ML20206J655

NRC Staff Response to Intervenors Motion to Disqualify Judges from Presiding Over Low Power Request.* Motion Should Be Denied Since It Does Not Provide Legally Cognizable Basis for Disqualification.Certificate of Svc Encl

ML20206J655
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/18/1988
From:	Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7541 OL-3, OL-6, NUDOCS 8811290067
Download: ML20206J655 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0K41SSION *Ea tm 22 A1156 BEFORE THE ATOMIC SAFETY AND LICrNSING r30ARD ,

In the Matter of Docket No. 50-322-OL-3 LONG ISLAND LIGPTING C R W Y (Emergency Planning)

Docket No. 50-322-0 -6 (Shoreham Nuclear Powr Station. ) (254 Power)

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NRC STAFF RESPONSE TO INTERVENORS' MOTION TO DISQUAL:FY JUDGES EDM "RESIDING OVER LOW POWER REQUEST I. INTRODUCTION On October 21, 1988, LILCO filed its "Request for Immediate Authorization to Operate at 25% Power" ("Recuest"). On October 31, 1988, Suffolk County, the State of New York and Town of Southampton

("Intervenors") filed a motion requesting that Judges Gleason and Kline disqualify themselves from presiding over LILCO's Request. Governments' Motion to Disqualify Administrative Judges Gleason and Kline from Presiding Over LILCO's Pequest for Immediate Authorization To Operate at 25% Power ("Motion"). 1/ In supp;rt of their Motion, Intervenors append the Affidavit of Karla J. Letsche (Counsel for Suf folk County) which 1/ The Motion is the latest in a seriet of Intervenors' attemi,.s to

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affect the composition of NRC adjudicatory boards by disqualif.1 cation rotions and by requests to the Chairman of the Atomic Safety and Licensing Board Panel. See CLI-84-20, 20 NRC 1078 (1984) (Chairman Palladino denies motion seeking his disqualification); ALAB-777, 20 NRC 21 (1984) (affirmed licensing board's refusal to grant disqualification rotion); LBP 81-29A, 20 NRC 385 (1984) (ASLB Panel Chairman denies disqualification motion); Suffolk County and State of New York Motion to Rt:scind Reconstitution of Board by Chief Administrative Judge Cotter L5horeham Nuclear Power Station, Unit 1),

LBP-56-37A, 24 NRC 726 (I M 6) (motion denied).

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states that the the motion is based on statements in the Licensirg Board's  ;

decision in LBP-88-24, 28 NRC (September 23,1988), as referenced in Section II of the October 31, 1988 "Governments' Response to LILCO's  !

Request for Immediate Authorization to Operate at 25% Power" ("Inter-venors' Response"). In Section !! of Intervenors' Response, Intervenors ,

argue that Judges Gleason and Kline should be disqualified from ruling on  :

LILC0's Request because they "have shown bias against the Governments and cannot act fairly and impartially." Intervenors' Response at 4. For the i reasons stated below, the Staff opposes Intervenors' Motion.

II. DISCU!SION

It is has long been established that

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[Aln administrative trier of fact is subject to disqualification if he has a direct, personal, substantial pecuniary interest in '

a result; if he has a "personal bias" against a participant; if i he has served in a prosecutive or investigattve role with regard '

to the same facts as are an issue; if he has pre,iudged factual

-- as distinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.

Public Service Electric & Gas Co. (Hope Creek Generating Station, Unit 1). [

ALAB-759, 19 NRC 13, 20 (1984), cuoting, Consum rs Power Co. (Midland j Plant, Units 1 and 2), ALAE ?.01, 6 AEC 60, 65 (1973). A motion to I disqualify a board unber must be timely, accompanied by an affidavit  !

establishing the basis for the .;harge, and must be served on all parties i

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to the proceeding. Duquesne i.icht Co. (Beaver Valley Station, Units 1 and 2), ALAB-172, 7 AEC 42 (1974); 10 C.F.R. 5 2.704(3). 2/

The Comission L.; made it clear that licensing board members are governed by the same disqualification standards that apply to federal judges. Houston Lighting & Power Co. (South Texas Project. Units 1 and

2) CLI-82-9, 15 NRC 1363, 1365-67 (1982); Hope Creek, 19 NRC at 20. j Under 28 U.S.C. Il 144 and 445, a judge must step aside if a party to a proceeding files a timely and sufficient affidavit showing the judge has a personal bias or pre.iudice and the judge's conduct is evaluated under the I objective standard of whether a reasonable person k'nowing all of the circumstances would be led to the conclusion that the judge's impartiality might be reasonably questioned. Id. at 20-22.

