ML20195E897
| ML20195E897 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/12/1988 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20195E904 | List: |
| References | |
| CON-#488-7489 OL-6, NUDOCS 8811160329 | |
| Download: ML20195E897 (17) | |
Text
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M (9
LILCO, November la,1988 I
t u.rrn
.e...
UNITED STATES OF AS1 ERICA NUCLEAR REGULATORY COS1511SSION 7 3 g,~ r y g g j
Before the Atomic Safety and Licensing Board i
in the Statter of
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i LONO ISLAND LIGHTING COS1PANY
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Docket No. 50-322-OL-E
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(25% Power) l (Shoreham Nuclear Power Station,
)
Unit 1)
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LILCO'S OPPOSITION TO INTERVENOFT' MOTION FOR DISQUALIFICATION OF JUDGES GLEAL;J AND XLINE i
- 1. INTRODUCTION LILCO opposes Intervenors' motion, filed ostensibly pursuant to 10 C.F.R.
f 5 2.704,II to disqualify the Chairman and one member of this Atomic Safety and Li-censing Board, Judges Gleason and Kilne, from ruling on LILCO's October 21 request for immediate issuance of a 25% power license.2# See LILCO's Request for Immediate I
1/
10 C.F.R. 5 2.704(c), the pertinent subsection, reads:
I If a party deems the presiding offleer or a designated mem-ber of an atomic safety and licensing board to be i
disqualified, he may move that the presiding officer or the l
board member disqualify himself. The motion shall be sup-ported by affidavits setting iorth the alleged grour>ds for dis-r qualification. If the presiding officer does not grant the mo-
[
tion or the board member does not disqualify himself, the i
motion shall be referred to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, which
[
will determine the sufficiency of the grounds alleged.
2/
Intervenors' actual motion to disqualify is a prQ forma document dated t
October 31.1988 and accompanied by a skeletal affidavit. These documents contain no argument and comply marginally, at best, with the formal requirements of 10 C.F.R.
[
$ 2.704(c). All of Intervenors' argument is contained in their contemporaneous "Re-
[
sponse to LILCO's Request for immediate Authorization to Operate at 25% Power"(In-l tervenors' "25% Response"), at 4-8. For purposes of this Opposition, LILCO addresses j
(footnote continued)
{
89111603D9 es!!!D l
1 PDR ADOCK 0500032 c
PDR 3
i,
Authorization to Operate at 25% Power (October 21,1988) (hereinaf ter "LILCO's Re-quest"). Intervenors seek to disqualify Judges Gleason and Kline both from ruling on the 1
substantive mer!!3 of LILCO's 25% power Request and from ruling on LILCO's request, pursuant to ALAB 902, for dismLual of intervenors from this docket, because of their alleged pervasive bias against intervenors.
Intervenors' motion is premised on certain brief tragments culled out of context from this Board's lengthy and careful analysis, in its Concluding Initial Decision in the i
"OL-3" (basic emergency planning) docket, of the inconsistency of Intervenors' conCJet j
in that proceeding with the requirements of the Commission's Rules of Practice.
LBP-88-24, September 23,1988, 28 NRC
, at 8S-130 (slip op.). These culled frag-ments do not, howeve demonstrate bias under the Commission's regulations as cettled in Commission and federal case law. Rather, they reflect the Board's on-the-record j
views on on-trie-record matters directly and properly before them for decision, j
Neither the fact that the Board has ruled against Intervencrs previously on an j
issue involving sanctions, nor the severity of the sanctions levied, not the vigor of the language used by the Board to characterize Intervenors' behavior, necessarily consti-
)
tutes disqualifying bias. Only if the judicial actions at issue involve a substar.tlat pecu-i nhry Irterest or previous prosceutive or investigative role; involve prejudgment of f ac-
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tual (not legal or policy) issues, displayed by or based on extrajudicial conduct or i
information; or involve conduct conveying the appearance of bias or prejudgment of f actual issues, does disqualification become appropriate.
l (footnote continued) i the arguments in !ntervenors' 25% Response as though incorporated into their motion to 1
disqualify. LILCO replies to all arguments in Intervenors' 25% Response, other than those relating to disqualification, in "LILCO's Answer to Intervenors' October 31 Re-l Sponse," being filed with this Opposition. Although the issues rahed by Intervenors' dis-i qualification motion necavarily presume that Intervenors remain parties to this pro-l cceding, LILCO believes that Intervenors have been dismissed from the OL-6 proceeding; the necessary assumption of their contitled participation for purposes of j
this filing is not intended as a waiver of that argument.
