ML20041F881
| ML20041F881 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 03/12/1982 |
| From: | Hirsch D COMMITTEE TO BRIDGE THE GAP |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20041F882 | List: |
| References | |
| NUDOCS 8203170505 | |
| Download: ML20041F881 (39) | |
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S UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION Y#
In the Matter of
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Docket No. 50-142 THE REGENTS OF THE UNIVERSITY
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(Proposed Renewal 0F CALIFORNIA
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of Facility License)
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S MOTION FOR DISQUALIFICATION OF COMMISSIONER THOMAS ROBERTS l
l Committee to Bridge the Gap 1637 Butler Avenue j
Los Angeles, CA 90025 (213) 478-0829 3
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8203170505 820312 POR ADOCK 05000142 l
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4 UNITED STATES CF AKERICA NUCLEAR REGULATCRY COMMISSION 3EFORE Tlid C0YMSSION In the Matter of Docket No. 50-142 THE RECENTS OF THE UNIVERSITY (Proposed Reneusi 0F CALIFORNIA FacilityLicense)
(UCIA Research Reactor)
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PUPION FOR DISQUALIFICATION OF COMMISSIONER TIOFAS ROBERTS I.
I,jg M THE COMMITTEE TO 3 RIDGE TEE GAP, Intervenor in the license renewal proceedings for the UCIA nuclear reactor, hereby moves the NuclearRegulatoryCommission(" Commission")forthedisqualification of Commissioner Thomas Roberts from participation in any decisions ro6arding the contested application of the Re6ents of the University of California (" Applicant").
The Committee to Bridge the Gap ("CBG" or "Intervenor") contends that Commissioner Roberts must be recused from any decision-==Mng l
role in any aspect of the UCIA reactor case because of his activities l
l in violation of g parte rules,10 CFR 2 780 and 5 USC 557(d), and sepexation of functions rules, 10 CFR 2.719 and 5 USC 554(d).
Furthermore, C3G contends that these violations evidence such a substantial bias in favor of two of the parties in the contested proceedin6, Applicant and Staff, and against the remaining party, Intervenor, that the taint of partiality can only be removed by recusal.
t l.
CBG hereby alleges that Commissioner Roberts, his legal assistant Jessica Iaverty, and an unidentified additional assistant violated g varte rules in four (4) meetings held with representatives of the Applicant on January 26, 1982, at the Applicant's facility in Los Angeles, California, and that at each of these g parte meatings, ontters in controversy in the UCLA reactor proceeding were discussed.
C3G further alleges that Ms. Iaverty's current rols as legal advisor to Commissioner Roberts violates separation of functions rules because she previously represented one of the parties in the contested proceeding when she served as Counsel for NRC Staff in the UCIA reactor relicensing matter.
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The four g parte _ meetings consist of:
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- 1. an off-the-record, closed-door meeting with (a) aussell O'Neill, Dean of the UCIA School of Engineering and Applied Sciences, the official primarily responsible for the Application now pending before the NRC, (b) William Cormier, Counsel for the i
Applicant in the reactor relicensing proceeding, and (c)
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Bomas Tugend, Applicant's public information officer.
De meeting took place in Dean O'Neill's private office at UCIA Intervenor and the press were excluded.
- 2. an off-the-record meeting with UCIA Reactor Director Ivan Catton and other Nuclear Energy Iab employees, a meeting from which Intervenor and the public were likewise excluded.
- 3. a presentation regarding the contested reactor by Reactor Director Catton and Senior Reactor Operator Charles Ashblugh III, for which Intervenor was present but not permitted to uke any statement or present any counter infor: nation.
- 4. a presentation by Applicant, from which Intervenor was excluded, regarding security precautions at the facility, a matter which is directly in contest in the proceedings.
Intervenor's request to make a brief presentation of its concerns was also refused by the Commissioner.
Furthernere, C3G hereby alleges that Commissioner Roberts and his staff have violated 10 CyR 2.760(c) by failing to file the required reports detailing the contents of the g arte conmunications which took place en January 26.
Ccgnizant of the busy schedule of the Commissioner, C3G has provided the Connissioner and his staff a:ple tine to file said
reports'before bringin6 the matter to the attention of the full Commission, but as no such reports have as yet been filed, C3G has no alternative but to request relief from the Commission.
C3G further moves that should Commissioner Roberta decline to recuse himself, C3G be given' discovery rights to further develop the facts as to these g tarte and separation of functions matters and the alle6ed bias.
Furthermore, as Commissioner Roberts, his staff, and the Applicant have failed to file reports de+=411ng the g arte meetin6s or related matters, C3G respectfully requests the right to respond to responses filed to this motion.
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4 4
II. 3ACKGROUND A.
Licensing Proceeding and Related History On August 21,1979. C3G informed NRC Region V of what C3G believed were signifiant violations of NRC regulations taking place at the UCIA reactor. These violations involved allegedly excessive emissions of Argon 41 from the reactor exhaust.st'ack, placement of that stack within a few feet of a downwind air-inlet for a nearby building, and lack of occupancy restrictions in the area surrounding the exhaust stack.
CBG requested enforcement action be taken.
On September 10, 1979, C3G wrote Region V, renewing its request for an unannounced inspection and appropriate enforcement. The request was renewed thereafter several times by phone, whereupon on September 27-28, 1979, an unannounced inspection took place, whereafter the inspector indicated to C3G that no enforcement action was anticipated.
On October 3,1979, C3G publishei a report ("The UCIA Reactor: Is which It Safe")/ detailed the allegal violations. Simultaneously, C3G wrote to Joseph Hendrie, then Chairman of the Commission, requesting the Commission take action to convene public hearings on the proposed relicensing of the UCLA reactor, grant CBG intervenor status in those hearings, and temporarily shut down the reactor in question until those hearings resolved certain matters related to the Argen41 emissions.
On February 28, 1980, the Regents of the University of California applied to the Commission for renewal of its license to operate the UCIA reactor.
On April 25, 1980, the Commission published in the Fedsral Register a notice of the proposed renewal of Facility License No. 3-71, which would extend its expiration date to Farch 30, 2000.
4 On !%y 22,1980. C3G filed a timely Petition for Leave to Intervene.
In addition to the Argon 41 matter, the Petition outlined an array of other concerns about the proposed NRC action that it wished to litigate.
These concerns, developed through extensive research into the reactor's operation, conducted since becoming aware of the Argon 41 matter, included matters related to reliability and adequacy of key equipment, difficulty in obtaining spare parts because the original manufacturer (A!T) was no longer in the reactor business, adequacy of monitoring, minimal educational and research use and excessive commercial use of the reactor, lack of containment structure, and a number of others.
On July 9 and 10, 1980, NRC technical and legal staff came to Los Angeles to meet with CBG and to conduct a site tour of the UCLA reactor as part of their investigation into UCLA's Application and the concerns raised in CBG"s Petition. Among those attendin6 was Jessica Inverty, l
then Counsel for NRC Staff assigned to the UCLA matter, now legal advisor to Conmissioner Roberts.
See Schnelker affidavit, attached.
Cn July 10, 1980, an Atomic Safety and Licensin6 Board was established to preside in the proceeding. On August 25, 1980, pursuant to l
Board Order, C3G filed its Supplemental Contentions, detailing at l
l length the nature of and bases for the contentions it wished to litigate l
in the proceeding.
On September 16, 1980, Jessica Iaverty, as Counsel for NRC Staff, filed "NRC Staff's Position on Contentions of Committee to Bridge the Cap," in which Ms. Iaverty supported admission of certain contentions and opposed admission of a number of others.
