ML20082M526
| ML20082M526 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/01/1983 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-748, ISSUANCES-OL, NUDOCS 8312060171 | |
| Download: ML20082M526 (15) | |
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k?s FILED:
December 1, 1943:
UNITED STATES OF AMEklCA 03 ['n NUCLEAR REGULATORY CO.W1SSION
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In the matter of:
PUBLIC SERVICE COMPANY OF Docket Nos.
50-443 OL NEW HAMPSHIRE, et al 60-444 OL (Seabrook Station, Units 1 and 2)
SAPL'S PETITION FOR REVIEW BY THE U.S. NUCLEAR REGULATORY COMMISSION Pursuant to 10 C.F.R. 42.786(b)1, the Seacoast Anti-Pollution League, a duly admitted Intervenor in the above-named proceeding, hereby Petitions the U. S. Nuclear Regulatory Commission for review I
of ALAB-748, rendered November 16, 1983. As grounds for this Petition the Seacoast Anti-Pollution League asserts that the Appeal Board's decision is erroneous with respect to important questions of fact, law and policy.
I.
INTRODUCTION On October 7,
- 1983, the Seacoast Anti-Pollution League (hereinafter referred to as "SAPL")
filed its Motion for Disqualification of Judge Hoyt'.
The Motion set forth in detail the legal and-factual basis for the Seacoast Anti-Pollution League's assertion that Judge Hoyt had created a pervasive and continuing appearance of bias against intervenors and municipal representatives taking part in the proceedings.
On October 24, 1933, the Applicants filed an untimely response to SAPL's Motion.
(See Applicants' Answer to Motion for 8312060171 831201 2'03 PDR ADOCK 05000443 g7 G
Disqualificati.n of Judge Hoyt filed October 24, 1983). The response was inexcusably late, as the limit f or party responses is ten days.
Applicants took 21 days tr respond from the date of SAPL's filing, and did not s.eek leave of the Atomic Safety and Licensing Board to file s late reply.
On October 31, 1983, the NRC Staf f filed its response to SAPL's Motion.
This pleading was also late, as the Staff is required to respond, if at all, within 15 days of October 7th.
Similarly, no leave was sought to allow a late filing.
II.
SUMMARY
OF SAPL'S MOTION SAPL's Motion focused on a continuing pattern of conduct exhibi ted by Ciu.irperson Hoyt throughout these proceedings.
The legal ba;is of the Motion consisted of the objective
" appearance of bias" standards adopted by Federal Statute as well as the ABA Code of Judicial Conduct.
28 U.S.Q. 6455(a), American Bar Association Code of Judicial Conduct, 3(c)1.
The U.
S. Code 6455(a) provides that:
"(a)
Any
- Justice, Judge, Magistrate, or Referee in Bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonbly be-questioned."
As stated in SAPL's Motion, this " objective" recusal standard has been held applicable to the proceedings conducted before the NRC as well as other Federal administrative proceedings generally.
Houston Light ing and Power Co. (South Texas Project, Units 1 and 2)
CLI-8 2-9,15 NRC 1363 (19 8 2 ), Cinderella Career and Finishing Schools, Inc.
v.
Federal Trade Commission, 425 F.2d 583 (D.C. Cir 1970);
Texaco, Inc. v. Federal Trade Commission, 336 F.2d at 754 (D.C. Cir..
1974) and other cases cited in SAPL's Motion, page 3.
The factual basis for SAPL's Motion consists of numerous ref erences to Judge licyt's hostile conduct as indicated in the hearing transcripts for April 7 and 8, and August 17, 18, 19, 23, and 31.
SAPL's Motion, page 10, et seg.
SAPL asserts that the Judge has demonstrated the appetrance of bias against intervenors and municipal representatives as a
group and that her recusal from further participation in this case is therefore required.
In the matter of Commonwealth Edi son Co. (Zion Sta t ion), ALAB-22 6, 8 AEC 381 (September 5,
1974), SAPL's Motion at 10-25.
SUMMARY
bFAPPLICANTS'ANDSTAFF'SRESPONSES III.
Both the Applicants' and Staff's objections focused on three subject areas:
1)
The context of the Judge's hostile actions.
2)
SAPL's standing to raise instances of bias directed at other intervenors, and 3)
The question of whether grounds for recusal must be strictly limited to " extra-judicial conduct".
Both parties argue that each and every instance of hostile conduct on the part of Judge Hoyt was proper and within the realm f
of appropriate judicial discretion.