I
i As is shown in detail below, there are no allegations that either Judge Gleason o,'
Judge Kline has incurred the kinds of conflicts or engaged in the kinds of conduct that trigger disqualification. As a result, there is no basis for the motion. It should be de-nied by Judges Gleason and Kline, and the dental referred on an expedited basis directly to the Commission.El D. BACKGROUND i
On July 14, 1987, pursuant to Commission direction,5# LILCO submitted its 25%
power application to the OL-3 Licensing Board, f.es LILCO's 51otion for Authorization q
to increase Power to 25% (July 14, !!17). In October 1987, the OL-3 Board first applied t.n "OL-6" subdocket designation to papers relating to the 25% power application to dis-tinguish them from other filings in the general emargency planning ("OL-3") proceed-ing.E On November 10,1987, Judge Gleason was appointed to succeed Judge Stargulies 1
as chairmar. of the Board presiding in both the OL-3 and the OL-6 subdockets.E At all timu the composition of the Board in the OL-6 subdocket has been identical to that in the OL-3 subdocket, and for all present purposes has consisted of its current members, i
2/
On November 9, the Commission issued an order in the OL-3 and OL-5 dockets, taking jurisdiction fr'am the Appeal Board over all sanctions-related issues arising on i
j appeal from LBP-88-24. Thus, the merits of this Board's ini?ial dismissal of Intervenors from the proceeding in that decision are currently before the Comminion, and all dis-1 qualifiestion issues in this subdocket, shoulo be sent directly to the Commission as well.
4/
LILCO had earlier submitted its 25% power request to the full Commission. See Request for Authorization to increase Power to 25% and 51otion for Expedited Commis-sion Consideration (April 14, 1987). The Commission denied LILCO's request for imme-diate relief but indicated that LILCO could refile its request with the Licensing Board pursuant to 10 C.F.R. S 50.57(c). CLI-87-4, 25 NRC 882 (June 11,1987). In a related order dated August 12,1987 (unpublished), the Commission reiterated that the OL-3 subdocket was the appropriate body to conside-LILCO's 25% power request.
A/
f_qs 51emorandum to the Parties (Docket 50-322 OL-3)(October 6,1987).
$/
Notice of Reconstitution of Board (Docket No. 50-322-OL3-R, OL3-R2, OL3-R3, and OL-6) (November 13,1957) (unpublished).
i On January 7,1988, this Board, sitting in the OL-6 subdocket, found that LILCO was entitled to proceed with its 25% power request under the provisions of 5 50.57(c),
that Intervenors were entitled to be heard on the issue of the substantive relevance of their then-existing contentions to LILCO's request, and that the NRC Staff should pro-ceed with its techn! cal evaluation of LILCO's 25% power application. See Memorandum and Ordvr (In Re: LILCO's Request for Authorization to Operate at 25% of Full Power)
(Docket No. 50-322-OL-6)(Jknuary 7,1988)(unpublished).
The 25% power proceeding remained essentially dormant until October 6,1988, when the Staff issued its Technical Review.II In the meantime, on September 23,1988 this Board, sitting in the OL-3 subdocket, issued its Concluding Initial Decision on Emergency Planning, LBP-88-24,28 NRC (1988). In that decision, the Board found that intervenors had engaged in a "willful strategy of disobedience and disrespect for the Commission's adjudicatory processes," LBP-88-24, slip op, at 129, and that this con-duct warranted dismissal of Intervenors from the entire Shoreham proceeding. M., slip op at 130.
On October 6,1988, the Staff released its analys!s of LILCO's 25% power re-quest.I# On the basis of the Staff's Technical Review and the LBP-88 24, LILCO filed a reqout with the OL-6 Board to authorize immediately operation of Shoreham at 25%
I/
On February 26, 1988, the Board requested further briefing on the substantive relevanca of Intervenors' theu-pending emergency planning contentio'ns to LILCO's 25%
power application. Order (February 2,1988) (unptblished), in a separite order, the Board appointed an Alternate Board Member to "assist the Board in resolving whether emergency planning contentions presently before the Board are substantively relevant to LILCOs proposed operation at 25% of full power and whether Applicant's motion should be granted pursuant to the provisions of 10 C.F.R. 5 50.57(c)." Order Appointirg Alternate Board Member at 1-2 (February 2,1988)(unpublished).
1/
NRC Staff Technical Review of a Request from Long Island Lighting Company for Authorization to Operate the Shoreham Nuclear Power Station at a Power Level 1.'p to Twenty-Five Percent of Full-Rated Power (under cover of a letter dated October t',
1988 from Steven A. Varga, Director, Division of Reactor Projects, to John D. Leonard, Jr., LILCO Vice PreJident - Nuclear Operations)(hereinaf ter "Technical Review").
