ML20196F734

Memorandum & Order.* Order of Gleason & Kline, , Declining to Rescue Themselves from Further Participation in Proceeding Affirmed.Served on 881205

ML20196F734
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/05/1988
From:	Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#488-7610 ALAB-907, OL-6, NUDOCS 8812140089
Download: ML20196F734 (10)

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UNITED STATES OF AMERICA i WUCLEAR REGULATORY COMMISSION {

t -5 Pi2:24  ;

ATOMIC SAFETY AND LICENSING APP b OARD  !

l Administrative Judges: .

f Christine N. Rohl, Chairman December 5, 1988 f Alan S. Rosenthal (ALAB-907)  !

Dr. N. Reed Johnson

{

i 3 SERVED DEC -51988 {

In the . Matter of )

)

LONG ISLAND I.ICHTING COMPANY ) Docket No. 50-322-OL-6

) (25% Power)

(Shoreham Nucle or Power Station, )

Unit 1) )

l )  !

i i E. Thomas Boyle, Hauppauge, New York, Herbert M. Brown,  !

Lawrenco Coe Lanpher, Karla J. Letsche, and David T. i Case, Washington, D.C., Fabian G. Palomino, Albany, [

8 New Yo'.k, and Stephen B. Latham, Riverhead, New York, J ibr the intervenors suffolk County, the State of New l York, and the Town of Southampton, j

Donald P. Irwin and Charles L. Ingebretson, Richmond, f i Virginia, for the applicant Long Island Lighting i i Company.  !

j I Mit:1 A. Young for the Nuclear Regulatory Cosumission l staff.

( ,

MEMORANDUM AND ORDER J

} on October 31, 1988, the intervenors Suffolk County, 1

l State of New York and Town of Southampton (Governments)  ;

I filed a motion under 10 C.F.R. $ 2 .'.' (c) calling upon 1

Administrative Judges James P. Gleason and Jerry R. Kline to

recuse themselves from presiding, as members of the 5

Licensing Board, over a pending request by the Long Island 4

Lighting Company (LILCO) for immediate authorization to i

! operate its Shoreham facility at 25 percent of rated power.

Both LILCO and the NRC staff opposed the motion. On J 8812140t009 001205 1

PDR AD10CK 05000322

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No'r tmber 2.,1988, Judges Gleason and Kline entered an order in which they announced their decision not to step aside.1 An required by section 2.704 (c), the order went on to refer the recusal mction to us for a determination of "the sufficiency of the grounds alleged." Our examination of the papers filed below persusdes us that the Governments have not assigned an adequate basis for the disqualification of either judge.2 l

1. The recusal motion itself is very brief. Both it l i

j and the requisite supporting affidavit of counsel do little i more than refer the reader to section II of the Governments' I contemporaneously filed response to LILCO's request for I

! authorization to operate at 25 percent power.3 More i t

i

l LBP , 28 NRC . On the same date, the full Licensing Boar 3 issued a memorandum and order in which it essentially granted (with a dissent by the third judge) the LILCO request for authorization to operate at 25 percent  !

power. LBP-88 __, 26 NRC .

f 2

In our November 22, 1988 memorandum and order l (unpublished), we noted (at 4) that, in accordance with our (

customary practice, we would review the matver on the basis l of the filings below. See Public Service Co. of New

!!ampshire (Seabrook Station, Units 1 and 2), ALAh-748, 18 NPC TITf- 1186-87 (1983) i_d_.,

d ALAB-749, 18 NRC 1195, 1198 (1983). We therefore have not received further briefs from l the parties.  !

3 See Governments' Motion to Disqualify Administrative Judges Gleason and Kline (October 31, 1988) and appended October 31, 1988 affidavit of Karla J. Letsche.Section II of the Governments' Response to LILCO's Request for I Immediate Authorication to Operate at 25% Power (October 31,  !

(Footnote Continued) ,

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l 3 l

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l particularly, counsel's affidavit alludes to the citation in ,

i that section of the response to certain statements that had been made by Judges Gleason and Kline in the Board's September 23, 1988 decision purporting to dismiss (over the dissent of the third member of the Board) the Governments from the entire Shoreham operating license proceeding.4 We set ...*th those statements in an appendix to this opinion.

