ML20054G201
| ML20054G201 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/18/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-09, CLI-82-9, ISSUANCES-OL, NUDOCS 8206210249 | |
| Download: ML20054G201 (23) | |
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'\\\\Vlf 4 UNITED STATES OF AMERICA 7
DN{8 T
NUCLEAR REGULATORY COMMISSION 2
COMMISSIONERS:
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\\
Nunzio J. Palladino, Chairman Victor Gilinsky SV g
John F. Ahearne Thomas M. Roberts 1
James K. Asselstine SERVED JUN 81982
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In the Matter of
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HOUSTON LIGHTING AND POWER COMPANY
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Docket Nos. 50-498 OL
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50-499 OL (South Texas Project, Units 1 & 2)
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MEMORANDUM AND ORDER (CLI-82-9)
This recusal proceeding was initiated by Citizens Concerned About Nuclear Power's ("CCANP") motion requesting Judge Hill to recuse himself for two reasons: (1) alleged personal bias against CCANP; and (2) inherent bias arising from his prior employment at Lawrence Livermore National Laboratory.
Both the Applicants and the NRC staff opposed the motion.
Judge Hill declined to recure himself, and in a Memorandum and Order, dated April 13, 1982, the other two Board members denied the motion, finding it " totally to lack merit."
(Memorandum and Order, pg. 2).
In a separate statement attached to the Licensing Board's Order, Judge Hill made several statements regarding CCANP's intentions and behavior as an intervenor in this proceeding.
Because Judge Hill was not recused from the Licensing Board, CCANP's request was referred automatically to the Appeal Board.
Recognizing that another hearing session was scheduled to begin shortly, the Appeal Board initially issued an Order without the 8206210249 820618 DR ADOCK 05000498 gd2 PDR
2 usual opinion.
In that Order, the Appeal Board unanimously found that:
"several of the comments contained in his [ Judge Hill's] separate statement give rise to a serious doubt respecting Judge Hill's present ability to judge CCANP and its assertions in this proceeding dispassionately." Accordingly, the Appeal Board concluded that Judge Hill should be replaced by another member of the Licensing Board Panel.
On April 21, 1982 the Appeal Board, in ALAB-672, explained its decision to disqualify Judge Hill.
Essentially, the Appeal Board found that certain language in Judge Hill's written statement demonstrates a lack of sensitivity for the role of a judge and would permit an objective observer to reasonably infer that Judge Hill has a personal animus against CCANP which could affect his ability to pass objectively on the issues in this case.
The Applicants, Houston Power and Light, et al., petitioned the Comission to review the Appeal Board's Order on an expedited schedule.
CCANP believed that review should be conducted at a more deliberate pace; the NRC staff supported expeditious review. After due consideration the Commission decided to review on an expedited basis the disqualification of Judge Hill.
The issues specified for review were:
1.
Did the Appeal Board apply the correct legal standard in determining to disqualify Judge Hill; and 2.
Did Judge Hill's separate statement constitute evidence of bias or prejudice warranting his disqualification?
We have now received briefs from the parties.
The Applicants believe
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- u s
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that the answers to both questions are no. j CCANPandCigizens(or Equitable Utilities (CEU) believe that the answers are both yes. The'$
staff believes that the Appeal Board's legal standard was neither.
17 entirely clear nor the most appropriate and that Judge. Hill's statement 0
does not require his recusal as a matter of law.
The Commission has considered the views of the parties and, for.the reasons discussed ~
below, has determined to reinstate Judge Hill.
In the federal courts, disqualifying bias or prejudice of a trial judge must generally be extra-judicial. As the Supreme Court has held, "the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some
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basis other than what the judge has learned from his participation in
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the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).
See also In Re International Business Machines Corporation, 618 F.2d 2'
923, 927 (2d Cir.1980) (" IBM").
The'same standard' applies to presiding
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officers in administrative proceedings.
