ML20246B781
| ML20246B781 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/16/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#389-9051 CLI-89-14, NUDOCS 8908240016 | |
| Download: ML20246B781 (15) | |
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.- 'L UNITED STATES OF AMERICA
- NUCLEAR REGULATORY COMMISSION i
COMMISSIONERS: '89 16 P12:28 Kenneth M. Carr, Chairman Thomas M. Roberts EA Kenneth C. Rogers a!
James R. Curtiss OCK! _g""
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In re JOSEPH J. MACKTAL
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[ SERVED AUG' i 6 OI-4-89-00.8
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MEMORANDUM AND ORDER CLI-8 9- 14 I. Introduction.
This matter is once again before the Commission on a request by Mr. Macktal styled.a " Motion for Recusation" of the entire Commission from any and all future actions involving Mr. Macktal. The request, in effect.a notion for disqualification, b was. filed on July 3, 1989 in conjunction with a " Motion for Reconsideration" of the Commission's Order of June 22, 1989, denying a "Motian for Protective Order" regarding an administrative subpoena issued to Mr. Macktal by
_. the NRC's Office of Investigations ("OI"). On July 5, 1989, we issued an order denying the motion for reconsideration.
We now deny the motion for disqualification.
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Although there'is currently no proceeding from which disqualification of an adjudicator might be sought, the provisions of-10 C.F.R. 2.704(c) which treat the issue of disqualification in the adjudicatory context are nevertheless germane to the. analysis.
8908240016 890816 PDR P COMMS NRCC CORRESPONDENCE PDRi W
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II.' Factual Background.- -
The. factual' background underlying this controversy has been recited at length previously. See Texac Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-89-06, 29 NFC 348 (1989); In re Joseph J.
Macktal (June 22, 1989) ("Macktal 1").- Accordingly, we will refrain from' repeating it fully.here'except to the extent.
that it appears relevant. Briefly, Mr. Machtal was employed 1 for approximately one year by the Brown & Root Corporation.as an electrician on the Comanche Peak construction project. On several recent occasions Mr. Macktal has publicly stated that' he has information concerning (1) alleged safety defects-at the Comanche Peak facility and. (2) an alleged attempted
" bribe" by an officer of Brown & Root to induce him to withdraw an employment discrimination proceeding before .the.
Department of Labor (" DOL"). On January 7, 1987, Mr. Macktal signed a settlement agreement resolving his charge of discrimination and withdrawing his DOL proceeding. However, Mr. Macktal has now repudiated that settlement agreement and reinstituted proceedings before the DOL.
One of the occasions upon which Mr. Machtal voiced his concerns was a hearing before the Subcommittee on Nuclear Regulation, Committee on Environment and Public Works of the United States Senate on May 4, 1989.. Beginning sometime before the hearing and. continuing thereafter, both the Office of Investigations and the NRC technical staff repeatedly 2
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O attempted to' schedule an interview with Mr..Macktal to review his concerns. After all these . attempts failed, on June 5, 1989 OI issued a subpoena for Mr. Macktal's appearance at the OI OfficeLin the !;RC's Region IV Office located in Arlington, Texas, on June 15, 1989. Mr. Macktal contested the terms of the subpoena and sought a protective' order which the Commissien denied in its June 22 Order. See Machtal 1, supra. The June 22 Order revised the' subpoena to establish a' new return date of July 6, 1989.
On July 3, 1989, however, Mr. Macktal' filed both'this motion.and a " Motion for Reconsideration" of the June 22 decision. The Commission denied the Motion for Reconsideration two-days later. See In re Jose #h J. Macktal, (July 5, 1989) ("Macktal 2"). Mr. Macktal has since refused to honor the subpoena, and the Commission has requested the.
Department of. Justice to commence proceedings.to enforce the subpoena in the appropriate U.S. District Court.