See Exhibit B, attached.
.6-On September 25, 1980, the ASLB convened a prehearin6 conference in Los Angeles at which C3G was granted Intervenor status, a hearing ordered, four contentions admitted, and the parties directed to attsapt to stipulate a6reement on the remainin6 contentions. Jessica Laverty appeared at the proceeding as " lead counsel for the NRC staff in this UCIA Research Reactor operating license renewal proceeding." H. at p.3, attached as Exhibit C.
See also ASLB Order Subsecuent to the Prehearing Conference, dated October 2,1980 (unpublished).
For the next two months extensive negotiations were conducted between Applicant, Intervenor, and Staff, with Ms. Iaverty representing i
Staff, as to language and admissability of contentions. Ms. Iaverty t
drew up the stipulation and signed it on behalf of Staff.
See Exhibit 1 Staff's behavior in both drawing up the Stipulation and complyin6 with it was a matter of considerable controversy and is likely to be amon6 the matters appealed to the Commission, when ripe for such appeal. See February 4. 1981. Prehearing Conference Transcript at 81-933 also Hirsch affidavit, attached.
On November 28, 1980, Ms. Iaverty withdrew as Counsel for Staff in the UCIA matter and was replaced by Colleen Woodhead.
On March 10, 1981, the Board ruled on the admissability of contentions not previously admitted.
The contentions admitted into the proceeding cover a wide ran6e of hotly contested issues. A copy of the contentions is included as an attachment.
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Amon6 the contested matters are:
Contention I alle6ations of material false statements by applicant Contention II reactor used primarily for commercial activity (diamnr4 coloration and mining are assaying) rather than education and research as required by license Contention III failure to demonstrate adequate mana6erial and *dministrative controls (e.g. operation of reactor by unlicensed operators, including junior hi h school students) 6 Contention IV*
consistent violations of NRC ro6ulations Contention V too much excess reactivity-i.e., sufficient to cause an SL-1/ Borax / Sport-type destructive power excursion Contention VI excessive radiation emissions, inadequate monitorin6 Contention VII persistent pattern of unintentional scrams, airtormal occurrences, and accidents evidencing a pattern of operational unreliability Contention VII Applicant's safety aralysis indicates an unacceptably high 1800 Rea thyroid dose to members of the public in case of accident Contention IX failure to adequately maintain equipment and calibrate instruments Contention X necessity of Staff preparird an EIS because si rJ.ficant 6
potential impact on the environment Contention XII inadequate or non-existent safety features (e.g. no containment structure, hEPA filters, emergency cooling system, radioactivity holdup tanks problems with control blades and fuel plates)
Contention XIII excessive quantity and enrichment of SMf, creating l
serious, unnecessary threat of diversion or theft l
for atomic weapons construction Conteition XIV failure to analyze problems common to similar research reactors Contention IV adverse siting characteristics (e.g. thousards of people within 100 feet, tens of thousards within t mile)
Contention XVI reactor too old (vendor no lon6er in the business, parts unreliable ard difficult to repair and replace)
Contention XVII seismic vulnerability Contention XVIII lack of necessary financial resources, leading to deferral of necessary experditures for reactor safety and maintenance
4 Contention XIX failure to adequately analyze maximum credible accident Contention XI inadequate security precautions to protect against theft of bomb-grade uranium or sabotage Contention XII Emergency Response Plan. insufficient 3.
Ijg g_ PARTE MEETINGS g JANUARY 26,, 1982 C3G alleges that four g Darte meetings occurred on January 26 l
between Commissioner Roberts and members of his staff and counsel for and officials of the Applicant. The meetings all took place at the Applicant's facility in Los Angeles, California.
The four g parte meetings are detailed blow.and in the attachments.
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!l.
- 1..h Ex Parte Meeting with AVDlicant's Attorney, Banking Official,
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SU.d.. Publi_c Information Officer.
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Y The meeting took place in the private office of Russell O'Neill, l
Dean of the UCLA School of Er41neering and Applied Science, in the same building as the UCLA reactor (the Nuclear Energy Iaboratory is a program of the School of Engineering) In addition to Dean ""*'ll, present for the =eeting were Applicant's Attorney, William Carmier,W and Applicant's public information officer, Thomas Tugend.
i l
M Basiago affidavit at pg.1 2/ See Notice of Appearance filed by F.r. Cormier in the UCLA reactor E consing proceeding, attached as Exhibit 1 J/ Basiago affidavit at pg.1-2 I
i.
, Dean O'Neill has primary responsibility on behalf of the Applicant for the relicensing application now perding before the NRC.
Indeed, the Application was submitted in his name and over his signature.
Also present for the meeting were Commissioner Roberts, his legal assistant Jessica Iaverty, and an unidentified male assistant.
The nesting lasted at least twenty-five minutes, and probably as much as forty minutes--despite initial denials by counsel for [pplicant that the meeting even took place and subsequent assertions, after admission the meeting did occur, that it lasted no more than ten minutes.
Intervenor's representatives were neither informed cf the meetir4 nor permitted to participates in fact, Commissioner Roberts' legal assistant, Ms. Iaverty, had directed Intervenor's representatives to appear at another location, where C3G's representatives were left waiting nearly an hour while Ms. Iaverty, Commissioner Roberts, and the others were conducting what turned out to be an ex Tarte meeting five floors above in Dean O'Neill's office.
Likewise, Applicant's counsel, in addition to subsequently denying both the existence and extent of the meeting in Dean O'Neill's office, knew -
Intervenor's representatives were waiting at the appointed location and time (the 2nd floor entrance to the Nuclear Energy Iab, for a tour tint l
was to begin at 9:30 a.m.), and yet concealed the existence of the meeting occurringupstairsinDeanO'Neill's7thflooroffice.da While Intervenor's i
1 representatives waited for the tour to begin downstairs, as Ms.-Iaverty had previously infor:ed C3G, Ms. Laverty, Mr. Cormier, Commissioner Roberts, and Dean O'Neill were meeting _ex parte upstairs.
$/SeeAtta:.nent F g 3asiago affidavit; confirmed in Schnelker affidavitt sei also Firsch affidavit, para 5-9p 93 Thompson affidavit, para 53 asia 6o affidavit para 7 g/H1.rschaffidavit p
t Hirsch affidavit, para 2-4 g/ Tho:pson affidavit, p 2 Hirsch affidavit, para 5 l
. As Intervenor was not pernitted to attend the meeting (the existence even af which was initially denied by counsel for Applicant and refused to be confirmed by counsel for Commissioner Roberts
, and since neither Commissioner Roberts nor his staff have filed the reports required by 10 CFR 2.780 (c),
and since Applicant has filed no report de+2414*g the contents of the meetinge and since no transcript of the meeting has been made available to C3G, Intervenor has no way of knowing precisely what matters were diacussed in Dean O'Neill's office during the 25-40 minutes while Commissioner arberts and his party met behind clo-ed doors with the attorney representing the Applicant in this matter before the NRC and the university official responsible for the university's Application for license. At least two requests by the press to be present were refused, although one reporter and a cameraman waited outside the docr to Dean O'Neill's office while the closed-door, off-the-record meeting was occuring.
Commissioner Roberts repeatedly refused to speak to the press during the visit, so full details of the meeting have to date not been msde public.
However, some details of the meeting's contents have been revealed.
