ML20082T975
| ML20082T975 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/13/1983 |
| From: | Curran D, Jordan W HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-751, NUDOCS 8312160197 | |
| Download: ML20082T975 (12) | |
Text
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t DOCKETED UShRC
'8308: 14 P2 :53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Cbi E
U m c4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Public Service Company of New
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Hampshire, et al.
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Docket Nos.
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50-443, -444 (Seabrook Station, Units 1 and 2)
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)
NEW ENGLAND COALITION ON NUCLEAR POLLUTION MOTION FOR RECONSIDERATION By order of December 6,1983, the Appeal Board affirmed the denial of a motion by the New England Coalition on Nuclear Pollution (NECNP) for disqualification of Judge Helen F.
Hoyt from the Seabrook operating license proceeding.
ALAB-751.
NECNP moves for reconsideration of the App 9al Board's decision.
The Appeal Board based its denial of NECNP's motion on two major grounds.
First, the Appeal Board ruled that NECNP's claims are identical to claims raised by the two other intervenors who have moved for disqualification, and thus give the Appeal Board no reason to change its conclusion that Judge Hoyt's conduct was not extrajudicial and that it did not rise to the level of pervasive bias.
Second, the Appeal Board found that NECNP's motion was not timely filed.
The Appeal Board is incorrect on both grounds.
8312160197 831213 PDR ADDCK 05000443 O
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Substantive Basis For Disqualification In denying NECNP's motion, the Appeal Board stated that "the substance of every example of asserted bias set forth by the Coalition was likewise advanced in one or both of the two recusal motions passed upon in ALAB-748 and ALAB-749."
ALAB-7 51, slip op at 2.
This assertion is inaccurate.
NECNP posited two extremely serious instances of biased behavior by Judge Royt that were not dealt with by either SAPL or. the Commonwealth of Massachusetts.
These instances, taken with the other examples raised in NECNP's motion, create an appearance of bias that pervades the entire licensing proceeding.
First, NECNP raised the f act that the Licensing Board held a meeting, ostensibly for the purpose of gathering information from the Massachusetts Civil Defense Director, at which Judge Hoyt announced her intention to reduce drastically the already constricted licensing proceeding schedule for Seabrook, and took suggestions from Applicants as to how it should be accomplished.
See NECNP Motion for Disqualification at 19 -
22.
NECNP did not attend this meeting on the express prior understanding that no discussion would be held of any matters substantively affecting NECNP's interest in the proceeding.
The discussion of substantive matters af fecting NECNP not only violated the ex parte rule, but demonstrated Judge Hoyt's predisposition to make a ruling favorable to the Applicants before she had heard NECNP's position on the issues.
NECNP
h 3-considers this instance to have been severely prejudicial to its interest in obtaining full and fair litigation of licensing issues in the Seabrook proceeding.1/
Second, NECNP was the only part to address the appearance of bias created by the way in which Judge Hoyt made an ex parte contact with the town of Rye, New Hampshire, and then mischaracterized her treatment of Rye representative Guy Chichester in the Licensing Board order of September 8.S[
As discussud at pages 17 - 19 of NECNP's Motion for Disqualification, Judge Hoyt conducted an ej[ parte conversation with J.P Nadeau, Chairman of the Rye Board of Selectmen in which, according to the Rye Board of Selectmen, she attempted to persuade the town to remcVe Mr. Chichester as its official representative.
The resulting offer of apology and withdrawal of Rye's recusal motion leaves the impression that Judge Hoyt's wholly improper contact with Rye had an intimidating effect on I
the town.
Later, on September 8, Judge Hoyt issued a written order stating that she had dismissed Mr. Chichester from the 1[ NECNP formally objected to the Board's improper conduct and requested that all future scheduling decisions for offsite planning be assigned to an independent tribunal.
NECNP Objection to Improper Board Conduct, Reponse to Applicants' Position as to Scheduling of Emergency Planning Issues, and Request for Hearing on Licensing Schedule, filed October 5, 1983.
3/The motion for disqualification by the Commonwealth of Massachusetts described the ex parte contact with Rye in only.
l one sentence, and did not discuss that event or the September 8 i
order-in any detail.
l ww-
4 proceeding during limited appearances on August 26, three days bef ore she called Mr. Nadeau.