We new turn to the " Motion for Recusation," the companion to the Motion for Reconsideration. -In this motion, Mr. Machtal alleges (without supporting.e.ffidavits or any
'other proof) that. (1) "the Commissioners of the NRC have been embarrassed in front of national' television, the press and before the Senate Oversight [ sic] [Subc]ommittee.[ sic] on 11uclear Regulation" during a recent Congressional hearing, (2) that issuance of the subpoena after "the harch criticism l-
[of the commission) by the subcommittee raises an appearance" 3
that the " subpoena is in retribution for the embarrassment "
Mr. Macktal caused to the NRC," and (3) that the "MRC wants to use his testimony so that their decision will be given preclusive effect in [.Mr. ] Machtal's case before the DOL. "
Motion for Recusation at 2 (emphasis in original). The Motion closes with the request that "[t]he NRC should rescue Isic] themselves from deciding Macktal's cases ... [and]
allow the ... Circuit Courts and the Departments of Labor and Justice to determine Macktal's concerns." Id.
III. Analysis.
A. Compliance With Applicable Standards.
As noted above, there is no adjudicatory proceeding now l
in progress regarding Mr. Macktal's concerns. E/ Thus, the provisions of Subpart G of 10 C.F.R. Part 2, governing
-2/ On August 2, 1989, Mr. Macktal filed a " Statement" indicating that he believed that this question regarding disqualification Nac moot because he had "no pending !
motion or requests before the NRC." See Statement Regarding Motion for Recucation at 1. However, it is well-settled that a matter is not moot if "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and there was a reasonable exr;;tation that the same complaining party would be subjected to the same action again." Charles Wright, Law of Federal Courts, 55 (4th ed., 1983), citing Murphy v. Hunt, 455 U.S. 478 (1952);
Weinstein v. Bradford, 423 U.S. 147 (1975). Here, the Commission found a need to resolve the issue of reconsideration before it explicitly addressed the issue of disqualification. Furthermore, while there is no adjudicatory proceeding involving Mr. Macktal currently i (FOOTNOTE CONTINUED ON NEXT PAGE) 4
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, adjudicatory proceedings, do not apply. A fortiori, however, l
a request which would be insufficient to disqualify a decisionmaker from a formal adjudication must also be insufficient to bar a decisionmaker from the non-adjudicatory i l
consideration of an issue. Here, Mr. Macktal's motion for j disqualification fails to address the criteria established by the Commission for disqualification requests in !
adjudications. Furthermore, under the NRC's rules, such motions "shall be supported by affidavits setting forth the alleged grounds for disqualification." 10 C.F.R.
S 2.704(c). -3/ The factual allegations in the motion before f I
us are not supported by any such affidavits; however, we will address the merits of the motion as a matter of discretion.
I B. Criteria Governing Disqualification. I 1
A judge (or Commissioner) should disqualify himself or herself only if "a reasonable man, cognizant of all the I circumstances, would harbor doubts about the judge's (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) before the Commission, there is a " reasonable expectation" that the Commission will again have other matters before it involving Mr. Macktal.
Weinstein v. Bradford, supra. Therefore, we do not find the question of potential disqualification to be " moot."
3/ See, e.g., Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1197 n.1 (1983); Detroit Edison Co. (Greenwood (FOOTNOTE CONTIMUED ON NEXT PAGE) 5
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' impartiality." Long Island Lichting Company (Shoreham -
Nuclear Power Station, Unit 1), LBP-88-29, 28 NRC 637, 639 (1988), citing Lena Island Lighting Company (Shoreham Nuclear ]
i Power Station,- Unit 1) , CLI-84-20, 20. NRC 1061; 1078 n.46 (1984). However, our decisions have consistently followed' ;
i the standard applicable to requests for disqualification of federal judges in that "'the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from his' participation in the case.'" Houston Lighting and Power Company (South Texas 1
Project, Units 1 & 2), CLI-82-9,.15 NRC 1363, 1365 (1982) quoting United States v. Grinnell' Corporation, 384 U.S. 563, 583 (1966). The same standard applies to presiding' officers ,
I in administrative proceedings.- Duffield v. Charleston Area i i
Medical Center, Inc., 503 F.2d 512-(4th Cir. 1974).