['
j
-5 l
l power. See LILCO's Request for immediate Authorization to Operate at 25% Power (October 21,1988). Although not entitled, pending appeal, to respond, Intervenors filed their 25% Response and instant motion to disqualify on October 31,1988.
Intervenors argue that if the OL 6 Board has jurisdiction to entertain LILCO's Request, Judges Gleason and Kline should be disquallfled from acting on it. They allege that '(t]he written conclusions of Judges Gleason and Kline set forth in LBP-88-24 es-tablish that they are biased against the Governments and that a reasonable person would necessarily draw the conclusion that they cannot be fair and impartia!in ruling on LILCO's Request." 25% Response at 5. Intervenors assert from this:
These findirgs show that Judges Gleason and Kline do not take at face value what the Governments say or do. Instead, they sea behind each move an ulterior purpose, a will to subvert, and bad f aith, it is obvious that a fair evaluatica of awthing the Governments submit on the merits cannot rea-sonably be expected from judges with these predispositions.
Ld. at 7.
The entire "evidence" for this conclusion, however, consists of seven brief, conclusory sentence fragments, plucked without any surrounding f actual detail or con-text. 25% Response at 6. from the Board's 43-page discussion on the appropriateness of sanctions.E On the basis of these excerpts, Intervenors contsnd, Judges Gleason and Kline cannot be impartial as to either the merits of LILCO's 25% Request or LILCO's request for dismissal of Intervenors f rom the OL-6 subdocket.
2/
Intervenors' "evidence" of bias is so cursory that it f alls to meet the Commis-ston's threshold pleading requirements for motions to disqualify. Sec Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2), ALAB-102,6 AEC 68, 69, Egysl. CLI-73-8,6 AEC 169,170 (1973)(statements alleging bias or prejudice should not be examined apart from their context); Ducuesne Lirht Co. (Beaver Valley Power Station, Units 1 and 2), ALAB-172,7 AEC 42,43 (1974)(" 3) party leveling a charge as serious as that of bias against a licensing board or its members hat a manifest obligation to be most particular in estaellshing the foundation for the charge"). For the balance of this paper, it will be assumed purely hypothetically that the fragments cited by In-tervenors would be sufficient to allege disqualifying bias if they were properly based.
As is shown below, however, none of the allegations, even if substantiated, reveals Ic-gally cogn!zable blas.
6-Intervenors' S!otion seeks to disqualify Judges Gleason and Kline without basis.
For the reasons below, it should be denied.N LQ/
Intervenors' present motion is not the first time that they have sought unsuccessfully to disqualify adjudicators involved in the Shoreham proceeding. In June 1984, during the pendency of LILCO's low-power application (subdocket "OL-4") Inter-venors filed a motion to disqualify former Cummission Chairman Nunzio Palladino, al-leging that he had improperly intervened in the consideration of LILCO's request for a low-power license. See Suffolk County and State of New York Request int Recusal and, Alternat!vely, Stotion for Disqualification (June 5,,t.984). Two weeks later, Intervenors moved to disqualify an entire Licensing Board on the ground that they had been improp-erly influenced by Chairman Palladino See Suffolk County and State of New York 510-tion for Disqualification of Judges Stiller, Bright and Johnson (June 21,1934). The next day, Intervenors filed a motion to disqualify the Commission's Chief Administrative Judge and Licensing Panel Chairman on the ground that he also had been improperly in-fluenced by Chairman Palladino. See Suffolk County and State of New York Stotion for Disqualification of Chief Administrative Judge Cotter (June 22,1984).
None of these motions was granted. Chairman Palladino found that the motion to disqualify him was "flawed by misstatements, errors and omissions. Joining them into a ' chain' only compounds and magnifies the distortions of fact and interpretation."
See Long Island Lichtine Co (Shoreham Nuclear Power Station, Unit 1), CLI-84-20, 2
20 NRC 1061,1078 (1984). The Licensing Board's refusal to disqualify itself was upheld by the Appeal Board. See ALAB-177, 20 NRC 21 (1984). Judge Cotter also refused to disqualify himself, calling Intervenors' June 22, 1984 motion "anomalous," "devoid of basis," ann "a collection of unfounded accusations, unsupported allegations, destortions of events, hearsay, and omission of significant f acts..
concocted in an effort to cre-ate an appearance of impropriety or bias that does not exist." 51emorandum and Order (Docket No. 50-322-OL-4) at 2 and 3 (August 1,1984) (unpublished opinion) aff'd, AL AB-779,20 NRC 375 (1984).
In addition to motions for disqualification, Intervenors have used another means to attempt to influence the staffing of licensing boards in the Shoreham proceeding:
they have repeatedly asserted, without any justification in the Commission's regulations or case law, that they are entitled to "advise" the Licensing Board Panel Chairman on the appointment and reconstitution of Licensing Boards.