The incidents cited in SAPL's Motion were recounted and analyzed f rom the Applicants' and Staf f's perspective.
SAPL's responses to thess arguments are cited belowl.
1.
Specifically,, SAPL's responses are set forth in SAPL's reply to Applicants' and Staff's Answers to SAPL's Motion for Disqualification of Judge Hoyt, filed November 15, 1983.
This response is not part of the record before the Appeal Board because 1)
SAPL was not served and therefore was not on notice of the fact that Judge Hoyt had already ruled on its Motion, and 2) Both the Applicants' and Staff's responses were late and made it impossible for SAPL to respond in a more timely manner.
4 Secondly, both parties argued that SAPL has no standing to raise bias claims on behalf of other parties.
SAPL has never attempted to act on behalf of any party, but rather contends that:
"Whenever a non-obj ect ive tribunal sets f oot on the stage, immediately prejudice results to all who are involved in the proceeding."
In the Mat ter 'of Commonwealth Edi son Co.
(Zion 9'ation), ALAB-226, 8 AEC 381 (September 5, 1974).
Finally, the Applicants and Staff take the position that no matter how pervasive the appearance of bias and hostility on the part of the Judge, the actions giving rise to that appearance stem from her participation in the hearings, is not " extra-judicial", and therefore cannot ser-ve as a basis for recusal.
SAPL asserts that Judge Hoyt's conduct was indeed an extreme case exempting it from the " extra-judicial" requirement.
Houston Lighting, infra.
In the alternative, we believe that the Commission's interpretation of 28 U.S.C. 6455(a) in Houston Lighting, is erroneous and contrary to the intent of Congress in enacting that objective standard.2 IV.
SUMMARY
OF JUDGE HOYT'S ORDER DENYING MOTION On November 2, Judge Hoyt issued an order denying SAPL's Motion for Disqualification.
The Judge's ruling was premised on the following legal and factual rulings.
With respect to the legal standards to be applied, Judge Hoyt ruled that:
l 2.
SAPL also claims that Judge Hoyt's conduct should not be f ound to be " judicial" since the incidents described, although they occurred in the hearing room, were usually directed not to matters of law or evidence, but toward the roles of the parties and the counsel.
...to be disquali f ying, the bias or prejudi ce must der ive from an extra-judicial source and result in an opinion on the merits of an issue in the case based on something other than what the Judge has learned from his participation."
(Emphasis added.)
See Judge Hoyt 's Order issued November 2,
1983.
Judge Hoyt is incorrect as a matter of law on two important points. The Conni ssion's recusal precedent as ar ticulated in Hous ton Lighting, infra, does not mandate that bias must derive from an extra-judicial source.
In
- fact, Houston Lighting holds that disqualification based on judicial conduct is appropriate in extreme cases.
See Houston Liahting, infra, at 1366.
Moreover, to suggest that the bias or prejudice must result in an opinion on the merits of an issue is to entirely disregard the nature of the objective recusal standard.
Subjective existence of bias under that standard is irrelevant.
United States v. Ritter, (C.A. 10, 1976) 540 F.2d 459 and other cases cited in SAPL's Reply to Applicants' and Staff's Answers to SAPL's Motion for Disqualification;of Judge Hoyt, page 3,
filed November 15, 1983.
The Judge further justifies her behavior, as do the opposing parties, on the grounds of judicial discretion and the necessity of
" running a tight ship". See Order, inf ra, page S.
The Judge maintains that all of her actions were consistent with the Commission rules that:
"Where it is necessary to the orderly conduct of a proceeding, the presiding officer may reprimand, censure or suspend from participation in a proceeding any party or representative of a party who refuses to co.uply wi th the Board's directions, or who is guilty of disorderly, disruptive, or contemptuous conduct."
Judge's Order at 4 citing 10 C.F.R. 62.713(c)1.
The Judge then bases her denial solely on an ascertion that "the Judge's conduct in this proceeding has been consistent with these goals".
(Judge's Order at 5.)
Nowhere in the Order is there a single reference to any of the numerous incidents detailed in SAPL's Motion.
Nowhere is there any finding that any party refused "to comply wi th the Board's airect ions," or was " guilty of disorderly, disruptive, or contemptuous conduct."
Finally, the Judge asserts that she has "no bias in favor of or against any party or any party's substantive position on the merits of any issue"- and that:
l "SAPL's brief does not point to any instance where this i
Judge's conduct reflects a predetermination of the merits of the case for the simple reason thtt there har not yet been a judgement ~f ormulated on any issue before the Board."