Duffield v. Charleston Area
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Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974);
Indeed, the Commission has expressly adopted this rule, holding that "Prelimin'ary assessments, made on the record, during the. course of anyadjudicat'ory proceeding - based solely upon application of the: decision-maker's judgment to material properly before him in the proceeding - oo not
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The same pcsitions were taken in an amicus brief lodged by the Atomic Safety and Licensing Board Panel (Panel). 'le have accepted that brief and the parties' comments on it.
Accordingly, CEU's and CCANP's motion to strike or reject the Panci's amicus brief are denied.
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compel disqualification as a matter of law," and citing with approval United States v. Grinnell Corp., supra.
Comonwealth Edison Company (La Salle County Nuclear Power Station, Units 1 and 2), CLI-73-8, 6 AEC 169, 170 ('1973)./
These principles apply to this case.
Judge Hill's statement was made in the context of an adjudicatory hearing and was based solely on events which occurred during that proceeding, i.e., CCANP's action and behavior during the proceeding.
Since Judge Hill's statement did not stem from an extra-judicisl source, but was based solely on what he learned from his participation in the case, that statement does not provide a legally cognizable basis for disqualifying prejudice.
- IBM, supra,'at 928.
- CCANP and CEU believe that even if Judge Hill's statement was not extra-judicial, it was judicial conduct demonstrating such pervasive
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i bias and prejddice as would constitute bias against a party. Although some courts have stated such an exception to the general rule that bias must be extra-judicial, courts have been hesitant to invoke that exception except in the most extreme cases.
E.g., United States v.
Ritter, 540 F.2d 463 (10th Cir.1976) (per curiam), cert denied, 429 U.S. 951 (1976).
For example, the United States Court of Appeals for the Second Circuit recently noted that it has never disqualified a judge on the basis of judicial conduct.
IBM, supra, at 928 n. 6.
The Court observed that a judge is mor+3 than a passive observer in a case involving a technical and complex field; he must penetrate through the parties' posturing to decide the accuracy of their presentations.
- Thus, a
s extra-record conduct such as stares, glares and scowls do not constitute evidence of personal bias.' IBM, supra, at 928-930.
Similarly, occasional outbursts toward counsel during a long trial do not provide any basis for finding judicial bias against the party represented by counsel.
IBM, sup'ra, at 932.
Judge Hill's statement clearly distinguishes between CCANP and the conduct of its representatives. We find that Judge Hill's statement does not constitute judicial behavior warranting an exception to the rule that bias must be extra-judicial.
Phillips_ v. Joint Legislative Committee on Performance and Expenditure Review of the State of Mississippi, 637 F.2d 1014,1020 (5th Cir.1981);
Whitehurst v. Wright, 592 F.2d' 834, 838 (5th Cir.1979).
Finally, CCANP and CEV would have us disqualify Judge Hill under the " reasonable factual basis - reasonable person" test applicable to federal judges under 28 U.S.C. 9 455(a). E.NuclearEngineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 303 (1978).
Section 455(a) requires a judge to " disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This section establishes an objective standard for recusal, i.e., whether a reasonable person knowing all the circu'mstances would be led to the conclusion that the judge's impartiality might reasonably be (,uestioned.
Fredonia Broadcasting Corporation, Inc. v. RCA Corporation, 569 F.2d 251, 257 (5th Cir.1978).
CCANP and CEU believe that the Appeal Board's decision demonstrated that reasonable persons can reasonably question Judge Hill's impartiality.
6 Thus, they contend that Judge Hill must reconsider his decision not to recuse himself in light of ALAB-672. We disagree.
The same policy reasons which limit disqualification to extra-judicial conduct have been held to similarly limit recusal under Section455(a).
IBM, supra, at 929; Johnson v. Trueblood, 629 F.2d 287, 291-92 (3rd Cir.1980); Phillips, supra. The Appeal Board's reaction to Judge Hill's statement does not change that statement's judicial character.
Under these circumstances, we find no reason to seek Judge Hill's reconsideration of his decision not to recuse himself.
For these reasons, we have concluded that Judge Hill's statement did not legally require his disqualification. Moreover, we are not inclined to order recusal as an exercise of our discretionary supervisory authority over pending adjudications.
The proceeding is now well along and the judge has acquired a valuable background of experience.
