ML20082D913
| ML20082D913 | |
| Person / Time | |
|---|---|
| Site: | Hope Creek  |
| Issue date: | 11/18/1983 |
| From: | Potter R, Remis S NEW JERSEY, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20082D894 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8311230134 | |
| Download: ML20082D913 (15) | |
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In-the Matter of PUBLIC SERVICE ELECTRIC AND GAS CO., et al.,
Docket No. 50-354 OL (Hope Creek Generating Station, Unit 1),
MEMORANDUM OF LAW IN SUPPORT OF THE PUBLIC ADVOCATE'S MOTIONS 8311230134 831118
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PDR ADOCK 05000354 G
Statement of Facts In a memorandum of October 18, 1983, the Honorable Marshall E. Miller, Chairman and presiding officer of the Atomic Safety and Licensing Board designated to hear the instant case, identified the three members of the Board.
He also furnished the parties with information "regarding the qualifications and prior professional activities of the members of the Board (biographies attached)."
The three Board members are Judge Miller, Chairman, Dr. James H. Carpenter, described as "an environmental scientist," and Dr. Peter A. Morris, who has " held respon-sible positions with the U.S. Atomic Energy Commission
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1957-74."
Memorandum, at 2.
Regarding Dr. Carpenter, Judge Miller noted that he "develooed a very sensitive dye tracer technique -
in 1960."
Id. Moreover, during the 1960's, Dr. Carpenter "also performed some dye studies of Newbold Island, part of the Delaware River, for Public Service Gas & Electric Company."
Dr. Carpenter elaborated on Judge Miller's summary in a one-page biographical sketch.
For example, he described the " substantial activity" he performed as a consultant to eight different electrical utility companies over the past twenty years with the general scope of the
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work being evaluation of the envrionmental effects of the operation of electricity gene-rating plants, both nuclear and
-fossil fueled.
Among his clients was the Jersey Central Power and Light.Co. which retained him to do research regarding
.the effects on Barnegat Bay from operating the Oyster Creek Nuclear Generating' Station, "the first commercial nuclear station."
Oyster Creek is a 640 megawatt boiling water reactor ("BWR") made by General Electric.
It is located in Ocean County, New Jersey, on the Atlantic
. seaboard.
i Dr. Carpenter further noted his work as a consul-tant for'the Bechtel Corporation on "an ' ultimate' waste disposal' system for the Baltimore-Washington region."*
With regard to Dr. Morris' resume, also attached to'the October 18 Memorandum, it reveals that between 1965 and 1966 he was the " Director, Division of Operational Safety" of the AEC.
Similarly from 1966 to 1972 he served as " Director, Division'of Reactor Licensing."
At about the same time that Dr. Carpenter was
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employed, inter $lia, by PSE&G to research the Newbold Island site and while Dr. Morris was a high official of the AEC, PSE&G was in the process of applying for AEC
- Bechtel is the achitect-engineer for Hope Creek. 1 l
approval of its plans to construct two 1,067 megawatt General Electric BWR's on Newbold Island, near Trenton, New Jersey.
PSE&G progressed as-far as submitting an 1
application to the'AEC for a construction permit for
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the proposed Newbold Island units.
The AEC staff I
responded by preparing and circulating for public comment
- a. Draft Environmental Statement in December, 1972.
This Newbold Island statement was recirculated in July, 1973 when "new information" surfa^ced concerning the issue of
'how to assure adequate supplies of cooling water "during periods of low river flow."
Final Environmental Statement related to the proposed Hope Creek Generating Station, Units 1 and 2, Docket No. 50-354, 50-355 ("FES") at (i).
Three months later in October, 1973 the AEC's Director of Regulation notified PSE&G that principally because of population L
density considerations, the staff had concluded that, from an en-vironmental standpoint, the Salem location is a more desirable' alter-native site for the location of the two units.
Id.
l The " Salem location" refers to the present site of Hope Creek on Artifical Island in Lower Alloways Creek-Township, Salem County, New Jersey.
t l-The contentions filed by the Public Advocate j
of New Jersey on November 7, 1983 question whether the l i
Commission should convert PSE&G's construction permit, based in part on the above FES, into a long-term license to operate the finished reactor.
- See, Aopendix I-Contentions (I through X).
Similarly-, the resolution of many of these contentions may require consideration of_ facts developed and judgments rendered by Dr. Carpenter while he was employed by PSE&G.
For example, the impact of reactor operation on the Delaware River estuary may involve the adequacy of methods for detecting and mitigating these impacts.
Dr. Carpenter's studies for PSE&G, therefore, could be drawn into issue.
Similarly, Dr. Morris may have passed judgment on relevant aspects of Hope Creek while serving as a key official of the AEC staff..
II.
LEGAL ARGUMENT POINT I:
.A Judge Who Has Previously Worked For the Applicant on a Factual Matter Potentially Related to the Current Proceeding Should Disqualify or Recuse Himself at the Earliest Possible Moment I't has been the settled practice of the Commission from early nuclear licensing decisions that-judges appointed to serve'on an Atomic Safety and Licensing Board are bound to disqualify themselves to avoid even the appearance of impropriety.
