ML20080P924
| ML20080P924 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/07/1983 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20080P929 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8310120107 | |
| Download: ML20080P924 (68) | |
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La F1 LED: Oc t obe r DhCHEM3 USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY CONN!SS1ON
'83 OCT 11 A10:21 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD (FF!; CFSteg g-In the matter of: uCC u m0 i Sa n
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PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 OL NEW llAMPSHIRE, et al 50-444 OL (Seabrook Station, Units I and 2) SAPL'S ADTION FOR DISQUALIFICATION OF JUDGE HOYT Pursuant to 10 C.F.R. 62.704 (c) SAPL moves for recusal of
. Chairman Hoyt from these proceedings.
I. THE HOUSTON LIGHTING & POWER STANDARD REQUIRES RECUSAL. In Hous ton Light ing &-Power Company (Sou th Texas Proj ect. Units 1 & 2) CLI-82-9, 15 NRC 1363 (1982), the Commission dealt with the recusal of an ASLB member. l By a three to two vote, the Commission overturned an Appeal Board order disqualifying the member. The Appeals Board decision had focused on the appearances of host ili ty and par t iali ty revealed in a memorandum made by the judge in. responding to an intervenor mo t ion. f or recusa l . The comment s a t issue were not made in a hearing, but ra ther in a s tatement issued by the judge accompanying the denial of the intervenor's motion written by two other Board members. Upon r ev i ew o f t he Appea l Boa r d 's dec i s ion , t he Commi s s ion ru led that'the judge.should be reinstated. The Commission concluded that although generally bias must be evident from extra-judicial conduct of the judge, i t might be appropriate to remove a judge for judicial conduct "in'the most extreme cases". (M a t 1366.)
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Thus, extra-record conduct such as stares, glares, and scowls do not constitute evidence of personal bias. [ Citation omitted.] Similarly, occasional outbursts toward counsel during a long trial do not provide any basis for finding judicial bias against the party represented by counsel. [ Citation omitted.] Judge Hill's statement clearly distinguishes between CCANP and the conduct of its . representatives. We find that Judge Hill's statement does not cons t i tu te j udicial behavior warranting an exception to the rule that bias must be extra-judicial. , As set forth with particularity in part III of this Motion, it is SAPL's, position that the conduct of Judge Hoyt in this proceeding amounts to far more than " stares, glares and scowls" and more than , an " occasional outburst" toward counsel during a long trial. Thus, it is SAPL's posi t ion tha t even under the s tr ingent standard adopted by the Commission in Houston Lighting & Power the requirements for recusal of a . judge have been met here. As set forth, infra, this is indeed an extreme case, where the evidence of bias and hostility is not occasional, but common and persistent. Furthermore, although S AP L anticipates that this motion must be determined by this agency's boards in accordance with the Commission's decision in Houston Lighting & Power, it is SAPL's
.pos i t ion tha t t he Commi s s ion's deci s ion i s er roneous , and er roneous ly states the law regarding disqualification of judges. In order to preserve this issue for appeal, if necessary, SAPL now sets out its legal argument that the recusal s tandard should not be the one adopted by the Commission majority in Houston Lighting & Power.
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- 11. THE APPLICABLE STANDARD FOR RECUSAL OF JUDGE HOYT AS SET FORTH IN $455 (a), SHOULD BE APPLIED TO THE JUDICI AL CONDUCT OF NRC ADMINISTRATIVE JUDGES.
Under the circumstances of these proceedings as set forth in this motion, the appropriate standard for review is found in 28 U.S.C. {455 (a). The statute requires that: , (a) any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned... This s tandard has been held applicable to f ederal administ rat ive proceedings generally. Cinderella Career and Finishing Schools, Inc. v. Federal Trade Commission, 425 F.2d 583 (D.C. Cir. 1970); Texaco, Inc. v. Fede r a l Trade Commi ss i on, 336 F.2d at 754 (D.C. Cir. 1974). An essentially identical standard mandating recusal where a judge "has engaged in conduct which gives the appearance of personal bias or prejudgement of factual issues" has long since been held appli cab le to ASLB member s. Consumers Power Company (Midland Plant , Un i t s 1 & 2 ) , ALAB-101, 6 AEC 6 0, 65 (1973), In the Mat ter of Nuclear Engineering Company, Inc., (Sheffield, III, Low-Level Radioactive f ( Waste Disposal Site) ALAB-494, 8 NRC 299 (1978), in the Matter of Consumers Power Company (Midland Plant , Un i t s 1 & 2) ALAB-395, 5 NRC 772 (1977), Separa t e S tat emen t o f Dr. Qua r les submi t t ing h'i t ecusal l i at 788, in the Matter of Ilouston Lighting & Power Company, et al. L (South Texas Project, Units 1& 2) ALAB-672, 15 NRC 677 (1982). t t
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A. THE REVIEW STANDARD UNDER 6455 (a) SHOULD NOT BE LIMITED TO " EXTRA-JUDICIAL" CONDUCT. The applicability of the 6455 (a) " appearance" standard was recently articulated by the Commission's recent decision in Houston Lighting & Power Company, supra. In placing the " extra-judicial" burden upon a 0455 (a) type petition, absent an " extreme" case, the Commission relied heavily on the principles articulated in U.S. v Grinnell Co*rporation, 384 U.S. at 563, 583 (1966). It no.ted a previous Commission's adoption of the' rule that: Preliminary assessments, made on the record, - during the course of an adjudicatory proceeding-
-based so le ly upon applica t ion o f the deci sion-maker 's j udgment to material properly before him in the _
proceeding--do not compel disqualification as a matter of law. Citing Commonwealth Edison Company (LaSalle County Nuc lear Power S t a t ions , Un i t s 1 & 2), CLI-73-8, 6 AEC 169, 170 (1973). The Commission's reliance on Grinnell, infra, and LaSalle, infra, concerning the requirements of " extra-judicial" conduct is misplaced. Both decisions were rendered prior to congressional adoption of the object ive standards in 6455(a). (}455 (a) was adopted i [ in 1974). The other decision relied upon in suppor t of the " ext ra-judicial" criteria was in re: International Bus: ness Machines Corp. (2d Cir. 1980), 618 F.2d at 923, 927. In IBM, the Cour t reviewed motions for
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disqualification filed in the infamous and lengthy IBM Anti-Trust litigation. The motion focused on the disproportionate number of rulings rendered in a manner adverse to IBM during the course of the proceedings. 1 In its consideration of IBM's arguments under the objeetive
- s tandards of $455 (a), the Cour t denied the motion on the basis that
- adverse rulings cannot create the per se appearance of bias. To allow recusal based on in court rulings, the court ruled, woyld be to inhibit the judge's freedom to call the shots absent any ,
apprehension that should he make a dispropor t ionate number of rulings in favor of one 1itigant, he may establish grounds for disqualification. The second policy consideration noted by the court was that in the-1BM case, the Judge was the sole trier of fact in lengthy and complex litigation. Consequently, it was appropriate for the Judge to form at t i tudes toward the reliabili ty and credibili ty of wi tnesses, and also shrewdly observe the s trategies of opposing lawyers in order to ascertain the "real" purposes and motives behind the surface of their remarks. See IBM, i nfra, at 930 citing Judge Frank in in re:
'J.P. Linahan, Inc., 138 F.2d 650, 653-54 (2.d Cir. 1943).
