ML101540425
| ML101540425 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/26/2010 |
| From: | Lampert M Pilgrim Watch |
| To: | Abramson P, Austin Young Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS J-238 | |
| Download: ML101540425 (6) | |
Text
DOCKETED USNRC May 26, 2010 (10:26a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION THE ATOMIC SAFETY AND LICENSING BOARD Judge Ann Marshall Young, Chair, and Judge Paul B. Abramson In the Matter of: Docket No. 50-293-LR ASLBP No. 06-848-02-LR ENTERGY NUCLEAR OPERAnONS, INC.
(Pilgrim Nuclear Power Station)
License Renewal Application May 26, 2010 Pilgrim Watch Request for Permission, and Reply to NRC Stafrs Response To Pilgrim Watch Motion To Disqualify Judge Abramson Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332
Pilgrim Watch Request for Permission, and Reply to NRC Staffs Response To Pilgrim Watch Motion to Disqualify Judge Abramson Pursuant to 10 C.F.R. § 2.323(c), Pilgrim Watch requests that the presiding officer, Judge Ann Marshall Young, grant permission to file the following reply. Pilgrim Watch could not have anticipated that (I) NRC Staff's Response to Pilgrim Watch's Motion to Disqualify Judge Abramson, would completely ignore the implications of 28 U.S.C. §455 (b) and Judge Abramson's obligations under them; and (2) that NRC Staff's Response would deny the fact that Judge Abramson's "impartiality might reasonably be qustioned." 28 U.S.C. §455(a).
- l. Introduction NRC Staff contends that Pilgrim Watch's Motion does not set forth sufficient facts to satisfy the Commission's standard for judicial disqualification and should, therefore, be denied. However a plain reading of NRC Staff's Response shows that the Staff, like Pilgrim Watch, provides sufficent facts to satisfy the Commission's standard for disqualifying Judge Abramson.
U. The Standard for Disqualification or Recusal NRC Staff, at 2, recognizes that the applicable legal standard for a party to move a Board member to disqualify himself is found in 28 U.S.C. § 455. See Public Service Elec. and Gas Co. (Hope Creek Generating Station, Unit I), ALAB-759, 19 NRC 13,20-21 (1984). The Staff lists the relevant provisions in the statute.
a) Any justice, judge, or magistrate of the United States shaH disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. (Emphasis added)
A. 28 U.S.c. § 455 subsection (b)
The NRC Staff refers briefly to 28 U.S.C. § 455, subsection (b)(J), but somehow ignores its plain language.
The Staff quotes the statement in §455(b)(I) that a judge, in this instance Judge Abramson, shall disqualify himself where he has "personal knowledge of disput~d evidentiary facts concerning the proceeding" (Staff Response at 2); but in the following sentence it ignores
§455(b)(1) and says that "[WJhat must be decided in the application of [28 U.S.C. §455(b)] is whjether [the specific facts presented] might lead a fully informed person to question [the judge's]
impartiality .... "
What the Staff ignores is that, if Judge Abramson has "personal knowledge of disputed evidentiary facts concerning the proceeding," recusal is mandatory whether or not a reasonable person would question his impartiality. Renteria v. Schellpeper, 936 F.Supp. 691 (D.Neb.1996); Parker v.
Connors Steel Co., 855 F.2d 1510 (11 th Cir. 1988; the rule disqualifying a judge from presiding is a per se rule that lists particular circumstances requiring recusal).
Further, the Staff agrees with Pilgrim Watch that that Judge Abramson has "personal knowledge of disputed evidentiary facts concerning the proceeding." Unlike Entergy, the Staff never denies that Judge Abramson "was involved with a lot of that [writing the code]1 personally." lndeed, the Staff goes I The "that," and the "a lot of' which Judge Abramson said he was "involved with ... personally," is clearly the MAACSlMAACS2 code. Neither Pilgrim Watch, Entergy nor NRC Staff say that Judge Abramson was referring to anything else.