The transcript of the limited appearances, however, shows only that Judge Hoyt expelled Mr.
Chichester from the courtroom.
Judge Hoyt's issuance of a written order mischaracterizing her actions of August 26 as dismissal of Mr. Chichester from the proceeding has the appearance of an attempt to lend legitimacy to the ex parte contact with Mr. Nadeau of August 29.
Had the Board already dismissed Mr. Chichester, Judge Hoyt's phone call to Mr. Nadeau might have been excusable as an attempt to ascertain how the town of Rye wished to proceed without Mr. Chichester.
The record does not support Judge Hoyt's characterization of the events, however.
The order of September 8 thus merely amplifies the appearance of bias and impropriety created by the illegal contact of August 29.
Another extremely important factual distinction between NECNP and the other intervenors who have moved for disqualification of Judge Hoyt is the fact that NECNP has raised many instances in which Judge Hoyt's biased conduct was either directed at counsel for NECNP or directly affected NECNP's ability to litigate its contentions.
All of the contentions on which coaching of witnesses was alleged, for s m example, were NECNP contentions.
The two instances described above also directly affected NECNP.
Judge Hoyt's entertainment of eji parte arguments from Applicants on time allowances for filing contentions and conducting discovery on offsite
9
-S-emergency planning may have a permanent, negative effect on l
NECNP's ability to participate effectively in the Seabrook licensing case.
Judge Hoyt's treatment of Guy Chichester and the town of Rye relates directly to the litigation of NECNP's contentions, since one of Judge Hoyt's reasons for removing Mr.
Chichester from the proceeding was his allegation of witness i
coaching by counsel for Applicants.
See unpublished order of September 8, 1983, attached to NECNP Motion for Disqualification as Exhibit 4.
In raising these instances, NECNP thus did not " simply rehearse" the assertions of parties in other disqualification motions.
ALAB - 751, slip op at 6.
NECNP could not rely on the pleadings of the other intervenors, but had a distinct interest to protect in filing its own, quite different motion.
II.
Timing The Appeal Board f aults NECNP for not having filed its motion in a t'imely fashion or attempting to justify that late filing.
NECNP did not discuss the question of timeliness because in spite of the time consumed in reviewing the voluminous record of this proceeding and researching the legal standards for disqualification, the motion was within the bounds of timeliness as set forth in federal case law.
The Appeal Board apparently considers that NECNP should have filed a disqualification motion shortly after the August hearing that gave rise to the claims.
As the Appeal Board
l 6-l 1
notes in ALAB-749, the courts and the NRC have soundly disapproved the holding back of disqualification motions until after an adverse decision has been rendered, Marcus v.
Director, Office of Workers' Compensation Programs, 548 F.2d 1044, 1051 (D.C. Cir. 1976), or until a trial has commenced.
Puget Sound Power and Light Co (Skagit Nuclear Power Project, 2
Units 1 and 2), ALAB-556,10 NRC 30, 32 n. 6 (1979 ).
The crucial factor is not the date of discovery of the bias, however, but the effect of the disclosure on the future conduct of the proceeding.
Smith V.
Danyo, 585 F.2d 83, 86 (3rd Cir.
1978)
As the Smith court explained, (E] specially where the circumstances giving rise to the charge of bias occur or are discovered after the case has commenced, timeliness should be measured not I
in some absolute and arbitrary manner from the date of l
discovery, but with respect to the future stages of the case.
In Smith, the court found that plaintiffs who had waited three months to file a motion for recusal had not waived their right to make the motion because it was filed well before the trial date and before the plaintiffs had called upon the trial court for any new ruling By the same token, NECNP has not jeopardized the conduct of the Seabrook licensing proceeding by filing its recusal. motion less than three months after the August hearing.
Because a number of offsite emergency plans have not yet been submitted to the NRC, the next phase of hearings,Jpreviously scheduled for December, has been indefinitely postponed.
Thus, NECNP's
1 motion does not interfere with the scheduling of the seabrok hearings.
Nor has NECNP thwarted the imminent issuance by the Licensing Board of a decision regarding the substantive issues l
litigated in the August hearing.
The date for submission of l
the Applicants' response to the other parties' proposed findings did not fall until af ter NECNP had filed its recusal motion.