However appropriate the Court's interpretation of 6455 (a) may be for ant i-t rus t litigation, it is entirely inappropriate for use as a recusal standard by this Commission. It is SAPL's position that 6455 (a) should be afforded the broadest possible construction in ASLB proceedings. First, the IBM decision places an over reliance on case law rendered well before Congress and the American Bar Associat ion adopted 1 e
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t the objective, " appearance" standard.1 In support of its position that the " appearance of bias" under (455 (a) can only stem from "ex t ra-j udi c i al" conduct , it ref ers to old cases relat ing exclusively to the original, subjective recusal standard first enacted in 1911. i See IBM, supra, citing Ex Parte American Steel Barrel Company, 230 . U.S. 35, 44 (1913), Burger v. Uni ted S ta tes, 25 5 U. S. 22, 31 (1921). This narrow interpretation of $455 (a) applications runs i contrary to Congressional intent in adopting the amendment. The general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, i f there is a reasonable factual basis for doubting the
- Judge's impartiality, he should disqualify himself and let another judge preside over the case. [1974] U.S. Code Cong, and Admin. News at 6355.
The focus of the amendment and its intent is clearly on the appearance of par t iali ty, not the time or place associated with the conduct creating that appearance. As noted in Commissioner Assels t ine's dissen t ing opinion in Hous ton Ligh t ing, i n f ra , a t 1374,
- 1. The original American Bar Association Canons of Ethics adopted in 1924 established only broad, geocral standards for judicial conduct. Indeed, these standards were perceived by many observers as too permissive. See e.g. Miller, Public Confidence in the Judiciary: Some Notes and Reflections, 35 L. & Contemp. Prob. 69, 71 (1970). In response to heightened ethical standards, the ABA replaced its Canons with the Code of Judicial Conduct. In 1974,
~ Congress amended 28 U.S.C. 0455 to br ing the s tandard into conformance with the object ive " appearance of bias" standards established under Canon of Judicial Conduct 3 (c) (1). A marked difference of import here is Congress' insertion of the word "shall" in place of the Canon's "shouId".
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Taken to its logical conclusion, the majority opinion stands for the proposi t ion that even if a disinterested observer were to conclude that a Licens ing Boa rd member 's conduc t or s t a t emen t s were sufficient to create a reasonable doubt regarding the Board member's ability to act fairly and impartially on matters before the Board, this would not be a sufficient basis for disqualification so long as the Board member's , conduct or statement were related to matters wi thin the proceeding. In my v iew, the adopt ion o f t he s t anda rd by t he Commi s s ion ma j o r i ty sends an unfortunate signal to the Licensing Boards and to the public--a signal that serves to undermine public confidence in the objectivity of our adjudicatory proceedings. Another reason why the I B\1 analysis is inappropriate for use here is that Judge Hoyt is not the sole trier of fact in this case, as was Judge Edelstein in IBM, supra. Her principal role is not only one of a trier of fact, but also as the Board's legal expert relied upon to conduct the hearings in an orderly manner and render judicial rulings. In light of the fact that Judges 'Luebke and Harbour are not trained in the intricacies of legal procedure, the evidence they receive is heavily influenced, and in the case of exclusionary l ru l i ngs , " f i l t er ed" th rough t he ru l i ngs o f J udge lloy t . As discussed ~ l l below, it is not S AP L _' s position that the appearance of partiality r stems from the judge's rulings per se. But to the extent that the l l judge's hos t ile conduct towa rds i nt ervenors and town rep resentat ives 1 j influences her rulings, the attitudes of Judges Luebke and Harbour as triers of fact are most certainly affected, in short, the need for the other two Board members to rely on Judge Hoyt 's rulings and functions makes even more important the statutory requirement that I
- these hearings be attended not only with every element of fairness i
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but wi th the very appearance of complete f ai rness. Amo s T r ea t & Co . v SEC,.(D.C. Cir. 1972), 306 F.2d at 260, 267. Laa t ly wi th respect to the IBM decision, it should be noted
-that juri dictions are split on the " judicial" versus " extra-judicial" sources of bias appearance under (455 (a). In several -
opinions rendered since adoption of the 6455 (a) amendment, the First Circuit has held that a j udge's prior judicial involvement in a case (as opposed to extra-judicial knowledge of the parties or evidence) can provide a factual basis for doubting impartiality. Blizard v
-Frechette, (1st Cir. 1979) 601 F.2d 1217, United States v. Cepeda Penes, (1st Cir. 1978), 577 F.2d 754, United States v Cowden, (1st Cir. 1976), 545 F.2d at 257.
Clearly, the Commission has discretionary authority to adopt a higher standard of judicial conduct than those required by the courts. Hous ton Ligh t ing & Power Co. (South Texas Project, Uni t s 1 & 2) CLI-82-9, 15 N.R.C. 1363, 1374 (Note 1) (1982). Consistent with Congressional intent in the adoption of Q455 (a), it is imperative tha t the Commi ss ion do a l l t ha t is possible to foster public confidence in the fairness and impartiality of the licensing process. It is particularly important that in proceedings before this agency the highes t possible standard of judicial conduct be applied ! when a mot ion f or recusal is made. This is so because, unlike f ederal-judges who are nominated by the President and confirmed by the Senate, and preside over a wide variety of cases, NRC judges are not confirmed f by any elected body. Also, they arc a par t of the very agency whose i staff appears before them as a party to the proceedings and deal solely with nuclear issues. This situation, by its , ry nature, is I'
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f raught wi th the danger of a percept ion of bias. It should require
.that the performance of judicial duties, as well as extradicial conduct, be such that there be no reasonable basis for a perception of bias or hostility on the part of the presiding officers.
That opportunity is available here through application of the . standards suggested by Commissioner Asselstine in his Houston Lighting, infra, dissent. That standard requires disqualification of a Licensing Board member if a reasonable person, knowing all the circumstances, would reach the conclusion that the member's impartiality, that is, his or her ability to pass judgment on the merits of the case in a fair and impartial manner, might reasonably be questioned. This standard is appropriate regardless of whether the statements are conduct giving rise to the appearances are
" judicial" o r " extra-judicial" in nature. Houston Lighting, infra, at 1375.
Application of this standard is consistent with clear judicial and legislat ive trends f avoring higher ethical standards and approved public perception of fairness at judicial proceedings. Moreover, j the standard makes sense. Any negative impact of this standard, includ.ing any " chilling effect" on the intemperance of the judge's behavior is clearly outweighed by the recognized need for the l perception of complete fairness in nuclear licensing proceedings. D
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e III. CHAIRMAN HOYT HAS VIOLATED THE STANDARD OF 28 U.S.C. 0455 (a) THROUGH HER CONDUCT IN THE HEARINGS TOWARD COUNSEL FOR THE INTERVENORS AS WELL AS REPRESENTATIVES OF INTERESTED MUNCIPALITIES. A. JUDGE HOYT'S CONDUCT WITH RESPECT TO COUNSEL FOR THE COMMONWEALTH OF MASSACilUSETTS. On August 17, 1983, Judge Hoyt commenced hearings pursuant to . an Order of this Board dated July 11, 1983, " Notice of Hearing on Entrance of Facility Operating License." The bulk of the hearings focused on cross and redirect exami na t ion o f exper t wi tnesses' regard i ng t hei r submi t t ed tes t imony on certain intervenor contentions. Those content ions dealt with the adequacy and use f u lness of the Applican t s ' evacua t ion t ime es t ima tes, along with other issues. All counsel par t icipat ing were directed by Judge Hoyt to submit detailed cross-examination plans in advance of the hearings. Jo Ann Shotwell, counsel representing the Attorney General for the Commonwealth of Massachusetts, complied with the Order. See Atomic Safety & Licensing Board Order, July 28, 1983. In doing so, she submitted the plan to Judge lloyt with the understanding that its contents would remain confidential. During Ms. Shotwell's cross-examination of Robert J. Merlino, witness for the Applicants, Judge Hoyt read out loud a portion of
- counsel's cross-examination plan. In so doing, Judge lloyt alerted other parties as to an area of cross-examination which had not yet taken place. (See Appendix A, Record of Hearing Transcript, August 17,19 8 3 a t 1065 e t seq. ) Subsequent to At torney Sho twell's obj ect ion ,
Judge Hoyt ordered her to apologize both for the tone and substance of the objection. (See Appendix A, infra, at 1089.) In so doing, t Judge Hoyt threatened to suspend counsel f rom the proceedings unless she rectified her " contemptuous conduct". Counsel apologized for the tone of the objection, but stood on its substance. (Appendix A, infra, at pg. 1090.) In response, Judge lloyt remarked: Ms. Shotwell, I would prefer for you to be in , the proceedings. I don't think the substance was appropriate, however I believe the state of the destructive conduct has been sufficiently cured, and the Commonwealth of Massachusetts counsel is welcomed back to the proceedings. (Appendix A, infra, at 1090.) (Emphasis added) The judge's conduct in demanding an apology for the substance
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as well as the tone of Attorney Shotwell's objection indicates hostility and an appearance of partiality to a reasonable person. The judge's reading of any portion of sensitive cross-examination plans submitted in confidence is highly prejudicial to the rights of intervention counsel to conduct effective cross-examination of Applicant and Staf f wi tnesses.2 More disturbing than the act giving rise to the dispute, however, was Judge Hoyt's continued insistence, even after time for a recess and careful reflection, that the substantive content of Attorney Shotwell's objection was
" destructive". Indeed, Judge Hoyt f ur ther demons tra ted her hos t i1i ty by ref erring to the wholly proper conduct of counsel as a " contempt".