These indicate that during the lengthy meeting, a_ji, least two matters hotly contested in the proceedings were discussed. The first deals with trends in enroll-t in educational programs of the School of Engin'eerir4 the second, which CBG has contended is interrelated, dealt with the financial difficulties faced by the Applicant.
Both matters, as shall be shown below, relate directly to contentions admitted in the proceeding.
9/ affidavit of Thompson at p m 6; Hirsch affidavit at para 10 10 Hirsch affidavit at para 6; 3asiago affidavit at para 2-5
_/ g also Hirsch affidavit at para 30
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11 a.
Enrollnent Trends Clearly Relate to Intervenor's contentions I.3.a. and f.I II: III.5: X.3 and.4 (currently deferred); and XVIII Intervenor has contended that enrollment in nuclear er41neerir4 courses dependent upon the reactor has been steadily droppin6, which has led to a relative reduction in fund allocations to the reactor, leadin6 to deferral of expenditures for maintenance and upgradir4 of safety features and pushing the Nuclear Energy Iaboratory into seekin'g additional funriing through extensive commercial activity, in violation of its Class 104 license.
Intervonor has further contended that risir4 enrollment in other parts of the School of Engineering or university as a whole further reduces the ability of the Applicant to provide reasonable assurances that it will have, and devote, adequate financial resources to the upkeep of the reactor, because of pressures to put financial resources where the enrollment is.
The mini =1 research and educational functions of the facility have led CBG to contend in Contentions I.3.f and X.3 and 4 that numerous environmentally less harmful alternatives exist for providing the exceedingly small$esear'handeducationalfunctionscurrentlyp'erformedbythefacility.
c i
l 3ecause enrollment in nuclear engineering classes associated with the l
reactor has been dropping, the need for the facility has been shrirlirg, CBG has alleged.
Dean O'Neill is quoted as having' discussed with Commissioner Roberts the crisis caused by "too many students." C3G did not have an opportunity to indicate to Commissioner Roberts the contrary trend in the nuclear engineering sub-program.
If and when these matters reach the Commission, Commissioner Roberts, if not recused beforehand, will have had the benefit of off-the-record discussions with the Applicant having provided infernation which the Intervenor was not permitted to contest as to said enrollnent trends.
W attached as Exhibit A
6 It is this commercial activity which C3G centends represents c0f, of the reactor's use, while instructional uses have dropped to 30-40 hours per
. It was clearly the Applicant's intent that Conmissioner Roberts ard his staff come away from the visit to the UCu Er41neering 3chool ard its Nuclear Energy Iab with the i=pression of a vital, vibrant ard growing nuclear engineering program for which the reacter is a necessary ard useful teaching ard research tool. This is at variance with the facts, and is a matter hotly contested in proceedir4s currently before the NRC.
That the Applicant would be permitted to make such a case off-the-record without opportunity for opposing information to be presented by Intervenor is clear violation of g tarte rules.
'o. Di_scussion of "the crisis in engineering...not enough funds" clearly relates to Intervenor's Contentions II, IX, X.3 and 4 (deferred),
t XII, XVI, and XVIII Applicant's financial qua1Hications are squarely at issue in this proceeding.
Intervenor has contended precisely that the er41neering I
l departnent at UCIA cannot provide reasonable assurance of being able to l
l devote adequate financial resources to the safe maintenance and operation of the reactor; that in fact, because of expansion of engineerir4 programs l
other than nuclear fission while interest has been simultaneously dropping in the fission program at UCIA, furds needed for the safe operaticn of the facility have been diverted to other programs with larger student ard research activities.
For the Dean of the UCIA School of Enginedngs Applicant before the Commission for a license in which the 3chool's financial qualifications are at issue, to discuss those financial natters with one of the Conmissioners off-the-record without opportunity fcr Id.ervenor to hear and rebut is clear violation of,e_x, wrte rules, G
) as having said he discussed if/ Dean O'Neill is quoted (Attachnent with Connissioner Roberts "the m sis in engineering...too nany students and not enough furds."
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. c. Fany Cther Fatters Related to the Reactor proceeding Iay Well Have 3een Discussed in the Closed-Dcor Off-the-Record Eeeting 3ecause Intervenor an:1 the press were excluded frcm the meeting, ard because no transcript has teen made available, the possibility that other contested matters were discussed remains an open question.
Certainly the public will have difficulty believing any assertion, should it be made, that the Applicant ard the Commissionar met behind closed doors minutes for25-49/intheApplicant'sofficesardthattheyonlyspokeaboutthe weather.
The appearance of bias cannot be cleansed from this g wrte contact because (1) it was secret, (2)itsveryexistencewasdenied, (3) no transcript has been made public, ard (4) the Commissioner and his staff have failed to file the requisite public reports.
The presumption must remain that other contested matters, in addition to those irdicated above, were discussed behind those closed doors.
- 2. The Ex Parte Meeting 3etween Commissioner Robertu and Nucleer Energy Iaboratory Director Ivan Catton and Other NEL Ecoloyees Following the g w rte meeting with Russell O'Neill, William Cormier, and Thomas Tugend in Dean O'Neill's office on the 7th flocr of the En6 neering 1
3uilding (3oelter Hall), the Commissioner was then taken by a back entrance into the Nuclear Energy Iab, where the reactor is located.
He.did not.
enter by the main entrance, where Ms. Iaverty had told C3G to wait ard where :&. Carmie knew CT,'s representatives had, in fact, been waiting for the last hour.
- Instead,
- t. Roberts was taken in another way, and arcund 10:00 a.m.,
the Co:nissioner's le6al assistant, Ms. Iaverty, ard the Applicant's attorney, 22. Cormier, together energed from insid6 the Nuclear Energy Iab (:E) to tell the C3G representatives waitin6 at I
. the main entrance of IGL that they could now observe the presentation Applicant was giving to It. Roberts.
Co==issioner Roberts, however, was not with them.
He was, instead, inside the Nuclear Energy Iab =eeting with its Director ard certain of its employees, out of sight and hearing of Intervenor's representatives.
it. Carmier at first denied the meeting with, Dean O'Neill and Commissioner Roberts, ard then cla.imed it was nothing more than a few minute " greeting."
Ps. Laverty refused to answer direct questions even as to whether such a meeting had decurred.
While this discussion with Mr. Cormier and Fs. Laverty was taking Phee near the 2nd floor main ent:ance to IEL, Commissioner Roberts and the man accompanying him were downstairs talking with Director Catton ani other NEL representatives.
CM was not able to join them until at least ten minutes later.
When CM representatives finally joined the Commissioner's party, I
he was in the midst of being shown by Director Catton ard an accompanying l
- NEL employee the machine shop for NEL and was being told how extensive l
were the available maintenance tools ard how NEL was able to fabricate virtually any devices it needed, right there at the facility.
These catters are directly in contest in the proceeding.
(See Contentions IX, XII, ard XVI).
CM has contended that the equipr.ent is outdated ard unreliable, that because the reactor verdor has gone out cf the business parts are difficult to repair or rephce, ani that =echanical features cf the facility ard the supporting maintenance equipment are inadequate.
]j/ Tho=pson affidavit para 5; Hirsch affidavit para 9 p/ This is known because that is where CM representatives were taken finally to meet him.
Thocpson affidavit, para 8; Hirsch affidavit, para 12 Thc=psen affidavit, pan 5: Hirsch affidavit, para 9 1
Thompson affidavit, para 6; Hirsch affidavit, para 10 2f/ Hirsch affidavit, para 12 1
. Cnce again, CM has no way at present of knowing what else Director Catton and Commission Roberts spoke about before C3G representatives were permitted to join them. What is known at present, however, is that they were, as the CBG representatives arrived, discussing the adequacy of the mintenance shop ani the ability to replace and produce needed devices, matters which are hotly contested in the proceeding.