See, IBM, supra, at 934. We are convinced that Judge Hill will in fact deal fairly with CCANP in this proceeding. Accordingly, Judge Hill is hereby reinstated to the Licensing Board for this proceeding.
Commissioners Gilinsky and Asselstine dissented from this decision.
The Additional Views of Commissioners Ahearne and Roberts, Separate Views of Commissioner Gilinsky, and Dissenting Opinion of Commissioner Asselstine are attached.
1 It is so ORDERED.
For the Comission b
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SAMUEL R Cli ;LK
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a y
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-g Secretary of the Comission e
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44,g4 Dated at Washingtgn, DC, this/f(dayofJutM,1982.
I
ADDITIONAL VIEWS OF COMMISSIONER AHEARNE As Commissioner Gilinsky points out, the Commission previously addressed the issue of disqualification in LaSalle.
1/
I agree with the general approach established there.
As the Appeal Board said in the LaSalle case, "The starting point of our inquiry necessarily is the context in which [the Licensing Board member's) statements were made.
For, manifestly, the question as to whether those statements constitute a basis for his disqualification cannot be fairly decided by examining their content in isolation."
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In disagreeing with the LaSalle Appeal Bcard's ccaclusion, the Commission added "At the outset we are inclined to give due deference to the judgment of the other Licensing Board members.
Those members--because they saw and heard the incident--can assess the matter with full appreciation of what appears in a cold record."
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Similarly, in this case I am inclined to defer to the Licensing Board.
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Commonwealth Edison Company (LaSalle County Nuclear Power Station, Units 1 and 2), ALAB-102, 6 AEC 68 (1973); Commonwealth Edison Company (LaSalle County Nuclear Power Station, Units 1 and 2), CLI-73-8, 6 AEC 169 (1973).
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ALAB-102 at 69.
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CLI-73-8 at 170.
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Although the Licensing Board focused on the CCANP motion, the other two members clearly had Judge Hill's remarks before them when they reached their decision.
l See " Memorandum and Order (Denying CCANP Motion for l
Judge Ernest Hill to Recuse Himself)" at 4 (April 13, i
1982).
2 In addition the Board's conclusion is not inconsistent with a brief review of the " cold record."
I did not see indication of bias in the portions of the transcript I reviewed.
A look at the transcripts for Board proceedings held during December 1981, January 1982, and February 1982 identified only three sections in which Judge Hill is identified as speaking.
In one instance he asked the staff a few questions about its knowledge of turnover of personnel.
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The second time, he entered a discussion concerning an vajection made by the applicant's lawyer to cross-examination by CCANP's representative.
Judge Hill sided with CCANP.
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Finally, he engaged in the line of questioning cited by the intervenor: 7/
Judge Hill:
"Considering the results of this invcatigation, do you feel that the four allegations that ware made justified the 90 hours0.00104 days <br />0.025 hours <br />1.488095e-4 weeks <br />3.4245e-5 months <br /> of investigative time?"
NRC Witness Phillips:
"The NRC's threshhold sometimes is perhaps one some persons could deem as being relatively low.
And some persons could say 'Well, you know, that time was really not justified. '
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Tr. 9532-35 (January 20, 1982).
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Tr. 9739-44 (January 20, 1982).
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Tr. 10362-64 (February 10, 1982).
l
3 "However, by the same token, since we are charged with the responsibility of protecting the health and welfare of the public, in terms of their safety adjacent to nuclear sites and living in the area, I think if we do take things to a final conclusion and close doors, that it does have a real benefit, if for no other reason than to demonstrate that we do take things to resolution and that we. try to get all the way down to the bare bones on a safety issue to assure that there's nothing wrong.
"So it does have some value, even though you may end up with no findings."
Judge Hill:
"This is not in the form of a question, but I guess a final statement; that's fine, except that you're dealing with finite and limited resources in your organizatlon, and I guess that's my only comment on that."
On the other hand, I found less than persuasive arguments such as:
"Besides, Judge Hill's use of the word subvert provides an extrajudicial source for a most significant part of his statement and for his motivation in saying what he did.
