ML20106G566
| ML20106G566 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/13/1985 |
| From: | Bernabei L, Doroshow J CHRISTIC INSTITUTE, GOVERNMENT ACCOUNTABILITY PROJECT, THREE MILE ISLAND ALERT |
| To: | Smith I Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-581 SP, NUDOCS 8502140415 | |
| Download: ML20106G566 (25) | |
Text
{{#Wiki_filter:_ ~ . 51,1 'IWIA 2/13/85 UNITED STATES OF AMERICA NUCLEAR REGULA'!ORY CGGIISSION BEFORE p!NISTRATIVE LAW JUDGE IVAN W. SMITH ^ Nt(( '85 FF 14 Aja:59 -In the Matter of ) METROPOLITAN EDISON OCDIPANY DoeketNo.50-289)Ah,$a,,,;,, ) (Restart -- Management t :: > (Three Mlle Island Nuclear ) ' Phase) Station, Unit 1) ) 4 THREE MILE ISLAND ALERT'S InEyrION FOR LEAVE '!O FILE REPEV XRD REPET T6 LTcERSEE IRD ROCLEIR REOULKTORY 1 coMMIERTOR STAFF B RESPONBEE TO 00HRDNWEXETR OP PERRETEVANIA l T - TRREE RTLE THEIRD XEERT XRD DNTUR 5F 55RCERRED 55TERTTETR 1
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i Three Mlle Island Alert ("TMI A") requests leave to a i j submit the following reply to Licensee and Nuclear Regulatory l Commi s s ion ("NRC" or "Commi ssion") S ta f f responses to j Commonwealth of Pennsylvania, TMIA and Union of Concerned f Sci en t i s t s' ("USC") mo t i ons to disqualify Judge Ivan Smi th.I i l I _BA_C_K_G_RO_UND. l The Commonweatlh of Pennsylvania, TMIA and UCS have moved i that Chairman Ivan W. Smith be removed f rom this case on the I TMIA's Findings of Fact and Conclusions of Law on the Dieckamp Mallgram Issue were submitted on February 8,1985. Therefore, TMIA counsel has not had an opportunity at any prior time to submit a reply to Licensee and NRC Staff responses to TMIA's motions to' recuse. -The NRC Staf f's response was received by TMIA counsel on January 30, 1985. Licensee's response was received on January 28, 1985. S g2140415850213^="o5ooog 3so;
1 ground that he has demonstrated a bias in favor of lleensee and j prejudged issues currently pending before him. Licensee has l l opposed these motions. The NRC Staff supported the motions to disqualify on the ground that certain of Judge Smith's actions, l based on extra-judicial matters, give the appearance of blas, I prejudgmenent or an inclination to decide issues other than by a strict, objective assessment of the evidentiary record. NRC I Setaff Response at 22. 1 i TMIA requests leave to file this reply to respond to the following points raised by Licensee and the NRC Staff: 1) TMIA's complaint that Judge Smith has demonstrated a i pervasive bias and prejudice during the hearings is not supported by the record, Licensee Response at 27-42; NRC Staff Response at l 15-20; 2) TMIA's complaint that Judge Smlth has demonst rated throughout the current remanded hearings on management integrity, 1 i and during prior hearings, a pervasive bias and prejudice, is untimely, Licensee Response at 27-28, n.18; NRC Staf f Response at 17, n.18 ; 3) The Commonwealth, TMIA and UCS have failed to establish that a reasonable person possessing all the facts would conclude t that Judge Smith is biased in favor of Licensee or prejudiced I against any other party, Licensee Response at 43-47;
- 4) TMIA has not demonstrated the need or legal basis for l
rehearing on those issues heard by Judge Smith, or for I reconstitution of the Atomic Safety and Licensing Board to rehear those issues tainted by Judge Smith's bias or prejudice, Licensee Response at 28-29, NRC Staff Response at 23-25. 2 t
~. a. I 7 I 1. THE RECORD SUPPORTS TMIA'S CLAIM WIAT JUDGE SMITH HAS - 5EddWNYIllTED FiFA%ITR 5TAS AMTPTtE3VD'IM!N g _REltKRT HEKRTR5. A. 1M_IA'S CLAIM IS TIMELY. l TMIA ef ted Judge Smith's rulings and conduct in the origi-nel or main hearings on management competence, his conduct in the 4 1 hearings on the Dieckamp Mailgram issue, and his conduct in the most recent remanded hearings on training, as demonstrative of 4 1 the pervasive bias and prejudice he has exhibited as Chairman of l 1 the Atomic Safety and Licensing Board (" Licensing Board") for the TMI-l restart hearings. TMIA Motion to Disqualify at 14-23. I Licensee contends that any claim that Judge Smith exhibited i bias during an earlier phase of these hearings is untimely. However, TMIA has in fact argued that the Licensing Board, which j Judge Smith chaired and which he clearly dominated, was biased for the Licensee and prejudleed against TMIA during the main l hearings. Among the arguments TMIA made in TMIA's Brief in l Support of Exceptions to Part tal Initial Decisions of August 27, 1981 and July 27, 1982 Management Issues and Reopened i Proceedings, are the following: 1) The Board blamed TMIA for not adequately litigating certain questions and for not cross-examining certain witnesses, even when TMIA's limited resources and expertise prohibited them from developing the record furthers
