RECUSAL DECISIONS PAVE WAY FOR NRC YUCCA RULING
Two NRC Commissioners — under fire for publicly pledging in a February 9, 2010, Senate nominations hearing to not "second guess" the U.S. Department of Energy’s Yucca Mountain license withdrawal decision in response to a question posed by Senator Barbara Boxer (D-CA) on behalf of chief Yucca Senate antagonist Majority Leader Harry Reid (D-NV) — have declined to disqualify themselves from a decision on the matter.
The individual decisions by Commissioners William Magwood and William Ostendorff were filed in response to a July 9, 2010, motion by the State of Washington, the State of South Carolina and other parties seeking their disqualification from any further consideration of the Construction Authorization Board’s rejection of the DOE motion to withdraw its Yucca Mountain license application with prejudice. The Board’s decision is now under review by the NRC Commission.
A third Commissioner who made an identical statement during the same Senate hearing, Commissioner George Apostolakis, disqualified himself from the matter in a July 15th decision citing previous work on Yucca Mountain for the Sandia National Laboratories. Apostolakis was considered a key swing vote on the issue, leaving two Democratic and two Republican appointees to arbitrate the politically volatile issue. The political divide sets the stage for a potential stalemate.
According to sources close to the NRC, a decision by the remaining four Commissioners on whether to review and/or uphold the Board’s June ruling is "now imminent" and “under any circumstances expected before Congress returns from its recess in September.”
In individual but parallel decisions, the two Commissioners offered similar, rambling explanations for their response to the February Senate hearings question and their decision not to disqualify themselves.
Ostendorff:
“At the time of Senator Boxer’s question, I had only limited knowledge and appreciation for the matters at issue as part of the licensing proceeding, as well as only limited familiarity with DOE’s latest efforts with regard to that application. I certainly had no knowledge of the legal issues pertaining to the withdrawal of the application. I understood Senator Boxer’s question to ask whether or not I would take a position on DOE’s decision to seek withdrawal of the application as a matter of policy.
My belief at the time was, and still is, that it was not my place to question the decision made by the Secretary of Energy to pursue such a withdrawal. It was not my belief, nor do I think that any reasonable person could conclude as such in light of all the facts and circumstances, that Senator Boxer was asking for my opinion as to whether the application could be withdrawn as a matter of law. It was simply not conceivable to me that the Senator would ask me to provide an on-the-spot opinion on a legally and technically complex subject with simply a “yes or no” answer, or to opine on the matter without having been given sufficient opportunity to understand the extensive history or complicated technical or legal issues.
At the time of the hearing, the specific issue of the withdrawal of DOE’s application was not before the Commission, nor was I familiar with the laws and regulations applicable to that issue. Therefore, no reasonable person, knowing all of the facts and circumstances of the confirmation hearing, the Yucca Mountain licensing proceeding, and the NRC’s adjudicatory processes, could have understood my “no” answer to mean that I “had demonstrably made up[my] mind about important and specific factual questions and was impervious to contrary evidence,” or had formed firm views on the pertinent legal issues.”
Magwood:
“When Senator Boxer asked me if I would second guess DOE’s decision to withdraw the application, it had been my understanding for some time, as learned through the media, that the President had decided to withdraw the application. At the time of the hearing, I believed this to be, in essence, a policy matter that had been already decided. I was aware of the policy debate associated with the intent to withdraw, but was not aware of legal questions regarding DOE’s ability to withdraw…
While there may be some ambiguity about the meaning of “second guess,” I certainly did not understand Senator Boxer’s question in any sense to ask for my commitment to ignore the law or prejudge an adjudicatory issue of law or fact as to whether DOE could withdraw the application. I answered “no” in response to Senator Boxer’s question because I had no intention of undertaking a gratuitous assessment or criticism of the reasons for the intent to withdraw. My response reflected my view that the NRC – a regulatory organization – would simply not be a position to “second guess” a policy decision made by the President. Moreover, I was not familiar with how motions to withdraw are handled in cases before the NRC’s licensing boards or what legal issues might be raised with such motions.”
The three new NRC Commissioners were confirmed on March 19, 2010 – joining Chairman Gregory Jaczko, a former Reid staff member and Kristine Svinicki, a former Republican Committee staff member, on the five-person panel.
August 12th, 2010 at 1:31 pm
Not NRC’s finest moment or the best and the brightest.
August 12th, 2010 at 1:31 pm
Not NRC’s finest moment or the best and the brightest.
August 12th, 2010 at 1:31 pm
Not NRC’s finest moment or the best and the brightest.
