ML20078R951

Motion to Disqualify Judge Hoyt Per 10CFR2.704(c) Due to Persistent Evidence of Bias & Hostility

ML20078R951
Person / Time
Site:	Seabrook
Issue date:	11/07/1983
From:	Breiseth S, Marston W, Pevear R HAMPTON FALLS, NH
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20078R925	List: ML20078R921 ML20078R951
References
ISSUANCES-OL, NUDOCS 8311150350
Download: ML20078R951 (4)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSIW,vBOARD USNRC In the matter of:

PUBLIC SERVICE COMPANY OF N.H. et al oc t 40 . 50-443 OL (Seabrook Station, Units 1 and 2) (([SM,[

BRANCH TOWN OF HAMPTON FALLS OPINION IN MOTION TO DISQUALIFY JUDGE HOYT The Town of Hampton Falls wishes to go on record as supporting the Sea-Coast Anti-Pollution League's Motion for Disqualification of Judge Hoyt pur-cuant to 10 C.F.R. 2.704 (c) because of common and persistent evidence of bias and hostility towards the represent .ive of Hampton Falls.

Observations made by the representative of Hampton Falls at approx.

4:10 P.M. on 8/19/83 were testified to on the record of the proceedings.

Subsecuently, Judge Hoyt characterized the representative of Hampton Falls es making " frivolous' charges of a " juvenile" nature, constitutiag a " juven-ile whim", and advised the town representatives that no further allegations of that type would be " tolerated" and that that would be the last time the Board would have to go through such a " ritual". Finally, the judge warned town representatives that if any further " frivolous" allegations should a-rise, serious consideration would be given to their ejection.

-Further, on August 23rd, the representative of Hampton Falls endeavored to read into the record her Memo to File concerning the 8/19/83 incident, but the judge refused to allow her to do so (P 1682 of hearing record) . -

Under 28 U.S.C. 455 (a) "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his im-partiality might reasonably be questioned...".

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As stated by SAPL in its pleadings, "An essentially identical standard mandating recusal where a judge has engaged in conduct which cives the ao-oearance of personal bias or prejudgement of factual issues" has long since .

been held applicable to.ASLB members.

A letter dated 9/2/83. signed by the designated representative of Hampton Falls and' addressed to Judge Hoyt states, "As the designated repre-sentative of the Town of Hampton Falls in the Seabrook nuclear plant licens-

.ing hearings,. Docket Nos. 50-443 and 50-444, please note for the record that I take exception to my being excluded from a meeting of the parties called by you at 3:55 P.M. on August 31, 1983, at Dover, N.H. If the Town of Hampton Falls is to have equal status with all the other parties, its desig-nated representative should not be excluded from these meetings."

Since NRC judges are a part of the agency whose staff appears before them, and since they are paid employees of a government agency, it should be required that their *serformance be such that there be no reasonable basis for a perception of bias or hostility. Enclosed herewith is a copy of an excerpt from the "NEW HAMPSHIRE TIMES" . dated 9/12-19/83 entitled " Quote of I the Week" which states: "' The NRC '(Nuclear Regulatory Commission) is wor-l ried about its image. bihen you see the way dbey operate, you can understand why they are concerned.' Rep.,Roberta Pevear of Hampton Falls, commenting on recent hearings held in N.H. by the ASLB. "

Further, as stated by SAPL, "regardless of the extent to which SAPL l

L has established the actual, subjective existence of bias on the part of l.

' Chairman Hoyt, the ' judge has clearly established the distinct appearance of I

I partiality to a. reasonably prudent person. The newspaper articles appended

' to this Motion ' indicate clearly that numerous objective observers of the

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h:crings have concluded that the judge does in fact give every appearance of exhibiting bias, particularly against the municipalities.

To allow Judge Hoyt to continue in this case is to allow continued crosion of public confidence in the objectivity, credibility, and overall fcirness of the Seabrook licensing process."

'We, the Selectmen of the Town of Hampton Falls, support this contention and we support the view that the public perception is clearly one of dis-trust of the judge's impartiality, and ask that she be disqualified from further participation in these proceedings.