(Transcript, pg. 1087.) On the contrary, notwithstanding an understandably angry tone, the substance of the objection was both timely and highly appropriate under the circumstances Judge Hoyt continued to exhibit hostile behavior towards Attorney Shotwell in subsequent proceedings. For example, on Augus t
- 2. At Transcript , pg. 947, Judge Hoyt had qui te appropria tely noted that the cross-examinat ion plan would not be distributed "until af ter the cross-examination is completed".
19 th, while At torney Backus was conduct ing cross-examinalion of Dr. I Urbanik, Ms. Shotwell make a motion to s t r i ke t est imony wi th respect to evidenec which had not been previously referred to through interrogatories or prefiled testimony. Attorney Dignan responded that Dr. Urbanik was not an' applicant witness, and that the motion was therefore improper. Upon Ms. Shotwell's wholly proper wi thdrawal o f t he mo t ion , J udge lloy t commen t ed "I t h i nk t he reco rd, shou ld re f lec t that at 11:40 we reached a new high." Notwithstanding the fact that Attorn,ey Shotwell noted for the record her offense of that remark, Judge Hoyt merely stated her willingness to allow the record to so reflect. No apology was offered. The Judge's callous and hostile remark regarding Attorney Shotwell's motion is entirely improper, and created the dis t inct appearance of hos t ili ty agains t counsel for the Commonwea.lth. - B. JUDGE HOYT'S CONDUCT WITH RESPECT TO COUNSEL FOR THE SEACOAST ANT 1-POLLUTION LEAGUE.
, Over the course of the hearings, it was stated by various des ignated representat ives f rom admi t ted, interested municipalities that they had observed "wiiness coaching" by counsel for the Applicants and NRC staff during cross-examination by intervenor counsel.
On the morning of Augus t 23, 1983, Diana Randall, representa t ive of the Town of Seabrook, noted her observations of witness coaching
, by attorneys for the NRC staff, particularly Mr. Patterson, while
' Attorney Backus (representing the Seacoast Anti-Pollution League, an~intervenor in the proceedings), was conducting cross-examination of Dr. Thomas Urbanik II (witness for Staff).
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4 Judge lloyt 's response was to order that an af fidavi t be procured from Dr. Urbanik by Mr. Lessy, lead staff counsel. Ilowever, by contrast in regard to a similar charge involving an applicant wi tness and applicant attorney, her order was that the wiiness be returned for live examina t ion. (Transcr i p t , p.168 0. ) At torney Backus objected , to the remedy, and asked that Dr. Urbanik be brought back so that he might be examined concerning the incident. (See Apendix B, Record Hearing Transcript for August 23, 1983, at 1685). Judge Hoyt's denial of counsel's request not only contrasted with her ruling on the returning of applicants' witness to the hearing, it was combined with an attack on Attorney Backus on the basis that he was a member of the Bar, had not made personal observations of the incident, and was capable of " making such accusations known to the Bar Association". (See Appendix B, infra, at 1686.) Clearly Mr. Backus was not " making allegations" but was rightfully representing the interests of his client in addressing observations of a serious nature made by another party to the proceeding. (See Appendix B, infra, at 1685.) (See also, attached A f f id a.v i t of Diane Curran.) In response to Mr. Backus' request, the following statements were made: Judge Hoyt: Mr. Backus, the relationship that you have in this case is considerably different than that of the town representatives. You are a member of the Bar, sir. You are perfectly capable of making such accusations, known to the Bar Associat ions--the Bars that these gentlemen are presen t ly members o f. The town representat ives aae not in that position. If you have any such allegation, you will direct them to the , appropr i ate au thor i t i es , wi th in the areas where these gentlemen serve. Now tha t 's the end o f the ma t ter. We will proceed with the witness. - Mr. Backus: With your indulgence, Ma'am. Judge Hoyt: No, sir, Mr. Backus. Please be seated, sir. Mr. Backus: I would like to state on the record, Madame-- - Judge Hoyt: Mr. Backus, be seated, sir. Mr. Backus: Madame, I would just-- Judge Hoyt: Sir, I have asked you please to be seated. Mr. Back'us: I would like to make one more statement on the record. Judge Hoyt: Sir, please be. seated. The record will not
- z reflect any additional statements by you. I request sir, kindly, t ha t you please be sea te.d.
Ms. Curran, please be seated. Mr. Backus: I suggest error in that ruling to-- v4 Judge Hoyt: Ms. Shotwell, please be seated. i.< Ms. Curran: I have something to add. A Judge Hoyt: No, ma'am. You will not add anything to this record. The reporter is directed that these remarks will not be recorded. You will please be seated. Town representatives are also added to that. Thank you, ladies and gen t lemen. Now, are you ready with your witness, sir? Tl . Mr. Perlis: Thank you. Yes, I am. Judge Hoyt: Please present the witness. The record clearly reflects hostile conduct directed both at Mr. Backus and at other counsel at tempting to make statements on the record. The judge's ruling on a remedy concerning serious ch,arges brought forth by hearing participants should, at the very least, . have been rendered after providing counsel with an opportunity to make a statement for the record. The judge's intemperate remarks cutting counsel off, and in particular directing the reporter not to record the remarks of counsel on the matter, is highly improper. Judge Hoyt's ad hoc determinations as to which statements will and will not be inser ted into the record clearly es tablishes an appearance of bias to a reasonable person. It is not SAPL's pos i t ion tha t the judge's ruling on this point establishes the appearance of bias, although SAPL believes the ruling was in error. Rather, such appearances result from the judge's
' unnecessary and consistently harsh manner and conduct in preventing counsel for intervenors, in this case Attorneys Backus and Diane Curran, (representing the New England Coalition Against Nuclear Pollution, hereafter "NECNP", another intervenor), from noting legiti. mate and reasonable objections on the record.