- 2) The Board often criticized intervenors on the record and gave deference to licensee and licensee witnesses 3)
The Board violated intervenors' due process rights by 3 _.. _ _ _ _ _ _, _ - -. _. - _ - - - _ _. - _ _ - - _ _. _ _. _.. _ _ _ _ _ _ _.. _ _ _ _. _. - ~. _ _ -.. _ _ _ _ _ _ -
forcing TMIA to present its ease first on TMIA Contention 5 I concerning deferred maintenance on pafety-related items; 4) The Board arbitrarily rejected TMIA's exhibits or accepted them only for limited purpose, but in similar i circumstances accepted licensee and NRC Staff exhibits. See TMIA { Brief in Support of Exceptions (Sept. 30, 1982), at 2-5, 27-28. TMIA also raised all objections of bias or prejudice listed In its Motion to Disqualify on the record during the hearings on the Dieckamp Mailgram issue. However, it was not possible to i make an argument that Judge Smith had demonstrated a pervasive bias or prejudice or had engaged in a pattern of conduct prejudicial to TMIA until af ter a substantial portion of the j hearings were completed and such a " pattern" was evident. It was only near the completion of the hearings that Judge { Smith's obsession with the rights of licensee employees became j apparent, even though he had mentioned it on various prior j occasions. For instance, Judge Smith expressed his overriding concern with employees' rights when TMIA moved for sequestration I of wi tnesses, Tr. 29,092; when David Gamble testifled as-to 1 ) deficiencies in the IE investigation into and report on l information flow during the TMI-2 accident, Tr. 30,687; and when Judge Smith refused to sustain objections to leading questions by licensee counsel of Herman Dieckamp, on the ground that although the questions were leading, the Board would " simply have 4 j to tolerate leading questions...This man is enti tled to get these f poin t s ou t." Tr. 2 8,9 4 6. It was only af ter a number of such incidents that a pat tern of bias could be proven. This pattern of conduct culminated in 4 ~ ~ -.
Judge Sml th's let ter to Judge Rambo, in which he expressed his ] continuing concern over the effect his judicial actions may have had on James Floyd. Therefore, TMIA contends that it has been timely in its documentation of the bias and prejudice of Judge Smith, both in i the main hearings and in these remanded hearings on management integrity. B. THE RECORD SUPPORTS 'IMIA'S CLAIM 'IMAT JUDGE SMITH HAS D_MRTRXTEgPERVIIIVE HXS IND PREJUDTCE-- - The NRC Staf f claims that the instances elted by TMIA do not L prove Judge Smi th's lack of judicial temperament, but rather "may l be prompted by his need to determine the truth"; are Judge Smith's immediate reactions to material properly before him; and, In any event, are not generally reflective of Judge Smith's judicial demeanor. NRC Staf f Response at 18-19. i Licensee claims that the cited instances are only " rulings adverse to TMIA, occasional impatience by the Board with TMIA's l failure to exhaust its arguments...and...admoni shment by the l Board for disrespectful and unprofessional behavior exhibited by i j TMIA's a t t o r ney." Licensee's Response at 28. The instances cited by TMIA do not reflect Judge Smith's careful consideration of the evidence properly before him, but in l most cases are attempts to prevent TMIA from developing a record in support of its case. For example, in its motion, TMIA cited only one instance of Judge Smith's attempt to prohibit counsel f rom conferring during the hearing. Tr. 30,958. However, the record contains further instances where Judge Smith similarly attempted to prohibit discussion between counsel, which would 5 -m.- --,--_--w., .m,, -w,,,.,,- ,.,,,p ,mw c_g.w%_,,.--_.,_,_-pm..,._...c, ,,i._.%_., -r