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on to emphasize Judge Abramson's prior extrajudicial knowledge: "Judge Abramson made several statements referencing his prior involvement with the MACCS2 code that is relevant to PW's motion."
(Staff Response, p. 2, emphasis added)
The NRC Staff Response, at 3 and 4, cite cases that "disqualifying bias must stem from an extrajudicial source" - that is, it must be based on something other than what the adjudicator has learned from participating in the case." But the NRC Staffs statement that "Judge Abramson made several statements referencing his prior involvement with the MACCS2 code that is relevant to PW's motion." (Staff response at 2, emphasis added), continns that Judge Abramson's disqualifying bias comes from an "extrajudical source,"
What the Staff has missed is that only subsection (a) asks whether Judge Abramson's "impartiality might reasonably be questioned." The only question under subsection (b)(I) is whether Judge Abramson has "personal knowledge of disputed facts;" and the NRC Staff agrees that he does.
If there is any question in this regard, which there is not, Judge Abramson should recuse himself. Price Bros. Co. v Philadelphia Gear Corp., 629 F.2d 444 (6 th Cir. 1980).
B. 28 U.S.c. § 455 subsection (a)
NRC Staff's Response unsuccessfully attempts to deny the fact that Judge Abramson's "impartiality might reasonably be qustioned." 28 U.s.C. §455(a).
The question under subsection (a) asks "whether his impartiality might reasonably be questioned." PW explained in response to Entergy that what matters here is not the reality of bias or prejudice, but its appearance. Recusal is required whenever impartiality might reasonably be questioned (Liteky v. u.s., 510 U.S. 540 (1994)), i.e., when a reasonable person, knowing the facts, would expect that Judge Abramson knew of circumstances creating an appearance of partiality, whether or not he was actually conscious of those circumstances ( Liljebeg v. Health Services Acquition Corp., 486 U.S. 847 (1988>>, or would harbor doubts about Judge Abramson's impartiality Hayes v. Williamsville Cent.
School Dist., 506 F.Supp.2d 165 (W.D.N.Y. 2007). For example, a reasonable person could "harbor 3
doubts" about Judge's Abramson's impartiality because of Judge Abramson's statement that he was "involved a lot [with the MACCSIMACCS2 code] personally." It would show not only that he likely has prior personal knowledge about the disputed facts in this case, but also because he was involved in writing the code, he is likely to be prejudiced in favor of the work tbat he did and pal1icipated in and biased against any argument made by Pilgrim Watch regarding changes to the code, or the "inclusion of an additional factor or use of other assumptions or models (would) change the cost-benefit conclusions."
(CLI-IO-II, Memorandum and Order, at 39)
Under subsection (a), whether Judge Abramson actually has "personal knowledge of disputed evidentiary facts" is relatively unimportant. What is important is whether his statement that he had such knowledge could lead a reasonable person to believe he knows of disqualifYing facts or in other respects to believe there is an appearance of impropriety. If so, Judge Abramson, should recuse himself. u.s. v.
Garrudo, 869 F.Supp. 174 (S.D.Fla. 1994), affd 139 F.3d 806.
NRC argues that PW's motion should be denied because it does not allege sufficient facts to cause a reasonable person to question Judge Abramson's impm1iality. (NRC Staff at 5) Staff says that "Judge Abramson's statements during the telephone conference do not indicate a final conclusion of the disputed merits of the MACCS2 code." The question of the prejudgement is not the issue; instead Judge Abramson's statement that he had such knowledge could lead a reasonable person to believe he knows of disqualifYing facts or in other respects to believe there is an appearance of impropriety. If so, Judge Abramson, should recuse himself. u.s. v. Garrudo, 869 F.Supp. 174 (S.D.Fla. 1994), affd 139 F.3d 806.
