ML20083G204
| ML20083G204 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/09/1984 |
| From: | Curran D, Jordan W HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-751, ALAB-757, NUDOCS 8401110171 | |
| Download: ML20083G204 (12) | |
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NUCLEAR REGULATORY COMMISSIdri BEFORE THE COMMISSION
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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 PETITION FOR REVIEW OF ALAB-751 AND ALAB-757 Introduction Pursuant to 10 C.F.R. S 2.786(b), the New England C,oalition 1
on Nuclear Pollution ("NECNP") petitions the Commission to review ALAB-751 and ALAB-7 57.
In ALAB-7 51, the Appeal Board affirmed Judge Helen F. Hoyt's denial of NECNP's motion.to disqualify Judge Hoyt from the Seabrook operating licensing proceeding.
The Appeal Board denied NECNP's motion for r econsideration of ALAB-7 51 in ALAB-7 57.
The Commission now has before it petitions for review of two other Appeal Board orders af firming Judge Hoyt's denial of recusal motions by the Seacoast Anti-Pollution League ("SAPL")
and the Commonwealth of Massachusetts, ALAB-748 and ALAB-749.
These motions raise many of the same issues addressed in NECNP 's motion, although NECNP raises one additional factual instance and goes into another in greater detail than the other i.
8401110171 840109 PDR ADOCK 05000443
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g Because they raise essentially the same issues from motions.
the different vantage points of the three intervenors, NECNP urges the Commission to consider them.together.
j History of the Proceeding On November 23, 1983, NECNP filed a Motion for The motion charged that Disqualification of Judge Hoyt.
toward NECNP and other through improper and hostile conduct intervenors and representatives, Judge Hoyt had created an appearance of bias that pervaded the entire licensing proceeding and threatened NECNP's ability,to par ticipate effectively in the case.
NECNP cited inter alia,the following instances of improper conduct by Judge Hoyt:
--Judge Hoyt blocked and manipulated the record by refusing to allow counsel for interver urs or local representatives to state their objections and arguments or to place relevant f actual information on the record; by intimidating issues local representatives from raising certain relevant and f orbidding them to bring them up during the hearing; by ordering the court reporter not to record certain and by issuing a post hoc order stating that an statements; event had occurred during a hearing session that had not occurred at all.
NECNP Disqualification Motion at 8 - 17.
--Judge Hoyt held an unrecorded ex parte telephone
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conference with the Chairman of the Rye, New Hampshire Board of Selectmen in an apparent attempt to persuade Rye 9
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to dismiss Mr. Guy Chichester as its representative to the
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Seabrook proceeding.
The Town of Rye's subsequent apology y
and withdrawal of its recusal motion creates the impression that Judge Hoyt successfully intimidated the town through her improper jgt parte contact.
Later, Judge Hoyt issued a n
j written order incorrectly stating that she had dismissed j
Mr. Chichester from the proceeding on a date that preceded 4
the telephone conference with Rye.
The order created the 4
i llegally i
f alse impression that Judge Hoyt had not subsequently filed a corrected copy of the motion on 1 N ECNP November 28, 1983.
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, Rye's of ficial representative,NEC circumvented Mr. Chichester, selectman.
by contacting the ted a the Licensing Board conducose of gathering e a t 17 19.
31, 1983, meeting for the purported purphe Commonwealth ofhe Board's d's
--On August planning inf ormation from t Based on the language of t and assurances from the Boar ntively affecting NECNP Massachusetts.
announcement of the meetinglaw clerk that no matter f
with the terms of the Board's ahy discussion of the tim would be discussed, NECNP itigation, and entertained Inconsistent Judge Hoyt conducted a lengt for counsel as to how the times the emergency planning l could be substantiallyhad determined arguments f rom Applicants' filing contentions and discoveryJudge Hoyt announced t i
- ted, reduced. cut the periods at least Because Judge Hoyt had sta.
schedule he litigation ex parte her some reason that day.
her predetermination to cut t ed by the bsequent offer drastically, the pr ejudice incurrwas not cured by Judge Hoyt' on the issue.
- ussion, also held an in chambers disci es to the procee 22.
f discussionto entertain written brie s meeting, Judge Hoyt which non-lawyer representat vNECNP Disqualification M i
at
~d were excluded.