C. JUDGE HOYT'S CONDUCT WITH RESPECT TO DESIGNATED REPRESENTATIVES FROM INTERESTED MUNICIPALITIESr Subsequent to wi tness prompt ing charges made by representat ives
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from the Towns of South Hampton, Kensington, Seabrook and Hampton Falls, both witnesses Merlino and MacDonald testified they had not been coached, or tha t if signals had been indicated by counsel, they had not observed them. At the conclusion of Mr. MacDonald's testimony on the matter, . Judge Hoyt severely reprimanded the town representatives for making the allegations in the first place, and threatened to eject them , from the proceedings should they ever make such allegations again. (See Appendix B, infra, lines 2-25, page 1749, and lines 1-23, page 1750.) The nature of Judge Hoyt's remarks, both in tone and subs tance, violates the standard appropriate for judicial conduct in these proceedings. The charges made by the several town represen ta t ives were made in good faith. Indeed, they were made responsibly notwithstanding any lack of legal training on the part of those hearing participants.
-E In-response, Judge Hoyt characterizes the representatives' charges as being of a " juvenile" nature, " frivolous", and constituting a
" juvenile whim". Further, the judge instructs that no further
. allegations of that type will be " tolerated" and that this will be the.last time the Board will have to go through such a " ritual".
l Finally, the judge warns representatives that if any further l
" frivolous" allegations should arise, serious consideration will be
. given to their-ejectment. (Transcript, pg. 1750.)
+ - e c -- . , . . .- The j udge's charac ter iza t ion o f the represen ta t ives ' s ta tement s and observat ions are beyond mere intemperance; they create a dist inct and unmistakable impression of hostility against the character, responsibili ty, and above all integr i ty of the representat ives. This fact is,all the more damaging to the public perception of Judge . Hoyt's impartiality in light of the fact that the statements were directed toward appointed representatives of those members of the public most af f ected by and interested in the licensing hearings.3.4 Judge lloyt's hostility toward municipal representatives was apparent not only in the August hearings, but in the earlier pre-conference hearings as well. On Apr i l 8th, while in the process of
. recognizing the various town representatives, Judge Hoyt remarked:
- 3. A similar attack was made on Mr. Guy Chichester, representative from the Town of Rye. In commenting on Mr. Chichester's noted observations concerning wi tness coaching, Judge Hoyt stated flatly:
Now the Town of Rye will remain in this case just as long as that sort of accusation is the j first, last, and only one you will make on this l record. (See Appendix C, Record Hearing Transcript, lines 12-14, page 1541.)
- 4. A par t icu lar ly drama t ic example occurred at the end o f the Augus t 23rd session when Ms. Sandra Gavutis, a Kens i ng t on .Selec tman, at temp t ing to note a simple correction to the record, was not permi t ted to do so:
Ms. Gavutis: Can I make a date correction on the record? I'd like to show the date of Mr. Merlino's testimony was Wednesday, August 17th, not Thursday as you thought. Judge Hoyt: Those remarks will be stricken from the record. I have given the Town of Kensington ample opportunity to make these representations. Now to continually repeat the same error is no longer going to be tolerated. One more caution to you, ma'am. l
.r "I will just briefly express the disappointment l of the Board in having moved these times to i participate to find that a hearing conference does not have these representatives present. It seriously calls into question whether or nH there isis any input desired by these towns, if that the case." (Emphasis added.)
(Transcript, pg. 811.) Notwithstanding the Judge's insistence that town representatives travel to Boston for the conference, she disallowed any attempt on their part to s tate anything meaningf ul on the record during that proceeding. For example, at one point, the Judge was expressing her interest in ruling f rom the bench as to the scheduling f or emergency plan con t en t ion litigation. Al though At torney Ahrens, representing the State of Maine, had expressed reservations about such a ruling without all the towns being present, the Judge indicated her determination to do so regardless of the fact. During the conversation 'between Judge Hoyt and Mr. Ahrens, Mr. Shivik, representative from the Town of South Hampton, respectfully asked if he might interrupt to contribute to the discussion. Judge Hoyt's response was short and abrupt; "No, sir, you may not. Would you please be seated?" (Transcript, pg. 8175.) This is the sole extent m to which town representatives were allowed to make any significant
- representations,before that proceeding. Notwithstanding the fact that the Judge had ordered their at tendance, and indeed had insulted those town representatives which had been unable to attend, as well as questioning the validity of their interest, Judge Hoyt prevented any meaningful town participation in the hearings that day.
It is SAPL's position that the fairness perception of these people and the represen ta t ives they eicet are o f the utmos t importance in 1ight of i455 (a) standards. To date, Judge Hoyt has exhibited
contempt and disdain for the forthright manner in which the representatives conducted themselves, and has done irreversible damage to her appearance of- impartiality before seacoast area residents and the New Hampshire public generally. [See attached newspaper articles: "Seabrook liea r i ngs Close wi th Drama", Foster's . Daily Democrat, Por tsmou th Hera ld Edi tor ia l Page, Fr iday, September 2, 1983: "Is Deck Stacked?" noting observations of editorial staff along wi th 'those of New Hampshire State Senator Robert Preston,
" Judgment or Prejudgment: To Many Participants, the Hearings on Licensing Seabrook were an Empty Exercise", by llank Nichols, New Hampshire Times, September 12 to September 19, 1983.]
D. JUDGE HOYT'S REMARKS AT THE HEARING SIDE BAR CONFERENCE CONDUCTED ON THURSDAY, AUGUST 18, 1983 ESTABLISH A CLEAR APPEARANCE OF PARTIALITY. On August 18, 1983, Judge Hoyt ordered a closed session side , bar conf erence f or the purposes of remedying, as she saw i t, conduct wh ich had go t t en "absolu tely ou t o f hand". (See Appendix D, Hearing 4 Record Transcript, Side Bar Conference, August 18, 1983, lines 1-9, page 2.) In the first instance, Judge Hoy1's characterization of the conduct exhibi ted by at torneys in the case runs ent irely contrary I
.t o the perceptions of attorneys participating in the proceedings.
It also runs entirely contrary to the record, which contains no i improper or even impolite statements. Yet, J udge Hoy t 's commen t s included her observations that "all ( trappings of civilized behavior" had eroded, that she had seen "no i l . semblance of intelligent, mature behavior exhibi ted by counsel", and i that several int ervenor at torneys, i nclud ing Ms. Cur ran rep resen t ing NECNP, had created the implicat ion bef ore members of the public "that l l L
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j' i , something evil l'1 a d o c c u r r e d " . (See Appendix D, infra, lines 1-4, and lines 9-22, pg. 3, and lines 7-10, pg. 7.) Of par t icular interest is the judge's chastisement of Attorney
. C'u r r a n f o r. the on-the-record objections she had made to excluding I
,,,the public from that particular conference. (Appendix D, lines 3- .
25, pg. 7, lines 1-3, pg. 8.) The judge's remark concerning the r *>
,f ac t tha t At torney Cu r ran 's leg i t ima t e ob j ec t ion mi gh t have adver sely affNted public perception of fairness in the proceedings is interesting in that with respect to that remark she states "and that was the reason that it had to be stopped at that point." Indeed the judge is quick to shut attorneys of f when she feels public perceptions of f aieness may be eroding, despi te the f act that at torneys object ions
! are legitimate and are consis tent wi th reasonable ethical standards.