In late 1986, following reconstitution of the OL-5 Board, counsel for Intervenors wrote to the Licensing Board Panel Chairman demanding that he rescind his reconstitution order "in light of the prej-udicial and otherwise adverse effects that reconstitution'of the Board has on the par-ties and public in this unique proceeding." 1.etter from Herbert H. Brown to B. Paul Cotter, Jr. (October 14, 1936). Judge Cotter issued a clarification of his reconstitution order but did not rescind or revise the order. See Notice of Reconstitution of Board:
Clarification (October 17,1986) (unpublished).
Again in late 1987, following announcement of Judge Stargulies' retirement as Chairman of the OL-3 Board, counsel for Intervenors wrote to Judge Cotter to request that he not act on the vacancy until he had solicited the views of the parties. See Let-ter from Herbert H. Brown to B. Paul Cotter, Jr. (November 12, 1987). Intervenors al-leged that Judge Cotter's f ailure to solicit the views of the parties before reconstituting the OL-5 Board "contributed to (Intervenors'} concern that the replacement process was being used to further one party's interests -- LILCO's -- on particular issues at the expense of the other partiet rights." Id2 (footnote continued)
.p.
ID. DISCUSSION Intervenors' Motion cites severa..'ases for the truisms that a party is entitled to an impartial judge and that a judge's impartiality should be measured by an objective standard, ja, whether a reasonable person, knowing all the circumstances, would be led to believe that the judge's impartla!!ty m!ght reasonably be questioned. See Interve-nors' Response at 5. However, Intervenors fall to show that Judges Gleason and Kline are not impartial; indeed, they f all even to cite the applicable Commission standards for determining the existence of potentially disqualifying kinds of behavior or relation-ships, much less do they attempt to relate their fragmentary allegations to these stan-dards.
The NRC's bases for disqualification under the applicable regulation,10 C.F.R. 1 i
S 2.704(c), are well-established:
l
[ A )n administrative trier of fact is subject to t!!squalification i
if he has a direct, personal, substantial pecuniary interest in a result; if he has a "personal blas" agalnst a participant: If he
.j has served in a prosecutive or investigative role with regard 4
to the sann f acts as are an issue; if no has prejudged f actual--as distinguished from Icgal or policy--1& sues; or if he has engaged in conduct which gives the appearance of person-al bias or prejudgment of f actual issues.
l Public Servlee Electrie and Gas Co. (Hope Cret.k Generating Station, Unit 1),
i ALAB-759,19 NRC 13,20 (1984).quotJpg Consumers Power Co_. (Midland Plant, Units 1 j
and 2), ALAB-101, 6 AEC 60, 65 (1973); gg also fonc Island Lichtine Co. (Shoreham l
Nuclear Power Station. Unit 1), ALAB 777,20 NRC 21,33-34 (1984).
(footnote continued)
When Judge Cotter declined to solicit the views of the parties and appointed Judge Gleason to replace Judge Margulics, counsel for Intervenors again wrote to Judge Cotter to complain of his "precipitous action" by which he allegedly "foreclosed the views and involvement of the County and State on a matter which these parties deem central to the f airness and objectivity of the hearing process." Letter, Herbert H.
Brown to B. Paul Cotter, Jr. (November 25, 1937).
3 While Intervenors' Motion and Responso do not attempt to apply --indeed, do not even refer to -- the liope Creek standard, it is clear that the grounds on which they could premise their arguments are very limited. Nothing in Intervenors' papers sug-gests that they are alleging that Judges G1cason and Kline should be disqualified because of a pecuniary interest, or because they once served in a prosecutive or investigative i
role in regard to the same facts as are now potentia!!y at issue. Thus, there remain only three possible grounds for disqualifying Judges Gleason and Kline: (1) that they have prejudged f actua!--as distinguished from legal or policy-issues; (2) that they AD
[am harbor a disqualifying personal bias or prejudice against Intervenors; or (3) that I
there is a disqualifying appearance of such a bias or prejudlee. As demonstrated below, there is no justificat!on for disqualification of Judges Gleason and Kline under any of l
i these three bases.