- 3. Presentation by Applicant where Intervenor was termitted to be present but not termitted to make any statement or presentation of its own.
Following the g parte meeting between the Commissioner and the NEL Director and other NEL employees, a tour of ard presentation about the reactor was given by Applicant's representatives (primarily Director Catton and Senior Reactor Operator Charles Ashbaugh III).
Intervencr's representatives, despite repeated objections, were not permitted to rzke any statement whatsoever to the Commissioner en any of the matters about which Applicant was making its presentation.
As indicated in the attached Hirsch affidavit, a great many aspects of Applicant's presentation directly relate to antters in controversy (e.g. adequacy cf specific safety devices, adequacy of radiation monitoring, need for and existence of hEPA filters, actual use to which facility is put, reacter operation by unlicensed operators, etc.) Applicant's presentation amounted ; 3 talf-serving lobbyAng of the Commissioner to influence his view i *w IA reactor in such a fashion that he m uld see it as a safe, well.-run, ue12-equipped, educationally active facility, with no mention of any safety problems or any other contrary information.
Intervenor was "nuszled"
, by Applicant and by the Commissioner Tho=pson affidavit, para 7-9: Hirsch affidavit, ; ara 11-28 Il
. and his staff attorney, so that the only presentation on these contested matters heard by the Commissioner came from the party requestin6 the Commission issuance of a license for the reactor in question.
A detailed description of the biased presentation on the array of contested matters is contained in the Hirsch affidaviti a description of the bias evidenced by Commissioner Roberts ard his le6a1 assistant Ms. Iaverty in refusin6 to hear a single worti of contrary information is fourd in both the Thompson ani Hirsch affidavits.
- 4. The ex parte meeting on security matters (Contention XX)
Representatives of Intervenor were permitted to observe only part of the actual tour of the reactor.
Despite the fact that the adequacy of the facility's security measures has been explicitly adnitted into controversy as an extensive contentien (attached as an exhibit hereto) in the proceeding, Commissioner Roberts permitted, over vehement objections by Intervenor, an. g,rarte presentation by the Applicant on this matter.
Intervenor was not permitted to be present, let alone to make a' presentation.
Intervenor's strenuous protests were overruled.
Intervenor requested that, if Commissioner Roberts insisted on hearing Applicant's presentation on this contested matter, and if he i
insisted on Intervenor being excluded, that he should at ninimum permit Intervenor to make a three-minute presentation on security problems and weaknesses in the Applicant's security system prior to Applicant's presentation of the stren6ths in that system.
This request was likewise refused.
2 Thompson affidavit, para 9; Hirsch affidavit, para 25-29
$ / Ii-
17-C3G's representatives were thus ushered out of the facility, havir4 been unable during the entire time they were in the Commissioner's presence to counter anything said by Applicant, ani the Commissioner and his staff then proceeded to have another g,earte meeting with Applicant's staff about a matter in deep controversy in the proceedings-perhaps the most significant of all the matters at issue given the uses to which bomb-grade uranium (937, enriched) can be put-security.
Even were the Commissioner's interest in the security precautions at the UCLA research reactor solely a general policy interest in security at research reactors generically, a ha.rdly credible interpretation, his refusal to hear proferred information about serious security problems raises disturbing I
questions about serious bias.
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C.
CCMMISSICNER RCEERTS AND HIS STAFF FAILED TO FILE THE REPCRTS REQUIRED BY 10 CFR 2.780(c)
Despite the verbal protests by Intervenor to Commiss'ioner Roberts and his staff about the,e_x, parte meetings, neither Er. Roberts, Es. Iaverty, nor the unidentified man accompanying them have filed, either with the Intervenor or with the local public document room, reports detailing the contents of their off-the-record meetings with Applicant.
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More than sufficient time, even considering the busy schedule of the Commissioner, has elapsed for those reports to be filed, and yet none have. Applicant has likewise made no detailed disclosure of the contents of the meetings.
l
@ Hirsch affidavit at para 32 m
s.
c.
. III.
DISCUSSION A.
Commissioner Roberts Must 3e Disqualified From The UCLA Reactor License Renewal Proceeding 3ecause Cf His g parte Discussions With The Applicant.
1.
Commissioner Roberts' meetinas with Attlicant violates provisions of the ApA and the NRC regulations ;rchibiting ex parte communications.
The meetings between Commissioner Roberts and officials of the Applicant plainly violate both the Administrative Procedures Act ("APA") and the NRC regulations. The APA provision prohibiting e,x, parte communications, 5 U.S.C. g 557(d)(1), states (A) No interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding (3) No member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to l
themeritsoftheproceeding[.j The NRC's parallel regulation,10 CFR 2.780(a), states:
[NJeither(1) Commissioners,membersoftheirimmediatestaffs, or other NRC officials and employees who advise the Comissioners in the exercise of their quasi-judicial functions will request or entertain off the record except from each other, no (2) any I
party to a proceeding for the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit, or any officer, employee, representative, or any other person directly or ir5c ectly acting in behalf thereof, shall submit off the record to Commissioners or such staff members, officials, and employees, any evidence, explanation, analysis, or advice, whether written or cral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC for the issuance, denial, amendment, transfer, renewal, modification, suspensior, or revocation of a license or permit.
l For the purposes of this section, the term " proceeding en the l
record then pending before the NRC" shall include any application or =atter which has been noticed for hearing or concerning which a hearing has been requested pursuant to this part.
(amePmis added) 6
. *hus, the communications Commissioner Roberts and his staff had with Applicant are considered to be prohibited g parte contacts if (a) they were off-the-record, whether written or oral, (b) they involve " evidence, explanation, analysis, or advice," regarding "any substantive matter at issue in a proceeding on the record then pending before the NRC," a category which includes license renewal applications for which a hearing has either been ' noticed or requested.
(c)amongthoseparticipatinginthecommunicationswere" Commissioners, members of their immediate staffs, or other NRC officials and employees who advise the Commissioners in the exercise of their quasi-judicial functions", and (d) also involved in the communications was any party to to the proceeding, including "any officer, employee, representative, or any other person directly or indirectly acting in behalf thereof."
The meetings which took place on January 26, 1982, meet all of the above conditions and thus are clear violations of g parte prohibitions:
(a) The meetinas were off-the-record.
No transcript has been provided of the meetings. The press and"public were exclud'ed from all four of the meetings, and Intervenor from three.
Full contents of the meetings are thus unknowns Intervenor therefore has no way of knowing in full what information, explanation, analysis, or other evidence =ay have been provided the Commissioner by the opposing party.
No opportunity has been provided for Intervenor to reply to any such communication indeed, requests for such an opportunity have been explicitly refused by the Commissioner and his staff Even were Intervenor at some point provided an opportunity to respond, it would be unable to do so, because Intervenor will never know fully what transpired off-the-record and thus to what it should respond.
2g F.irsch affidavit, para 10-11, 26-29: Thompson affidavit, para 9
. In addition, the appearance of independence ard respect for due process necessary to a fair proceeding has been irreparably damaged because neither the public nor Intervenor will ever know precisely what was discussed behind those closed doors.
(b) Patters at issue in a proceeding before the NRC were discussed.
As detailed at pages 4-17 above, and in the attached Hirsen affidavit, at each of the four meetings, matters at issue in the contested relicensing proceeding were discussed.