Judge's Order, page 6.
With respect to these final points, SAPL again points out that the Judge's personal.and subjective opinion is irrelevant to the
" appearance of bias standard" relied upon in its Motion.
Consumer's l
Power Co. (Mi d l and P l an t, Un i t s 1 & 2 ) ALAB-101, 6 AEC 6 0, 63 (19 73)
United States v. Baker, (D.C. Tenn. 1977) 441 Fl Supp. United States
- v. Bofh, (D.C. Del. 1981) 514 F. Supp. at 505, and Fong v. Amer ican o
Airlines, (D.C. Cal. 1977) 431 F. Supp. 1334.3 Finally, we say that the Judge's statement alleging no instances cited by SAPL to reflect bias is entirely without basis.
Even a cursory examination of SAPL's Motion reveals-that it is loaded with such instances which are discussed in detail.
V.
SUMMARY
OF THE APPEAL BOARD'S DECISION First, the Appeal Board rejects Judge Hoyt's ruling that evidence of bias must derive from an extra-judicial source.
ALAB-748, page 3.
This is not to deny that SAPL is absolutely convinced that Judge Hoyt is in fact totally biased.
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The Board recognized the Commission's.noted exception to the general rule where judicial conduct demonstrates " pervasive bias and prejudice".
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Second, the Appeal Board rejects by implication Judge Hoyt's (as well as the Applicants' and Staff's) view that SAPL has no right to raise instances of hostile behavior directed toward other parties in order to demonstrate the appearance of bias.
"A party requesting disqualification on recusal, however, may attempt to establish by ref erence to a Judge's overall conduct that a pervasive climate of prejudice exists in which a f air hearing cannot be obtained by the movement".
ALAB-748, page,5.
Third, the Appeal Board upheld the general rule adopted in Houston Light ing, inf ra, that sources of bias must derive f rom extra-judicial sources. ALAB-7 4 8, 5-6.
It notes that any arguments raised by SAPL to the ef f ect of changing the general rule should be directed to the Commission a'..d are inapproprlate for review by the Appeal Board.
Fourth, the Appeal Board found that the' Judge's conduct was proper in all instances, and did not meet the " extreme case" exception noted in Hous t on Li ght i rg,. The Appeal Board made this ruling without a single reference to c7 analysis of any of the examples of improper, hostile conduct notied in SAPL's Motion. The Appeal Board stated that:
"No useful purpose would be served, however, by reciting the various events that make up the allegations of bias."
ALAB-748, at page 7.
In addition, the Appeal Board f ailed to comment on the context of statements made by Judge Hoyt. Rather, the Board suggests that it is sufficiently familiar with the overall context by virtue of its having ruled on previous requests for directed certification of other l
issues totally unrelated to the Motion.
ALA3-748, page 7.
SAPL
believes that a general vague familiarity with the tone of the proceedings and previous Motions for certification is hardly a basis upon which to render judgment concerning Judge Hoyt's appearance of bias in this instance.
VI.
STATEMENT CONCERNING MATTERS OF LAW AND FACT NOT RAISED BEFORE THE APPEAL BOARD AND WHY THEY WERE NOT RAISED.
The objections to SAPL's Motion filed by both the Applicants and the NRC Staff were inexcuseably late and untimely u-der the regulations.
Those objection.s misquoted the law in several instances, and grossly distorted the context of the Judge's actions.
Further, the Applicants' pleading challenged SAPL's integrity and motives as a responsible party in this proceeding.
Consequently, SAPL believed it essential to seek leave for an appropriate response to the objections.
That response was filed November 16 with the Atcmic Safety and Licensing Board.
Unknown to SAPL, Judge Hoyt had already ruled on the Motion, j
and the Appeal Board was to issue its decision to af firm the following day.
(November 16, 1983)
SAPL was never served with the Judge's Order of November 2, and received actual notice of it only indirectly after it had filed its respons.e on November'15.
As a result, the untimely responses of the objecting parties were made part of the record for review, but SAPL's response was not.
In fact, SAPL is presently unaware as to whether the Appeal Board has cognizance of its response of November 15.
In any event, SAPL asserts that in all fairness, and particularly in light of the attacks levied against it within the Applicants' Response, this Commission should review.
the entire record, including SAPL's response in order to judge the correctness of ASLB-748.
VII.
STATEMENT %11Y ASLB-748 IS ERRONEOUS.
The Appeal Board decision is erroneous because its conclusions are devoid of any relevant factual basis.