)
1.
hLdgcs Gleason and KILng_Llave Not Preludggd Any Factual Issues That Wouldlequiro_Thelr.oisqualirleation Under liope Creek, gupra, a judge is subject to disqualification if he has pre-judged f actual issues in this regard, the Commission has made a elcar distinetton be-l tween f actual issu(es and Icgal or polley issues and has ref used to disqualify adjudicators l
l for their views on questions of law or polley. Egg, g&, gonsumers Power Co, (Midland Plant, Units 1 and 2), ALAB 101,6 AEC 60 (1973)(authorship of 11w review article on j
effect of environmental statutes on Commission licensing process did not prevent Li-I censing Board Chairman from judging ileense' application);,qpmmonweal' Edison Co.
i i
(LaSalle County Nuclear Power Station, Units 1 & 2), CL1-73-8,6 AEC 169 (1973) (Li*
t censing Board member's expressed doubts about environmental effect of proposed cool-i ing lake did not disqualify him from judging app!! cation). Judges Gleason and K!!ne can-l l
not be disquallfled for prejudging f actual issues in this proceeJing because LILCO's
)
i Request for Immediate Authorizat cn to Operate at 25% Power does not pla te into issue 1
1 1
any facts which are subject to prejudgment.
I I
.g.
a.
Factual tssues Relating to 25% Power ReqtLcril LILCO's October 21 Request asks the Board to find that there is reasonable as-surance that the public health and safety can and will be protected if Shoreham Ls per-mitted to operate at 25% power. See LILCO Request at 2. According to the Commis-ston's regulations, only those issues posed by existinz contentions in the full power proceeding are relevant to the Board's inquiry. See 10 C.F.R. S 50.57(e); Memorandum and Order (In re: LILCO's Request for Authorization to Operate at 25% of Full Power),
(Docket No. 50-322-OL-6) at 6 (Janaary 7,1988)(unpublished). In this instance, howev-i er, all existing contentions have been resolved in LILCO's f avor on the merits. See LBP 88 24,28 NRC
, slip op, at 148 (September 23, 1985). Thus, as a result of the Board's dee!sion in LBP-83-24, none of these contentions !S pending before the OL-6 l
Board and therefore they do not present any f acts for Judges Gleason and Kline to pre-judge.
In their Respoase to LILCO's Request: Intervenors contend that they are entit!cd to offer additional contentions to contest the validity of LlLCO's technical analyses to its 25% power authorization request. See Response at 15. Without conceding Interve-nors' opportunity to file technical contentions,UI LILCO observes that if any techni-l cal contentions are admitted, they would not, of course, raise any of the emergency planning Luucs which the OL-3 Board has already decided. Since any new technical 1
U/
Even if Intervenors were not held to have forfeited their right to file any techni-cal contentions, virtually any such contentions filed now would te f atally untimely. As is noted in LILCO's Answer to Intervenors' October 31 Response at 9-10 n.12 1
l (November 12, 1995), any contention filed now, even one which could not have been filed before the Luuance of the Staff's Technical Review, would to a late-!!!ed conten-tion which would have to be justified under the five-point Latawba test. In view of the length of time Intervenors have had LILCO's technical information, LILCO doubts i
whether Intervenors could propose any new contention (other than, perhaps, one based purely on the Staff's Technical Review) that would mcat the Catawba standards. See Ruke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-8319,17 NRC 1041 (1983).
I i
-AO-contentions would not pose issues which the OL-3 Board has atraady considered, there would be no factualissues presented to the Board which Judges Oleason and K!!ne may have prejudged.
b.
Factual lasues Relatirw to Intervenors' Dismissal in its October 21 Request, LILCO asks this Board to dismiss Intervenors from the OL 6 subdocket. See LILCO Request at 6 8.NI Judges Gleason and K!!ne (and Judge Shon, for that matter) have, in f act, judged f actual issues which are relevant to LILCO's request to dismiss Intervenors from the OL-6 subdocket.N# However, to disqualify Judges Gleason and Kline (and, in f airness, Judge Shon) from consideration of L!LCO's request on the basis of their involvement in the OL-3 proceeding would be inconsistent with the Appeal Board's decision in ALAB-902 and would frustrate the administration of any complex proceeding in which licensing board members sit in more than one subdocket.
D/
As LILCO stated in its Request, LILCO believes that in light of LBP-88 24, Inter-venors are already dismissed from the OL-6 subdocket. LILCO's request to dismiss In-tervenors from the OL 6 subdocket was made in the alternative and was not, as LILCO stressed, an admission that such a request was necessary as a matter of f act or law.
LILCO Request at 8 n.7.
M/
It is important to note that Judge Shon agreed with Judges Gleason and Kline on the f actual issued which underlie the Board's sanction of dismissal. Judge Shon found that Intervenors "did indeed improperly resist discovery on the contentions at issue,
LBP-88 24, dissent at 4, and that their claim that any plans they had for emergencles were irrelevant to radiological emergencies "was clearly untenable," W. at 7, and that Intervenors' June 9,1980 motion to preclude the Board from continuing its considera-tion of emergency planning remand issues was "objectionable," W. at 6. Judge Shon fur-ther concluded th6 t this conduct warranted dismissal of Intervenors' contentions. M. at
- 4. As a matter of simple fairness, Judges Gleason and K!!ne cannot be singled out for "prejudging" facts when Judge Shon heard the same evidence and came to the same conclusions on the relevant f actual issues. The f act that Intervenors' Motion excludes Judge Shon demonstrates that it is aimed not at identifying disqualifying bias or preju-dice, but rather at thwarting the effect of LBP-85-24, an unfavorable decision on the merits -- conduct much the same as that for which they have been sanctioned.
