De Grace?", 72 Columbia Law Review 963 (Oct. 1972) ,
- the Intervonors faced a Licens-ing Board infuncd by a personal bias, thus rendering the Initial Decision a nullity. Like Chairman Dixon, Chairman
- The article was originally written in May (or earlier) ,
1972, heror_e the NEPA hearings in these dockets and while the dockets werc pending before the Board. Sec 72 Colum.
L. Rev. 963, n.*, and affidavit of Myron M. Che rry , pa r .
~
5.
..'.s
~
s Murphy'n participation in a case in which he h:ul 1 r - *.* : -
oiu:! ? m. ult: prejudgments amounted to a denial of due pro-c e :- of law. As in the Berkshire F.molovecc Ans'n. caso, nuerg, chtiirman Murphy's influence upon the other member:.
of the Licensing Board cannot be quantitively measured an..
re<;u i rca
- t. hat the Initial Decision be reenlled and rev6hm.. ~~
Will:1:I:1'Olti:, Saginaw Valloy, et al., In t rv. tmrn , movo -
the At omi.e Sarcty and Licensing Board for the entry of an '
Order requiring the presiding officer to recall and revoke the Initial Decision in this caso, to declare the Board biased,.and to refer these dockets to the Commission for the appointment of a now Board with instructions to have a new hearing on all relevant issues.
q Respc tfully submitted,.I D f ;;. ;.t 9 . j! l. .
y ~.. ....
Myron M. Cherry Att'orndy fo'r said Intervonors 135 South LaSalle Street 33rd Floor Chicago, Illinois 60603 (312) 641-6060