An institution which collects and maintains intelligence files on nuclear critics has a prejudicial attitude toward such critics.
Judge Hill's use of the word subvert demonstrates he was infected by this attitude apart from anything CCANP said or did in the hearings." 8/
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"Intervenor Citizens Concerned About Nuclear Power's Inital Brief in Response to Nuclear Regulatory Commission Order of May 6, 1982" at 17 (May 18, 1982).
In his separate statement Judge Hill had said "From the outset, the representatives for CCAE7 have in many instances actively subverted the stated objectives of this expedited proceeding by being unduly contentious with matters having little, if any, bearing on the admitted contentions. "
Board Memorandum and Order at 9-10 (Separate Statement of Judge Hill).
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4 "The link between Judge Hill's use of the word subvert and the intelligence gathering activities of his employer is clearly warranted.
CCANP at 17, 20-21.
Intelligence gathering is normally directed at those perceived as a dangerous threat to the existing system of government, whether the target be dissidents in Russia or Nazis in the United States.
It ;ould be difficult for Judge Hill to spend the majority of his working hours at an institution engaged in such activity and not be infected by such an attitude."
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Consequently, the Licensing Board decision, a review of the transcripts, a reading of the briefs, and examination of the previous commission case reinforces my support for the Commission's decision.
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"Intervenor Citizens Concerned About Nuclear Power's Reply Brief in Response to Nuclear Regulatory Commission order of May 6, 1982" at 9 (May 29, 1982).
1
1 ADDITIONAL VIEW OF COMMISSIONER ROBERTS I disagree with Commissioner Gilinsky's view that the NRC Staff should not litigate procedural matters in NRC adjudicatory proceedings and I do not believe his view is shared by a majority of the Comissioners.
Under the Comission's rules, the NRC Staff is a full party to the proceeding and on an equal footing with all other parties.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520, 532 (1973). This " party" status entails certain rights and certain duties.
Pennsylvania Power and Light Co. (Susque-hanna Steam Electric Station, Units 1 and 2), 12 NRC 317, 338-40 (1980).
"In short, the right of participation in an administrative proceeding carries with it the obligation of a party to assist in ' making the system work' and to aid the agency in discharging the statutory obliga-tions with which it is charged." Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 332 (1973). One obligation imposed on parties is the duty to advance correct and proper interpretations of applicable law to assist the judge in making his decision. A party that does not participate in this fashion is in default.
The very process of adjudication imposes on all parties this affirmative responsibility to assist the decisionmaker.
Moreover, the correct and proper application of procedural rules and pertinent case law is in the interest of every party.
Such application results in a predictable and fair process. Additionally, such applica-tion enhances the efficiency of an adjudicatory proceeding, both in
2 terms of the length of the proceeding and in terms of the commitment of a party's resources to the proceeding.
More important than these considerations of " party" status, however, is the Staff's status as an arm of the Commission and as the principal instrumentality through which the Commission carries out its regulatory responsibilities.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-76-17, 4 NRC 451 (1976).
In this role, the Staff is charged with the more weighty responsibility of advancing the correct interpretation of the Commission's regulations. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and4),ALAB-577,11NRC18,24-25(1980).
Those rules which are procedural (indicating how the Commission wishes its adjudicatory proceedings to be conducted) are no less important than other Commission regulations. Thus, it is as incumbent upon the Staff to advance the correct interpretation of Commission procedural rules and applicable case law as it is encumbent upon them to advance the correct interpre-tation of Commission substantive rules.
1 With regard to Commissioner Asselstine's suggestion that the Commission adopt a higher standard of performance for its licensing board members than that imposed on Federal judges by the Supreme Court, I note that the proposed higher standard appears analogous to proving a negative.
One must demonstrate that the person questioning the impartiality of the judge is not reasonable. Additionally, it is not clear to me that the higher standard will eliminate the apoearance of bias, the goal of Conmissioner Asselstine's proposal.