NECNP's motion on the groun f r om Judge Hoyt summarily denied h r disqualification reiterated the claims of two ot ePollution Leagu that it
'Upon motions by the Seacoast Anti-which she had also denied.
Commonwealth of Massachusetts,f firmed Judge Hoyt's ruling.
The in of r eferral, the Appeal Board a affirmed Judge Hoyt's reject o l
NP had Appeal Board, which had a so Commonwealth, ruled that NEC h
the motions by SAPL an,d t e hat would change its raised any new factual issues t found that NECNP's motion not Moreover, the Appeal Board t thr ee months since it was submitted almos ruling.
untimely filed, ise to the claim of bias.
was af ter the hearing that gave r
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NECNP moved th'e Appeal Boa d r
December 13, 1983 to reconsider its decisi factual issues that were difNECNP pointed ou t tha t on on it had raised some ferent the Commonwealth, and that
- f. rom those raised by SAPL dismiss NECNP 's motion with therefore the Appeal Bo or ard could not argued that since it had filedout considering them.
NECHP also f urther hearings would conti the motion well before
- nue, any the conduct of the proceeding substantiallthe motion would no I
ect timely.
j The Appeal Board denied th y, and therefore was
'i Appeal Board e motion for reconsiddration Error NECNP seeks the reversal an important question of law of the Appeal Board's decision conduct in the seabrook lice i.e.,
whether Judge Hoyt' on s
sufficient appearance of bias tnsing proceeding creates a Seabrook Licensing Board.
o warrant her removal from th that since Judge Hoyt's i The Appeal Board incorr e
mproper ectly ruled i
course of the Seabrook proceedi conduct occurred during the in nature, ng and was it could not constitut "extrajudicial" not disqualifica tion.
e grounds for i'
ALAB-751 a t 3 Board relied on the Commi ruling, the Appeal In so I
i (South Texas Projectssion's decision in Houston Li and Power Co.
ghting
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15 NRC 1363 (1982).
, Units 1 and 2),
judicial gloss to In South Texas, the Commi CLI-82-9, a federal disqualification stssion applied a j
atute, finding i
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that disqualificatio'n must ordi
-tieither the Ad.ministrative Procednarily be b.ased conduct.
U. S.C.
ure Act nor 28 S 455(a),
the disqualifica tion standard f judges, contains any such restricti or federal ons.2 Circuit has recognized, S 455(a)
As the First permits disqualifica tion of judgesprejudice is a res information, i developed a preconception by mrequired a judge to that
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sources.
ess he had eans of extrajudicial United States v. Cepeda Penes 1
, 577 F.2d 754, 758 (1st Cir.
1978)
Thus, numerous courtroom conduct without regard tcourts have disqualified ju r
was "extrajudicial."
o whether or not the conduct which judges were disqualified foSee, for example, the follo ng cases in McGhie Land Title Co., 549 F 2d 1 r courtroom remarks:
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-Webbe v.
358 Bailar, 625 F.2d 125 (6th Cir (10th Cir. 1977); Roberts _
v.
1980);
i 655 F.2d 44 (5th Cir. 1981) and U.S. v. Holland, I
l 2 Under the Administrative P w
an administrative law judge may be rerocedure Act, 5 U.S..C S 556(b) cused affidavit of personal BiasOn the filing in good faith of a timely and sufficient of a presiding or participating empl or other disqualification Under 28 U.S.C.
oyee...
S 455(a),
Any justice shall disqua,lify himself in any projudge, or magistrate of th his impartiality might reasonably be United States ceeding in which e questioned.
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, The Appeal Board also erred in refusing to find that Judge.Hoyt's conduct did not meet the exception to the South Texas rule for " judicial conduct demonstrating such pervasive bias and prejudice as would constitute prejudice against a party."
15 NRC at 1366.
Without discussing any l
the of the specific factual allegations of biased conduct, Appeal Board merely stated that the incidents cited by NECNP do not demonstrate pervasive bias.
ALAB-751 at 3.
To the contrary, the record shows repeated illegal and improper actions by Judge Hoyt toward intervenors and - -
local representatives, some of them serious enough by themselves to warrant recusal.
The improper conduct ranged from hostile and intemperate remarks to an illegal that not only excluded other parties, but l
ex parte contact the representative of the party contacted. ' Judge Hoyt f
directed come sort of improper conduct toward every single intervenor and local representative present at the August hearings.