The mere fact that a board has issued a large number of unfavorable or even erroneous rulings with respect to a particular party is not evidence of bias against that party. Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974).

Rulingt and findings made in the course of a proceeding are nct in themselves sufficient to support a claim that a tribunal is biased for or against a party. Pacific Gas & Electric Co. (Diablo Canyon, Nuclear Power i Plant, Units 1 and 2) ALAB-644,13 NRC 90*), 923 (1981). Dis ;salifying i

2/ The Appeal Board ha observed that a party leveling a charge of bias

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has a manifest obl.Jation to particularize the foundation for the

. charge and to adhere scrupulously to the affidavit requirement of I 2.704(c) which serves the salutary purpose of reducing the likelihood

! of "irresponsible F. tacks on the probity or objectivity of a board

, membe r. " Beaver 'M ey, 7 AEC at 43 n.2. Intervenors have minimally i satisfied this Tb g requirement by submitting an affidavit which i refers to, but M s not incorporate, arguments in a separate filing.

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I bias or prejudice of a trial judge must generally stem from an extrajudicial source even under the objective standard for recusal which requires a judge to disqualify himself in any proceeding in which his impartiality might reasonably be questioned. South Texas, 15 NRC at 1364-65. Similarly, a judge will not be disqubiified on the basis of occasional use of strong language towards a party or in expressing views 7n matters arising from the proceeding or actions which may be controversial or may provoke strong reactions by parties in the pro- +

l ceeding. Metropolitan Edison Co. (Three Mile Island Station. Unit 1), .

CLI-35-5, 21 NRC 566, 569 (1985), aff'd m b nom. Three Mile Island ,

Alert, Inc. v. NRC, 771 F.2d 720, 738-39 (3d Cir. 1985), cert, denied famodt v. NRC, 475 U.S. 1082 (1986). Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 721 (1985).

In puth Texas, the Comission made it clear that in the federal  ;

courts, as well as in NRC proceedings, discualifying bias or prejudice i

must generally be extrajudicial and result in an opinion on the merits

! on some basis other than what the judge has learned from his participation in the case. "' 15 NRC at 1365, quoting, United States v. Grinnell Corp.,

384 U.S. 563, 583 (1966), 3_/ The exception to the general rule that the i judicial conduct must be extrajudicial, is invoked in only extreme cases. l t

M. at 1366. Applying these principles, the Comission concluded in South Texas that the board member statements in question were made in the

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3/ Accord Sperry Rand Corp. v. Petronix. Inc., 403 F. Supp. 367 (E.D.

Pa.1975) (affidavit which points to court coments during proceeding

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without showing the statements were founded on extrajudicial origin ,

! is insufficient for disqualification). T i

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- 5-context of an adjudicatory hearing and were based soiely on events which occurred during that proceeding (i.e., the intervenor's actions and behavior during the proceeding) and thus there was no legally cognizable 1

basis for disqualifying prejudice. M.at1366.

\pplying the above-listed principles to the instant motion, it is- l clear that the Motion must be rejected.

Intervenors rely on various statements from LBP-88-24 which they assert would lead a reasonable person to question whether Judges Gleason and Kline can remain impartial with respect to LILCO's Reouest that the Board authorize the Director of NRR to make the .;ecessary findings to enable issuance of a 25% license for Shoreham. Intervenors' Response at 5-7. They argue that since these judges have found Intervenors to have engaged in willful and bad faith conduct in the OL-3 proceeding, they cannot "fairly or objectively" determine whether Intervenors should be j

, dismissed from the OL-6 subdocket S/ and theb mnsideration of such dismissal "would violate the Appeal Board's ruling that with regard to dismissal 'a party has a right to be judged independently and fairly by l each board before which it appears.'" M. at 7, quoting, ALAB-902,  ;

28 NRC , slip op. at 11 (September 20, 1988). Intervenors also argue  !

that these judges would reject, as taken in bad faith, any evidentiary or procedural attempts by Intervenors to challenge LILCO's Request,. M.