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Accordingly, our decisions have required evidence of an "extrajudicial source" and a " decision' based upon~ evidence l not contained in the record in order to support a disqualification." See, e.g., Long Island Lighting Company i
. (Shoreham Nuclear Power Station, Unit 1), ALAB-907, 28 NRC i
620 (1980); Philadelphia Electric Company, (Limerick (FOOTNOTE CONTINUED FROM-PREVIOUS PAGE) i Energy Center, Units 2 and 3), ALAB-225, 8 AEC 379, 380 (1974); Ducuesne Light Co. .(Beaver Valley Power Station, Units 1 and 2), ALAB-172, 7 AEC 4 2, 4 3 n. 2 - (197 4 ) .
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Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 (1985); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184 (1983). A In the alternative, if no "extrajudicial conduct" is present, we have held that disqualification may be appropriate if judicial conduct demonstrates a pervasive bias or prejudice. South Texas, CLI-82-9, 15 NRC at 1366.
However, "the right to an impartial adjudicator does not mean that favorable rulings must be divided equally between the parties, or that a judge may not occasionally use strong langvage toward a party or in expressing his views on matters before him. Nor does the fact that a judge's actions may be controversial or may provoke strong reactions by the parties provide grounds for disqualification." Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
CLI-85-5, 21 NRC 566, 568-69 (1985). EI
-4/ "' Preliminary assessments, made on the record, during the course of an adjudicatory proceeding -- based solely on application of the decision-maker's judgment to material properly before him in the proceeding' do not compel disqualification as a matter of law." Shoreham, LBP-88-29, 28 NRC 637, 640, quoting South Texas, CLI-82-9, 15 NRC 1365.
-5/ Our decisions, like those of the federal courts, establish a very high threshhold for disqualification on the grounds of bias. For example, in other decisions, we have pointed out that inadvertent or possibly inaccurate statements by the adjudicator do not establish bias. Limerick, ALAD-819, supra. The fact that an adjudicator may have a " crystallized point of (FOOTNOTE CONTINUED ON NEXT PAGE) 7
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C. Application of Criteria to Allegations.
- Essentially, Mr. Machtal argues that (1) he has held the Commission.up to criticism by members.of Congress and the
. media and in so doing " embarrassed the Commission in public,"
and (2) therefore the Commission must recuse.itself from ruling on any other matters relating to him because the Commission will be unavoidably prejudiced against him because of the unfavorable publicity. In the alternative, . framing.
the argument in terms of the Commission's criteria, his argument appears to be either (1) that the issuance of-the subpoena is "an opinion on the merits" based upon the bias or l prejudice resulting from the Commission's embarrassment at the Congressional hearing -- an "extrajudicial source" -- or (2) that the issuance.cf the subpoena demonstrates " pervasive bias or prejudice." These arguments are all fatally flawed.
First, simply because a party criticizes a judicial officer (or the Commission) or holds that officer up_for !
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) view" on questions of law or policy is not a basis for ;
disqualification. Long Island Lighting Co. (Shoreham j Nuclear Power Station, Unit 1), ALAB-777,;210 NRC 21, 34-35 (1984). In sum, "[tlo establish that a hearing l was biased, something more must be shown than that the '
presiding officials decided matters incorrectly; to be wrong is not necessarily partisan." Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-224, 8 AEC 244, 246'(1974), citing Tennessee Valley Authority (Bellefonte Nuclear Plant, Unite 1 and 2), ALAB-164, 6 AEC 1143 (1973).
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embarrassment does not mean that the officer must recuse i
himself automatically upon request. If mere public criticism i l
of an adjudicator were sufficient to compel disqualification, 1
the potential for manipulation of administrative or judicial j processes would be unlimited. Even in cases involving Congressional scrutiny and criticism, of or comments on, agency proceedings, a high threshhold must be met. See, )
1 e.g., Pillsbury Co. v. F.T.C., 354 F.2d 952 (5th Cir. 1966);
I D.C. Federation of Civic Assoc. v. Volpe, 459 F.2d 1231 (D.C. I cir. 1972), cert. denied, 405 U.S. 1030 (1972);
Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601 (D.C. l Cir.), cert. denied 439 U.S. 1052 (1978). In our judgment, the discussions between the members of the subcommittee and ourselves never approached the level held to be prejudicial in Pillsbury and its progeny. 6/
Moreover, courts have specifically enforced j j
administrative subpoenas in the face of alleged Congressional pressure if the Congressional inquiry is not directed at the ,
1 merits ultimately to be reached by the agency. See, e.g. I Gulf Oil Corp. v. F.P.C., 563 F.2d 508, 610-12 (3d Cir. !