And each intervenor and local representative was affected by the general atmosphere of intimidation and hostility engendered by Judge Hoyt.
Finally, NECNP seeks reversal of the Appeal Board's ruling that its disqualification motion was not timely The Appeal Board ruled that NECNP should have l
filed.
filed its recusal motion "promptly" af ter the alleged l
impr oper. conduct occurred.
ALAB-7 57 a t 8.
As the Third 585 F.2d 83, 86 (3rd Circuit explained in Smith v. Danyo,
n mgi-c=
-y-Cir. 1978), however,
[Elspecially where the circumstances giving rise to the charge of bias occur or are discovered after the case has commenced, timeliness should be measured not in some absolute and arbitrary manner from the date of discovery, but with respect to the future stages of the case.
N ECNP filed its disqualification motion as quickly as possible.
The motion was filed before the final pleading deadline for proposed findings of fact and conclusions of law concerning issues raised in the August hearings, and thus did not impinge on the Board's decisionmaking process.
Because offsite emergency plans remain incomplete, the next phase of hearings will not take place until late spring at the earliest.
Moreover, NECNP did not use the interim period between the hearing and the filing of the recusal motion to attempt to l
obtain favorable rulings from the Board on substantive issues.
l During the time between the August hearings and the filing of its recusal motion, NECNP approached the Board only to object to the Board's co.nduct of August 31; to raise minor matters; and to comply with strict deadlines for emergency planning filings and proposed findings in order to continue participating in the case.
Thus, NECNP's motion did 'not seriously affect the timing of the seabrook proceeding, nor did NECNP use the interim tima to attempt to obtain f avorable rulings from the Board while waiting to file a recusal motion.
Reasons for' Commission Review NECNP and other intervenors have raised serious instances
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of illegal and improper conduct by Judge Hoyt.
The Appeal Board addressed these claims only in generalities, providing a specific discussion in reference to.only one incident.
ALAB-757 at 3-7.
NECNP is entitled to a full articulation of the Commission's standard f or pervasive bias, as well as an explanation of how that standard applies to this egregious set of facts.
Moreover, the circumstances of the present case illustrate the need for the Commission to reexamine its ruling in South Texas.
Each instance of Judge Hoyt's improper and illegal conduct occurred during the proceeding.
As improper and irregular as that conduct was, the Appeal Board refused to consider whether it created the appearance of bias.
Hdnce, as a result of the Commission's narrow ruling in South Texas, the legitimacy of the proceeding itself served as a mantle to shield highly improper conduct from question.
Finally, the disqualification motions now before the Commission raise fundamental questions about the Commission's t
policy in guaranteeing the public a fair and impartial hearing on the issuance of an operating license.
The courts have long recognized that maintaining high standards of judicial conduct
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is especially important in administrative proceedings, "where
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many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed."
National Labor Relations Board v. Phelps, 136 F.2d 562 (5th Cir. 1943)
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,y u Commissioner Asselstine noted ir his dissent from the South
' exas decision, meaningful public participation.in the
- 1ljudicatory process is "a vital ingredient in the open and i
- 11 consideration of licensing issues and in establishing
- blic confidence in the sound discharge of the important i; ties which have been entrusted to us."
15 NRC at 1374,
- oting Northern States Power Company (Prairie Island Nuclear
( :-en er o t in g Pl an t, U n i ts 1 a n d 2 ) ', CL I-7 5-1, 1 N RC 1, 2 (1975)
Rsgardless of Judge Hoyt's motivation, her conduct has
- reated an appearance of partiality that has deeply shaken the
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- blic confidence in the fairness of the Seabrook licensing l;rocseding.
The Appeal Board has addressed only in the most l;enorcl terms the lengthy set of serious allegations by the ll stcrvenors who have moved for disqualification.
As a matter l:f policy, the Commission should address these instances i rpocifically, and provide the public with some assurance of its l ::smitment to maintaining the appearance of fairness in the lIsabrook licensing case.
1 Respectf ully submitted, Diane Curran William S. Jordan III HARMON & WEISS i
17 25 I S treet, N.W.
Suite 506 Washington, D.C.
