ML20083G253

Rsponse to Aslab 831228 Order Re Recusal Motion by State of Nj Ofc of Public Advocate.Replacement of Aslab Member Carpenter Urged.Certificate of Svc Encl

ML20083G253
Person / Time
Site:	Hope Creek
Issue date:	01/09/1984
From:	Conner T CONNER & WETTERHAHN, Public Service Enterprise Group
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8401110210
Download: ML20083G253 (7)

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00CHETED USNPC UNITED STATES OF AMERICA 84 Ji'!10 A10 53 NUCLEAR REGULATORY COMMISSION 0FFICE ^r SEc: ?

Before the Atomic Safety and Licensing Appeal Bodrd'tC <5f! ,

Public Service Electric and ) -

Gas Company )

) Docket No. 50-354-OL (Hope Creek Generating )

Station) )

APPLICANTS' RESPONSE TO ORDER DATED DECEMBER 28, 1983 REGARDING RECUSAL MOTION BY THE PUBLIC ADVOCATE Preliminary Statement By an Order dated December 28, 1983, the Chairman of the Atomic Safety and Licensing Appeal Panel requested Public Service Electric and Gas Company, et al. ("Appli-cants") to furnish the Appeal Board with their views regard-ing a motion filed by intervenor Public Advocate of the State of New Jersey ("Public Advocate") on November 18, 1983, requesting that Administrative Judge James H. Carpen-ter disqualify or recuse himself from further service as a member of the presiding Licensing Board in this proceeding.

The instant memorandum is filed in compliance with the Chairman's directive.

Discussion The prevailing rule regarding the disqualification of a licensing board member was stated in Midland as follows:

[ A] n administrative trier of fact is subject to disqualification if he has a 8401110210 840109 i

PDR O ADOCK 05000354

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I direct, personal, substantial pecuniary interest in a result; if he has a

" personal bias" against a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are an 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 prejudg-ment of factual issues.1/

Our review of the NRC case law on disqualification indicates that, for the most part, disqualification cases have involved a party's dissatisfaction with a licensing board member's personal comportment or his conduct of the proceeding. In South Texas, the Commission held that such conduct rarely, if any, provides a basis for disqualifica-tion.2/ Rather, the Commission adopted the standard .-

utilized by the federal courts to the effect that "disquali-fying bias or prejudice of a trial judge must generally be extra-judicial."3_/

Unfortunately, neither South Texar nor the other cases s

provide helpful guidance with regard to a claim of prior involvement by a licensing board member perfortring 1/ Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-101, 6 AEC 60, 65 (1973). The Midland standard was cited with approval in Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301 (1978).

2/ Houston Lighting and Power Company (South Texas Project, Units 1 & 2), CLI-82-9, 15 NRC 1363, 1365 (1982).

3/ Id.

I consulting services for a license applicant. Accordingly, we have reviewec the relevant documents as regards Dr.

Carpenter on the basis of the general standards outlined in Midland. Based upon that review, including an examination of the documents which the undersigned counsel furnished to Dr. Carpenter and the parties at his request by letter dated December 1, 1983, Applicants believe that there is nothing which requires Dr. Carpenter's disqualification. In our view, the matters as to which Dr. Carpenter provided consul-tant services do not, under Midland, give rise to any

" direct, personal, substantial pecuniary interest" in the operating license proceeding, demonstrate any personal bias or factual prejudgment, . or give the appearance of bias or -

prejudgment.

Specifically, we find no reason.to question Dr. Carpen-

.ter's statement that his prior work on behalf of Public Service Electric and Gas Company regarding the Hope Creek Generating Station "was limited.to evaluating the potential thermal effects of discharges of heated waters," which are not at issue in this proceeding.4/ Nor do Applicants have any basis upon which to disagree with Dr. Carpenter's factual and legal conclusions:

I have not prejudged any issues in dispute in this case, nor do have any 4_/ Public Service ' Electric and Gar Company (Hope Creek Generating Station, Unit 1) , Docket No. 50-354-OL,

" Memorandum" (December 8, 1983) (slip op. at 3).

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5 bias with respect to the proper deter-mination of those issues. My work performed over a decade ago for PSE&G presents no objective basis for assuming the existence of any appearance of bias or prejudgment.5/

Nonetheless, Applicants have no way of predicting what conclusion an appellate tribunal ultimately reviewing decisions in this proceeding might reach, at least regarding the possible appearance of a conflict of interest on the part of Dr. Carpenter,. If, for example, a reviewing tri-bunal were to vacate the Licensing Board's initial decision authorizing the issuance of an operating license for Hope Creek on the ground that Dr. Carpenter should have been disqualified, and to remand the case for further proceed-ings, the consequences to Applicants caused by the delay would be critical.

Because it is in Applicants' best interest that any possible reason for delay in the issuance of a license be avoided, a cautious approach to the situation at hand 5/ Id.

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dictates the replacement of Dr., Carpenter with another Board member as to whom no question exists.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

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/,or , lkNfk Troy . Conner, Jr.

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Counsel for the Applicant January 9, 1984

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'a UNITED STATES OF AMERICA NUCLEAR. REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board Public Service Electric and )

' Gas Company

)

) Docket No. 50-354-OL (Hope Creek Generating )

Station) )

CERTIFICATE OF SERVICE I; hereby certify that copies of " Applicants' Response to Order Dated December 28, 1983 Regarding Recusal Motion by the Public. Advocate," dated January 9, 1984 in the

-captioned matter have been served upon the following by deposit in the United States mail on the 9th day of January, 1984:

Mr. Alan S. Rosenthal Dr. Peter A. Morris Chairman Atomic Safety and .-

Atomic Safety and- Licensing Board Panel Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission' Washington, D.C. 20555

~ Washington, D.C. 20555 Dr. James H. Carpenter Thomas S. Moore Atomic Safety and Atomic Safety and Licensing Board Panel Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory- Commission

-Commission Washington, D.C. 20555 Washington, D.C.- 20555

. Atomic Safety and Dr.-Reginald L. Gotchy. Licensing Board Panel Atomic Safety and U.S. Nuclear Regulatory

~ Licensing Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555

' Commission-

. Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel Marshall.E. Miller, Esq. U.S. Nuclear Regulatory Chairman Commission Atomic Safety and .

Washington, D.C. 20555 Licensing Board Panel U.S. Nuclear Regulatory Commission Washington,'D.C. 20555

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Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lee S. Dewey, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission "

Washington, D.C. 20555 Theodore C. Granger, Esq.-

Deputy Public Advocate Department of the Public Advocate Division of Rate Counsel 744 Broad Street 30th Floor Newark, New Jersey 07102 Richard Fryling, Jr., Esq.

Associate General Counsel .-

Public Service Electric &

Gas Company P.O. Box 570 (TSE)

Newark, NJ 07101 R. William Potter, Esq.

Susan C. Remis, Esq.

State of New Jersey Department of the Public Advocate CN 850 Hughes Justice Complex Trenton, New Jersey 08625 Carol Delaney, Esq.

Deputy Attorney General Department of Justice State Office Building 8th Floor 820 N. French Street Wilmington, DE 19810 Rob'e rt M. Rader