- See, e.g.,
In the Matter of Consumers Power Co. (Midland Plant, Units 1 and 2), 6 AEC 60 (ALAB-101) l (1973), and In the Matter of Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 and 2), 6 AEC 68 (ALAB-102)
(1973), rev'd, 6 AEC 169 (1973).
The Atomic Licensing Appeal Board in the Midland proceeding concluded that the NRC's administrative law judges must be guided by the same strictures which apply to federal district court judges.
Midland, supra, 6 AEC 68, 71.
This line of reasoning has prevailed to the present day in recent Commission rulings.
Thus, the full Commission reaffirmed in In the Matter of Houston Light and Power Co.
(South Texas Project, Units 1 and 2), 15 NRC 1363 (1982) that the same standards which govern the disqualification of federal district court judges should also apply to Board members.
Id., at 1365.
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For example, in reversing a disqualifying order of the-Appeal Board based upon "certain language in Judge Hill's written statement [that might] permit an ob-jective observer to reasonably infer that Judge Hill has a personal animus against [the intervernor]", a majority of the Commission ruled that, as in the federal courts,.the " disqualifying bias or prejudice.
. must generally be extra-judicial."
Id., at 1364-65.
In other words, except in rare cases, the disqualifying factor must stem from a source other than "'what the judge has learned from his participation in the case'" (quoting from United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).
Id. (emphasis supplied).
In the case at bar the disqualifying factor is clearly " extra-judicial".
Indeed, the basis for the I
Public Advocate's motion is that due to Judge Carpenter's prior employment by PSE&G on a matter potentially relevant to issues the Public Advocate believes this Board should I
consider, Judge Carpenter should step aside -- rather than run the objective risk of casting doubt upon the impartiality of the Board's ultimate decision.,
How to Apply the Appropriate Test The statutory basis for disqualification is found in the Judicial Code, 28 U.S.C. 5144, and 5455, and the parall.el requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. 5556(b), which expressly govern NRC proceedings, 42 U.S.C.
2231. Section 455, for example, provides that:
Any justice or judge shall dis-qualify himse1f in any case in
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which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or ccnnected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.
June 25, 1948, c.
- 646, Stat. 908.
Similarly, Section 556(b) requires that all hearings "shall be conducted in an impartial manner."
Accordingly, all disqualification motions are to be decided "as a part of the record and decision in the case."
Further, the cases clarify ~that the standard for determining impartiality and fairness is an objective l
That is, the question before this Board is whether l
one.
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the facts as alleged would raise a reasonable inference l
of a lack of impartiality and fairness in the mind of a !
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r disinterested observer.
Parrish v. Board of Commissioners o'f Alabama State Bar, 524 F.2d 98 (5th Cir. 1975), and_ggg_
also,Gilligan Will & Co. v.
S.E.C., 26 F.2d 461 (2d Cir.
1959)' cert. denied, 361 U.S. 896 (1960).
This standard of apparent, objective bias is also consistent with the test to determine the disqualification of administrative law judges.
Cinderella Career Finishing Schools, Inc. v.
F.T.C., 425 F.2d 583 (D.C. Cir. 1970).
Additionally, it is important to note that courts generally have applied the bias or prejudgment test to solely factual matters in dispute -- and not to legal or philosophical considerations, however relevant they may be.
See Note, " Disqualification of Judges and Justices in the Federal Courts," 86 Harv. L. Rev. 736, j
758, n. 94 (1973).
Here, of course, the Public Advocate's i
motions.are directed entirely to questions of potential, objective bias regarding factual matters that may be relevant to the Public Advocate's contentions.
Moreover, the Public Advocate does not move to l
disqualify simply because the applicant utility was one l
of Dr. Carpenter's former clients.
That fact alone, while it may be questionable to some, is not as a rule L
sufficient for disqualification.
However, if -- as 8-i t
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i appears to be the' case here -- a judge performed services for a former client on factual matters related to the
. procee 'ing that is before him, then the proper course is voluntary disqualification.
National Auto Brokers j
Corp. v. General Motors Corp., 572 F.2d 953 (2d Cir.
1978); In re Roger's, 537 F.2d 1196 (4th Cir. 1976);
Darlington v. Studebaker-Packard Corp., 261 F.2d 903 (7th Cir. ), cert. denied, 359 U.S. 992 (1959); School Dist. of Kansas City v. Missouri, 438 F.Supp. 830 (W.D.
Mo. 1977) ; see Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 53544 at 357 (1975) ; Davis, Administrative Law Treatise, 2nd Ed.,.Vol. 3 (1980), $19:4.
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POINT II: These Motions Have Been Made in a Timely Manner It is equally well-settled that, to be con-sidered, motions to disqualify must be made in a timely manner.. Midland, supra, 6 AEC at 62-63 (where the Appeal Board declared untimely a motion filed almost a month after the Li. censing Board had rendered its initial decision); Davis,-supra B19.10:-"A claim of disqualifi-cation of an ALJ must be made during the hearing; the filing must be 'as soon as practicable after a party has' reasonable cause to believe that grounds for disqualifi-cation exist.'"
i Generally, the cases upholding denial as un-timely reflect objections not lodged until well after the evidentiary hearings have commenced or follcwing the ren-dering; of final decisions.