LILCO's request is based on a procedure established in ALAB 902. There, the i
Appeal Board ruled that while the OL-3 Board was not authorized to dismiss Intervenors from the entire proceeding, LILC.] might "accomplish the same result" by requesting the sanction of dismissal f rom each Board involved in the proceeding. ALAB 902, slip op at 8. The Appeal Board further observed:
While (this procedure) mt J appear to be burdensome,it is an illusory burden: if the conduct allegedly warranting another party's dismissal from the cntire proceeding is, in f act, so egregious and pervasive, tha party requesting that sanction should have little difficulty in making its case before each board then presiding over different f acets of this proceeding.
E at 8 9.
LILCOs request to dismiss Intervenors from the OL-6 subdocket only requires this Board to consider Intervenors' conduct in other parts of the Shoreham licensing proceeding: it does not require the Board to consider Intervenors' conduct in the OL-6 subdocket.N Since this Board has already considered all f actual issues related to In-tervenors' conduct in the Shoreham proceeding as a whole, there is no need for it to revisit any of these f actual issues. Prejudgment of f actualissues involves judging those issues in advance of hearing them; Le, without first hearing all the evidence.
$_eg e
a
$Aoreham, sprA, ALAD 777,20 NRC at 24. In LBP-88 24, Judges Gleason and Kline ts-r sued their judgment on the f acts warranting intervenors' dismissal af ter a full adjudica-tory hearing of those f a?**. Irt no sense could that judgment be considered prejudgment of f actual 1Ecs. The iss te of' sanctions in the OL-6 docket is whether the f acts already estabitshed in upport of the Board's decision in LBP-88-24 are suffielent to justify dis-missal of Intervenors from the OL-6 proceeding. While Judges Gleason and Kline htye already adjudicated thwe f acts, they have not prejudged them. Thus, they are not
.U/
The Appeal Board noted that a party may be dismissed from sutdocket "B" of a proceeding based on its conduct in other aspe,ets of the proceeding, even if its conduct in subdocket "B"is "above reproach." ALAB 902 at 9.
disqualified from issuing a deelslon on the application of those fJets to the (anctions is-sued in the OL-6 proceeding.
To disqualify this Board on the grounds that it has "prejudged" these f actual is-sucs presumes that the Appeal Board intended that other licensing bcards would con-duct fa novo or other substantive review of the OL-3 Board's f actual findings and im-pose on LILCO the substantJal burden of, in effect, retrying its case. This would be a burden clearly inconsistent with that contemplated in ALAB 902, as wc!! as with the Commission's regulations, which do not make Licensing Board decisions reviewable by other Licensing Boards, only by the Commission and the Appeal Beard. Thus, there is nothing in ALAB 902, the Commission's regulations, or basic logic which would require the disqualification of Judges Gleason or Kline (or Shon) for applying a g"!ven set of facts established in the OL-3 subdocket to circumstances existing in the OL-6 subdockJt.
2.
JudggLGlqagnjind_Kilne Do Not llave a Disqualliving Personal Blas or Prejudite_Against Intervenors A second possible basis for disqualification of Judges Gleason and Kline is proof of an actual personal bias or prejudice against intervenors. Intervenors f all to show that such a disqualif ying bias exists, following the standard in federal courts, the NRC has held that "persons! blas"is disqualifying only if it originates f rom an "extrajudicial source:"
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 judze has learned f rom his particloation in the cale.
Houston Lichtire and Power Co, (South Texas Project, Ualts 1 & 2), CLt-82 9,15 NRC 1363, 1365 (1952).quAdng spited States y, Grinnell Co'a,384 U.S. 563,583 (1966)(em-phasts supplied).
The rationale for the "extrajudicial" rule is that a judge should not be dissuaded from acting as he reasonably thinks he should in the judicial setting. In Phillies v. Joint kgzislative Comm.,637 F.2d 1014 (5th Cir.1981) satL denied. 456 U.S. 960 (1982), thr plaintiff filed a motion to disqualify a federal judge for his a!!cged prejudice against blacks and hostility to civil rights suits. The plaintiff cited particular rulings, quota-tions from written opinions, and alleged remarks from the bench in several cases in which the judge had presided. On review, the Court of Appeals found that the evidence did not justify disqualification:
We would te reluctant,in any but an extreme case, to base a disqua!!!! cation order on such allegations.
