ML20042B540
| ML20042B540 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/23/1982 |
| From: | Newman J JOINT APPLICANTS - SOUTH TEXAS PROJECT, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8203250406 | |
| Download: ML20042B540 (8) | |
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Eq;f(!P UNITED STATES OF AMERICA 82 M 24 All:51 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD-In the Matter of
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HOUSTON LIGHTING AND POWER
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Docket Nos. 50-498 OL COMPANY, ET AL.
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50-499 OL
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March 23, 1982
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APPLICANTS' RESPONSE TO CITIZENS CONCERNED ABOUT NUCLEAR POWER (CCANP) MOTION
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I.
Introduction By Motion dated March 9, 1982, / Citizens Concerned About Nuclear Power (CCANP) has requested that Judge Ernest E. Hill recuse himself from further participation as a member of the Licensing Board in this proceeding.
CCANP has, however, utterly failed to provide any basis upon which Judge Hill's disquali-fication can reasonably be justified.
As a result, the Motion should be denied.
II.
Discussion The grounds upon which a licensing board member may be disqualified are well established.
In Consumers Power Co.
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Citizens Concerned About Nuclear Power (CCANP) Motion For Judge Ernest Hill To Recuse Himself From Further Partici-pation In This Proceeding (hereinafter cited as Motion).
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8203250406 820323 PDR ADOCK 05000498 C
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. (Midland Plant, Units 1 and 2) ALAB-101, 6 AEC 60, 65 (1973),
the Appeal Board stated:
[A]n administrative trier of fact is subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a "per-sonal bias" against a participant; if he has served in a prosecutive or investi-gative role wita regard to the same facts as are in issue; if he has prejudged factual - as distinguished from legal or policy - issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.
CCANP appears to rely almost exclusively on its belief that Judge Hill has manifested "a lack of impartiality" as well as
" overt hostility" towards its participation and that he has demonstrated, through his conduct during the proceeding, a personal bias against it. /
In making such a serious accusation it is encumbent upon CCANP to come forward with specific and concrete evidence.
A licensing board member cannot be disqualified on the basis of vague allegations of bias unsupported by record references or specific examples of biased conduct.
In Duquesne Light Co.
(Beaver Valley Power Station, Units 1 and 2) ALAB-172, 7 AEC 42, 43 (1974), intervenors sought disqualification of the Licensing Board on the basis of what the Appeal Board character-ized as " broad and vague assertions" of bias.
The Board concluded:
"A party leveling a charge as serious as that of bias against a licensing board or its members has a manifest
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Motion at 1.
oblication to be most particular in establishing the foundation for the charge, as well as to adhere scru-pulously to the affidavit require-ment of Section 2. 704 (c).'*/
CCANP has failed to come forward with any explicit evidence of bias-Instead of describing specific conduct which reflects Judge Hill's alleged bias, CCANP vaguely refers to " grimaces, gestures, off the record outbursts, and vigorous complaints during the numerous off the record conferences held by the Judges.
."--**/
Although CCANP generally criticizes Judge Hill's alleged efforts to cut off its cross-examination of Applicant and Staff witnesses, it fails to describe a single instance in which this occurred.
In addition, there is no evidence that any of the Board's ultimate rulings prejudiced any of CCANP's legitimate rights.
Furthermore, to the extent that CCANP argues that bias has been manifested in adverse Board rulings, it is well settled
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Id.,
See also, Dairyland Power Cooperative (LaCross Boiling Water Reactor) ALAB-497, 8 NRC 312 (1978); Detroit Edison Co.
(Greenwood Energy Center, Units 2 and 3) ALAB-22E, 8 AEC 379 (1974).
10 C.F.R. S 2.704 (c) mandates that all F.otions for disqualification "be supported by affidavits setting forth the alleged grounds for disqualification."
One purpose of the affidavit requirement is to reduce "the likelihood of an irresponsible attack upon the probity or objectivity of the Board member.
in question."
Beaver Valley, supra, 7 AEC at 43 n.
2.
Rather than " adhere scrupulously" to the affidavit requirement, CCANP has completely ignored it.
Given the gravity of CCANP's allegations, its failure to provide affidavits should, in and of itself, be fatal to the Motion.
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Motion at 1.
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o that "[tlo establish that a hearing was biased, something more must be shown than that the presiding officials decided matters incorrectly; to be wrong is not necessarily to be partisan."
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear - 1) ALAB-224, 8 AEC 244, 246 (1974); Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2) ALAB-164, 6 AEC 1143, 1144 (1973).
CCANP notes, in this regard, that the other Board members have been " repeatedly bludgeoned into rulings which violated [its] due process rights and created a record replete with errors."I/
If this allegation has any merit, CCANP clearly must come forward and describe specific instances in which the Board has ruled in violation of its Constitutional rights as the result of improper influence by Judge Hill.
In the absence of such a particularized showing, CCANP's accusation is entitled to no weight.