~ i 9 t' effectively inhibit full representation of their elient TMIA. These are described as follows: 1) Judge Smith comments on TMIA counsel conferring with each other even though counsel clearly understand Judge Smith's ruling and have not impeded the progress of the hearing in any 1 manner, Tr. 29,039; 1 2) Judge Smith admonishes TMIA counsel from conferring during the examination of Gary Miller, and as a puni.tive gesture j strikes a portion of Miller's testimony elleited upon cross-j examination, Tr. 30,150; 3) Judge Smith admonishes TMIA counsel for " chatting" 4 j during the. hearing while TMIA counsel were attempting to ] determine whether there had been any prior requirement to prefile j rebuttal testimony on the Dieckamp Mallgram issue, and counsel 'I obviously understand everything that Judge Smith previously 3 stated, Tr. 30,506-508; j 4) Judge Smith attempts to prohibit TMIA counsel from { placing on the record their objections to NRC Staff witness Mos el ey's testimony, and in the course of this discussion, j admonishes TMIA counsel who are conferring in an attempt to provide the Licensing Board with citations to the record to support TMIA's pos i t lon, Tr. 29,796-799. Moreover, Judge Sml th's frequent interruption of counsel's questioning is clearly an attempt to disrupt TMIA's cross-examination of licensee witnesses and in some cases signal to 4 witnesses the answer the Board would prefer to hear. In addition to the examples et ted in the brief TMIA points to the following i 6 t ,.-~n-,,- -n..-e, a-wc------,--g ,,--,r.- e--. .,,p,~g,
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- - ~ - - additional examples of Judge Smith's demonstrated bias: 1) Judge Smith allowed Dieckamp to read portions of his prior interview at the hearing even though they were not relevant to the question TMIA had posed, Tr. 28,797-806; 2) Licensee counsel was permitted to interrupt TMIA's cross examination of Dieckamp in order to read portions of Joseph j Chwastyk's prior interview into the record. Judge Smith, instead of attempting to maintain an orderly proceeding, directed TMIA's i counsel to accept licensee's use of Chwas tyk's interview as well as the interruption of TMIA's questioning of licensee's chief a wi tness Dieckamp, Tr. 28,835-837; 3) Judge Smith permitted licensee counsel to interrupt TMIA's cross-examination of John Herbein to ask about the intended purpose of counsel's line of questioring. When TMIA counsel objected to the interruption, Judge Smith admonished her for making "no effort to give a cross-examination that really freflects the data that [she is] using. Tr. 30,319. There was no evidence on the record that TMIA counsel was misstating the record or that licensee counsel had any valid objection to TMIA's line of questioning. 2 TMIA counsel, the foilowing day, explicitly stated on the record TMIA's objection to Judge Smith's continuing interruption of cross-examination and insistence that TMIA prove other parties' cases as well as that of TMIA's. Tr. 30,354-363. i 2 Judge Smith had at no time interrupted licensee or NRC Staf f counsel to insist that they read into record large portions of depositions, or make points for the other parties in the proceeding. ~ 7
Further, Licensee claims that Judge Smith's order that all parties file their proposed findings in the form proposed by licenses, was " intended to aid the parties and to ensure no party's views were overlooked by the Board in preparing its dec i s i on." Licensee's Response at 41, n.2 2. In fact, a dispassionate review of the transcript reveals that Judge Smith was attempting to prohibit TMIA counsel from placing on the record TMIA's obj ect ions to licensee's proposed outline for Proposed Findings of Fact and Conclusions of Law. When counsel persisted in doing so, Judge Smith admonished counsel for bel.ig j " impertinent" and ordered TMIA to file findings on all issues heard during the hearing. Tr. 31,7(8. Further, Judge Smith put extraordinary burdens on TMIA which i were not grounded in law, in order to prevent TMIA f rom developing the record to prove its case. An egregious example l was when TMIA attempted to question Dieckamp, the central witness I on the Dieckamp Mailgram issue, on whether Herbein and Miller's removal from nuclear operations-was due to their fallings during the accident, including any reporting fallings. TMIA counsel wished to question Dieckamp through use of his sworn testimony to l the NRC's Of fice of Investigations. 1 First, Smith stated that TMIA could not ask Dieckamp any questions to which TMIA counsel did not already know the answer, and then required the answer to be directly relevant to the issue 4 before the Board. Tr. 28,893,-894. He then changed'his opinion and demanded that the proposed series of questions be submitted to l the Board for pre-approval. Tr. 28,896.. Af ter the lunch break Judge Smith told TMIA that it could 8