According to the Governments, they reflect a bias that would ,

1 lead a reasonabic person to conclude that those judges could 1

not rule upon the LILCO request fairly and impartially.5 l

2. Neither the recusal motion nor the Governments' l filing incorporated by reference therein makes any mention of the Commission's jurisprudence respecting the l

disqualification of Licensing Board members on the basis of  !

statements made by them in the performance of their adjudicatory duties. Given the assigned foundation for the l i

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! (Footnote Continued) r 1988) thereafter "Governments' Response") is captioned f l "Judges Gleason and Kline are Disqualified from Acting on  !

l the Request."

4 See LBP-88-24, 28 NRC 311. In ALAB-902, 28 NRC 423  !

) (1968), petition for Commission review pending, we  ;

entertained so much of the Governments' appeal as challenged [

the power of the Licensing Board to dismiss those parties

]

i from a portion of the proceeding pending before a different '

Licensing Board. We agreed with the Governments that such j

power was .acking. l 1

Governments' Response at 5-6. I l  !

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l claim that Judges Gleason and Kline must step aside, this t

omission is highly significent. i In its South Texas decision, the Commission held j

squarely (adopting the rule applicable in the federal  ;

I courts) 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 oth0r than j I

what the judge has learned from his participation in the catu.'"6 Although acknowledging that an exception to the  !

general rule might exist in the case of pervasive bias, the Commission went on to note that the "courts have been 3

hesitant to invoke that exception except in the most extreme cases.*7 On the strength of these determinations, the I

Commission reinstated a Licensing Board member who had been  :

I disqualified by us from further participation in the South t

Texas proceeding by reason of a separate statement that he ,

t Houston Lighting and Power Co. (South Texas Project, Unita 1 8- 2), CLI-82-9, 15 NRC 1363, 1365 (1982) (quoting l United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)).  ;

Id. at 1366. In this connection, the Commission referre3 to the notation in a then-recent opinion of the j Court of Appeals for the Second Circuit to the effect that r that court had never disqualified a judge on the basis of ,

judicial conduct. See In Re International Business Machines  !

Corp., 618 F.2d 923, 928 n.6 (2d Cir.1980) .

5 had issued in connection with the Licensing Board's denial of a motion filed by an intervencr.8 The holding of South Texas was at the root of our rulings the following year on a series of motions seeking the disqualification of the then-Chairman of the Seabrook Licensing Board. Finding that the asserted instances of hostility towards the intervenors both (1) involved rulings, conduct or remarks by the Chairman in response to matters that arose during the administrative proceeding and (2) did not reflect pervasive bias, we affirmed her refusal to recuse herself.9 And in thereafter upholding the denial of a recusal motion directed to a Licensing Board member in the Three Mile Island I restart proceeding, the Commission refined the South Texas holding with this general observation regarding the legitimate expectations of litigants:

The parties in an adjudicatory proceeding have a right to an impartial adjudicator, both in reality and in appearance to a roasonable observer.

However, they do not have a right to the judge of their choice. Moreover, the right to an impartial

, adjudicator does not mean that favorable rulings must be divided equally between the parties, or 8

See ALAB-672, 15 NRC 677, 601-83.(1982). We had concluded that the statement could have been taken by a disinterested observer as reflecting a personal animus against that intervenor.

I See Seabrook, ALAR-748, 18 NRC at 1168-89: ALAB-749, 18 NRC at 1199-1200; ALAB-751, 18 NRC 1313, 1314-15, reconsideration denied, ALAB-757, 18 NRC 1356 (1983).

6 that a judge may not occasionally use strong language 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 I

provokestrongreactionsbytggpartiesprovide grounds for disqualification l 3. In this case, as in South Texas and Seabrook, the recusal motion does not rest to any extent upon extrajudicial conduct. To the contrary, as we have seen, the sole underpinnings of the motion are statements contained in the September 23 decision authored by Judges Gleason anu Kline.

We are entirely satisfied that those statements do not reflect any disqualifying bias against the Governments, in particular the pervasive bias that must be established where no extrajudicial conduct is involved. To be sure, the September 23 decision uses strong language in condemning what Judges Glear3n and Kline deemed to be misconduct on the l Governrents' part during the course of the proceeding. But it was both the right and the duty of the Licensing Board l nembers to pass judgr.ent on the propriety of the Governments' actions and to couch their opinion in terms that appropriately reflected the conclusions they reached.