- See, e.g. Marcus v. Director, Office of Workers Compensation Program, 548 F. 2d 1044, 1051 (D.C..Cir. 1976): "No formal objection to perceived bias or prejudice was ever made during the h' earing; the
-claim was first raised only on appeal to the Benefits Review Board...
It will not do for a claimant to suppress his misgivings while waiting anxiously to see whether the decision goes in his favor."
S e'e, also, l l
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Capitol Transportation, Inc. v. United States Fed.
Maritime Commission, 612 F. 2d 1312, 1324 (1st Cir.
'1979) (motion untimely as not raised in the petitioner's exceptions to the ALJ's initial decision).
Here, the Public Advocate of the State of New
, Jersey filed the attached motions thirty (30) days after the Board ruled that he be conditionally ad-mitted, twelve calendar days
- after filing ten ~ (10) contentions and supporting materials, four (4) days before the first special prehearing conference --
and almost two years before PSE&G projects that the evidentiary hearings will even begin.
Accordingly, the motions to disqualify and for additional biographical information are timely and should be considered on their merits.**
- Due to intervening state holidays, the time was com-pressed into s'even korking days.
Since initial drafting, Chairman Miller has denied
- the Public Advocate's third motion, i.e. that the con-ference be rescheduled after the disqualification is resolved.
CONCLUSION For the reasons stated above and in the attached affidavit, the Public Advocate of the State of New Jersey hereby requests that:
1.
Dr. Carpenter disqualify himself, provide additional information, and other assurances; 2.
Dr. Morris provide additional information and assurances; and 3.
The Board postpone the special prehearing conference until the above motions-are resolved.*
Dated:
November 18, 1983 Respectfully submitted, JOSEPH H. RODRIGUEZ Public Advocate of the State of New Jersey By:
R. WILLIAM POTTER Assistant Public Advocate s
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SUSAN C.
REMIS Attorney, Division of Public Interest Advocacy
- Since the Chairman denied this request today in a conference phone call, the Public Advocate asks that this decision be reconsidered and the motion granted. _
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, ac Q DOCKETED USHRC
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State of Nem 3rrstg 5 E/ 21 Ali:51 DEPARTMENT OF THE PUBLIC ADVOCATE CN 850 TRENTON, NEW JERSEY 08625 R. WILLIAM POTTER JOSEPH H. RODRIGUEZ ASSISTANT COMMISSIONER TEL 60M8uC15 PUBLIC ADVOCATE November 18, 1983 The Honorable Marshall E. Miller Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Re:
Public Service Electric & Gas Co.
(Hope Creek Generating Station)
Docket No. 50-354-OL
Dear Mr. Chairman:
I hereby certify that on this day I have caused to be mailed or otherwise delivered copies of the attached Motion, Affidavit and Memorandum of Law to all parties of record appearing on the attached Service List.
Very truly yours, t
JOSEPH H. RODRIGUEZ Public Advocate of the State of New Jer
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F By:
~. WILLIAM POT'fER R
l Assistant Public Advocate W%
i SUSAN C.
REMIS Attorney, Division of Public Interest Advocacy l
RWP:vbm Enclosure cc:
Service List New Jersey is An Equal Opportunity Employer
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Atomic Safety and Licensing Board Public Service Electric and Gas Company Docket No. 50-354 - OL (Hope Creek Generating Station)
SERVICE LIST Docketing and Service Section Ths Honorable Marshall E. Miller Office of the Secretary Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, DC 20555 Board Panel U.S. Nuclear Regulatory Commission Lee Scott Dewey, Esq.
Washington, DC 20555 Office of the Executive Legal Director (2 copies)
U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Peter A. Morris (2 copies)
Atomic Safety and Licensing U.S Nu 1 a egulatory Commission A
t e e al Coun Wachington, DC 20555 Public Service Electric & Gas Co.
PO Box 570 (T5E)
Dr. James H. Carpenter Newark, NJ 07101 Atomic Safety and Licensing Board Panel Director, Division of U.S. Nuclear Regulatory Commission Environmental Control Washington, DC 20555 Tatnell Building Dover, Delaware 19901
-Theodore C. Granger, Esq.
Drputy Public Advocate Troy B. Conner, Jr., Esq.
Dept. of the Public Advocate Conner and Wetterhan Division of Rate Counsel 1747 Pennsylvania Avenue, NW 744 Broad Street - 29th and Washington, DC 20006 30th floors (2 copies)
Ncwark, NJ 07102 Honorable Irwin R. Kimmelman Atomic Safety and Licensing Attorney General Board Panel State of New Jersey U.S. Nuclear Regulatory Commission Richard J. Hughes Justice Complex Washington, DC 20555 25 Market Street Trenton, NJ 08625 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Wachington, DC 20555 (5 copies)
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