ML20083A340
| ML20083A340 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/15/1983 |
| From: | Zaleski M MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-749, ISSUANCES-OL, NUDOCS 8312200262 | |
| Download: ML20083A340 (11) | |
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UNITED STATES OF AMERICA OggED NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission
'83 DEC 19 A!0:48
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,y In the matter of:
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Es; 1:
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Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY
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50-444-OL OF NEW HAMPSHIRE
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(Seabrook Station, Units I and II )
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ATTORNEY GENERAL FRANCIS X.
BELLOTTI'S PETITION FOR REVIEW BY THE NUCLEAR REGULATORY COMMISSION OF ALAB-749 Pursuant to 10 C.F.R. 52.786(b)(1), Attorney General Francis X. Bellotti, a duly admitted intervenor in the above-named proceeding, hereby petitions the Nuclear Regulatory Commission (hereinafter "NRC" or " Commission") for review of ALAB-749, rendered November 28, 1983.
As grounds for this petition, Attorney General Bellotti asserts that the Atomic Safety and Licensing Appeal Board's dec'ision upholding the denial of his motion for recusal of the chairperson of the Atomic Safety and Licensing Board is erroneous with respect to important questions of fact, law and policy.
2 PROCEDURAL HISTORY Attorney General Francis X.
Bellotti filed a Motion for Disqualification and Recusal of Judge Helen F. Hoyt, with supporting Memorandum and Affidavit, on October 28, 1983.
The grounds for the Motion, as set forth more fully in the Memorandum and supported in the Affidavit, are that Judge Hoyt f
8312200262 831215 PDR ADOCK 05000443 0
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f has exhibited such personal animosity and bias toward the Commonwealth and intervenors' counsel and town representatives that a full and fair proceeding is impossible.
This bias has pervaded the entire proceeding, and was exhibited in such conduct by Judge Helen F.
Hoyt as:
1) reading aloud from the Commonwealth of Massachusetts' pre-filed, confidential cross-examination plan, thereby alerting the Applicants' witnesc to the next area of inquiry and thereafter demanding that counsel for the Commonwealth waive any objection to that disclosure as a condition of continued participation in the proceeding; 2) failing to treat seriously the observations of four town representatives that two Applicant witnesses and one NRC Staff witness and been signalled; failing to conduct a full evidentiary hearing regarding the alleged signalling; determining that the NRC Staff witness, Dr. Urbanik, had not been signalled prior to the receipt of any evidence of that nautre from Dr.
Urbanik; and threaten.ag to remove from the hearing room any representative that'makes any such allegation again; 3) denying the Commonwealth's and intervenors' counsel and town representatives the right to make a full and complete record of the proceeding by:
a) failing to permit them to speak on the-record; b) instructing the stenographer to disregard remarks; and c) refusing them the right to cross-examine witnesses unless a cross-examination plan had been pre-filed; 4) conducting a side bar conference in which attorneys and town representatives were reprimanded for behavior which the record indicates was appropriate in substance and form; 5) expelling the Commonwealth's counsel and a town representative for behavior which the record clearly indicates did not warrant such a sanction; 6) contacting the Town of Rye ex, parte and conducting an in-chambers ej( parte session of all attorneys but excluding town representatives; and t.
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4 7) addressing the Commonwealth's counsel and intervenors' counsel and town representatives with ridicule and intemperance.
Judge Hoyt denied the motion on November 22, 1983; the Appeal Board affirmed that decision on November 28, 1983.
In reaching their decisions, both Judge Hoyt and the Appeals Board conclude that the conduct complained of is not disqualifying because it does not stem from an extrajudicial source.
In addition, the Appeal Board concludes that Judge Hoyt's conduct is not extrajudicial even if it is " unnecessary" or " inappropriate" to the judicial process, and that her conduct did not exhibit hostility, bias and prejudice sufficient to constitute pervasive bias, which conduct need not be extrajudicial to be disqualifying.
ALAB-749, 7-8.
Both Judge Hoyt's decision and the Appeal Board's decision are in error.
WHY THE COMMISSION SHOULD EXERCISE REVIEW Attorney General Bellotti urges the Commission to exercise review in this matter for the following reasons.
A.
The Conclusions Reached by Judge Hoyt and the Appeal Board Are Erroneous
- There is substantial evidence in the record to support a
' finding that Judge Hoyt is biased and prejudiced toward the Commonwealth and intervenors' counsel and town representatives.
The objective standard of review requires recusal and disqualification V en a judge exhibits the appearance of bias and oc radd, whether or not she believes herself to be such.
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B.
The ALAB failed to make findings, or to give the reasons and basis for its conclusions, as required by the Administrative Procedure Act.
The Administrative Procedure Act (APA), which is applicable to NRC licensing proceedings (5181, Atomic Energy Act, 1954, as amended, 42 U.S.C.
2231), requires that:
All-decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of -
(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof.