-As Attorney Curran states on the record, she was not interested in affecting the public perception adversely, she was interested in
. uaking a record. It is curious that although the judge insists that t
everyone be allowed an opportuni ty to make an adequate record in the pEoceeding, she continually shuts at torneys of f, and interrupts their [ statements of objection ordering them to sit down, etc. Judge Hoyt has gl.ven the hearing participants the direct impression that her m ans toward rectifying any appearances of partiality is through
- silencing legitimate and reasonable objections of attorneys to her r
rulings, as opposed to allowin2 the statements to be made on the record and .g having to rule on them respectively.5 i s:s S. In jury trials, judges routinely adsise jurors that no adverse inferences are to be drawn from an attorney's objections since this is part of-an attorney's duty to " zealously" represent his client. s
E. JUDGE HOYT'S STATEMENTS AND CONDUCT WITH RESPECT TO ATTORNEYS JORDAN AND BT8 BEE I N Tile PRE-WNFERENCE HEARI NGS DEMONSTRATES AN APPEARANCE OF BIAS. During a pre-hearing conference held in Boston on April 8th, the schedule for emergency pl6a content ion submissions was discussed at some length. Several par t ies, including NECNP, had submi t ted proposed hearing schedules for the Board's consideration. At one poi,nt, Judge lloyt invited comments from Attorney Jordan as to his proposal. Counsels' comments (See Transcript, pg. 905, April 8, 1983) were directed to the specifics of the schedule and comparing it to , that of Staff counsel, Mr. Lessy. In explaining why his schedule was somewhat more lengthy, At torney Jordan pointed ou t 'he complexi ty and magni tude of the content ions likely to be adjudicated. Counsel also attempted to point out that several of the parties were not fully funded, and that the Commission should take into account the limited resources of intervenors in establishing such a short schedule for complex litigation. At that point, Judge Hoyt cut counsel off, and refused to let him cont inue. Even when counsel attempted to get clarification from
.the Judge as to the proposed schedule, the Judge again cut him off and denied him that clarificat ion oppor tuni ty. (See Transcript, pg.
908.) The Judge's refusal to allow counsels' wholly appropriate statements on the record demonstrates once again her bias with respect to intervenor counsel. At no time were counsel for Staf f or Applicant prevented from commenting on the record as to the specifics of schedul'ing proposals.
Another example of similar bad conduct occurred later i t: the day. After chastising intervenor counsel for their desire to have a more extended schedule for discovery, Judge licyt solicited a response from Dana Bisbee, representing the New ilampshire Attorney General's office. Attorney Bisbee pointed out the distinctions . between schedules, and suggested it was not logical to require s ubir. s s i eri o f d i r e c t testimony before summary disposition rulings had been rendered. At that point, Judge lloyt lashed out at counsel for making
" excuses" and charged malpract ice in counsel's representat ion of his client's interest (See Transcript, pg. 923). The foundation for Judge Hoyt's charges was based on the f act that state and intervenor counsel had relied on interrogatories, as opposed to depositions and other more expensive means of discovery.
Judge lioyt's flagrant charges questioning Attorney Bisbee's representation were without merit and entirely inappropeiate.6 Indeed, Mr. Jordan had attempted, albeit in vain, to note earlier in the record the obvious financial constraints under which intervenor parties were operating. For the judge to lash out at counsel merely for his wholly reasonable response to her own comment solicitation is another example of Judge lloyt's hostility toward intervenor and state counsel.
- 6. The attack on Attorney Bisbee is totally unfounded since it was J udge lloy t who ru led N ew ilampsh i re 's s ubmi s s ion o f eme r gency plann i ng con tent ions prema ture when they were submi t t ed on May 24, 1982. Yet, the Judge at tacked counsel for " making excuses" merely for pointing out these issues could not be litigated sooner, as a result of an Order issued by the Board itself. (See Board Memorandum and Order, September 13, 1982 at 33, and Transcript, 921-923, April 8, 1983.)
SAPL wishes to point out that there was nothing intemperate whatsoever about the manner in which Attorneys Jordan and Bisbee expressed their concerns. Despi te their legi t imate a t temp ts to note remarks and objections conecrning proposed scheduling, they were repeatedly cut of f and harassed by Judge lioyt. This appearance of , bias is especially distressing when exhibited with respect to emergency planning issues. In addition, emergency planning i s o f t remendous importance to the public safety, and J udge lloy t 's intolerance of any delay in the process, _.regardless of sound substantive reason, exhibits the worst appearances of bias to a reasonable person. IV. JUDGE HOYT'S RULINGS WITil RESPECT TO INTERVENOR MOTIONS AND OBJECTIONS ARE CDNSISTENTLY IN FAVOR OF THE APPLICANTS AND STAFF AND DEMONSTRATE BI AS AGAINST Tile INTERVENORS IN THIS PROCEEDING. Substant.ially all of Judge lloyt's rulings with respect to evidentiary and other mat ters in the hearings conducted on emergency planning to date have been in favor of the Applicants and Staff respectively. SAPL does not rely on this f act exclusively in support of its Motion for Disqualification, but rather wishes to point out i ts cons i s tency wi th Judge Hoy t 's demons t rated hos t ili ty and contempt for intervenors and interested municipalities. SAPL wishes to note in particular that twice the Appeal Board
- has seriously cautioned this Board with respect to rulings it has made. Although not actually reversing the Board on interlocutory appeal, the Appeals Board expressions of concern indicate problems wi th the f airness and correctness of Judge lloyt's rulings wi th respect to intervenors. [See Atomic Safety & Licensing Appeals Board Memorandum and Order, A LAll- 7 3 7 , August 26, 1983, and Atomic Safety
& Licensing Appeals Board Memorandum and Order, ALAB-734, July 19, 1983, at pg. 7].
V. THIS MOTION FOR DISQUALI FICATION IS FILED IN A TIMELY MANNER CONS I STENT WITH THE APPROPRIATE CRITERIA ADOPTED BY THE COMi11 SS ION . , The Commission has taken the position that the failure of a . party to file a motion for disqualification once the information giving light to such a claim is available amounts to a waiver of the disqua lificat ion object ion. Consumer Powe r Co. (Mid land P lan t , Un i t s 1 & 2), ALAB-101, 6 AEC at 60, 63 (1963). This objection is timely since the only Board ruling of significance since the conclusion of the August hearings was related to contentions submitted on the New liamp s h i r e State Radiological Emergency Plan. (See Board's Order, August 30, 1983.) Due to the fact that all intervenors were pressed with a deadline requiring submission of contentions on local RERPs soon after conclusion of the hearings, SAPL was unable to complete thi s mot ion until now. Due to'the time requirements for preparation of local plan contentions, SAPL asserts that the five-week delay in filing this motion is therefore not grounds for waiver of its right to move for disqualification. VI. CONCLUSION. SAPL has filed this Motion, not in an attempt to engage in
" judge shopping", but rather to ensure that these hearings convey every element of complete fairness to the hearing participants and the general public.
Judge Hoyt's hostility toward intervenor and state counsel, as well as municipal representatives, has been apparent in both the 4 _24_
n _. .. pre-conf erence hearings held in April, as well as the Phase 1 hearings held in August. This continuous and ever increasing hostility, moreover, has been conspicuously absent wi th respect to counsel for Staff and -App l i can t s , particularly in regard to ordering counsel shut off. - Regardless of the extent to which SAPL has established the actual, subjective existence of bias on the part of Chairman Hoyt, the judge has clearly established the distinct appearance of partiality to a reasonably prudent. person. The newspaper articles appended to this Motion indicate clearly that numerous objective , observers of the hearings have concluded that the judge does in fact give every appearance of exhibiting bias, particularly against the municipalitles. To allow Judge lloyt to continue in this case is to allow continued erosion of public confidence in the objectivity, credibility, and overall fairness of the Seabrook licensing process. It is precisely this consequence that 28 U.S.C. 6455 (a) and ABA Jud i c i a l Code (3) (C) (1) were designed to prevent. Apart from any rational associated with the judge's conduct, review of this Slot ion mus t focus on public percept ion. At this point , that percept ion is one of pervasive dis t rust of the judge's impar t iali ty, and mandates her immediate disqualification from further participation in these - proceedings. T Respectfully submitted, Seacoast Anti-Pollution League By its attorneys, BACKUS~, SilEA & MEYER By: ' '
^'u Robert A. Backus 116 Lowell St., Box 516 Manchester, N.H. 03105 October 7, 1983 Tel: (603) 668-7272
= ._
, APPENDIX A 4
' .'o6.- i
,a,
.l (Aug. 17, 1983 Hearing) l
. P. 1063 et seq. ; , ,
i i I can rule on any future testimony that may be ecming up. We l
- i. don't have that before us. We have thig particular issue. b 3 \f
?