NRC argues further that "mere experience with a particular topic does not constitute grounds for disqualification" referring specifically to "techinical experience" and "prior (involvement) in the nuclear field." PW finds no problem with a Judge's technical or nuclear background; rather the problem is that "he was involved with a lot of that (MACCS/MACCS2 code) personally;" and as NRC Staff said, "Judge Abramson has "personal knowledge of disputed evidentialy facts concerning the proceeding." (Emphasis added) 4
The Staff concludes that they "acknowledge that Judge Abramson's statemel).ts raise questions regarding his involvement with the MACCS2 code" NRC Staff should know that if the question is a close (in their minds) the balance tips in favor of recusal. Nicols. v. Alley, 71 F.3d 347 (10th Cir. 1995).
To insure public confidence in this, and other NRC proceedings, Judge Abramson should recuse himself under subsection (b) 1) if he has personal bowledge of disputed evidentiary facts, and should exercise his discretion in favor of recusal under subsection (a) if he has any question about the propriety of continuing to sit in this case. Hall v. Small Business Admin., 639 F.2d 175 (5 lh Cir. 1983)
Respectfully submitted,
\.... ~.~YC--'1 ~rn~--
Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application May 26, 2010 CERTIFICATE OF SERVICE I hereby certify that Pilgrim Watch Requestfor Permission, and Reply to NRC Staff's Response To Pilgrim Watch Motion to Disqualify Judge Abramson was served May 26, 2010 in the above captioned proceeding to the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class.
Secretary of the Commission Administrative Judge Attn: Ru1emakings and Adjudications Richard F. Cole Staff Atomic Safety and Licensing Board Mail Stop 0-16 C 1 Mail Stop -T-3-F23 United States Nuclear Regulatory US NRC Conunission [2 copies] Washington, DC 20555-0001 Administrative Judge Office of Commission Appellate Arm Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Mail Stop 0-16 C1 Mail Stop - T-3 F23 United States Nuclear Regulatory US NRC Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Administrative Judge Atomic Safety and Licensing Board Paul B. Abramson Mail Stop T-3 F23 Atomic Safety and Licensing Board United States Nuclear Regulatory Mail Stop T-3 F23 Commission US NRC Washington, DC 20555-0001 Washington, DC 20555-0001
U.S. Nuclear Regulatory Commission Martha Coakley, Attorney General Office of Commission Appellate Matthew Brock, Assistant Attorney Adjudication General Commonwealth of Mail Stop: 0-16Cl Massachusetts Washington, DC 20555-0001 Office of Attorney General One Ashburton Place U.S. Nuclear Regulatory Commission Boston, MA 02108 Office of General Counsel Mail Stop: 0-15 D21 Mark Stankiewicz Washington DC 20555-0001 Town Manager, Town of Plymouth Susan L. Uttal, Esq. 11 Lincoln Street Marcia Simon, Esq. Plymouth MA 02360 Andrea Jones, Esq.
David Roth, Esq. Sheila Slocum Hollis, Esq.
Brian Harris, Esq. Town of Plymouth MA Michael Dreher, Esq. Duane Morris, LLP Brian Newell, Paralegal 505 9 th Street, N.W. 1000 Washington D.C. 20004-2166 U.S. Nuclear Regulatory Commission Office of Nuclear Reactor Regulation Richard R. MacOonald Mail Stop: 011-Fl Town Manager, Town of Duxbury Washington, DC 20555-0001 878 Tremont Street Duxbury, MA 02332 Lisa Regner, Project Mgr. Plant Lie.
Branch 1-1, Operator Reactor Licensing Fire Chief & Director DEMA, Washington, DC 20555-0001 Town of Duxbury 688 Tremont Street Paul A. Gauk1er, Esq. P.O. Box 2824 David R. Lewis, Esq. Duxbury, MA 02331 Jason B. Parker, Esq.
Pillsbury, Winthrop, Shaw, Pittman, Terence A. Burke, Esq.
LLP - 2300 N Street, N.W. Entergy Nuclear Washington, DC 20037-1128 Mail Stop M-ECH-62 Jackson, MS 39213 Katherine Tucker ASLB, Law Clerk U.S. Nuclear Regulatory Commission Mail Stop T-3-E2a Washington, DC 20555-0001
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Mary Lampert Pilgrim Watch, pro se 148 Washington St.,
Duxbury, MA 023332 May 26, 2010 2