The purpose of this requirement is to inform the parties and any reviewing body of the disposition of the case and the grounds upon which the decision is based, Borek Motor Sales, Inc., v. NLRB, 425 F.2d-677 (7th Cir. 1970, cert. den.
400 U.S.
823; to provide courts with a basis for judicial review -
with an intelligible statement of the factors considered, issues decided and reasons supporting the conclusions, Re Boston's P.R.
Corp., 428 F.2d 159 (1st Cir. 1970); and to offer a degree of protection from unrestrained and unwarranted
- bureaucratic action, Bell Lines, Inc., v. United States, 263 F.Supp. 40 (S.D.W.VA. 1967).
In his motion for recusal, the Attorney General raised seven categories of conduct which clearly support a finding of 1!
pervasive bias for which recusal is warranted.
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In the alternative, Attorney General Bellotti alleged that the judge's conduct is extrajudicial in that it is unnecessary 1
or inappropriate to the judicial proceeding.
Memorandum, p. 16. l, m
4 As to.these factual matters, the ALAB responded without
- analysis'or. detail:
Without attempting to address the merits of any of the allegations,~we note that three of the seven examples of alleged bias involve adverse rulings by the Licensing Board.
Three other examples involve supposed. violations of administrative procedure and thus also constitute essentially charges of legal error.
The remaining example involves allegedly intemperate remarks directed at counsel or representatives.
These matters simply do not reflect
. pervasive bias warranting recusal or disqualif ication.
Memorandum and. Order, pgs. 9-10.
This conclusion is not sufficient to meet the APA requirement that findings and conclusions, and the underlying 4
reasons or basis therefor, be stated in agency decisions.
It is certainly not clear from the decision whether either Judge Hoyt or the Appeal Board analyzed the instances of alleged misconduct raised-in the Motion and Memorandum.
It is
'therefore appropriate that the Commission review these specific allegations.
It-is the pos'ition of the Attorney General that Judge Hoyt's conduct warrants recusal, because it is extrajudicial in that it is inappropriate and unnecessary to the judicial process and exhibits such pervasive hostility and
- prejudice that a fair oroceeding is impossible.
I C.
The NRC should broaden its interpretation of 28 U.S.C.
5455(a).
-The Appeal Board stated in its Memorandum and Order that:
.Much of the memorandum filed in support of the Attorney General's motion is taken up with an argument that the i.
standard for review established by the Commission in the South Texas case.is too narrow.
Memorandum in Support of Attorney General Bellotti's Motion, supra at 2-15.
Any request for a change is that standard must be addressed to i
the Commission.
ALAB-479, pg. 8.
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In South Texas, the Commission looked to the objective standard of 28 U.S.C.
5455(a) in reviewing and reversing the ALAB's determination to recuse the presiding officer.
While recognizing the pervasive bias exception to the extrajudicial source rule, the Commission erred in interpreting 28 U.S.C S455(a) so narrowly as to eliminate judicial conduct as disqualifying.
The Commission not only erroneously relied on 1
cases decided before the 1974 amendment to 28 U.S.C.
S455(a),
but also erroneously relied on In re International Business Machines, Inc., 618 F.2d 923 (2nd Cir. 1980), which can easily be distinguished from_the present case.
Memorandum, pages 8-13.
The Commission should use this opportunity to review recent cases under 28 U.S.C. S455(a) that have broadened the standard for recusal.
As discussed in the Attorney General's Memorandum, other circuits, including the First Circuit where this matter will be reviewed, have determined that in some cases judicial conduct can be a basis for recusal and
'di3 qualification.
Memorandum, pgs. 10-12.
There are strong policy reasons as well for broadly interpreting 28 U.S.C.
5455(a) in NRC proceedings.
These policy reasons include strengthening the public's confidence in the licensing proceeding by ensuring that recusal can be used as a remedy when judges are-biased or partial within a proceeding.
Memorandum, pgs. 13-15.
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CONCLUSION For the reasons set forth above, Attorney General Bellotti urges the Nuclear Regulatory Commission to exercise review of the complete record to find that Judge Helen F. Hoyt must be disqualified and recused from presiding from over the licensing proceeding.
FRANCIS X.
BELLOTTI By his attorney, gap {f.
o)Mb Margkret A
~1eski Assistant At orney General Public Protection Bureau One Ashburton Place, 19th Floor Boston, Massachusetts 02108 617-727-4475 Date:
December 15, 1983 _
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission
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In the matter of:
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Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY
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50-444-OL OF NEW HAMPSHIRE
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-(Seabrook Station, Units I and II )
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NOTICE OF APPEARANCE In accordance with 10 CFR S2.713(b), the undersigned attorney files this Notice of Appearance as representative of the Commonwealth of Massachusetts in the above-captioned matter.
Name:
Margaret A.