1 MS. SHCTWELL: The relevance of the testimony, l'
- i. -( P 1 4 'k Your Honor, to this particular issue is that we have p
y 5
.c witnesses being presented by /arious parties here who have ;[
6 . , s
. ' 'O not cnly prepared their own estimates, but in scme cases, !
7 ' 8 particularly our own, have been reviewing estimates by o the r s . $ 9
'P s c.
to Mr. Merlino is someone who has also done that : I k, n. *
' E, 13
[ in this particular field. And his testimony as to the j N
.n 12 .
varying circumstances that lead to 'ztrying work product in l. ;I1 I i
, n.' ,
I 13 ; this area is certainly relevant. 14 JUDGE HCYT: Objection sustained. 3 i. 15 l i Are we coinc ahead into cace 9? 16 MS. SH C"'WELL : We're well into page 9. % b it JUDGE HOYT: I believe we're into adverse weather ! g 18 effect? i. 19
}
, MS. SHOTWELL: I cbgect. Madam, you have just i.
20 ! - I i read frem a certion of a cross-examination plan that was ; 21 l
' 'I -
submitted to you in confidence, and you have read frcm a i
- ?.
22 i il portion -- li l - 23 : , {cf j JUSGE HOYT: Sit dcwn, Counselcr. .!i 24 %^4/
,i I
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,5
. .'i i "S. SHCTWELL: That was net a?. dressed on cross- '
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examinatien.
) g You have alerted other parties to this !
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.cyl 1
g, a proceeding of cross-examtnation that has not yet taken place. p, 8 h t JUDGE HCYT: Ccunsel, I'm going to ask you cne
';id-
{*I-3 l more time to please be seated. W-lE 4 t Now, in some seven years of sitting in . g 5 y m4-0 administrative proceedings, I have never been addressed . <.y jg 6 '{ ' Y-by counsel in that tone before. ~1 = o. ir 8 Let me assure you that that's going to be the ' f_ r last time. And ycu may apologize to the counsel here or i E-we will just cease these creceedines at this coint. N 2 ' #? 11 i l I have no intentien of ceing accressec in that
&r'
.i IIE i s 12 :. tgne. iI!;F-9-
13 It is not a persen that you have addressed in m n -{- . y A l jx: It is the office that we all hold on this i 14 that fashion. i
. p, '.
15 I bench. ___ j7_ 16 - h I think, in order to clear the air a bit, that we 3I @M L-will have a five-minute recess. - .- - 18 4 t' You may individually approach the counsel and - I-
;i-19 .
apologize to them in our absence. w-l
- X) . _
MS. SHOTWEL~.,: w
! I will not do so, Madam.
21 g 4
- i. "-
- t i-l (Recess.)
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_ _ _ - _ _ _ _ _ - - _ _ - il L
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! [1 p t' i I I l JtDGE H0YT: The hearing will come to order. [; [
f < ,i - e a
- r. The parties that were present in the hearing room atl ,'
g " .I a t; ; (, 3 time of recess are again present in the hearing room. '4 a g V aen' i
': The witnesses have resumed their place on the f
5 Gen.lemen, you are reminded you are under hh w tness stand. I:k i *fcath. f}' ,
- .1,'4 7
l Ms. Shetwell, when we recessed a moment ago, I jy
.p
-i > asked that you state an apolcgy to this assembly for the 8 s %
' Have ycu registered that now?
conduct you exhibited. iu.l 10 MS. SHOTWELL: No, ! have act. I have no acoloev. p
" JUDGE HOYT: Very well. Thank you, counsel. You . ,
Gentlemen, ycu ma', return to ycur chairs, p-
}f may be seated. ;
'3 unless there is other cross-examination --
is the Staff 14 . reacy? .
~,
1 '< MR. LESSY: Ycur Ecnor, we have our own panel. We ,t .,
- haven't followed the plan with respect to these witnesses, h 17 MR. BACKUS: I have, your Mcnc.. .
i, la Ycu have. Al'. richt. ', 4 JUDGE HOYT: . 19 Is it the Board's ruling that the MS. SEC TrLL: 20 Commonwealth will not be allowed to conduct cross-examination , g r en these witnesses? Is that the ecsition of the Board? ' V 2 '* JUDGE HOYT: The position of the Soard, Ms. Shotwell, ,,g
*3 is that you have not cured the mistake you have cerformed in %2 W
pt 24 this courtrocm. The conduct ycu have perfcrmed in this ,. g
^
25 ,. Il.% m'
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r i f<:w t'jp:? . ti t'b i s-g 2
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si 1-q inse i 'i b
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il i courtroom is cured by an apoloa.v. te the members of this court, ! , ,,d, 2
~
b the panel, and the counsel appearing before us here. The ' 3 h p Commonwealth will not be able to centinue to participate in f 4 , j i it. , E 5 1 a l MS. SHOTWELL: We will be taking an interlocutory i 6i I appeal to that decision. ?f 7 1 JUDGE HOYT: You may take whatever is lawful to j 8- ,' a provide -- 1 9 a,
, MS. SHOTWELL: The record will reflect -- !,
10 i i JUDGE HOYT: 4
. , The record will not reflect --
4 i it - i
'-"e 1 12 record will not reflect -- counsel will not carticic. ate anv 6
l j further if they do not wish to. r' 1 13 1. , (Ms. Shotwell left the hearing room.) id ' JUDGE HOV"- v- m ackus, I believe your crcss- 3 15 examination is next. Are you ready to begin, sir? 'i;. ie '" l MR. BACKUS: Madam Chairman, I had anticipated that . 17
.h is cross-examination -- at least the clan was c.re. cared in 1
anticipation that.the cross-examination would be both on the i I 19
,k direct and redirect. That is coinc to recuire some 20 read].ustment. i l
2t l ' In fact, I would like to advise the Chair and the - ) 22 ' i members of the canel that in the event that there is going to ; t 23 1
- j. be nc need for rebuttal because the testimeny that is being 24 rebutted is not admitted, the examination I have can be very 25 brief, indeed. \
i -
- 1 e
ik
y lc q ip a i 1087 6
! I
'e 3 p
l i . k,ii- 1: l lq hss! ! JUDGE H0?T- Mr. I;, a c k u s ? i 4 2 l e i i h , MR. BACKUS: I t h i n x. l M ' 3' Madam Chair =an. that is all I have at this t i = e;, 1 N-J j N JUDGE H0YT-
. Ms. Curran? . .i ; h 5
MS. C U R *- AN: lJ [ Mada: Chairman, I have ; e !l c ross-exa=ina tion n ot submitted I7 a plan. In order to conserve ~ not to be resources, and repetitious, I had 4 C for'the State of previously conferred with counsel !' Massachusetts, who was 'l I5 going to be < 0 9 NECNP's concerns. addressing! a , 10 - I I as Et ven concerned that out I k 11 c .' n c e r n s in thfs f;! I proceeding vill not be addressed now that 1; been dis =issed -- Massachusetts has i
}
i 13 i
!?
l . J"DGE H0YT- Pardon me, Ms. Curran. if 14 c o rre c t- you. Let me !