Apparently CCANP also believes that Judge Hill should be disqualified on the basis of his status as "an employee of an institution which is part of the nuclear industry.
" despite the fact that there has been no suggestion that he has any connection with any party to this proceeding.- /
Judge Hill is
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Motion at 1.
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Id.
CCANP also asserts that this institution "is known to keep intelligence files on nuclear critics."
Id.
Applicants have no knowledge of such activities and fail to perceive how any such activity conducted by Judge Hill's employer is relevant to the question of his personal objectivity in this proceeding.
a nuclear engineer employed by the Lawrence Livermore Laboratory in California.
His appointment as one of two technical Board Members was based upon his technical expertise and involvement in nuclear activities.
Such involvement has not been considered sufficient grounds for disqualification.
In fact it is that very involvement and the expertise developed therefrom that establishes Judge Hill's qualifications for presiding as a member of the Licensing Board.
Toledo Edison Co. (Davis-Besse Nuclear Power Station) 4 AEC 555 (1971); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit No. 1) 4 AEC 441 (1970);
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear - 1) ALAB-76, 5 AEC 312 (1972). /
Finally, CCANP suggests that Judge Hill's reaction to the Quadrex Report demonstrates his lack of impartiality.
As indi-cated above, however, the fact that he may have taken certain legal positions adverse to CCANP's interests cannot be con-strued as evidence of bias.
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In Davis Besse, two technical Board members were employed by Oak Ridge National Laboratories and Union Carbide respectively.
In Shoreham, allegations of bias were based upon the technical members' close identification with the development of nuclear energy.
In both decisions, the Atomic Energy Commission refused to disqualify the Board members, noting that the legislative history of the Atomic Energy Act clearly demonstrated Congress' intent to utilize persons with expertise and experience in nuclear matters to serve on licensing boards.
III.
Conclusion CCANP's charge that a member of this Atomic Safety and Licensing Board harbors a personal bias against it is an extremely serious accusation that demands substantiation by sworn affidavits and specific evidence.
CCANP has not only ignored the explicit af fiatvit requirement of Section 2.704 (c),
but it has also relied upon bald assertions of impartiality, unsupported by substantive evidence.
In addition, neither numerous adverse Board rulings nor a Board member's involvement in the nuclear industry can be construed as evidence of bias.
For the reasons stated above, the Motion should be denied.
Respectfully submitted, fWw J ck R. Newmaq[
aurice Axelrad Alvin H. Gutterman 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Finis E. Cowan Thomas B. Hudson, Jr.
3000 One Shell Plaza Houston, Texas 77002 f
Dated: March 23, 1982 Attorneys for HOUSTON LIGHTING l
& POWER COMPANY, Project Manager l
LOWENSTEIN, NEWMAN, REIS of the South Texas Project l
& AXELRAD acting herein on behalf of itself i
1025 Connecticut Ave., N.W.
and the other Applicants, THE i
Washington, D.C.
20036 CITY OF SAN ANTONIO, TEXAS, l
acting by and through the City BAKER & BOTTS Public Service Board of the City 3000 One Shell Plaza of San Antonio, CENTRAL POWER Houston, Texas 77002 AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENFING BOARD In the Matter of
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HOUSTON LIGHTING AND POWER
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Docket Nos. 50-498 OL COMPANY, ET AL.
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50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS' RESPONSE TO CITIZENS CONCERNED ABOUT NUCLEAR POWER (CCANP) MOTION FOR JUDGE ERNEST HILL TO RECUSE HIMSELF FROM FURTHER PARTICIPATION IN THIS PROCEEDING have been served on the following individuals and entities by deposit in the United States mail, first class, postage prepaid, on this 23rd day of March, 1982 Charles Bechhoefer, Esq.
Brian Berwick, Esq.
Chairman, Administrative Judge Assistant Attorney General Atomic Safety and Licensing for the State of Texas Board Panel Environmental Protection U.S. Nuclear Regulatory Commission Division Washington, D.C.
20555 P.O. Box 12548, Capitol Station Austin, Texas 78711 Dr. James C. Lamb, III Administrative Judge William S. Jordan, III, Esq.
313 Woodhaven Road Harmon & Weiss Chapel Hill, North Carolina 27514 1725 I Street, N.W.
Washington, D.C.
20006 Ernest E.
Hill Administrative Judge Kim Eastman, Co-coordinator Lawrence Livermore Laboratory Barbara A. Miller University of California Pat Coy P.O. Box 808, L-46 Citizens Concerned About Livermore, California 94550 Nuclear Power 5106 Casa Oro Mrs. Peggy Buchorn San Antonio, Texas 78233 Executive Director Citizens for Equitable Lanny Sinkin Utilities, Inc.
2207-D Nueces Route 1, Box 1684 Austin, Texas 78705 Brazoria, Texas 77422
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. Jay M. Gutierrez, Esq.
Office of the Executive Legal Director U.S. Naclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
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Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
h ack R. Newm(n
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