Zaleski Address:
Office of the Attorney General Public Protection Bureau One Ashburton Place, 19th Floor Boston, Massachusetts 02108 Telephone No:
(617) 727-4475 Admissions:
Massachusetts Supreme Judicial Court United States District Court, Massachusetts United States Court of Appeals for the First Circuit Party Represented:
Department of the Attorney General Dated:
December 15, 1983 GAQO W Murgkret A. Zayeski Assistant Attoyney General Public Protection Bureau Department of the Attorney General One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-4475
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CERTIFICATE OF SERVICE I,
Margaret A.
Zaleski, Esquire, counsel for Massachusetts Attorney General Francis X.
Bellotti, hereby certify that on December 15, 1983, I made service of Attorney General Bellotti's Petition for Review by the Nuclear Regulatory Commission of ALAB-749 and Notice of Appearance by mailing copies thereof, postage prepaid, to the parties named below:
Helen Hoyt, Chairperson Rep. Beverly Hollingworth Atomic Safety and Licensing Coastal Chamber of Commerce Board Panel 209 Winnacunnet Road U.S.
Nuclear Regulatory Commission Hampton, NH 03842 Washington, DC 20555 Dr. Emmeth A. Luebke William S. Jordan, III, Esquire Atomic Safety and Licensing Diane Curran Board Panel Harmon & Weiss U.S.
Nuclear Regulatory Commission 1725 I Street, N.W.
Washington, DC 20555 Suite 506 Washington, DC 20006 Dr. Jerry Harbour Edward L.
Cross, Jr.,
Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Dana Bisbee, Esquire U.S.
Nuclear Regulatory Commission Assistant Attorney General Washington, DC 20555 Office of the Attorney General 208 State House Annex Concord, NH 03301 Atomic Safety and Licensing Appeal Roy P.
Lessy Board Panel Deputy Assistant Chief U.S.
Nuclear Regulatory Commission Hearing Counsel Washington, D C 20555 U.S.N.R.C.
Washington, DC 20555 Atomic Safety and Licensing Robert A.
Backus, Esquire Board Panel 116 Lowell Street U.S. Nuclear Regulatory Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Dr. Mauray Tye Assistant Attorney General Sun Valley Association Department of the Attorney 209 Summer Street General Haverhill, MA 01830 Augusta, ME 04333
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Carole F.
Kagan, Esq.
Thomas G. Dignan, Jr.,
Esquire Atomic Safety and Licensing Robert K. Gad, III, Esquire Board Panel Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Washington, DC 20555 Boston, MA 02110
' Charles Cross, Esquire Ms. Olive L. Tash
.Shaines, Madrigan, & McEachern Designated Representative of 25 Maplewood Avenue the Town of Brentwood P.O. Box 366 R.F.D.-1, Dalton Road Portsmouth, NH 03801 Brentwood, NH 03833 Roberta C.
Pevear Edward F. Meany Designated Representative of Designated Representative of the Town of Hampton Falls the Town of Rye Drinkwater Road 155 Washington Road Hampton Falls, NH 03844 Rye, NH 03870 Mrs. Sandra Gavutis Calvin A. Canney Designated Representative of City Manage.r the Town of Kensington City Hall RFD 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Richard E.
Sullivan Jane Doughty Town Hall Field Director Newburyport, MA 01950 Seacoast Anti-Pollution League 5 Market Street Portsmouth, NH 03801 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Brian P. Cassidy Representative Nicholas J.
Costello
-Regional Counsel 1st Essex District
. FEMA Region ~1 Whitehall Road John W. McCormack Post Office Amesbury, MA 01913
& Courthouse
~ Boston, MA 02109 Mr. Angie Machiros, Chairman Diana P. Randall Newbury Board of Selectmen 70 Collins Street Town of Newbury, MA 01950 Seabrook, NH 03874 Patrick J. McKeon Anne Verge, Chairperson Chairman of Selectmen, Rye, Board of Selectmen New Hampshire-Town Hall 10 Central Road South Hampton, NH 03842 Rye, NH 03870
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Donald E. Chick Maynard B.
Pearson Town Manager Board of Selectmen Town of Exeter 40 Monroe Street 10 Front Street Amesbury, MA 01913 New Hampshire 03833 Selectmen of North Hampton Mr. Daniel Girard Town of North Hampton Civil Defense Director New Hampshire 03862 25 Washington Street Salisbury, MA 01930 Senator Gordon J.
Humphrey Senator Gordon J. Humphrey 1 Pillstury Street U.S.
Senate Concord, NH 03302 Washington, D.C.
20510 (Attn:
Herb Boynton)
(Attn:
Tom Burack)
Signed under the pains and penalties of perjury, this 15th day of December, 1983.
(AAq AAL
- 0.b Margaiet A.
Zalpski Assistant Atto(ney General Public Protection Bureau One Ashburton Place Boston, MA 02108 (617) 727-4475 l
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