. M.i
, Massachusetts i{
i 15 in this proceeding. has not been dismissed as a partv Massachusetts i 1e was told, because of its I conduct here, it had the means of ' i % 17 , apologiring curing its conduct by i ' f 6- 18 to the counsel and to this Board. s
; Massachusetts has elected .I i9 option. not to exercise that .4
[ 1 It has not cured its contempt. [ I 20 l s o , there vill be no And, until it does - ;y s I participation. :l 21 lSoard's ruling was. That is what the. ,' I dif h , 22 f. { Now, if you want to ask E'[ l ;! 23 I Commonwealth of questions, because the Massachusetts is net ..i[ j;. 2d may. participating, then vou 25 j ' t h e case, if I would prcier that /ou determine tf that is i O soing to be l :!assachusetts elects n* ;
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to e a~ - *~ 4~cd-a' a 4 .,
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. s li.Q 1028 !U[d
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1 MS. CURRAN: Your Honor, I have nc way of knowing w w .- stfc, wha: Massachusetts would do. b h [ 3 questions of the witnesses for the Applicant. I would like to ask a few Wg i fi JUDGE H0YT- 3efore vou ascerisin that, Ms. Curran, d i d 4% . - kl a e c . e . g s e p e e e a s g 5 ,
- i. -
necessary, and y o 's will certainly be permitted to ask those '- I. t+ o M. ti 7 questions in spite of the :ac: that you have not filed a
- i
[ cross-examination plan. *; 8 'I b 1
, ,j De vou want to ascer: sin that first? JM 58; MS. C r RR A:: : As far as I know, counsel for gf Massachusetts has left.
3 g+
.i g-**
M S . S H O Tk' E I.L : No, : have returned. P - J '.' D G E HCYT:
\1 R 13 That is what I was trying to tell you, @
W
,, Ms. Curran. [
g (Laughter) !
,3 1 a 16 MS. S HO T'4 ELL : : have just come in. I don't i i
i
,7 know what the issue is. i,y 18 JUDGE H0YT: '4 h -
v don't we have a two- or three- a e i et
), minute recess for Counsel to Confer. I l t
! (Recess) '
1
,0
. s ia I :
21 JUDGE H0YT: The hearing w i l '. come to order. I. e t {
; i m 22
! the record reflect that all the parties to the hearir.g before 23 the recess, are presen: now that the hearinz has resumed. ai I E
~
24 And, the witnesses have taken their places on the stand. 5 kf - p~ Again, 1 remind ycu that ou are under oath. i l l $ i t > i t
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- 1089 2
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, 1 Ms. Curran? P MS, CURRA.N: I cannot speak for Ms. Shotwell. I [ [*
- 2. {
%:..[ ll 5
, , 3i defer to her. , qI
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4 I JUDGE H0YT: Does Ms. Shotwell wish to speak? 'j
't Yes, I co.
5i
- s. MS. S HOTk' ELL :
- E r ,
II e! I have been informed. I think, of some of what !
,- 7 h e,s happened during my absence, and I understand that the t -
8 Board has indicated that the Commonwenith will be precluded R P= jfr 9 from submitting its own testimony, in addition to cross . gj- 10 examination unless, as I understand it, I apologize for the i, 1 I'ke 11 tone of the objection that I made :o the Chair's reading of
- k 12 a portion of my cross-examination plan.
t
*^
13 JUDGE H0YT: 1: was tone and substance. 14 Ms. Shotwell. Let me remind vou of the provisions of this
.5 s ;
15 Ccmmission's rules and regulations which you will find in h' ]:
?
t Ic Section 2.713. In particular, Paragraph C recommends 5n 17 tensure or suspension from the proceedings. A presiding I W t officer on the At omic Safety and Licensing Appeal Board of
% 18 .
y f a e the Com=ission may, if necessary, for the orderly conduct of j 10
%{
y t t., 20 ; a proceeding, recommend censure or suspend from participation d i in theparticular proceeding pending before it, any party or hfc(.f 21 c dy 22 I representative from a party, who shall refuse to comply with (
.. 23 its directions, or who shall be guilty of disorderly, ,
h y ,j;. 2d ' disruptive or contemptuou.s conduct.
.ly Also, I would like to cite for you paragraph 25 l
jy
*J z .
E 1090 i I s . . 34 l2.718,in particular paragraph E on Powers of :he Presiding , 2 Officer. That one has the power to regulate :he course of f i A' $ 3 l the hearing and the conduct of the participants under those i L i . u w t, ,jsections. They are the enes tha: the Chair has acted upon -- es g and i: is within your power te rencve an" contenptuous conduct
,4 N 1 3
y v 7 3 ; by apology. This Judge has stood on that and will continue
'. - I D 7 to stand on it.
A t [t i-- 8 MS. SHOTWELL: Madam, in responding to that, I-t 4
, ,cannot apologi:e for the substance c: the objection. I stand bT:
10 a the substance of :he objection. I can say that there was
? i .no instention to personali: offend an- member of the Board, 6
f 37 and I can apologi:e if my :one did offend any member of :he I ;
, i3 Hoard.
u I cannot apologize for the substance of the i 15 bjection. I believe the substance of the objection vas I'; a founded. L 7,9 l 37 JUDGE H0YT: Is that all? u , 18 MS. SHOTWELL: "es, m I ppj JUDGE H0YT: Ms. Shotwell, I would prefer for you ha$ t 20
!to be in the proceedings. I con't think the substance was ;.% :' ,3 appropriate, however ! believe the state of :he destructive e
l f ( ;; conduct has been sufficiently cured, and the Ccamonwealth i [ 23 of Massachusetts counsel is welecmed back to the proceedings. 5 i
- 24 MS. SHOTWELL: Thank you.
kwg 25 Shall I proceed with c r o s s - e :c a m i n a t i o n ?
'4.
.4 01 ' au s $b ws r l 4 l
~
~ ~~
APPENDIX B
~
i
* (Aug. 23 Hearing p. 1GSlet sea.) 1631 ,
I t h t Pl i l-
'I 1 j Yes ma'am, Tcwn of Kensingten?
I lF 2,i "S. GAVUTIS: I would like to go en record as l{ i-3 l observinc it at the same time. We looked at each other and ! (' I , d ' ispoke of the issue but, not being aware of court proceedure, 5.didn't stand up at that time. We're not attorneys and had we
- l ,
6 kncwn, we would have sr.oken en Hednesday acrninc. i 7 vUDGE HOYT: Is that the same witness that you're a referri,ng to? May I have that name acain, Mr. Dignan? 9 215 . DIGNAN: Mr. Merlino. 10 JUDGE HCYT: "r. Merlin will be -- , , i 11 ' MR. DIGMAN: You have already asked Mr. 'erlino l I l 12 twhether, en :nis recorc, at any time he was signalled tc. I I. 13 ' JUDGE HOYT: Was he cne of tne same witnesses? .
;f Id . MR. DIGNAN: I'n sorry, it was the other witnesses.
i. 15 JUDGE HCYT: That was the cther three, r. Dignan.
'le ' That was the reason I wanted "cu -- is he easily available?
17lNhat is the situation? i 18 Very well, representative from Hampton Falls? 10 i MS, PEVEAR: It's Pevear. 20 , JUDGE HOYT: Pevear. i l - l 21 MS. PEVEAR: I would like to read an amendrent to i i 5 22:the file, which I went hcme Friday night and typed it. : 23 l JUDGE HCYT: May I see the T.eco before you do so? ] l %,. l I' [ ; MS. PEVEAR: Certainiv.