The UCLA license renewal matter meets the criteria for a " proceeding before the NRC" because a hearing has been requested in the matter by the Intervenor ani a hearing ordered by the licensingboardconvenedtoruleontherequest.W A wide range of matters in controversy in this preceeding were discussed by the Commissioner and the Applicaat, providing the Applicant an off-the-record way of attempting to influence the Commissioner's views on these matters and of providing Applicant's case to the Commissioner in the absence of l
opposing argument. This clearly prejudices the case.
(c) Mr. Roberts, as Commissioner, and Ms. Iaverty, as legal advisor, were clearly prohibited from ensaging in such discussions.
The NRC regulations and the APA make very clear that a member of the Commission and members of their inmediate staffs are prohibited from such ex_ parte communications.
Both Mr. Roberts and Ms. Laverty "may reasonably be expected to be involved in the decisional process on the proceeding" (5 U.S.C. 557(d)(1)(A):
Ms. laverty clearly " advise (s J the Commissioners in the exercise of their quasi-judicial functions." (10 CFR 2.780(a). )
(d) Mr. Cermier, as Attorney for Applicant, ard Messrs. C'Neill, Catton. Ashtauch, snd Tusend, as Cfficers and E=oleyees of Apelicant, were likewise clearly urchibited from encaring in such discussions.
l Mr. Cormier is counsel for Applicant in the relicensing proceedings currently
{
(
b*
^ _ _
=-
. before the NRC and as such was clearly prohibited from making g parte communications with a Commissioner or members of his staff.
Mr. O'Neill, as Dean of the School of Engineering at UCLA, is the responsible officer for the reactor and for the application now pending before the NRC and was thus, likewise prohibited from such conversations with the Commissioner and his staff.
Dr. Catton, as Reactor Director, ard Mr. Ashtaugh ard Mr.
Tugend ard the other employees of Applicant who had communications with the Commissioner and his staff likewise violated the ex parte rules.
- 2. Commissioner Roberts' failure to file reports detailine the contents of his ex parte communications with Applicant clearly violates 10 CFR 2.780(c).
When counsel for and officials of Applicant attempted to conduct el p Jar conversations with Commissioner Roberts and his accompanying staff, it was their duty to attempt to prevent such communication ard, failing that, to "make a fair, written summary of such communication" and serve copies thereof upon the parties to the proceeding ard place copies in the Public Document Room. (10 CFR 2.780(c)).
Commissioner Roberts and his acce=panying staffmembers not only failed to attempt to prevent such communication, they encouraged and initiated it I
furthermore, they have failed to file the requisite reports detailing the g parte contacts 10 CFR 2.780(c) states as follows:
2Af Hirsch affidavit, para 2-3, 6, 9-11, 25-30; Thompson affidavit, para 2, 5,6,7,8,9.
2o/:lirschaffidavit, para 32-35
. A Commissioner, member of his immediate staff, or other NRC official or employee advising the Commissioners in the exercise of their quasi-judicial funcd.ons, io who.n is attempted any cral communication concerning any substantive matter at issue in a proceeding on the record as described in paragraph (a) of this section, will decline to listen to such communication and will explain that the matter is perding for determination.
If unsuccessful in preventing such communication, the recipient thereof will advise the communicator that a written summary of the conversation will be delivered to the 3RC public document room ard a copy served by the Secretary of the Commission on the communicator and the parties to the proceeding involved.
The receipient of the oral communication thereupon will make a fair, written summary of such communication and deliver such summary to the NRC public document room and serve copies thereof upon the communicator and the parties to the proceeding involved.
i No such filings have been made, ard no such efforts to prevent the communications having occurred, despite protestations at the time by Intervenor, clear violations of 10 CFR 2.780(c) were made by Commissioner Roberts, Ms. Laverty, ard the additional NRC assistant.
Not only have they failed to disclose the contents of the ex, parte meetings, Ms. Laverty at the time refused to even indicate whether a meeting had occurred at all.
- 3. The refusal by Commissioner Roberts and his assistants to permit Intervenor to attend all but one of the meetings, and the refusal to permit Intervenor to present counter information in msponse to any of the communications by Applicant, clearly violates due process cuarantees.
It is inherently unfair to allow persons outside an agency to privately persuade agency decisionmakers in licensing proceedings.
It is precisely for that reason that rules of evidence (10 CFR 2.743), requirements for public hearings on the recori (10 CFR 2 750,2 751), appeal procedures for Commissioner review (10 CFR 2.760 and 2.760a) and other regulations guaranteeing fair and impartial proceedings were established.
As a 4
recent NRC study of g narte and separation of functions rules put it,
"...' fundamental principles of due process' dictate that the decisionmakers 20/ Hirsch affidavit at para 10: Thompsor. affidavit at para 6 Note that the g rarte meetings were solicited ard initiated by Commissioner Roberts and Ms. Iaverty: Hi sch affidavit at 2.
. should not be exposed to off-the-record input from parties or staff intimately associated with making the case for or against those parties."
Section 554(d) of the APA provides that an agency employee "who presides at the reception of evidence" may not " consult a persen or party on a fact in issue, unless on notice and ottortunity for all carties to rarticirate."
(emphasisadded).
Commissioner Roberts and his staff clearly violated those requirements-not only was Intervcnor prohibited from participating at all in any of the four discussions held off-the-record between the Commissioner and Applicant, Intervenor was excluded from even attending three of the four off-the-record meetings.
In addition, not only was Intervenor not on notice of several of the meetings, what notice it was given was misleading.
While Ms. Iaverty had told Intervenor to be at one location, where it waited nearly an hour, she and Commissioner Roberts were in another location meeting with Applicant.
And not only was Intervenor not on prior notice, the existence of at least one of the meetings was denied after the fact.
As the NRC study.on ex_ parte and separation of functions rules noted:
The Commissicn has never formally interpreted the phrase "off-the-record" which appears in 10 CFR 2.780(a).
However, in SECY 75-435 at 3 (August 12,1975), the General Counsel stated that with regard to written communications, the term means "not filed according to the usual rules of practice and not served on all parties."
The Commission has apparently adopted an analogous interpretation for oral communications ~ that is, they are "off-the-record" if they are not made according to the usual rules of practice and not presented in the presence of other rarties.
The.." usual rules of practice" have been that all parties should have an ouvertunity to :::ake an oral statement if one tarty does so.
(emphasisadded) 21/ "A Study of the Separation of Functions and Ey_ Parte Rules in Nuclear Regulatory Commissien Adjudications for Domestic Licensing",1980, at 57, citing 1947 Attorney General's Fanual at 55 g Hirsch affidavit, para 2-12; note also Applicant's attorney knew C2G representatives were waiting downstairs at appointed lccation and time while e3 parte meeting was going on upstairs.
g Hirsch affidavit, para 10 iThompson affidavit, para 6 note Ms. Inverty refused to even provide subsecuen_t notice of cne of the meetings.
- n. 171 at 99-100 74/ "A Etudynnn" supran
. The rules of practice were thus repeatedly violated. For three of the meetings, the communications were not presented in the presence of the opposing party.
For all four meetings, Intervenor was denied an opportunity to make an oral statement even though Applicant was provided extensive t
opportunity to do so.