Whether there is bias or an
3 appearance of bias on the part of a judge is a fact question best resolved by a review of the facts. My review of the facts leads me to conclude that Judge Hill should not be disqualified for the appearance ofbias.M In light of the considerable debate which has surrounded Judge Hill's use of the word " subvert" in his statement on recusal, I append the following Appeal Board analysis from an earlier decision:
The failure of both the Saginaw and Mapleton Intervenors to file adequate proposed findings of fact and conclusions of law highlights what we view as an area of concern in the func-tioning of the adjudicatory process in Commission licensing proceedings--i.e., the role of intervenors.
Intervenors frequently enter Connission licensing proceedings, including this one, with broad and far-ranging contentions. They have been afforded, and have utilized, the full range of the Commission's discovery procedures.
But, even after obtaining a plethora of information through discovery, they have pre-sented limited direct evidence and have often confined their evidentiary cases to the conduct of cross-examination.
In this proceeding, they affirmatively failed to file adequate proposed findings and conclusions, even though they were asked by the Licensing Board to do so.
Now, after the Licensing Board has issued a decision with which they disagree in many respects, they file exceptions with this Board which chal-lenge, inter alia, numerous factual findings of the Licensing Board.
Participation in this manner / n ur opinion, subverts the i
2 entire adjudicatory process With this analysis in mind, it is ironic that Judge Hill's conclusion that dilatory legal tactics subvert the adjudicatory process formed the basis of an Appeal Board decision to disqualify him from the South Texas proceeding.
If The Staff's brief analyzed this fact question very well.
"NRC Staff's Brief on Recusal of Judge Hill," May 21, 1982, pp. 14-17.
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Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 332 (1973).
COMMISSIONER GILINSKY'S SEPARATE VIEWS I would have affirmed the Appeal Board's decision.
I agree with the Appeal Board's conclusion that, by responding as he did, Judge Hill created the impression that he harbors a deep-seated personal hostility towards CCANP and its representatives, which could be expected to affect materially his future determinations on matters of concern to that intervenor.
To my knowledge, this is only the second time that the Appeal Board has removed a Licensing Board member from a proceeding.1 The Commission would do well to follow the Appeal Board's advice in this type of case if it wishes to retain the public's respect for our proceedings.
As a final matter, I am troubled that the NRC staff persists in litigating matters in our proceedings in which it has no legitimate interest.
In the present case, the staff merely filed a lukewarm brief, arguing that Judge Hill should be reinstated.
But their position on the merits is beside the point.
The staff had no business litigating this procedural issue.
The proper parties to raise this matter are the intervenors and the applicant.
The proper authorities for deciding it are the Appeal Board and the Commission.
1The first such case was Commonwealth Edison Company (LaSalle County Nuclear Power Station, Units 1 and 2)
CLI-73-8, 6 AEC 169 (1973) in which the Commission reversed the Appeal Board's determination that a Licensing Board member should be disqualified for prejudging an issue in contention.
DISSENTING OPINION OF COMMISSIONER ASSELSTINE
SUMMARY
I agree with the majority opinion in this proceeding that Judge Hill's written statement in response to the CCANP motion requesting that he recuse himself did not legally require his disqualification, as the applicable standards for disqualification have been interproted by the courts thus far.
However, I would adopt, as an exercise of the Commission's discretionary super-visory authority over this agency's adjudicatory proceedings, a different standard for the disqualification of Licensing Board members.
Specifically, I would disqualify a Licensing Board member if a reasonable person, knowing all the circumstances, would reach the conclusion that the Licensing Board member's impartiali ty -- that is, his or her ability to pass judgment on the merits of the case in a fair and impartial manner -- might reasonably be questioned.
Unlike the majority, I would apply this " reasonable factual basis - reasonable person" test to statements made by a Licensing Board member arising from " judicial" as well as "extrajudicial" matters.
Applying this standard to Judge Hill's written statement in response to the CCANP motion that he recuse himself, I reach the l
Page Two same conclusion as did the Appeal Board in ALAB-672 -- that " Judge Hill affirkativelycreatedtheimpressionthatheharborsadeep-seated personal hostility towards CCANP and its representatives, which could be aegpected to affect materially his future determi--
nations on matters of. concern to that intervenor."
(slip op., p.10).