Specifically, the Appeal Board held that the Judge's conduct did not create an appearance of
" pervasive bias and prejudice" without analyzing a single, solitary incident referred to in SAPL's Motion.
In this regard the Appeal Board mirrored the Judge's own review of the Motion.
The Appeal Board, instead, statis that "no useful purpose" would be served by exploring the allegations of bias on the record. ALAB-7 48, pages 6-7.
SAPL says that such is an erroneous, conclusory statement made entirely without basis.
Further, to suggest that being " familiar with the context of the litigation" is tantamount to being f amiliar l
with the specifies of Judge Hoyt's hostile act. ions is, in itseif, erroneous. Having ruled on a f ew Petitions for Certification submited by intervenors has nothing to do with the Appeal Board's failure to justify its conclusion that the Judge's actions did not create the l
l appearance of bias in a pervasive manner.
Simply dismissing SAPL's numerous allegations of improper judicial conduct as being the product i
of a high " tension level" is similarily erroneous and without basis.
It is not, under any circumstances proper for a Licensing Board of an Appeal Board to base a conclusion on a statement that it has
" carefully canvassed the materials submited".
ALAB-7 4 8, page 6.
At t
the very least, we believe the Appeal Board should address the l
specifics of SAPL's allegations and address in a more comprehensive i
l l l
manner why it Ses not feel Judge Hoyt has. established a pervasive appearance of partiality.
Further, we assert that the general rule adopted in Houston Lighting regarding " extra-judicial" bias sources is improper for application in these proceedings.
See SAPL's Motion, pages 1-10.
Finally, neither Judge Hoyt nor the Appeal Board has addressed the fact that reasonable, prudent New Hampshire citizens preceive the Judge as being heavily biased against intervenors and municipal representatives.
(See Newspaper Articles appended to SAPL's Motion including "J u d geme n t-or Prejudgement; to Many Participants, the Hearings on Licensing Seabrook were an Empty Exercise", by Hank j
- Nichols, New Hampshire Times, September 12 to September 19, 1983,
(
"Is Deck Stacked?",
Portsmouth Herold Editorial
- Page, Friday, September 2, 1983 noting observations of Editorial Staf f along with those of New Hampshire State Senator Robert Preston, and "Seabrook Hearings Close with Drama",
Foster's Daily' Democrat, et seq.
Regardless of whether the " extra-judicia'. ' rule is upheld, the Appeal Board has failed to consider a significant evidentiary basis for SAPL's assertion that Judge Hoyt has consistently displayed a hostile, biased and partial attitude against intervenors and municipal representatives generally in these proceedings.
While the Appeal Board has, in fact, overruled Judge Hoyt's improper interpretation of the appropriate legal standard, it hat dismissed the Motion with a simple statement that it has reviewed all relevant materials, and believes that no useful purpose would be served by ref erence to them in the Opinion.
We believe this to be clear error on the part of the Appeal Board, and can find no factual basis for the ruling anywhere in the opinion.
VIII.
WtlY THE CO.TNISSION SHOULD EXCERCISE JURISDICTION OVER THIS. MATTER SAPL believes the Commission should exercise its jurisdiction over the matter for three important reasons.
First, it is clear from the record that neither the Judge not the Appeal Board has analyzed a single instance of alleged misconduct on the part of Judge Hoyt.
Regardless of whether this Commission will strike down the general rule adopted in Houston Lighting, inf ra, requiring sources of f ias to be extra-judicial, it is crucial to an b
appropriate review of SAPL's Motion that the Commission review the specific allegations contained therein.
This is true because SAPL has alleged that Judge Hoyt's conduct constitutes an extreme case under the Houston Lighting standards.
Since the Appeal Board dismisses this contentlon with conclusory statements devoid of specific references to either the allegations or the record, it is impossible to know the basis for the Appeal Board's ruling.
Secondly, SAPL seeks to challenge directly the Commission's holding in Houston Lighting with respect to the " extra-judicial" issue.
Its arguments supporting this challenge are set forth in SAPL's Motion at pages 1-10.
It is SAPL's position that public perception of fairness in NRC adjudicatory hearings is an issue of paramount public importance deserving of this Commission's attention.
Therefore, a review and consideration of SAPL's challenge to the extra-judicial rule adopted in Houston Lighting is appropriate under the regulations.
Thirdly, we believe that a factual review of SAPL's specific allegations is warranted because it was unable to file its responses to Applicants' and Staff's positions due to factors beyond its control.