-6/ As the Third Circuit has noted, the Commissioners, as !
"Im] embers of an agency charged by Congress with j adjudicatory functions, 'are assumed to be men.of ;
conscience and intellectual discipline capable of judging a particular controversy fairly on the basis of its own circumstances.'" Gulf Oil Corp. v. F.P.C z, 563 ;
F.2d 588, 612 (3d Cir. 1977), cert. denied, 434 U.S. !
1062 (1978), quoting United States v. Morgan, 313 U.S. i 409, 421 (1941).
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1977), cert. denied, 434 U.S. 1062 (1978); United States v. -
Armada Petroleum Corp., 562 F. Supp. 43, 50-51 (S.D. Tx.
1982), aff'd 700 F.2d 706 (5th Cir. 1983). As we read the transcripts of the May 4 hearing, we find no mention of any reference to the NRC'c resolution of Mr. Macktal's allegations of safety defects or " bribes." Instead, the discussion focused on the propriety of Mr. Macktal's settlement agreement with Brown & Poot under the terms of Section 210 of the Energy Reorganization Act. The question of the meritt of his allegations regarding Comanche Peak j never arose, and the Commission has carefully avoided making i
any comment on the merits of those allegations. Therefore, Mr. Macktal can hardly accuse the Commission of issuing an
" opinion on the merits" based upon bias or prejudice from "an extrajudicial source."
Additionally, while it may be inappropriate for an agency to undertake an investigation solely because of undue Congressional pressure, it may undertake an investigation of matters within its jurisdiction " supported by an indroendent agency determination" that such an investigation is appropriate. S.E.C. v. Wheeling-Pittsburgh Steel, 648 F.2d 118, 130 (3d Cir. 1981) (en banc). In this case, while Congressional interest may have reinforced the NRC's 10
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. concerns, / Mr. Macktal has stated allegations concerning matters falling within the NRC's exclusive jurisdiction --
the public health and safety matters at a nuclear power l
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J plant. The NRC, not the Departments of Labor or Justice, is j i
directly and exclusively responsible for such matters.
Although we have deferred to the Department of Labor on the issue as to whether Mr. Macktal's rights under Section 210 of i
the Energy Reorganization Act have been violated, we cannot l and will not shrink from our public health and safety responsibilities under the Atomic Energy Act. Accordingly, we have issued the subpoena in an attempt to determine the i details of Mr. Macktal's concerns about the Comanche Peak facility, not because of any Congressional criticism about NRC's handling of settlement agreements.
Second, the information developed as a result of Mr. l Macktal's compliance with the subpoena will have no effect on his litigation before the Department of Labor. Mr. Macktal alleges employmt <t discrimination under Section 210 of the Energy Reorganization Act, 42 U.S.C. 5851. As we read Section 210, Mr. Macktal's statutory right to bring concerns 7/ As we pointed out in Macktal 1, both OI investigators and representatives of the NRC technical staff begain attempting to interview Mr. Machtal prior to the May 4 hearing. See Macktal 1, supra, Slip op. at 5. For example, NRC representatives sought (unsuccessfully) to arrange a meeting with Mr. Macktal when he was in Washingten for that Congressional hearing. They initiated this~ process prior to May 4, 1989, well before any alleged " embarrassment."
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to the NRC does not depend on the technical merits of hic -
l l allegations. Put another way, his DOL claim rests on the l
l argument that he suffered discrimination because he voiced safety concerns, not because he voiced technically correct safety concerns.