Moreover, it is our experience that Licensing Boards j
take several months to issue a decision af ter receiving all of the parties' proposed findings.
Thus, pecmpt removal of Judge 2
i i
Hoyt would not adversely affect or delay the Board's ability to reach a decision on the matters litigated in August._
since the hearing, NECNP has filed contentions on loca'l plans and evacuation time estimates for the state of New Hampshire.
In these cases, NECNP did not affirmatively approach the Board seeking a favorable ruling, but filed i
contentions in conformance with strict and rigorous deadlines in order to maintain an interest in the seabrook case as it i
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continues.
The Board has not yet ruled on any of these contentions, and a new chairman could do so as well as Judge Hoyt.
l The only other motion that NECNP has filed' before the Licensing Board since the August' hearing is an objection to the-Board's conduct of the ejc parte discussion of August 31, 1983.
I That motion was filed on October 5, 1983.
In it, NECNP asked
O
' the Licensing Board to assign all future decisions regarding the timing of filings in the offsite emergency planning proceeding to an independent tribunal.
NECNP also requested a hearing on the timing of completion of construction of Seabrook, so that licensing proceeding scheduling decisions can be made reasonably in light of the projected completion date.
(Applicants' and staff's projections now differ by over a year.)
Thus, the only action NECNP has independently requested of the Licensing Board was that it open for investigation and debate the issue of the plant completion date, which appears to b'e a factor governing Judge Hoyt's August 31 proposal to severely constrict the schedule for filing pleadings on offsite planning; and that it examine the propriety of continuing to preside over scheduling issues in light of its prejudicial behavior of August 31.
NECNP's disqualification motion does not interfere with the Board's disposition of this motion, but rather is consistent with it.
The Board has not ruled upon the motion.
In judging the timeliness of NECNP's motion, the Appeal Board compares NECNP unfavorably to SAPL and the Commonwealth of Massachusetts.
The timing of NECNP's submission should be judged not by comparison with other parties., but on the basis of the effect of NECNP's filing on the proceeding.
It is simply unfair to judge NECNP's pleading as late because it followed the pleading of other intervenors.
Intervenors are independent parties with independent interests.
As the Appeal Board has ruled, "a disqualification motion must.
. be based
. on an invasion of the movant's own rights.2/
ALAB-748, slip op at 5.
Just as 'he other intervenors could not speak for N ECNP, so NECNP was not bound by the schedule by which they I
asserted their own interests.
Hence, the Appeal Board's
" inf er ence" that NECNP " assumed that it was free to await Judge Hoyt's disposition of the previous recusal motions before putting in its own oar" is not sufficient legal grounds for denying NECNP's motion.
In any event, the record demonstrates l
the incorrectness of the Appeal Board's conclusion.
Judge Hoyt's denial of the Massachusetts disqualification motion was served on November 25, 1983, and was not received by NECNP until November 28, five days af ter NECNP had filed its own motion.
Conclusion NENCP does not make a recusal motion lightly.
It hoped to file its motion soon atter SAPL's appeared, but it refused to do so until it had been able to undertake a thorough review and analysic of the transcript and records of this proceeding and of the applicable law.
In light of prior Commission decisions, this review was necessary in order to determine that the motion was legally supportable.
It was also necessary to understand the detail and full implications of Judge Hoyt's improper actions with respect to the dismissal of Guy Chichester as 2/ For this reason, the Appeal Board is inconsistent in suggesting that NECNP should have filed a response to the disqualification motions by SAPL and the Commonwealth of Massachusetts.
To the contrary, NECNP would have no more standing cr right to support those motions than those intervenors would have to raise issues related to bias against other intervenors.
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. representative of the Town of Rye and the ex parte contact with the town.
It would have been irresponsible of NECNP to file its motion before completing that work.
The fact that other intervenors have filed recusal motions is legally irrelevant to the timing or substance of NECNP's motion.
The timeliness of NECNP's motion must be judged independently under the standards discussed above.
It meets those standards.
The substance of NECNP's motion, including unique factual issues raised by NECNP alone, and the prejudice caused specifically to NECNP by Judge Hoyt's conduct, must also be independently examined by the Appeal Board.
Those factual issues meet the Commission's standards for disqualification of administrative law judges.
For these reasons, NECNP moves that the Appeal Board reconsider and reverse its decision of December 6, 1983.