ask only two out of the three questlons reviewed by the Board. Judge Smith did this af ter unsuccessfully pressuring TMIA counsel to disclose the questions to Dieckamp. Tr. 28,913-917. When TMIA counsel attempted to ask these questions, Judge Smith stopped her and demanded that she ask only the last or third 4 question on the list. Tr. 28,917-919. Judge Smith made this ruling in response to Dieckamp's objection to answering.he question. Ibid. TMIA counsel then stopped all questioning on this point, since it was clear that her cross-examination had been effectively destroyed. Tr. 28,919-28,921. In sum, on the three occassions, described above, Judge Smith prohibited TMIA counsel f rom pursuing a legitimate line of 4 cross-examination with no legal justification for doing so. This action as the others cited demonstrate his prejudice against TMIA 4 and i t s case. III. TMIA HAS DEMONSTRATED 'IRAT A REASONABLE PERSON WITH ~6iDWIEIfGE OTALL THE CTjiDUM5TXNDE5 960LD-{l0ENTIDN JUDGE 1 ETFf TMPARYIALTTY. Licensee argues that the newspaper articles eited by TMIA and USC do not support a finding that Judge Smlth's impartiality might reasonbly be questioned, since the position of The Philadelphia _ Inquirer is already well-known, and because the stated opinions of parties to the TMI-I restart proceedings about l the erosion of public confidence in the NRC adjudicatory process t cannot be credited. Licensee fails entirely to recognize that this position is also held by the citizens of the Commonwealth of Pennsylvania, represented by a party in this proceeding, led Governor Richard Thornburgh, the elected representative of the 9
people of Pennsylvania. The Commonwealth's motion reflects the Governor's opinion of his constituents' perception of the NRC process, and deserves the greatest weight. 4 TMIA would also note that in addition to all parties in the TMI restart proceedings, other than licensee, other public I of ficials have also requested the removal of Judge Smith as well. SA eg., Letters from Congressman Robert W. Edgar and State I Rep. Bruce Smith; Resolution passed by Lower Swatara Township Board of Commissioners, attached and incorporated herein~as Exhibits 1, 2 and 3, respectively. The Commission has at no other time, and in no other case heard such immediate public outcry against continuation of an NRC Licensing Board judge in f his current position. It is hard to imagine a more extreme erosion of public confidence than has been created by Judge Smi t h's conduct in this case. IV. 1EE LICENSING BOARD MUST BE RECONSTITUTED ONCE JUDGE ERTlif13 REMDYlfD AllD Xi LfKSTY6ME 6f 7)Tf Irff6R I DE6fSI6tTS TR WITFCR RE PARTTcTPATED RDSYDifbEDLARED VOID T6 REMBVE THE fKTRT 6F FKfJ05fdf KN6TTAf wRTER I RE TfWFPDETEIf1TT1TfF ITFARINGS. The NRC Staf f, although supporting the removal of Ju'dge Smith from further participation in the TMI-I restart hearings, opposes any rehearing of litigated issues by .r.wly-constituted Board. The Staff cites 10 CFR 2.704(d) to - port an argument that the only remedy provided for under tn. .C regulations is for designation of another board member to serve as a Board member or Chairman, even in the event that all hearing issues _are litigated and the evidentiary record closed. NRC Staf f's Response at 23-24. 10
TMIA believes that if Judge Smith is removed due to disqualifying bias or prejudice, his past decisions must be Invalidated to the extent that his conduct during those hearings demonstrated bias in favor of the licensee and prejudice against the other parties. A newly-constituted Atomic Safety and l Licensing Board must provide a rehearing on those issues which Judge Smith's prejudicial conduct is determined to affect. The courts have established that administrative hearings, no less that court proceedings, demand as an element of due process an unbiased judge. Morgan v. United States, 304 U.S. 1, 14-15 (1983); Lloyd Carr & Co. v. Commodi ty Fu tures Trading Commi ssion, 5 6 7 F.2d 119 3,119 6 (2nd Ci r.19 77); Helena Labora__t,oMe,s Corp 2 n i National Labor, Relations Board, 557 F.2d !!83, 1188 (5th Cir. 1977). Further, courts have held that where a judge's conduct satisfies the disqualification standard under the statutory recusal provisions, 2 8 U.S.C.14 4, 455, due process. requirements of a fair trial before a fair tribunal are also necessarily violated. United States v. International Business Machines Cp rp., 4 7 5 F.Su pp. 13 7 2,13 9 0 (S.D.N.Y. 19 7 9 ). Accord Un i,t ed S t a t es v. Haldeman, 5 5 9 F.2d 31,130 n.276 (D.C. Ci r.197 6), cer t. den i ed, - 431 U.S. 933 (1977); United States n Conforte, 457 F.Supp. 6 41, 6 5 9 n.13 (D.Nev. 1978). Here it is clear that Judge Smith's prejudice against TMIA, TMIA witnesses, and TMIA counsel have prevented TMIA, and other parties, from fully developing a record on the issues before the l j Board, both in the original management hearings and during these reopened proceedings. Therefore, most if not all of the decisions 11-