Respectfully submitted BOARD OF SELECTMEN OF THE TOWN OF HAMPTON FALLS, N.H.

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SEABROOK Bowing to t7e inevitable For a year or more the handwriting was on the wall.

Like most questions concerning the Seabrook project. Also not clear immediately was what the financial im-Soaring costs, dwindling growth in demand for electricity there is considerable dispute over when Seabrook I will be throughout New England, stability in the price of oil and pact of the vote would be. Public Service has estimated that able to produce power. Public Service Company continues the final cost of Seabrook It would grow by $50 million for diminishing enthusiasm among bankers and regulators were combining to spell the death of the second unit of the to project that it will be on line by mid-1985, but its part- every month its completion is delayed. If and when the unit ners and utility regulators have expressed deep skepticism is ever finished,it will cost far more than current estimates.

Seabrook nuclear power plant. One by one, the companies over that timetable, and have suggested that late 1985 is a that had joined Public Service Company of New Ilamp- more practical deadline. and will have an even more serious impact on electric rates shire in the huge construction program at Seabrook sig- than earlier estimates had predicted, nalled their doubts about the wisdom of continuing a full- While the future of Seabrook 11 has been under a If Seabrook II ultimately is cancelled Public Service cloud for many months, its fate was scaled last month, has indicated it might seek to recoup money' already in-speed construction pace on a power plant whose energy when the Connecticut Public Utilities-Control Authority might never be needed and whose power would be so ex- vested in the project from its ratepayers. Such a move ordered the United Illuminatir.g Co. of New Itaven to get would trigger fierce resistance from ratepayers and con-pensive that it might send an entire region into rate shock.

rid of its investment in Scabrook 11. United Illuminating is sumer groups, many of which have been warning for many Seabrook 11, most knowledgeable observors felt, was dead the second largest partner in Seabrook plant, with a 17.5 for a year before its owners voted officially last week to months that Seabrook 11 was doomed and that Public Serv-percent share of.the project. Only Public Service Co., with ice was merely pouring good money after bad in its haste to stop further construction on the plant at least until the end a 35 percent share, has a bigger stake in the project.

of 1984. finish building it.

The Connecticut regulatory order put United 11-Typically, Public Service Co. was the last to recognize lurainating in step with such other Seabrook partners as what most people sensed was inevitable for months. With New England Electric System, the Central Vermont Public considerable reluctance, Public Service executives bowed to Service Corp., the Massachusetts Municipal Wholesale pressure from the company's Seabrook partners and from Electric Co. and others in calling publicly for a halt to fur- -

utility regulators throughout New England and agreed to ther construction of the second unit. In the end, only the stop further building at the second reactor.

New flampshire Electric Cooperative, with a two percent According to Public Service spokesman Nick Ashoch, Seabrook 11 was 2L4 percent complete when the owners share in the project, joined Public Service in insisting that continuing full. speed construction on the second Seabrook QUOTE OF 'I,HE WEEK voted to discontinue construction. The first unit of the unit was a wise policy.

Seabrook plant, whose fate was not affected by last week's The impact of last week's vote by the owners was not The NRC (Nucleae Regulatory Comma.sson)is wor-vote,is said to be more than 80 percent finished. immediately apparent. Public Service spokesmen said ried about its image. When you see the way rh The vote to halt further construction at Seabrook 11 about 1,000 workers were dedicated to building Seabrook you can understand why they are concerned , ey operate.

was not a decision to cancel the unit entirely. The owners of II when the vote was taken to postpone construction, but Rep. Roberta Pevear of flampton l' alls, commenting the Seabrook project defeated a motion to cancel the unit no one could say immedia.cly how many of these workers on recent hearings held in New llampshire by the Atomic before voting unanimously to support the more modest op- could be shifted to jobs on Scabrook I, how many would be Safety and Licensing Board. The hearings were on a request tion of delaying further construction until the first unit needed to perform maintenance on work already completed by Public Service Company of New ifampshir; for.an oper-begins producing electricity. at Seabrook 11 and how many would be laid off. ating license for the Seabrook nuclear power plant.

September 12,1983 - New Hampshire Times page 3

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