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l 10 Netropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 568-69 (1985).

a 7

On this score, it is of no present moment that, as demonstrated by the appeal they have taken from the September 23 decision, the Governments believe those conclusions to be erroneous and that thei.e dismissal from any portion of the proceeding was unwarranted.II Nor, as the Commission po3nted out in Three Mile Island, is it significant that, in commenting on the Governments' actions, the Board majority invoked such phresas as "taken in bad faith" and "reveal a sustained and willful strategy of II Needless to say, we express no opinion nere on the warrant for any such belief. That matter will be determined by the Commistion, which in an unpublished November 9, 1988 order directed the certification to it of so much of the Governments' appeal from the September 23 decision as addressed their dismissal from the proceeding. I'c is enough for present purposes to repeat our previpus observations it is long settled that "[t]o establish that a hearing was biased, something more must be shown then that the presiding officials decided matters incorrectly; to be wrong is not necessarily to be partisan." Nortliern Indiana Public Sorvice Company (Bailly Cenerating Station, Nuclear-1),

ALAB-224, 8 AEC 244, 246 (1974), citing Tennessee Valley Authority (Dollefonte Nuclear ?lant, Units 1 and 2), ALAB-164, 6 AEC 1143 (1973).

Dairyland Power _ Cooperative (La Crosse Boiling Water Reactor), ALAB-614, 12 NRC 347, 349 (1980) (footnote omitted).

We also find no need, given our judgment that the Governments nave not established any basis for disqualification, to review the independent, alternative conclusion of Judges Gleason and Kline that the Governments have no standing te seek their disqualification. See LBP-88 __, 28 NRC at (slip opinion at 3).

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8 disobedience and disrespect."12 It is readily understandable that the Governments are displeased by such characterizations

-- the accuracy of which has been challenged on their pending i

appeal from the September 23 decision. But it is equally plain that there would be an intolerable threat to the independence of Licensing Board members -- and adjudicators generally --

were litigants in a position to employ recusal motions for the purpose of dictating the content of the adjudicators' decisions on the matters coming before them.13 The November 21, 1988 order of Judges Gleason and Kline, LBP-88 _,,, 28 NRC , declining to recuse themselves from further participation in this proceeding is affirmed.

12 See Appendix infra p. 10.

13 As earlier noted, supra note 1, on November 21 the Licensing Board essential)'; granted the LIICO request for authorization to operate at 25 percent power. It is worthy of passing observation ;h st, whether that result is ccrrect or not (a matter that ved not be now considered), there is nothing in the Board's opinion that suggests that it was influenced by or harbored any bias against the Governments.

9 It is so ORDERED.

FOR THE APPEAL BOARD kg f R A_ ^ w ^?

r '7 Barbara A. Tompkins Secretary to the Appeal Board An Appendix follows.

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10 APPENDIX Excerpts from LBP-88-24, 28 NRC 311, relied upon at page 6 of the Governments' Response to LILCO's Request for Immediate Authorization to Operate at 25% Power:

"[the Governments' actions) were willful, taken in bad faith, and were prejudicial to LILCO and the integrity of the Commission's adjudicatory process" (28 NRC at 376);

"[the Governments' actions) reveal a sustained and willful strategy of disobedience and disrespect for the Commission's adjudicatory processes" (ibid.);

"[t]he [ Governments'] strategy of noncooperation and obstruction was deeply entwined with legitimate practice" (ibid.).

"[the Governments] have actively sought to frustrate the Commission's efforts to arrive at an informed judgment" (id. at 368);

"[the Governments' actions) represent a pattern of substantial and continual actions to . . .

frustrate federal review" (ibid.);

"procedural mechanisms have been consistently utilized [by the Governments) in delaying the Board and Commission in carrying out its [ sic) licensing responsibilities" (id. at 367);

"[the Governments have) an overall plan to thwart (the NRC's) inquiry and subvert the Commission's process, for political ends" (id. at 363); >

"[t]here are no redeeming features in (the Governments' conduct]" (id. at 369 n.38); and "the only appropriate penalty [is for the Governments to be dismissed from all Shoreham proceedings)" (id. at 377).