It is a district judge's duty to conduct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on whleh he sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived ten-dency to give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or defen-dants in a particular class of cases may subject him to a train of successful recusal motions in future cases, he may con-sciously or subconsciously shape his judicial actions in ways unrelated to the merits of the cases before him.... A bdge la not a computing machine, and the judlelal system is not constructed so that each judge must reach the same result as all other judges in a given case.
Ld. at 1020. frs also in re internation&l Business Machines Cora,618 F.2d 923,929 (2d Cir.1980)("(The recusal statute) was never intended to enable a litigant to oust a judge for adverse rulirgs made, for such rullegs are reviewable otherwhe." quoting Ex parte Amerlean Steel Barrel Co., 230 U.S. 35, 44 (1913)); United States v. Reeves, 782 F.2d 1323,1325 (5th Cir.)(per curiam)("1he f act that the trial judge ruled against the defen-dant in an earlier appearance does not render the trial judge biased."), sf,j:t gented.
470 U.S. 837 (1986).
The views expressed by Judges Gleason and Kline (and Shon)in !.BP-85 24 were based squarely on matters of record, on issues directly before them in their capacity as members of the 1.icensing Board in the OL-3 proceeding. Tnere is absolutely nothing indicating an extrajudicial basis for their views, as would be necessary to remove them
for bias.E The motion cannot succeed on this basis.N 3.
Irliervenors' Motion fMs Not Demarptraic the Appearance of Personaj_J1Jits or Prejuditg n
A third and final possible ground under Commission law for disqualifying Judges M/
The language of LDP 88 24 may be forceful, but the Commission has held that strong language alone is not a suffielent basis for disqualification. In Metrongillaq Edison Co. (Three Mlle Island Nuclear Station, Unit 1), CL1-85-5, 21 NRC 566 (1985),
AU'Q, in Re Three Mlle Island Alert. Inci, 771 F.2d 720 (738 39 (3rd Cir.1985) ggrL denteG, 475 U.S.1028 (1986), the Commission upheld Judge Ivan Smith's refusal to dis-qualify himself on the basis of a letter written to a federal district court judge and comments made during the course of a previous proceeding. The Commission wrote:
1 The parties in an adjudicatory proceeding have a right to an impartlat adjudicator, both in reality and in appearance to a reasonable observer. However, they do not have a right to the judge of their choice. Moreover, the right to an impar-r tial adjud.cator does not mean that f avorable ru!!ngs must bc divided equally between the partles, or that a judge may not j
occasional,y use strong language toward a party or in ex-l pressing hit views on matters before him. Nor does the f act j
that a judgCs actions may be controversial or may provoke strong react;ons by the parties provide grounds for disquali-fication.
l 21 NRC at 568-69.
M/
The Commission has noted that in a few extreme cases, some federal e iurts have I
four.d d!squalifying bias in the context of judicial rulings and opinions. Eqq liousioD Lighjjngjind_ PtssL,qo (South Texas Project. Units 1 & 2), CLi 82-9,15 NRC 1363, o
1366 (1982). In ttc instancu, the judge's judicial acts have been found to contain such "pervasive blas" that the judge cannoi be considered an impartial deelstonmaker.
fe_q Roberts v. Bal_lar. 625 F.2d 125 (6th Cir.1950)(dtstrict court judge disquallfled for dismissing the named defendant, the local postmaster, and replacing him with the Post-master General of the United States, on the basis of the judge's stated belief that the local postmaster "ts an honorable man and I know he would never intentionally discrimi-i nate against anybody." [d. at 127). The Commission has noted with approval, however, l
that federal courts have teen hesitant to invoke this exception except in extreme cir-cumstan es. Ecs 15 NRC at 1366; tes 3159 Whitehurst v. Wrichj. 592 F.2d 834,838 (5th Cir.1979)(plaintiff brought suit against public safety of!!cials of Montgomery, Alabama for the alleged wrongful death of her son. Nring a heari.ig to dismiss the police chief and the public safety director as defendants, the judge remarked: "(!)t bothers me a 1
good deal that people get sued for doing their duty." 592 F.2d at 837. Plaintiff moved to disqualify the judge for personal blas. Tne Court of Appeals upheld the judge's refus-I al to disqualify himself, writing that the statement did not evidence the "pervasive blas" requ! red to disqualify a judge for statements made in a judicial setting. Ida at 833).