Those factors include:
~
1)
The f act that both the objecting parties' pleadings were filed late, and therefore deferred SAPL's opportunity to respond in a timely manner, and 2)
SAPL was' never served with a copy of Judge Hoyt's Order and therefore was unable to advise the Appeal Doard of the foregoing problem.
Overall, SAPL believes that the erroneous and unsupported ruling by the Appeal Board concerning an issue as important as public perception of f airness in NRC proceedings raises extremely important public policy questions which are both ripe and appropriate for Commission review at this time.
WHEREFORE, the Seacoast Anti-Pollution League respectfully requests that the Commission accept review of ALAB-748, that it allow into the record for its review SAPL's Reply to Applicants' and Staf f's Answers to SAPL's Motion for Disqualification of Judge Hoyt, and that this review be commenced as soon as possible in advance of further rulings by Judge Hoyt having significan~t impact on intervenors and municipals representatives in these proceedings.
l 1 /
Respectfully submitted, Seacoast Anti-Pollution League By its attorneys, BACKUS, SHEA & MEYER By:
/
dm R6bbet K. Sa6kus 116 Lowell St., Box 516 Msnehester, N.H.
03105 i
Tel:
(603) 668-7272 December 1, 1983 G
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.,./fif 5/r CERTIFICATE OF SERVICE 7
DATED:
December 1,1983 I, Robert A. Backus, hereby certfy that I have mailed to the attached list of people, first-class, postage prepaid a copy of the enclosed SAPL's Petition for Review by the U. S. Nuclear Regulatory Commission. If served by Federal Express or Express Mail it is so indicated by
- by the person's name.
2 l
ROBERT A. BACKUS i
l
Brian Cassidy Helen Hoyt. C h.a.
Thomas G. Dignan, Esq.
Fed. Errerg. y.gmt. Agcy.
Admin. Judge Ropes and Gray Region I Atomic Safet y & Lic.
225 Franklin Street J.W.LConnack POQi Board - U.S. NRC Boston, MA 02110 Baster., MA 02109 Washington, DC 20555 Sen. Gardon Humphrey 7nin d
Attn: Tan Burack htomicSuft$LLic.
NRC i t DC 20510 "E
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D 20555 Sen. Gordon Humphrey Roy P. Lessy, Jr., Esq.
Robert L. Chiesa, Esq.
Office of Executive Attn: Herb Boynton 95 Market Street 1 Pillsbury Street Legal Director Manchester, NH 03101 U.S. NRC Concord, NH 03301 Washington, DC 20555
.Phillip Ahrens, Esq.
Jane Doughty Asst. Atty. General Field Director Town Manager's Office State House, Station #6 SAPL Town Hall - Friend St.
Augusta, ME 04333 5 Market Street Amcsbury, MA 01913 Portsmouth, NH 03801 Donald E. Chick Anne Verge, Chairperson Dana Bisbee Town Man
. Board of Selectmen T0"" H"13 Attorney General's Office 10 Front eet S
e wH h re Exeter, Mi 03833 So. llanpton, Nil 03842 Dr. Emmeth A. Luebke Carole F.
Kagan, Esq.
e of Se h m Admin. Judge Atomic Safety & Lic. Brd.
Town of North Hampton Atomic Safety & Lic.
U.S. NRC - Rm. E/W-439 North Hampton, Mi 03862 Board - U.S. NRC Washington, DC 20555 Washington, DC 20555 Jo. Ann Shotwell, Asst. AG Calvin A.
- Canney, One Ashburton Place, 19th City Mgr.-City Hall Floor 126 Daniel Street Boston, MA 02108 Portsmouth, NH 03801 Q1arles Cross, Esq.
William S. Jordan, II, Esq.
Mr. Angie Machizos, Chnun.
25 Maplewood Ave.
Ellyn R. Weiss, Esq.
Board of Selectmen p.O. Box 36G 1725 I Street, N.W.
Town of Newbury Portsnouth, NH 03801 Suite 506 Newbury, MA 09150 Washington, DC 20006 Edward Meany Dr. Muray Tye. President Sandra Gauvutis
'Iban of Rye Stm Valley Assoc.
Town of Kinsington 155 Washington Road 280 Haverhill Street RFD 1 Rye, Ni 03870 inwrence, MA 01840 East Kensington, NH 03827 Alfred Sargent, Chm.
Richard E. Sullivan, Mayor Brentutxxl Board or Selectmen Ci y Hall Board of Selectmen hw
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