Respectfully submitted,
/9 L.) %J Q
Diane Curran
<g4 William Jordan, III HARMON & WEISS 17 25 I ' S treet, N.W.
Suite 506 Washington, D.C.
20006 December 13, 1983 (202) 833-9070
CERTIFICATE OF SERVICE l
I certify that on December 13, 1983, copies of NEW ENGLAND 4
COALITION ON NUCLEAR POLLUTION MOTION FOR RECONSIDERATION were served on the following by first-class mail:
4 Alan J. Rosenthal, Chairman Gary J. Edles Atomic Safety and Licensing Atomic Safety and Appeal Board Licensing Appeal Board' U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Co mmission Washington, D.C.
20555 J
Howard A. Wilber Diana P. Sidebotham Atomic Safety and Licensing ~
R.F.D.
2 Appeal Board U.S. Nuclear Regulatory Commission Putney, VT 05346 Washington, D.C.
20555 Rep. Roberta Pevear Helen Hoyt, Esq., Chairperson Drinkwater Road Pevear 1
Atomic Saftey and Licensing Hampton Falls, NH 03844 Board Panel U.S. Nuclear Regulatory Commission Phillip Ahrens, Esq.
Washington, DC 20555 Assistant Atty. General State House, Sta. # 6 Dr. Emmeth A. Luebke Augusta ME 04333 Administrative Judge Atomic Saf tey and Licensing Board Robert A. Backus, Esq.
U.S. Nuclear Regulatory Commission 111 Lowell Street Washington, DC 20555 Manchester, NH 03105 Dr. Jerry Harbour Thomas G. Dignan,.Esq.
Administrative Judge R.K. Gad III, Esq.
Atomic Saftey and Licensing Board Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street i
Washington, DC 20555 Boston, MA 02110 Atomic Safety and Lic'ensing Board Senator Gordon Humphrey I
Panel 1 Pillsbury Street U.S. Nuclear Regulatory Commission Washington, DC 20555
. Manchester, NH 03301 (Attn:
Herb Boynton) l Boston, MA 02110 Atomic Safety and Licensing Appeal Dr. MaurayLTye,' President Board Panel F44 Valley Asociation U.S. Nuclear Regulatory Commission ~
2CD Summer Street Washington, DC s20555 Haverhill, MA 01830 i
I Docketing and Service Anne Verge, Chair l
U.S. Nuclear Regulatory Commission
- Board of Selectmen
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Washington, DC 20555 South Hampton, NH: 03842 1
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l Town Manager's Office Diana P. Randall, Town Hall - Friend St.
70 Collins Street Amesbury, MA 01913 Seabrook, NH 03874 Mr. Angie Machiros, Chair George Dana Bisbee, Esq.
Board of Selectmen Edward L'. Cross Jr., Esq.
Town Hall Asst. Attys-. General l
Newbury, MA 09150 State House Annex Concord, NH 03301 Jo Ann Shotwell, Esq.
Assistant Attorney General Calvin A. Canney 1 Ashburton. Place City Manager 19th Floor City Hall Boston, MA 02108 126 Daniel Street Portsmouth, NH 03801 John B. Tanzer Town of Hampton
-Letty Hett, Selectman 5 Morningside Drive Town of Brentwood Hampton, NH 03842 RFD Dalton Road Brentwood, NH 0383 3 Edward P. Meany Sandra Gavutis Town of Rye Town of Kensington 155 Washington Road RFD 1 Rye, NH 03870 East Kensington, NH 03827 Richard E.
Sullivan, Mayor Donald E.
Chick City Hall Town Manager Newburyport, MA 01950 10 Front-Street Exeter, NH. 03833 Alfred V. Sargent, Chairman Brian P.
Cassidy, Esq.
Board of Selectmen FEMA Region I Town of Salisbury, MA.
01950 J.W. McCormack Post Office and Courthouse Boston, MA. 02109 Senator Gordon J. Humphrey Roy P. Lessy, Esq.
U.S. Senate William ~ F. Patterson, Washington, D.C. 20510 office of the Executive Legal Director Selectmen of Northampton
.U.S.
Nuclear Regulatory Town of Northampton Commission New Hampshire 03862 Washington, D.C.-
si Diane' Curran r-e-u
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