in which Judge Smith maintained a d'ominant role must be examined to determine if they should be invalidated. It is obvious from the showing made by the parties in their motions to recuse, that the Dieckamp Mallgram and training issues should be reheard. Clearly if a judge is biased, obstructs a fair and full development of all parties' cases, and violates the parties' due process rights, a rehearing or retrial is necessary. Leverett v. Town of Limon, 567 F.Supp. 471, 474-475 (D.Co l o. I 1983)(citation against plaintiffs stricken when zoning board improperly biased); Hall L Small Business Administration, 695 F.2 d 175,180 (5th Cir. 1983)(j udgmen t in sex discrimination action vacated and case remanded for retrial when magistrate's disquali fication required); Roberts L Bailar, 625 F. 2d 125, 129-130 (6th Cir. 1980)(judgment vacated and action remanded when judge should have been disqualified because reasonable person might question his impar tiali ty); Commonweal th Coat ings Corp 2 L Continental Casualty Co, 3 9 3 U.S. 145 (1968) (arbitration award vacated where there was evident partiality in one arbitrator); Loeb v. Nas sau El ecy t e Ra il road Co., 24 0 App. Di v. 912 (N.Y. 1933). Moreover, it is clear that in this case the grounds on which Judge Smi th's removal is sought are mandatory, 2 8 U.S.C. 455 (a), (b)(1). 3: 3 Section 455 provides, in relevant part, as follows: Disqualification of justice, judge, magistrate, or referee in bankruptcy (a) Any justice, judge, magistrate, or referee in (footnote continued on next page) D 8 --
Therefore, under the historic common law governing disqualification, the past decisions of Judge Smith must be declared void if his disqualification is deemed mandatory and not able to be waived by the parties. Potashnick'v. Port City Cggs t rugt iog Cg., 60 9 F.2d 1101,1115 (5 th Ci r.19 8 0); S ta t e v. Th_or_ns on, 3 4 N.W. 2 d 8 0,8 9 (N.D.Sup.Ct.19 4 8 ); Ha r r i ng t on v. Haye s County, 81 Neb. 231, 115 N.W.773,773 (1908); Case v. Hoffman, 100 Wi s. 314, 7 4 N.W. 2 2 0,2 2 2 (18 9 8 ). It is clear that the provisions under which the Commonwealth, TMIA and UCS have moved for Judge Smith's removal are mandatory and as such require a reexamination of all his past decisions to determine if all are void. It is clear that once Judge Smith's removal is determined to be required under 28 U.S.C. 4 5 5, a l l h i s pa s t decisions which are infected by his bias and prejudice, must be declared void.4 In light of the fact that (footnote continued from previous page) bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the l proceeding. l (emphasis added) i' 4 If it is determined that 2 8 U.S.C. 455(a), which requires disqualification when a judge's " impartiality might: reasonably be ques tioned," may be waived by 455(e), Judge Smith's prior decisions should still be declared void-because no such waiver can be found on this record. If it is determined that because waiver of disqualification l L run
r the provisions under which Judge Smith's removal is sought are mandatory, his past decisions are void, not merely voidable. The NRC Staf f argues that in the event Judge Smith is disqualified from further participation in these proceedings, the other two members of the Board may decide the issues currently pending before the Licensing Board, based on the current evidentiary record. However, it is clear that Judge Smith's bias and prejudice have severely obstructed TMIA and other parties f rom developing a full record to support their positions. Therefore, without some type of rehearing and opportunity for additional discovery, the parties will be denied their right to fully develop their cases. 5 A good example occurred within the last several weeks, I af ter TMIA filed its motion to remove Judge Smith. Juage Smith had led counsel for all parties to believe that after hearing the stated position of the NRC Staf f, he would rule on joint motion by TMIA and Licensee counsel to admit the interview of Karl Plumlee as Joint Mailgram Exhibit No. 145. Tr. 33,118.6 is permitted by 455(a), that Judge Smith's prior decisions are not vold, TMIA relies on 455(b)(1) to support the position that Judge Smith's prior decisions must necessarily be declared void, since this provision, finding actual actual bias and prejudice of a judge, cannot be waived. See Potashniek v. Port City Construction Co., supra, 609 Y!2d at 1114. ~ 5 See State v. Bradish, 70 N.W. 172 (Wis.Sup.Ct. 1897). 6 TMIA and Licensee made this motion by means of a December 21, 1984 letter, attached and incorporated herein as Exhibit 4. This letter, dcafted by TMIA counsel and modified at the suggestion of I licensee counsel, was sent to licep;ee for signature on December 21, 1984. Although licensee counsel apparently signed it at or near that date, he did not return the copy of the letter to TMIA (footnote continued on next page) ILO