August 12th, 2010 at 1:36 pm
For the most part, this is the lawyered equivalent of the cat ate my homework. Otherwise, what a babbling stream of consciousness.
August 12th, 2010 at 1:36 pm
For the most part, this is the lawyered equivalent of the cat ate my homework. Otherwise, what a babbling stream of consciousness.
August 12th, 2010 at 1:36 pm
For the most part, this is the lawyered equivalent of the cat ate my homework. Otherwise, what a babbling stream of consciousness.
August 12th, 2010 at 2:09 pm
Well, the distinction between a general policy decision and a specific legal ruling seems a reasonable ground to stand on. Things may get interesting if the decision is a 2-2 split.
August 12th, 2010 at 2:09 pm
Well, the distinction between a general policy decision and a specific legal ruling seems a reasonable ground to stand on. Things may get interesting if the decision is a 2-2 split.
August 12th, 2010 at 2:09 pm
Well, the distinction between a general policy decision and a specific legal ruling seems a reasonable ground to stand on. Things may get interesting if the decision is a 2-2 split.
August 12th, 2010 at 4:39 pm
The viewing of the videotape suggests that they knew the question was coming. The answers are too choreographed to believe otherwise. Did they sell their souls and integrity to Harry Reid in exchange for a favorable Senate vote?
August 12th, 2010 at 4:39 pm
The viewing of the videotape suggests that they knew the question was coming. The answers are too choreographed to believe otherwise. Did they sell their souls and integrity to Harry Reid in exchange for a favorable Senate vote?
August 12th, 2010 at 4:39 pm
The viewing of the videotape suggests that they knew the question was coming. The answers are too choreographed to believe otherwise. Did they sell their souls and integrity to Harry Reid in exchange for a favorable Senate vote?
August 12th, 2010 at 5:53 pm
Joffan
Yes 2-2 would be sweet and restore some badly needed dignity to the Commission.
At the moment, with an obvious exception or two, it’s looking like an outpost for political hacks.
August 12th, 2010 at 5:53 pm
Joffan
Yes 2-2 would be sweet and restore some badly needed dignity to the Commission.
At the moment, with an obvious exception or two, it’s looking like an outpost for political hacks.
August 12th, 2010 at 5:53 pm
Joffan
Yes 2-2 would be sweet and restore some badly needed dignity to the Commission.
At the moment, with an obvious exception or two, it’s looking like an outpost for political hacks.
August 13th, 2010 at 9:34 am
OK, I’m a reasonable man, and I DO think it revealed a predisposition.
I don’t think a single word in a confirmation hearing is uttered unless it is planned.
And, when told that a ‘one word answer will suffice’ it does not mean that you cannot say ten more words: “I cannot comment on that as it may come before me”.
Perhaps there is an Appeals Ct. judge who will also see it that way.
August 13th, 2010 at 9:34 am
OK, I’m a reasonable man, and I DO think it revealed a predisposition.
I don’t think a single word in a confirmation hearing is uttered unless it is planned.
And, when told that a ‘one word answer will suffice’ it does not mean that you cannot say ten more words: “I cannot comment on that as it may come before me”.
Perhaps there is an Appeals Ct. judge who will also see it that way.
August 13th, 2010 at 9:34 am
OK, I’m a reasonable man, and I DO think it revealed a predisposition.
I don’t think a single word in a confirmation hearing is uttered unless it is planned.
And, when told that a ‘one word answer will suffice’ it does not mean that you cannot say ten more words: “I cannot comment on that as it may come before me”.
Perhaps there is an Appeals Ct. judge who will also see it that way.
August 13th, 2010 at 11:35 am
Re: Core Values. I concur on the eye-brow raising one word responses from ALL three nominees. How often does that happen on Capitol Hill. How often does this happen in rote fashion within seconds. Harry Reid was no doubt pleased by the response but surely not surprised since he knew it was coming as scripted.
August 13th, 2010 at 11:35 am
Re: Core Values. I concur on the eye-brow raising one word responses from ALL three nominees. How often does that happen on Capitol Hill. How often does this happen in rote fashion within seconds. Harry Reid was no doubt pleased by the response but surely not surprised since he knew it was coming as scripted.
August 13th, 2010 at 11:35 am
Re: Core Values. I concur on the eye-brow raising one word responses from ALL three nominees. How often does that happen on Capitol Hill. How often does this happen in rote fashion within seconds. Harry Reid was no doubt pleased by the response but surely not surprised since he knew it was coming as scripted.
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August 13th, 2010 at 2:57 pm
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August 13th, 2010 at 2:57 pm
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