As indicated in the above-cited study, viola, tion of the requirements that communications be on the record with opportunity for opposing parties to respond would also "run afoul" of other sections of the APA ~
e.g. 554(c)(1) (" agency shall give all interested parties op ortunity for the submission, and consideration of facts L and] arguments... When time, the nature of the proceeding, and the public interest permit"): 556(e)("thetranscriptof testimony and exhibits, together with all papers and requests filed 557(c) proceeding, constitutes the exclusive record for decision....")
in the
(" parties are entitled to a reasonable opportunity to submit
... supporting reasons for the exceptions or proposed findings or conclusions"): 556(d) (" party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examinatiog,ays may be required for a f.11 and true disclosure of the facts").22/
Indeed, Commissioner Roberts and Ms. Iaverty did "run afoul" of said sections of the APA.
They solicited and permitted, over objections of the opposing party, presentation off-the-record, and denied opposing party the right to respond.
Commissioner Roberts, because of the information transmitted in these g, parte meetings, is now incapable of making a judgment solely on the bLsis of "the exclusive record for decision" (the official record of the proceeding), and Intervenor's rights to submit rebuttal evidence and to conduct cross-examination have been irreparably a M dged.
Ltremely important matters in contest have been the subject of these off-the-record communications in which Intervenor's right to respond was refused:
Jg "A S tudy... " supra. n. 171 at 100
..,,-...-c.--
. (a)
- adequacy of Applicant's physical security precautions (Contention XX)
(b)
- Applicant's financial qualifications (Contention XVIII)
(c)* Applicant's ability to repair and replace aging components (ContentionXVI)
(d)* adequacy of Applicant's :naintenance and calibration equipment (Contention IX)
(e)
- need for and existence of HEPA filters (Contention XII.3)
(f)* operation of reactor solely by licensed op'erators-CBG contends unlicensed operators, including junior high school students and open house visitors, have been routinely permitted to operate the reactor, in violation of the regulations (Contention III.5)
(g)
- adequacy of radiation monitoring systems and equipment and procedures (Contention VI)
(h)
- actual use to which facility is put--Applicant contends education and research, C3G contends primarily outside commercial use
( Contention I.3.a. and f and II)
(i)
- usefulness of facility (Contention X)
(j)
- adequacy of safety features such as radioactivity holding tanks, containment structure, emergency cooling system, control blade systems, etc. (Contention XII)
(k)* adequacy of supervision and managerial controls (Contention III) l (1)
- safety of reactor exhaust venti 11ation system-C3G contends the air from the reactor room is exhausted a few feet away from a major airinlet downwind for a nearby building (Contention VI) I 1
1 26/ See Hirsch affidavit at (a) para 25-29, (b) 31, (c) 12, (d) 12 (e} 15, (f) 37, (g) 14,17, (h) 13, (1) 21, (J) 15,16,18, (k) 19,23, 22,13 (1) 15,16 l
t
. Thus, just from the information currently available to Intervenor regarding the contents of the off-the-record communications between Applicant and the Commissioner, it is clear that self-serving presentation by Applicant was made, in a manner prejudicial to Intervenor, on the bulk of contentions at issue in the proceeding.
Intervenor has no way at present of knowing what additional argument, presentation, analysis, and information was provided the Commissioner in 'the sessions from which Intervenor was excluded.
As can be seen from the above discussion ard the attached affidavit, there can be no basis for an assertion, should it be :nade, that the off-the-record communications were merely on general policy matters and did not touch on matters in controversy in this proceeding.
The cral communications of which Intervenor is currently aware dealt with a great many matters directly in contest in the proceedings, and in a fashion extremely prejudicial to Intervenor's interests.
As can also be seen from the above discussion, excluding Intervenor from the final Applicant-Commissioner meeting because it dealt with security matters cannot be justified.
3ecause security matters are l
squarely at issue in the proceMing, it was highly improper for the
~
Commissioner to discuss the matters with Applicant at all.
He should have, as mandated by 10 CFR 2.780(c), refused to entertain the communication whatsoever, explaining "that the matter is pending for detezmination."
Furthermore, directly refusing to permit even a three-minute presentati on l
l ty Intervenor while agreeing to an extensive presentation by Applicant, from which Intervenor was excluded, is highly improper.
If, for security reasons, Intervenor could not attend the presentation, the Cocnissioner I
should likewise have refused because of the ex parte rules, or delayed that part of his visit until suitable Affidavits of Nordisclosure were in place by all parties.
At the very least, refusal.o permit brief
. presentation by opposing party while permitting extensive presentain by Applicant is extremely prejudicial and demonstrative of substantial bias.
- 3. Commissioner Roberts hist 3e Disqualified From the UCLA Reactor License Renewal Proceeding 3ecause of Violation of the Separation of Functions Rules and Ex Parte Rules Regarding Off-the-Record Contacts with Former Counsel for NRC Staff in the UCLA Proceeding.
Commissioner Roberts' legal assistant is Ms. Jessica Iaverty who, until recently, represented one of the parties to the UCIA proceeding now pending before the NRC.
Ms. Iaverty was, in fact, lead counsel for NRC Staff in that matter.
She now provides legal advice to Commissioner Roberts with regards his quasi-judicial duties.
She has already provided advice to Commissioner Roberts on matters related to the UCIA proceedir off-the-record conversations with the Commissioner as to matters related to the case, including providing details garnered by Es. Iaverty from off-the-record sources while representing Staff in the instant proceeding, cannot be ruled out and must, in fact, be considered likely.
Ms. Iaverty's current role as legal assistant to Commissioner Roberts is a clear violation of the separation of functiors rules.
The APA rule, 5 U.S.C. 554(d)(2), in pertinent part, states:
An employee or agent engaged in the perforrance of investigative or prosecuting functions for an agency on a case ray not, in that or a factually related case, participate or advise in the decision, recommend decision or agency review pursuant to section 557 of this l
title, except as witness or counsel in public proceedings.
l 1
The companion NRC regulation,10 CFR 2.719(d), states in pertinent parts no officer er employee of the Commission who has engaged in the performance of any investigative or presecuting function in the case or a factually related case may participate er advise in the initial or final decision, except as a witness or counsel in the preceeding.
)_7/ Hirsch affidavit, para 11, 27 ; other ad.vice cannot be ascertained without discovery rights.
1
-2C-The hiring of Es. Iaverty as legal counsel by Commissioner Roberts, given her prior representation of one of the parties in the contested proceeding at issue, raises serious separation-of-functions concerns.
There are two reasons for the separation of functions rules:
prevention of biased advice and prevention of the interpolation of ey_ parte facts that the former investigator or advocate for Staff may have gathered in the previous role that may be in'jected off the record durin6 the decisionraking process.
Both concerns are at play regardir4 Ps. Iaverty's presence on Commissioner Roberts' staff.
P.s. Ia*rerty's presence on Commissioner Roberts' staff, particularly in such a sensitive position as legal advisor, provides daily opportunity for'the proferring of biased advice and interpolation of g rarte facts relevant to the catters at issue in the case which she previously served as Staff counsel and advocate.
The "will to win" can so disable an advocate for a party that it is incapable of providing unbiased advice to a decisionraker reviewing a contested matter wherein that advocate's positions s.e being litigated.
As the Attorney General's Committee on Administrative Procedure agreed:
A man who has buried himself on one side of an issue is disabled from bringing to its decision that dispassionate judgment which i
Anglo-American tradition demands of officials who decide questions.
Clearly the advocate's view ouryh to be presented publicly and not privatoly to those who decide.du Es. laverty, as lead counsel for Staff in the instant proceeding, as advocate for numerous Staff positions in contest in said ;=oceeding, has "turied herself on one side" of the issues in centest and is disabled j
from providing dispassionate judgment required by fundamental canens of fairness.