ll The NRC Staf f stated that it had no problem with the admission of the Plumlee interview if other interviews could be admitted as well. Ibid. TMIA stated that it did not have access to those interviews and would like an opportunity to review the l _ interviews prior to making a decision. Tr. 33,318. Two weeks later, on January 25, TMIA received f rom the NRC Staf f a copy of those interviews which the NRC Staf f wished introduced in conjunction with the Plumlee interview. Because of the late date of receipt of these interviews, TMIA informed both licensee and the NRC Staff that it would not consider adding these, interviews but would request simply that Judge Smith rule on the pending joint motion for admission of the Plumlee interview. Contrary to his previous rulings, Judge Smith, on January i 29, determined that he would not rule on the motion, then in the form of a letter, and instead required TMIA to submit a formal written motion if it wished to have the request considered by the Board. Memorandum and Order (Jan. 29, 1985). Since TMIA was then in the process of writing its findings and understood that it was already effectively foreclosed from submitting a motion in a I timely fashion, it simply chose not to submit such a motion. TMIA was thereby forced to forego reliance on the Plumlee (footnote continued from previous page) counsel for service on the other parties until the firs' week of l January, 1985. At that time' licensee and TMIA counsel determined. l that the let ter could be served along with a copy of the Plumlee interview during the hearings then ongoing in Harrisburg. l TMIA counsel, present again for the first time in Harrisburg on January 9, 1985, brought up the issue for consideration by the ~ Board. .Tr. 3 3,0 5 0. 15
,s-9 interview in its findings. Clearly Judge Smith's change in position and requirement i that TMIA submit a formal written motion to request admission of the Plumlee interview unfairly prejudiced TMIA. V. CONCLUSION. For the above reasons, TMIA requests that Judge Smith be removed f rom further participation in the TMI-I restart proceedings, that his past decisions be declared void, that rehearing be set on the management issues decided by the Licensing Board which he chaired, and that comments be solicited by the parties on the schedule for rehearing. Respectfully submitted, ~ \\[ rM , N t*' oanne Doroshow The Christic Institute 1324 North Capitol St. Washington, D.C. 20002 (202) 797-8106 Q(M c $ Lynne Bernabel George Shohet Government Accountability Project L1555 Connecticut Ave. N.W. Sulte 202 ^ i Washington,.D.C. 20036 (202) 232-8550 At torneys for Df!A Dated: February 13, 1985 16
I [} Ro8E".T W. EDGAR ..,,nc n mu se .waso EXHIBIT 1 WmmW ta,y;~_,, t,' l,' ;; tt ' 'Y # COngitSS Of the mitti,5tates houst of RtpttstntatiDts '85 6" f A9:16
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DOCKEin3 i SEN'.i 0 January 15, 1985 $ 2f.~.~. JE*!16 E h The Honorable Nunzio J. Palladino Chairman, Nuclear Regulatory I Comission 1717 H Street, NW Washington, D. C. 20555
Dear Chairman Palladino:
As a member of the Pennsylvania Congressional delegation. I have followed. with interest the Commission's progress in hearings on the Three 'iile Island (TMI) nuclear plant near Harrisburg, Pennsylvania. It is g understanding that the Comission will meet in the near future to consider a possible restart of TMI Unit 1. I am deeply concerned by the recent revelation that Ivan W. Smith, chairman of the Atomic Safety and Li. censing Board responsible for judging the case for restart, has compromised his impartiality by intervening on behalf of a TMI supervisor found guilty of cheating on a reactor operator license test. As you are no doubt aware, Mr. Smith sent a letter to US District Court Judge Sylvia Rambo asking for special consideration for the supervisor. Mr. Smith's actions clearly make him ineligible to continue his service on the Licensing Board, and his removal as chairman and board member should be immediate. Moreover, his actions may have invalidated the fairness and impartiality of the entire proceeding. In this environment, I frankly find it amazing that.the Comission is ' moving towards a vote on the restart of Unit 1. Thro 0ghout the hearing process, questions have been raised as to;how well the safety of the people of Pennsylvania is being protected. Now we are faced with an act which has compromised an entire section of the process. yet the Comission blithely ignores the event. The replacement of Mr. Smith and a thorough review of the Board's work must precede any decision on restart. I hope that you will suspen'd any plans to vote on a TMI restart so as,to