4/ The use of the OL-6 docket designation was not a reconstitution of l the Board, but only an administrative aid to help in the filing of papers. It was not instituted by a Federal Register notice so as to  :

constitute a separate board distinct from the OL-3 Board to which the Comission referred LILCO's initial 25% power request. See NRC Staff

.f Response to LILCO's Reouest for Innediate Authorization to Operate at 25% Power, October 31, 1988, at 4 n.3. l

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None of these arguments raises a legally cognizable basis for disqualification. The statements concerning Intervenors' misconduct in LBP-88-24, even if later detennined to be erroneous, were based on matters properly before the Board and, as in South Texas, the statements were based solely on events during the proceeding. The affidavit provided by Intervenors does not establish facts to contrary. The consideration of the applicability of the dismissal sanction regarding the OL-6 subdocket will not run afoul of the Appeal Board's guidance in ALAB-902 since the Appeal Poard indicated therein that it may be appropriate to dismiss a party where the conduct before "Board A" rr.ay be so "contumacious and prejudicial . . . as to warrant dismissal from the ' Board B' proceeding as well." ALAB-902, slip op at 9. Since it is clear that the statements of the Board are not sufficient to support a claim of prejudice or bias against Intervenors, the argument that the Board tray have prejudged factual issues and cannot be impartial is inapposite since the Appeal Board's guidance did not address the circumstances of the present proceeding -- dismissal from a separate matter (25 percent) based on previousconductbeforesameboard.El In addition, there is no basis for 5/

In contrast to the OL-3 versus OL-5 Roard jurisdiction issue in ALAB-902, Boards A and B are the same in this instance, i.e., the OL-3 Board. The OL-3 Board's appointment of Alternate Board Member Hetrick to assist in the Board's consideration of the technical

• issues in connection with the 25% license was for advisory p'urposes only. See Order Appointing Alternate Board Member, February 26, 1988.

Intervenors rely on In re Murchison, 349 U.S. 133, 136, 75 S. Ct.

623,625(1965), and Barry v. Heckler, 620 F. Supp. 779, 782 (N.D.Ca.

1985), for the proposition that they are entitled to a fair hearing (FOOTNOTE CONTINUED ON NEXT PAGE)

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Intervenors' claim that Judges Kline and Gleason will be predisposed to

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l reject any legit' . ate attempt to offer evidence challenging the issuance of the 257, license. The Board's previous dismissal of Intervenors was 1

based largely on Intervenors' refusal to present a positive case or permit  !

discovery on the realism contentions. See LBP-88-24, slip op. at 92-93, E 109, 113-14, 128-30. l Moreover, *.ne affidavit provides no basis for the assertion that the Board will have prejudged the factual issues concerning the merits of  !

l LILCO's Request. Those matters involve a consideration of whether any of  !

the outstanding issues in the full power proceeding are relevant to the i request to operate. The statements on which Intervenors rely do not l provide any basis to conclude that Judges Gleason and Kline have either f

, prejudged such factual issues or have personal bias or prejudice regarding l t

such issues. j i

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l j (FOOTNOTECONTINUEDFROMPREVIOUSPAGE f j before an impartial tribunal. Those cases, however, are not [

l' controlling here. Murchinson involved a unique state statute which i permitted judges to act as a one man grand jury and the court frowned I on the judge's personal involvement in that proceeding in a  !

l quasi-prosecutorial role. See 349 U.S. at 137-39, 75 S. .Ct. at (

625-27 see also Offutt v. U.T . 348 U.S. 11, 75 S. Ct. 11 (1954) (a j i,

judge that is personally involved in misconduct of counsel may not i

preside over contempt proceedings). This Board, however, was neither l l a prosecutor nor personally involved in intervenors' misconduct.

j Jarr B questioned the impartiality of decisionrakers in the Social j

5ecurity Administration in light of agency pressure to reduce the f i benefits allowance rate. See 620 F. Supp. at 782-83. There is no  !