Cne party to the proceeding, Staff, has thus had months of unrestricted off-the-record access to a key decisionmaker rega: ding that 28/ See "NRC Study of the Separation of Functions and Dc Parte Rules..."
?Q/p.92,29 as cited at 5211
. proceeding, with no way for the other parties to know the contents of nor respond to any of said communications.
As the NRC Study of the separation of functions rules stated:
Thus, in view of Congress, two important facts that distinguish rulemaking from adjudication were critical for establishing a separation of functions requirement for the latter and none for the formers the general accusatory nature of adjudication and the typical dispute over evidentiary facts. While there may be benefits l
to be derived from consultations between agepey staff and decision-makers in adjudications, " fundamental pcinciples of due process" dictate that the decisionmakers should nt?. be exposed to off-the-recorti input from parties or staff intimately associated with raking the case for or against those parties.125/ It was felt that such staff would have developed the zeal of an advocate in an accusatory proceeding. and thus would have abLndoned the state of mind ComC&tible with troviding neutral and distassionate trivate advice to decisionmakers.40 (emphasis added) 12cf 1947 Attorney General's Fanual at 55 2
It was precisely for these reasons that the separation of functions rules have been established.
Yet Commissioner Roberts has been " exposed to off-the-parties recordinputfrom_/ or staff intimately associated with making the case for or against those parties" (both Staff and Applicant have had Mr. Roberts' ear off-the-record, with Intervenor excluded).
Furthermore, unless disqualified, Commissioner Roberts will be relying for his legal advice regarding the UCIA proceeding on former counsel for one of the parties-an untenable and grossly unfair situation.
From the first contested reactor licensing case to the present, the Commission has prohibited those members of the NRC staff involved in that party's case from participating "in advising the Commission...
except by briefs and other statements on the record."
The basis for this prohibition " emanated from a desire to follow judicial procedures of fairness, under which trial advocates do not consult privately with adjudicators."
y.s. Iaverty, until recently Staff advocate in the UCIA contested matter, currently consults privately and daily with an adjudicator g"NRC Study of the Separation of Functions..." (hereaf ter "NRC Study") at f/
4 "A Study of AEC Procedures", April 1957 JCAE Print, cited at 11, NaC Study RC Study at 47
likely to make decisions in the matter.
The conflict is irreparable, for the violations have already occurred. Advice and ex parte information must be presumed to have already been passed to the Commissioner; he cannot be an impartial decisionmaker relying solely on the evidentiary record presented to him.
C. Commissioner Rocerts Must 3e Disoualified 3ecause His Ex Parte Contacts With Arplicant And With Ms. Laverty Violated Due Process Of Iaw His Participation In the UCIA Proceeding As An Agency Decisionmaker Would Further Seriously Violate Due Process Parties are entitled to a decision from an impartial decisionmaker.
American Public Cas Association v. Federal Power Commission, 567 F. 2d 1016, 1069 (D.C. Cir. 1977). Not only must the decisionmaker h impartial, he or she must attear to be impartials the " appearance of impartiality
[is] the sine cua non of American.iudicial justice...." Pillsburv v Federal Trade Commission, 354 F. 2d 952 964 (D.C. Cir. 1966) (emphasis in original). An impartial decisionmaker is one who has not prejudged the facts in advance of hearing them on the record.
Cinderella Career &
Finishing S&ools. Inc. v. Federal Trade Commission, 425 F. 2d 583, 591 (D.C. Cir. 1970). Fairness dictates that facts and arguments not presented on the record not reach the adjudicators as a result of their contacts with agency staff or persons outside the agency.
Seacoast Anti-Pollution League
- v. Costle, 572 F. 2d 872. 881-882 (1st Cir.1978); Carvey_ v. Freeman, 397 F. 2d 600, 610-611 (10th Cir. 1968).
The Fifth Amendment to the Constitution provides due precess guarantees uhich are x t to be abridged.
In Amos Treat & Co. v. Securities and Exchange Commission, 306 F. 2d 260, 266-267 (D.C. Cir. 1962), it was
~31-ruled that it "would be tantamcunt to that denial of administrative due process against which both the Congress and the courts have inveighed" to allow a Commissioner to partake in an agency adjudication after having been promoted from a staff position where he initiated an investigation, weighed its results and perhaps recommended the filing of charges.
It appears equally a violation of due process to permit a Commissioner to be advised regarding a proceeding pending before the NRC by someone promoted from a staff positionwheres/heinitiatedinvestigationintoanapplication, determined staff positions on matters being litigated, and argued those positions on behalf of staff. This seems to have been Congress' intent-
"an agency attorney litigating the case for the agency will not be involved in the decisionmaking process of the agency...."
Violations of due process can cause an adjudicatory decision to be reversed.
In Trans World Airlines v. Civil Aeronautics Board, 245 F. 2d 90 (D.C. Cir.1958), a C.A.3. order was reversed because a C.A.3. member had l
signed a brief for one of the parties in the proceeding prior to assuming membership on the 3oard.
In American Cyanamid Company v. F.T.C., 363 F. 2d l
the court 757(6thCir.1966_)[foundadueprocessviolationbytheF.T.C.
where one of the Commissioners had previously served as counsel to a Senate Committee investigating the same facts and issues that were before the F.T.C.
In reaching its decision the court emphasized that er inholdingthattheCommission/shouldbedisqualified,thecourtneednot questien "in the slightest degree" the integrity of the Commissioner.
M. at 768.
In Withrow v. iarkin, 421 U.S. 35, 95 5. Ct.1456 (1975),
the Supreme Court concluded that a violation of due process exists when
" is demonstrable that the comingling of investigative and judicial functions in an adminstrative proceeding results in unfairness.
M. at 1468
% 97 d_Lihuse Jep A
__ __ 2/3en. 2pt. No 94-354 94th Cong.1st Sess. at 36 (.Iuly 31 1
4 0
. Subsequent to 71 threw, the Ninth Circuit held that a Commissioner of the F.T.C. should have disqualified himself from participation in a matter where he had participated in the case as counsel. American General Insurance Co.
- v. F.T.C., 589 F. 2d 462 (9th Cir.1979).
The court noted that it was not only customary, but a statutory requirement to disqualify himself in a Id. at 463 The court case in which he "has participated as counsel."
d also observed that the fact that a judge's participation as counsel.may have been unsubstantial did not affect the applicability of the principle.
Id. at 464
SUMMARY
CF DUE PRCCESS VIDIATICNS The activities of Commissioner Roberts in the UCIA license renewal matter seriously violate due process in a number of ways. First, Commissioner Roberts, in violation of ex_ parte rules, has engaged in four meetings with one party to the contested proceeding at which matters in controversy werediscussedandfromwhichopposingpartywasexcludedand/orrefused the right to respond.
Second, Commissioner Roberts has violated g, parte rules by numerous contacts with the former counsel for one of the parties to the instant proceeding, an irdividual whom he has now placed in a position where she can influence the decisionmakir4 process for a proceeding in which she represented one of the parties to the contested proceeding.
by providing off-the-record information and views garnered from extra-record of investigations and contacts while representing one the parties. Third, Commissioner Roberts has violated separation of functions rules by placing Ms. laverty, former counsel for one of the parties, in a position where 1
l she may advise and otherwise participate in the decisionmaking process for a proceeding in which she was intimately involved as counsel for a party and ir which she is so deeply wedded that unbiased advice may not be possible.