Based upon this conclusion, I would direct that another member of the Licensing Board panel be designated to replace Judge Hill in this proceeding.
DISCUSSION The majority opinion ably summarizes the standards that have been applied by the courts for disqualifying bias or prejudice of a federal trial judge.
As the majority opinion notes (p. 3), the courts have applied the same standards to presiding officers in administrative proceedings.
One of the standards for disqualifying bias or prejudice identified in the majority opinion is the
" reasonable factual basis-reasonable person" test (p. 5).
Under this test, a judge or presiding officer would be disqualified if a reasonable person, knowing all the circumstances, would reach the conclusion that the judge's or presiding officer's impartiality might reasonably be questioned.
Fredonia Broadcasting Corporation, Inc.
v.
RCA Corporation, 569 F. 2d 251, 257 (5th Cir. 1978).
This test is, in all essential elements, the standard for disqualifying bias applied by the Appeal Board in ALAB-672 (slip op. p. 7).
Page*Three Many of the cases establishing and applying standards for disqualifykng bias or prejudice that are relied upon by the majority (pp. 3-6) draw a distinction between statements of a " judicial" na tu re -- tha t i s, statements based upon matters coming before the judge or presiding of ficer during the course of the proceeding -- and statements of an " extra-judicial" nature -- that is, statements based upon information acquired prior to, or outside the scope of, the proceeding.
According to these cases, and other cases cited in the applicant's brief (pp. 5-10), the NRC staff's brief (pp. 6-12),
and the amicus brief of the Atomic Safety and Licensing Board Panel (pp. 3-6_),
as a general rule, disqualifying bias or prejudice must be based upon extra-judicial matters.
As the majority opinion notes (p. 4), the courts have made exceptions to this general rule that bias must be extra-judicial only in extreme cases, typically upon a finding of " pervasive bias and prejudice".
See United States v.
Gregory, 656 F.
2d 1132, 1137 (5th Cir. 1981); Davis v.
Board of School Comm'rs-of Mobile County, 517 F.
2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S.
944 (1976).
This dis tinction between the judicial or extra-judicial nature of th'e statement or conduct in question forms the foundation for the majority's conclusion that Judge Hill's written statement in response to the CCANP motion for recusal does not legally require his disqualification because that statement was based upon judicial rather than extra-judicial considerations.
Taken to its logical concl.usion, the majority opinion stands f or the proposition that even if a disinterested observer were to conclude that a Licensing Boa'rd member's conduct'or statements were sufficient to create a reasonable doubt regarding the Board member's ability to act f airly and. impartially on matt'ers before the Board, this would not be a sufficien't basis for disqualification so long as the Board member's conduct or statements were related to matters within the proceeding.
In my view, the adoption of this standard by the Commission majority sends an unfortunate.
signal to the Licensing Boards and to the public -- a signal that serves to undermine public confidence in the objectivity of our adjudicatory proceedings.
I believe that the Commiss. ion has the
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discretionary authority to impose a higher standard of conduct for Licensing Board members than. this1I, and I believe there are strong public policy reasons for doing so.
Chief among these public policy reasons is the need to assure public c.onfidence in the integrity and impartiality of the licens-ing process.
The Commission has long recognized the " fundamental impoItance of meaningful public participation in our adjudicatory process."2f As the Commission emphasized in Prairie Island, "such participation performed in the public interest, is a vital ingredient in the open and f.ull consideration of licensing issues and in establishing 1/
- The NRC staff's brief (p. 13) expressly recognized the Commission's discretionary authority to adopt a higher standard of conduct than that required by the courts.
A higher standard of conduct was also prcposed by Commissioner Ramey in Commonwsalth Edison Comoany (La Salle County Nuclear Power Sta tion, Units l and 2), CL1-73-8, AEC 169, 170, n.4 (1973).
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en states pnxer rnn33nv tprairie Isl and Nuclaar Gen-erating Plant, Units 1 and 2), CLI-75-1,1 NRC 1, 2 (1975)
Page Five i
public confidence in the sound discharge of the important duties which have been entrusted to us."1d Indeed, the essential purpose of the Commission's adjudicatory licensing proceedings is to provide s f air and objective resolution of factual and legal iissues in dispute among the parties to the proceeding, including valid contentions advanced by members of the public.