1 f
l 1
t 45-l Gicason and K!!ne is that their conduct creates the apoearance of personal bias or prej-
- udice, Intervenors cite federal case law, Intervenors' Response at 5. for the i
unchallenged proposition that personal bias or prejudice is measured accordk'c to an ob-jective standard, Lau whether a reasonable person, knowing all of the circumstances.
l would be led to the conclusion that the judge's impartiality might reasonably be ques-l tioned. They f all to add, however, that the objective standard does not raise an sntirely new field of inquiry; instead, it is applied to the already prescribed bases for disqualif t-cation -- extrajudicial conduct, pecuniary interest, prosecutorial involvement, or actual
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bias -- to determine whether in !!ght of all the relevt.nt f actual circumstances and poll-cy considerations, a disqualifying appearance of bias exists. $_ct Blitard v. Frechette, e
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601 F.2d 1217 (1st Cir.1979).N The objective st6ndard does not make it easier for a party to disqualify an adjudicator on the basis of unf avorable rulings.
The Commission applies the same standard. In South Texas Prokti, Citizens j
Concerned About Nuclear Power (CCANP) moved to disqualify Judge Ernest E. Hill for I
his alleged personal bias against the group and for his "inherent blas" arising from his l
prior employment at Lawrence Livermore National Laboratory 15 NRC at 1364. Judge j'
U/
In Blitarcj v. Trechet',e, for example, the Court of Appeals uphe'd the judge's re-f usal to disqualif y i !mself, writing:
J
( A) trial judge must glve his candid evaluation of plaintiff's case. If a case LS weak to the point of frivolousness,it is ap-a J
propriite to say so. A reasonable man evaluating the possi-i ble partiality of the judge-as-f act-finder would rationally j
look to the record to see if the judge's candid evaluation is fully supported. We see nothing "subjective" about objec-
)
tively evaluating whether or not the content and tone of j
earlier findings have a solid basts h the record.
601 T 2d at 1220. $1g abo Whitehurst v. Wrtrht, Lupa, at 833 (5th Cir.1979h in_tt
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jnternatLonal Su!! ness Mach!nts Corp,, Lupa, at 929 (2d Cir.1980)("A trial judge must te free to make rulings on the merits without the apprehension that if he makes a dis-i proportionate number in f avor of one litigant, he ma* have created the impression of 1
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I bias.")
i
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I li!!! refused to disqualify himself and issued a statement in which he made several re-l marks regarding CCANP's intentions and behavior as an intervenor in the proceeding.
The Appeal Board reversed Judge Hill's dectston not to recuse himself, finding that his j
statements reficeted "a lack of sensitivity for the rolo that a Judge must necessarily i
j play in any adjudication."
ALAB 672,15 NRC 677, 682 (1982). The Appeal Board j
regarded Judge Hill's language as "intemperate," W., and found that he had "affirma-t tively created the impression that he harbor (ed) a deep-seated personal hostility to-i wards CC ANP and its representatives," W. at 683.
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l Before the Commission, CCANP argued that according to the objective standard, 1
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the Appeal Board's decision should be upheld. The Commission disagreed, explaining:
1 Judge Hill's statement was made in the context of an adjudi-catory hearing and was based solely on events which occurred during that preaceding; i.e., CCANP's action and behavior i
during the proceeding. Since Judge Hill's statement did not j
stem from an extra-judicial source, but was based solely on i
]
what he learned f rom his participation in the case, that state-ment does not provide a legally cognizable basis for disquali-i f ying prejudice, i
I i
l CL1-82 9, Lupta.15 NRC at 1366. The Commission further concluded that "(t)he same t
policy reasons which limit disqualification to extra-judnial conduet have been held to i
similarly limit recusal under (the objective standard)." M at 1367. N Intervenors l
of fer no evidence to suggest that a reasonable person looking at the record basis for the l
Board's deelsion in LDP 88 24. and looking carefully at the context from whleh the al-1 t
l legedly biased comments are drawn, would still conclude that Judges Gleason and Kline j
i i
i herbor a personal blas against Intervenors that merits their dtsqualification from this f
1 I
proceeding.
I l
i t
a f
l 1
JU This is not incortsistent with the dectston of the Appeal Board in Hope Cred, I
]
19 NRC 13 (1984). where the Appe il Board required the disqualification of Judge
(
James H. Carpenter because it found that his prior employment as a consultant for the t
applicant created the appearance of partiality and was sufficiently related to matters
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then before the Licensing Board. W. at 25. Of course. Intervenors do not allege that t
the alleged bias demor.strated by Judges Gleason and Kline is based on any extrajudicial
{
source.
t I
IV. CONCLUSION For the reasons given above, Intervenors' Motion to disqualify Judges Gleason and Kline f ails to establish any kind of disqualifying bias hnd should be denied, and that denial referred, pursuant to 5 2.704(c) and the circumstances of this case, directly to the Commission.
Respectfully submitted, Donald P. Irwin Charles L. Ingebretson Counsel for Long Island Lighting ' Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23219 DATED: November 12, 1988 l
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