Additionally, as we also noted in CLI-89-06, we have i
deferred to the DOL for an initial ruling on the question of 1 1
whether the disputed settlement agreement between Mr. Macktal 1
and the Brown & Root Corporation is a per sjt violation of Section 210. See Comanche Peak, CLI-89-06, 29 NRC at 355. I l
Thus, the NRC has already agreed to " allow ... the Department j i
of Labor ... to determine Macktal's concerns" with regard to !
l employment discrimination. In fact, we took this action at Mr. Macktal's request. 8/ In view of his having prevailed on this significant issue, he can hardly now complain that we have demonstrated " pervasive bias or prejudice" toward him. I In sum, Mr. Macktal's " concerns" regarding his settlement !
4 agreement and employment discrimination claims are before the 4 j
courts and the Department of Labor for appropriate resolution. 9/ However, the safety of the Comanche Peak j
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~8/ See Motion for Reconsideration of CLI-88-12 (Dec. 30, I 1988). l
-9/ In CLI-89-06, we noted that we had deferred to the Department of Labor for a ruling on the " agreement's acceptability or legality...." See 29 NRC at 355. We then noted that "we continue to adhere to our statement (FOOTNOTE CONTINUED ON NEXT PAGE)
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, plant is the.NPC's responsibility; the subpoena is necessary to help assure that responsibility is met.
Mr. Macktal has stated publicly that he has information
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concerningfalleged safety violations at Comanche Peak, a.
plant which is'under consideration for iscuance of an l l
operating license in the near future. Mr. Macktal should now provide that information to the NRC staff which has the capacity to evaluate that information and the authority to l
require Texas Electric to undertake any corrective action which may be needed. The sole purpose of the subpoena is to i obtain that-information so that appropriate action may be taken. The issuance of the subpoena.is not evidence of
" pervasive bias or prejudice." l i
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l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE).
in [CLI-88-12) that the disputed agreement does not I
prevent Mr. Macktal from bringing any of his safety concerns directly to the NRC. Staff." .9 2 NRC at 355-56, n.7. This statement wac not intended to circumscribe j the Department of Labor's review of the Settlement Agreement in any way. Instead, it was-intended to encourage Mr. Macktal -- and any other individuals I similarly situated -- to come forward with their concerns. ;
' In any event, we note that the Department of Labor has now invalidated a provision in another settlement ;
agreement which is virtually identical to the disputed-provision in Mr. Macktal's agreement. The DOL held that this provision was " unenforceable as against public policy." See Polizzi'v. Gibbs & Hill, 87-ERA-38 (July 18, 1989), Slip op, at 7. Accordingly, inLlight.of the DOL's action, the agreement should not prevent Mr. i Macktal from bringing any of his safety concerns directly to the-NRC Staff, regardless of any y interpretation of-the agreement's disputed terms.
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IV. Conclusion. -
Mr. Macktal has failed to demonstrate any reason why the Commission should disqualify itself as a body or that any individual Commissioner should disqualify himself from any proceeding to inquire into Mr. Macktal's allegations.
Therefore, we deny the motion.
It is so ORDERED.
For the Commission f .r '
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os k C %
l i SAMUE . CHILK Secretary f the Commission Dated at Rockville, Maryland this h day of August, 1989.
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'I UNITE.D ST ATES OF AMERICA NUCLEAR REGULATORY CGMMI5510N- ._
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In re ;cseen J. Macktal ) Decket-No. DIA-89-000 I i 3
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C.er.gif i g.45 g_ gi.p t c yi g t .
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l 1 hereev certify that a copy of the 4creccano Commission' Order '
has been served upon the following person tv first class mail, postage prepaid and in accordance with the requirement of 10 CFR nec. 2.712.
l Steven M. Kehn, Esautre Counsel for Joseph J. Mactal Kohn Kchn & Colapanto. P.C.
517 Florida Avenue, NW Washinoten. DC 20001 Dated at hockv111e. Maryland j
-this le day of Auoust, 1989 i Office the Secretary of the-Commission j l.
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