! basis to conclude that any7xternal factors would influence judges I l Gleason and Kline in their consideration of LILCO's Recuest.  !

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P III. CONCLUSION For the reasons stated above, the Motion should be denied as it does not provide a legally cognizable basis for disqualification.

Respectfully submitted, M

Mit i A. Young Cou 1 for NRC Staff Dated at Rockville, Maryland this 18th day of November, 1988 f

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ffilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 1 ..

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Docket No. 50-322-0L-311]~J " W (Emergency Planning)

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LONG ISLAND LIGHTING COPPANY .

Docket No. 50-322-OL-6 (ShorehamNuclearPowerStation, (25% Power)

Unit 1)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' POTION TO DIS 0ltALIFY JUDGES FROM PRESIDING OVER LOW POWER REQUEST" in the above-captioned proceeding have been served on the following by desosit in the United States nail, first class, or as indicated by an asteris c, through deposit in the Nuclear Regulatory Cornission's internal mati system this 18th day of November, 1988.

James P. Gleason, Esq., Chainran* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of '

Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Comission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Frederick J. Shon, Esq.* James N. Christman, Esq. ,

Administrative Judge Donald P. Irwin, Esq. j Atomic Safety and Licensing Board Hunton & Williams  !

U.S. Nuclear Regulatory Comission 707 East Main Street ,

Washington, DC 20555 P.O. Box 1535  !

Richmond, VA 23212  !

Jerry R. K1tne*

Administrative Judge Stephen B. Latham, Esq.

Atomic Safety and Licensing Board Twomey, Latham & Shea i U.S. Nuclear Regulatory Comission Attorneys at Law l Washington, DC ?0555 33 West Second Street "

Riverhead, NY 11901 Philip McIntire Federal Erargency Management Hartin Bradley Ashare Esq. ,

Agency Suffolk County Attorney

• 26 Federal Plaza H. Lee Dennison Building i

, Room 1349 Yeteran's Memorial Highway New York, NY 10278 Hauppauge NY 11788 t i

Joel Blau, Director Anthony F. Earley, Jr.  !

Utility Intervention General Counsel j Suite 1020 Long Island Lighting Company .

99 Washington Avenue 175 East Old Country Road I Albany, NY 12210 Hicksyt11e, NY 11801 [

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Dr. Monroe Schneider Fabian G. Palomino, Esq.

North Shore Committee Special Counsel to the Governor P.O. Box 231 Exec 9tive Chamber Wading River, NY 11792 State Capitol Albany, NY 12224 William R. Cumming, Esq. 1 Office of General Counsel Ms. Nora Bredes Federal Energency Management Agency Shoreham Opponents Coalition 500 C Street, SW 195 East Main Street '

Washington, DC 20472 Smithtown, NY 11787 Dr. Robert Hoffman Barbara Newman Long Island Coalition for Safe Living Director, Environmental Health P.O. Box 1355 Coalition for Safe Living Massapequa, NY 11758 Box 944 1

Huntington, New Yrok 11743 Herbert H. Brown, Esq.

Lawrence Coe Lanpher, Esq. Atomic Safety and Licen' sing Karla J. Letsche Esq. Appeal Panel (8)*

Kirkpatrick A Lockhart U.S. Nuclear Regulatory Comission Souti Lobby - 9th Floor Washington, DC 20555 1800 P Street, fiW Washington, DC 20036-5891 Atomic Safety and Licensing Board Panel (1)*

C. K. Mallory III Esq. U.S. Nuclear Regulatory Corr, -ion Hunton & Williams Washington, DC 20555 2000 Pennsylvania Ave., N.W.

Suite 9000 Cocketing ard Service Section*

Washington, DC 20006 Office of the Secretary U.S. Nuclear Regulatory Comission Alfred L. Nardelli, Esq. Washington, DC 20555 New York State Dept. of Law '

1?O Broadway, Room 3-118 David L. Hetrick New York, NY 10271 Professor of Nuclear and Energy i Engineering Jay Dunkleberger The University of Arizona New York State Energy Office Tucson, AR 85721 Agency Building 2 Ensire State Plaza A1)any, NY 12223 s- .

M1tzt . oung' ([

Cobasel for NRC Staff