Feurth, Commissioner Roberts has violated regulations requiring him to disclose the contents of his ex_ tarte meetings.
Fifth, Commissioner Roberts has evidenced such substantial bias that the appearance of impartiality
. and fairness cannot be regained, the likelihood of prejudgment being so great. Thus, Commissioner Roberts,after having repeatedly violated due process guarantees mEst, as a matter of l'aw, te disqualified.
D. The Facts of the Matter Regardins Conmissioner Roberts Fandate He 3e Disqualified.
An administrative trier of fact is subject to disqualification if he or she is personally biased against a participant's has acted in prosecuting or investigating the facts in issues has prejudged factual issues cr has engaged in conduct giving "the appearance of personal bias or prejudgment of factual issues." Consuners Power Ccerany (Midland plant, Units 1 ard 2),
A1A3-101,6AEC60,65(1973).
Commissioner Roberts had demonstrated significant personal bias against Intervenor.
He has permitted off-the-record detailed discussion of matters in controversy in the insta.nt proceeding by all parties but l
l Intervenor.
He has repeatedly refused Intervenor the right to respond to off-the-record assertions and presentations m_de by other parties on matters in controversy.
He has excluded Intervenor from el Tarte meetings with other parties, over direct protests.
He has requested and solicited presentation by one of the parties and refused requests that the other be permitted to provide a presentation.
He has directed his staff to inform Intervenor of only one of four meetings to be held with Applicant, failing thus to even provide notice.
He has hired, in violation of the separation of functions rules, and relied on for advice l
in the instant proceeding, counsel for one of Intervenor's opposing parties.
He has permitted said former counsel to determine whether her opposing party would be permitted to even address the Com issioner, but has ade l
l no such requirement for Applicant.
He has directed Intervenor to appear l
hh/ 'he very request that Applicant provide the Commissicner with an
(
ex arte precentation came from the Consissioner: 'ntervenor's requests
~
m
-] at one location while he net secretly with Applicant in another.
He has met privately with counsel for and responsible officers of Applicant, in the personal office cf the Applicant's official chiefly responsible for an application now pending befor the NRC.
He failed to notify Intervenor, either before or after said meeting, even of the existence of said meeting.
He has failed to report these meetings, and has not filed the required documents outlining the contents of these g parte meetings.
He has refused to listen to one wo:ni from Intervenor, but listened at length to Applicant and to former counsel for Staff.
Commissioner Roberts has violated g arte regulations of the NRC itself(10 CFR 2.78(a)) by soliciting off-the-record presentation by Applicant and by someone who until recently was advocate for Staff.
He violated g tarte regulations by not attempting to prevent such commundations from cccurring.
He violated g Iarte regulations by not reporting the contacts ani not filing reports detailing their contacts.
He violated separation of functions rules by hiring ard receiving advice from former counsel to one of Intervenor's opposing parties in this contested licensing proceeding.
Despite numerous opportunities to rectify the wrongs done to Intervenor, to somehow restore due process so badly dama6ed by the Commissioner's actions, he has made no effort whatsoever to reverse the unfairness demonstrated.
His willingness to hear only Applicant's ard Staff's views on matters in contest and absolute ard total refusal to hear Intervenor's views er information can only indicate a total prejudgment of the facts in the case, before even seeing the evidentiary record.
That prejudgment appears to be so all-encompassing that the Commissioner will not even obey the
. rules of practice regarding refusing to entertain infor:ation provided he refused off-the-record;instead_/ Intervenor the right to respond to information permitted to be improperly provided by the opposing parties, refused, to even notify Intervenor of the existence of these off-the-record exchanges and refused to obey the requirements for reporting their contents 5 In Duoesne Light Company, et al (3eaver Valley Power Station, tl nits 1 and 2) ALA3-17, 7 AEC 42, the Appeal Boa:b discussed requirements for disqualification motions:
(1) all disqualification motions must be accompanied by affidavits establishing basis of charge, (2) disqualification motions must be timely filed, and (3) all such' motions must l
be served on all parties or their attorneys. All three requirements t
are met herein.
Affidavits are attached hereto; the motion is timely; l
and all parties have been served.
Given "the obvious gravity of motions of i
this character" and the due respect that must be given someone who holds the high position that Commissioner Roberts holds, more than sufficient time has been given the Commissioner to attempt to rectify the due process violations incurred.
Yet no notice of the existence of g tarte contacts with Applicant or Ms. Laverty has been given Intervenor to date; no reports as to their contents as required by 10 CFR 2 7EC(c)have been served on Intervenor; no response to the invitation Intervenor presented the Commissioner (sy Hirsch affidavit at para 28) to take a facility tour with Intervenor pointing out the opposing information neglected in Applicant's presentation has been received from the Commissioner; no change in Xs.
Laverty's status as legal advisor has been noticed to Intervenor; and no explanation provided as to the failure to notify Intervenor of the g ;arte meetings, C2G's exclusion from said meetings, and refusal of right of response has been..acie.
Even given the pressing weight of other Commission duties, C3G has provided the Commissioner sufficient time to attempt to come into compliance with the regulations.
. The Commissioner must be disqualified because he meets four of the Midland standards sgra he has shown grave personal bias towards Staff and Applicant and against Intervenor; he is directly advised by "
someone who has acted as advocate and investigator for a party to the proceeding; he has prejudged factual issues; and he has engaged in l
l conduct giving "the appearance of personal bias er prejuf.gment of factual I
issues."
The appearance and reality of a fair, impartial tribunal would be serverely damaged were the Commission to permit Commissioner Roberts to act in a decisionmaking capacity in this case after all the violaticns of due process and the NRC's own re6ulations. Public confidence in the Commission's resolve to enforce its own regulations would be severely weakened were tra Commission to fail to act in the face of these violations. Final decisions in the UCLA proceeding may be overturned if the Commissioner is not disqualified, a prospect which can involve substantial impacts on the entities the Commission regulates and the public it is to protect.
Recusal is essential.
THE RELIEF REqCESTED C3G respectfully requests that Commissioner Thomas Roberts be recused from participation in any decision related to any aspect of the UCLA reacter license renewal proceeding.
C3C requests that should Commissioner Roberts not be immediately disqualified on the tasis of this motion alone, that C3G be granted discovery rights to further develop the facts as to matters related to the alleged e,x, :arte contacts, separation of functions violations, and appearance of bias.
.V.d because no reports have been filed in c:=pliance with 10 CFR 2.780(c) to date, ner any filing made by Applicant as to the contents of the g parte contacts, C3G respectfully requests that it be granted opportunity to respond to
. any filings mtde in response to this notion.
@4 + + M/
Resectfullyp/j'f a
'b d%C!
~
. gc Dated at Los Angeles, Calif.
el 0. Eirsch March 12, 1982 President CCMMITTEE TO 3 RIDGE TFS CAP Intervenor i
l 1
l 4_</ Subsequent to the witndrawal of Intervencr's legal counsel, ??. Firsch F.as been authorized by the Intervenor organization to represent it ;ro a in the UCLA reactor proceeding. A notice of appearance and instrunents fron the Intervencr organization authorizing said appearance have been filed with the presiding ASL3 in the preceeding.
~_
d AFFIDAVIT LIST AFFIDAVIT T DANIEL 0. HIRSCH 7 pages AFFIDAVIT OF DOROTHY THOMPSON 6 pages AFFIDAVIT T ANDREW BASIAGO 2 pages YFIDAVIT OF WENDY SCHNELKER 2 page.)
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