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h e Honorable Nunzio J. Palladino age 2 Ja nuary 15, 1985 No decision on TMI can be considered fair in the curr p' artisanship. I look forward to your response. Sincer ly l s BOB EDGAR Member of Congress BE/da cc: Comissioner Bernthal Comissioner Roberts Comissioner Asselstine Comissioner Zech e O 9 l
[su: { EXHIBIT 2 UNITED STATES [/ NUCLEAR REGULATORY COMMISSION t WASHINGTON, D.C. 20655
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CFFICE OF THE COMMISSIONER January 10.1985 C0c4ETEC USMC MEMO T0: William L. Clements, Chief '85 A110 P1:49 Docketing and Service Branch Patricia R. Davis, legal Assistant D fcck$5d'sh.'I[' FROM: Office of Comissioner Asselstine 3RANCM
SUBJECT:
TMI-1 Restart gggo JM10.66 13 Please serve the attached letter on the parties to the TMI-1 Restart proceeding. cc: Chairman Palladino Comissioner Roberts Comissioner Bernthal Comissioner Zech OGC l I
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[ a (8n. ""',""llr$$? von ,fygr, .-s.un. om en.7 3 HOUSE OF REPRESENTATIVES 4 COMMONWEALTH OF PENNSYLVANIA M lQ p, HARRISBURG b$"~Qu. BR h Ict January 8,1985 James Asselstine, Commissioner Nuclear Regulatory Comission 1717H Street, Northwest Washington, D.C. 20555
Dear Commissioner Asselstine:
I hereby respectfully request the immediate dismissal and replacement of Ivan Smith as Chairman of the Atomic Safety and Licensing Board considering the possible restart of Unit 1 Reactor at Three Mile Island. Under no circum-stances should Ivan Smith represent the Nuclear Regulatory Commission in the Harrisburg area due to the recent publicity which resulted from his letter to Judge Sylvia Rambo. The Harrisburg Evening News featured details of the letter j on page one on Friday, January 4,1985. I As you well know, any Nuclear Regulatory Commission official, decision or recommendation is well publicized in the Central Pennsylvania area. Adninistrative Law Judge Ivan Smith is therefore well known in the Harrisburg area because of overseeing two special hearings relating to Three Mile Island. For that very reason, any statement made by Ivan Smith is automatically inter-preted as a mirror for Nuclear Regulatory Commission policies. It is impossible to separate his personal views from his Nuclear Regulatory Commission decisions. Both elected and appointed public officials accept this concept when serving the public in any capacity. Ivan Smith's letter to Judge Sylvia Rambo is a violation of his public trust. Judge Smith has displayed his personal opinions in the area of Three Mile Island when he was supposed to be impartial. Mr. Floyd was tried and found guilty by a jury of Central Pennsylvania citizens. Federal officials like Ivan Smith should not appear to intimidete or to influence Judge Rambo in her deliberations regarding just punishment for Mr. Floyd. l
g g. James Asselstine, Commissioner ~ January 8, 1985 Page 2 Due to Ivan Smith's unprofessional and unethical conduct, I urge the Nuclear Regulatory Commission to replace him imediately. Citizens of Central Pennsylvania currently associate him and his name with interference in the fair administration of justice. His letter to Judge Sylvia Rambo cannot be retracted due to his status and position; therefore, he must be replaced. Ivan Smith has disqualified himself by becoming personally involved in the i very case that he is supposed to decide. Sincerely, Bruce Smith BS:kat i 1 i 1