I can think of no more important element in providing a fair and meaningful opportunity for public participation in our adjudicatory process than avoiding even the appearance of bias or partiality on the part of those who are charged with conducting these proceedings.
Therefore, in order to ensure a fair opportunity for public participation and to promote public confidence in the objectivity of our licensing process, I would have the Commission apply a different standard for the disqualification of Licensing Board members than that adopted by the majority in this case.
Specifically, I would disqualify a Licensing Board member if a reasonable person, knowing all the circumstances, would reach the conclusion that the Licensing Board member's impartiality -- that is, his or her ability to pass judgment on the merits of the case in a fair and impartial manner -- might reasonably be questioned.
I would apply this standard regardless of whether the conduct or statements of the Licensing Board member giving rise to the 3/
--_I_d.
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Page Six allegation of bias are judical or extra-judicial in nature.
Thisiseskentiallythesamestandardfordisqualifyingbias
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applied by the Appeal Board in ALAB-672 (slip op. p.7).
Applying this standard to the facts of this case, I believe that a reasonable person would conclude from the totality of the circumstances that Judge Hill's written statement in response to the CCANP recusal motion raises serious questions regarding his ability to pass judgment on the merits of the issues before the Board in a fair and impartial manner.
My review of Judge Hills written statement, including the context in which that statement was made, leads me to conclude, as did the Appeal Board in ALAB-672, that through his separate statement, " Judge Hill affirmatively created the impression that he harbors a deep-seated personal hostility towards CCANP and its representatives, which could be expected to affect materially his future determination on matters of concern to tha t i n tervenor. " (slip op., p-10).
As the Appeal Board found, Judge Hill's statement consisted of a series of direct attacks on the representatives of CCANP " cast for the most part in extremely. pejorative terms." (slip op.,
- p. 7).
I also agree with the finding of the Appeal Board that Judge Hill's intemperate attacks on the representatives of CCANP were unnecessary to address the CCANP motion for recusal.
In that regard, I am unpersuaded by the efforts of the Atomic Safety and
Page Seven Licensing Board Panel (amicus brief, pp. 13-14) to rationalize and e
explain Judge Hill's remarks as "a reasonable effort" to respond to the allegations in the CCANP motion for recusal.
Nor can Judge Hill's statement be explained on the basis of the licensing Board's responsibility for the efficient conduct of the proceeding.
The Licensing Boards have ample authority to manage these proceedings, and to control the conduct of parties to the proceeding, without resort to the approach taken by Judge Hill in this case.
See NRC Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
- Finally, 1
I agree with the Appeal Board that the intemperate and pejorative nature of Judge Hill's attacks take on added significance because they appear in a written statement.
Judge Hill's written statements, made after the opportunity for careful consideration and reflection, stand in a different light than do the occasional intemperate oral remark of a judge against a litigant during the course of conducting a hotly contested adjudicatory proceeding.
Given the totali ty of these circums tances, I believe that a reasonable person would conclude from Judge Hill's statement that there is reason to question his ability to pass judgment objectively on matters of concern to CCANP.AI For this reason, I woul d repl ace. Judge Hill in this proceedino wi th another member of the Licensing Board Panel.
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SIAL though arguing agains t disqualification, the NRC staff i tsel f recognized that " Judge Hill 's s tatemen.ts are extremely unf ortunate in terms of the public perception of the hearing process."
NRC staff brief, p.
18.
Page Eight One final point deserves brief mention.
The Commission majority argues against imposing a higher standard of conduct for Licensing Board members in this case because the proceeding is now well along and Judge Hill has acquired a valuable background of experience (p. 6).
The applicant also trgues against disqualifying Judge Hill in this case based upon the experience he has gained in observing the testimony presented to the Licensing Boarc.
(Applicant's brief, pp. 14-15).
Al though this is an important consideration, I believe it is far outweighed by the public policy considerations in assuring public confidence in the objectivity and impartiality of our licensing process.
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