20006
'laucry 9, 1984 (202) 833-9070
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-ME CERTIFICATE OF SERVICE I certify that COALITION ON NUCLEAR POLLUTION ALAB-757 were served on the follon January 9, 1984, c We PETIT. ION FOR REVIEW OF A ENGL D..
otherwise indicated:
M Atomic Saftey and Licensing Bo* Helen Hoyt, Esq., Ch
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.~/g Pa nel Rep. Rober ta C. Pe'v'ea'y
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ard U.S.
Washington, DCNuclear Regulatory Commissio Ha mp t or. Fal'Is, NH Drinkwater Road 6
20555 n
03844
- Dr. Emmeth A. Luebke Administrative Judge Ato nic Saf tey and Ph illip Ah~rens, Esq.
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hashington, DCU.S. Nuclear Regulatory Commis i.LicensintJ Board (State House, Station 66 Assista s on 2.0555 Augusta, ME 04333
- Dr. Jerry Harbour Administrative Judge Atomic Saf tey and 'Li' censing Bo
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111 Lowell StreetRobert A. Backus,
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I Washington, DCNuclear Regulatory Commission Manchester, NH ard 20555 03105 Atomic Safety and Licensing Boa d Panel r
Washington, DCU.S. Nuclear Regulatory Commi R. K. Gad, III*
- Thomas G. Dignan, Es 20555 ssion Ropes and Gray, Esq.
225 Franklin Street Atomic Safety and Licensing Ap Boston, MA 02110 Board Panel peal U.S. Nuclear Regulatory Commis i Sun Valley AsociationDr. Mauray T Washington, DC 20555 s on 209 Summer Street Docketing and Service Haverhill, MA 01830 Washington, DCU.S. Nuclear Regulatory Commissi
- Roy P. Lessy, Jr. Es 20555 on William F. ~ Pa tterson,q.
t Town Manager's Office Office of the Executive Esq.
Town Hall - Fr iend S t.
Legal Director
'a Amesbury, MA 01913 U.S. Nuclear Regulatory Commission Mr. Angie Machiros washington,-DC Chairman 20555 j
Board of Selectmen Anne Verge, Chair l
Nswbury, MA 09150 Board of Selectman l
Town Hall South llampton, NH 03842 e!
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..n Jo Ann Shotwell, Esq.
Assistant Attorney General Department Edward L. George Dana Bisbee, Esq General of the Attorr.ey 1 Ashburton Place,19th Floor Asst. Atty. GeneralsCross, Jr., Esq.
Boston, MA 02108 State House Annex Concord, NH 03301 John B. Tanzer Town of Hampton 5 Mornin Let ty Hett, Selectman Hampton, gside Drive NH 03842 Town of Brentwood RFD Dalton. Road i
Edward F. Meany Brentwood, NH 03833
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l' Town of Rye 155 Washington Road Sandra Gavutis 1
Rye, NH
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03870 Town of Kensington
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RFD 1 Diana P. Sidebotham East Kensington, NH 1
R.F.D.2 03827 Pu tney, VT 05346 Diana P. Randall 70 Collins Street City HallRichard E. Sullivan, Mayor Seabrook, NH 03874 1
Newburyport, MA 01950 Donald E.
Chick Town Manager 10 Front Street l
Alfred V. Sargent, Board of Selectmen Chairman Exeter, NH. 03833 Town of Salisbury, MA.
Brian P.
01950 FEMA Region ICassidy, Esq.
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J.W. McCormack Post Office and Courthouse Senator Gordon J.
Boston, MA. 02109 U.S. Senate Humphrey Washington, D.C.
Senator Gordon J.
(Attn:
20510 Tom Burack) 1 Pillsbury StreetHumphrey Concord, NH 03301 Selectmen of Northampton (Attn:
Herb Boynton)
Town of Northampton
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New Hampshire 03862 Calvin A. Canney City Manager City Hall 126 Daniel Street Portsmouth, NH 03801 I
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- !1unzio J. ' Palladino, Chairman
- Vi ctor Gilinsky, 1 United States lluclear Regulatory Commissioner Commission United States liuclear Washington, D.C. 20555 Commission Washington, D.C.
20555
- Thomas Kr. Roberts, Commissioner
- James K. Asselstine,
' United States tiuclear Regulatory Commissioner Commission United States tiuclear Washington, D.C.
.20555 Regulatory Commission
- Frederick M. Bernt$al, T
Commissioner United States tiuclear Regu.latory 8
Commission l Washington, D.C.
20555 l.
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By Hand
- By Expr ess Mail o
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Diane Curran l