Ldwer Swatara Township Board of Commissioners Frenkhn D. Linn. St.. President 1499 Spr E George D. Hinkle. Jr., V6ce Pres! dent Geosge W. Hickemd EXHIBIT 3 Chades E. Ash 30e.vrT NU m tR Janet 8. Weds PROD.4 UIL FAC. 9.. ~J I D FEB -7 A9:03 January 31, 1985 'f'iQ .h The Nuclear Regulatory Commission De N. SD ) 2920 Norfolk Avenue WH Washington, D.C. '20555 ) Gentlemen 30MD FEB 7W On behalf of the Lower Swatara Township Board i U of Commitsioners, Dauphin County, Pennsylvania, we strongly support the position taken by Governor Richard Thornburgh in calling for the removal of Nuclear Regulatory Commission Administrative Law Judge Ivan W. Smith as head of a three-member federal panel considering the restart of Three Mile Island's Unit I reactor. Mr. Smith's appeal for leniency in sentencing a former TMI employee, James R. Floyd, convicted on two counts of cheating, totally transcends professional and ethical strictures and has impaired Mr. Smith's capabilities of rendering a fair and impartial decision when considering the subject of restart. We as elected. officials cannot condone personal viewpoints that have even the slightest semblance of potential conflicts of interest. The appearance of capitulating to special interests and issues of epidemic isnpact affecting the safety l and welfare of millions of people cannot and should not be tolerated from any official serving in a public capacity. M Mr. Smith should voluntariiy resign as chairman of the Atomic Safety and Licensing Board or be l removed by appropriate action of the Nuclear Regulatory Commission. Sincerely, Franklin D. Linn, Sr. President Board of Commissioners FDLijh CC: Governor Richard Thornburgh s m
EM E { EXHIBIT 4 g GOVERNMENT ACCOUNTABluTY PROJECT 1555 Connecticur Awmue, N.W Sube 202 Washington, D.C. 20036 (202)232-8550 December 21, 1984 Administrative Judges Ivan W. Smith, Chairman Sheldon J. Wolfe Gustave A. Linenberger, Jr. Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dear Administrative Judges; Mr. Blake and I agreed to add to the Modified Joint Mailgram Stipulation the following document: NRC Interview of Karl Plumlee (May 30, 1979). This document is being added for Mr. Plumlee's discussion of hydrogen. To the extent that Mr. Plumlee's discussion of hydrogen is a subject of proposed findings by TMIA, TMIA will not object to Licensee referring in reply findings to item 139 of Part C of Joint Mailgram Exhibit 1. We would jointly move that the record be reopened to permit admission of this interview insofar as the Board considers the record closed for this purpose. This document should be considered Item 145 of the Joint Mailgrara Exhibit 1(c). Thank you for your prompt consideration of this matter. Sincerely yours, ~<.u l( T'A z-, 4 sw fynn)e Bernab~hl i Counsel for TMIA Seen and Agreed: t E.j d i ~ I h.ErnestL. Blake cc: service list
N UNITED STATES OF AMERICA 's,, NUCLEAR REGULATORY COMMISSION &J Before the Atomic Safety and Licensing Board _914 All:00 o-a In the Matter of ) croy ) 0:Cn.icc.; i SE n V METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP' ) (Three Mile Island Nuclear ) (Restart ' Management Phase) Station, Unit No. 1) ) ) ) I hereby certify that a copy of the foregoing Three Mile Island Alert's Motion for Leave to Reply to Licensee and NRC Staff's Responses to Commonweatlh, TMIA and USC Motions to Recuse has been served this Lfth day of February, 1985, by mailing a copy first-class, postage prepaid to the following: Service List
- Administrative Judge Docketing and Service Section (3)
Ivan W. Smith, Chairman Office of the Secretary Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety &~ Licensing Board
- Administrative Judge Panel Sheldon J. Wolfe U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Board Washington,-D.C. 20555 U.S.
Nuclear Regulatory Commission Washington, D.C..20555 Atomic Safety & Licensing' Appeal Board Panel
- Administrativo. Judge U.S.
Nuclear Regulatory Commission Gustave A. Linenberger, Jr. Washington, D.C. 20555 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission
- Jack R. Goldberg, Esq.
Washington, D.C. 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
I i . l. b 2- ..e - Thomas Au, Esq. Joanne Doroshow, Esq. Office of Chief Counsel The Christic Institute Department of Environmental 1324 North Capitol Street Resources Washington, D.C.-20002 505-Executive House P.O. Box 2357 Michael.F. McBride, Esq. Harrisburg, PA 17120 LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue N.W. -* Ernest.L. Blake, Jr. Suite 1100 Shaw, Pittman, Potts & Trowbridge Washington, D.C. 20036 1800 M Street, N.W. Washington, D.C. 20036 Michael W. Maupin,- Esq. Hunton & Williams Mr.-Henry D. Hukill 707 East Main Street Vice President Post Office Box 1535 GPU Nuclear Corporation Richmond, TUL 23212 P.O. Box 480 l Middletown, PA 17057 Ellyn R. Weiss, Esq. William S. Jordan, III, Esq. TMI Alert Harmon, Weiss & Jordan 315 Peffer Street-2001.S Street, N.W. Harrisburg, PA 17102 Suite 430 Washington, D.C. 20009 Mr. and Mrs. Norman Aamodt R.D. 5 TMI-PIRC Legal Fund Coatesville, PA 19320 1037 Maclay ~ i Harrisburg, PA 17103 Ms. Louise Bradford 3 TMI Alert 1011 Green Street Harrisburg, PA 17102 i u M \\ uk LyngeBernabei
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