' ~
I 4 25 (Document handed to Judge Heyt.) Sj h i Tm-E N .4 l'
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' 1682 '
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i: h~. , (i l 2 1 JUDGE HOYT: Very well, ma'am. Let me return this } l i l v
!,to .vou. I s'elieve this is, in substance, the same remarks that '
3 'you placed on the record on Friday. ::o additional remarks ,.
-l
.'F.,.M lare necessarv.
4
- Thank vou, very muc.". '
I'%: MS. PEVEAR: %, .L 5 Madame Chairman, there is the final i j 4. . /i el paragraph. { \ 7 JUDGE HOYT:
- Io , ma'an. I said the memorandum l
,! 4 1
8 would not be placed on the record, thank ycu. i 9 Ms. Curran? I' W j n . 10 MS. CURRA::: Madame Chairman, I think that the V- l { lWrfk(J 11 representative from the Town of Hampton Falls is being prevented ! ! 3- w 12 frcm putting someth:.ng on the record that she has every right l ! !' i 2 i .,, 13 to out on. - And I think she should be allowed -- ! , i. l t; 14 1 t JUDGE HOYT: I'm not aware that ycu even know what's ! J 15 lin that memorandum.
;t l ..
i' le t i MS. CURRAN: She has asked to state -- r
'7
' JUDGE HOYT: 'is . Curran, I don't believe you are ,
g l .
;. i i
le, aware of what's in the memorandum and the ruline of the Board l l ' ,l
.ra i e, 10 stands.
i
} I c
! 20 Is the witness ready, Mr. Perlis' l
PERLIS:
21 l ..... Yes. ' MS. PE'.:.n.s: 22 ., 2 would li.<e tne reco- m =o state 23 that I did not cet to sceak. I l ' l 24 : uCDGE HOYT: It will so reflect. 25 , l { 'g t 6 Town of Seabrook? , l e, ., , 3 t f 1 t' I
1683 3 I } li i s t 1 ia 1 I 'i t I l , f s , I I l 1 i i !!S . EANDALL: ies, I feel it's my responsibility ? 2, I as a citizen to also enter on record mv observations on Fridav ' N i ' 1 3i morninc. o > l l: 4 JUDGE HOYT: I believe, ma'am, vcur recollections !', j
*Q I
5 of what occurred on Friday have already been placed on the fwW hd
; e 6i record. ,
I ' l 3!.i i 7' MS. RANDALL: No, I' scrry they were not. '
.... s a
JUDGE HOYT: Am I in error? Verv well, if .vou
.3 0 want to place them on, veu mav., but ycu're not going to have F#
, . i, ,
. ,,4 l 'p~
'ol a second chance ts what I'm saytnc.
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. RANDALL: I was not here en Eriday afternCon 1 e.,-u,'.
+*
[ i y 12 when this was discussed. During Friday morninc's cross- i
; d i i j :4' .A I
4. 13 examination of Dr. Urbanik, when "r. Backus was conducting -
?
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' s M
'w,D 14 cross-examination I observed att'arnevs frcm the NRC Staff -- - 1
'5 scecifically "r. Patterson -- batween te point when a question i
t . ! lei,was asked and the witness was then asked to give a response + i
. b 17 l shakinc his head in a nec.ative way orior to the witness
. ,l . . S, ,
I , l .. l 1 18 ; responcing. -
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\ s 10 JUDGE HOYT: Very well.
i
'!cw that witness has I 1 -
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20 ! returned to Texa, which ts m.y understanding.
, Is that correct, ,I JS.
4 a r 21 . 'ir . Lessy? l ,gaf , fi 22 LESSY:
"R.
. les, four Honor. i i
' ' v%'d wVf 23 JCCGE HCYT: What I am goinc to do, ir that case, i:
23 e ps since the witness is not 'n the area and I don't intend to I l Q{$ WPMM! 25 { recuire the Staff tc. have that witness
- ed to New Hancshire *.f "'% Wd
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I at government expense, I intend to request and, indeed I 6 l.= S g1 E.
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so crder Mr. Lessy, that an affidavit be taken from the witness, b, - Ip 3 Mr. 1.:r b a n i k , as to what were the circumstances at the time that 6 zh. , _ f t-4 he was questioned by -- who was that? #( l 4[;4 5 MS. RANDALL: Mr. Backus.
-Q > e JUCGI HCYT: ?!r . Backus. And that I will, at the -4 e
h kt 7 time that a'ffidavit is available, I would recuest that -- j j
,?,, -, a no, Mr. Lessy, I am going to order that it be done no later 4:
r, o i than Wednesday next week, when this Scard will meet again here .e i n New Ha== shire. n-10'! !
' 'e *~c5V- v^u wcuid 1;r:e the af fidavit --
12 JUCGE HCYT: 4@- 13 Tc reflect what the circumstances
, {.[
were during the -- whether or not he had been instructed by I 2 14 ' vou, sienalled bv.
. v. e u , -n arv wav. ' '
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15 !.
.MR . LESSY: It was Mr. Patterson. '
=
ic : I JCCGE HCYT: Was it ':r . Patterson? Very well, 'i
; !i ;
'7 .-
that's your uitness then, Mr. Pattersen? 3
+
But v.cu are lead
- 18i l counsel, T ~tr . Lessy, and I lock to feu so that the order will 11 i J'
10 , he carried out. I, <. _ l . 20 ! MR. LESSY: We'll ask that an affidavit under , i - 21 i cath be Obtained. 1 ,= I-l 22 ' JUOGE HOYT: And it wi'.1 be inserted in the l ,'
,3
- record. .1 24
- MR. EACKUS: $!adame Chairman?
. p-w 25 ; JuncE McyT: .s r . sacxus? I i
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; fir . SACKUS: Madame Chairman, since this pertains '
; I y se l
. to the cross-examination I did on behalf of the Seacoast .in ti- l e t
l we,, 3, Pollution I.eacue , I ' d la.-;e to say en the record that I feel anj ; . d evidentiary hearinc of this matter ;s required. Althouch ! ;IR*M 5' recocni::e Your Honor has said that an affidavit should be 6
, furnished, I believe the witness should be brcuch't forward to i I"
l ! l 7 i .. testiry on this matter on the record and be available for l 8 examination. f,jM . I JUDGE HOYT: Mr. Backus, you -- I think the record f '* 10 'YrG< can reflect this -- had your back turned to the witness. You
- do not knew what occurred. W l'
Ycu're in nc pcsition to make anv - 12 t gjfm additional ccmments On that. I have taken, I think, what is , k
'3 . .Qa, a reasonable precaution in order to e: sure that the record I D.,,
v.i AtM i ~. '
. will reflect that neither of these witnesses -- if, in fact, : **
l, i tnis is true -- were instructed by ccunsel. ' i l
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'.R . BACKUS:
I think you said I had m. back to i j i
'7 I l l t cu the witness. I think you meant I had -.y back to the ccunsel A l
.a, for the witness.
r.
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IC vt va ::C Y m. : .s .e r .' w e n. . , let me say ycur back to gg i i .. i ; <
"O
' ' the counsel. I '
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'!R . BACKUS:
Which 1s, cf ccurse, true. ~'hese ! p@w' 1 e
*2 ladies in the jury bcx are tcwn representatives faced direct 1ri i MM 23 - ,l ;, knn %
both the witnesses and, directly acrcss frc= them, counsel 1
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$ for the Intervencrs of the Cc=menwealth of ':ew Hampshire. t sw.A-
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- .'Eehind us, counsel for the Staff and tne Applicant. I'm simcld - -
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I 1 saying that although I could net see counsel for the Staff, I!
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2 I think I should have the right to e.': amine the Staff witness I 3 about what went on, in light of what the representatives 4 ,i have saic. i i t 5 JUDGE HCYT: Mr. 3ackus, the relationship that fi i e! you have in this case is censiderably different than that of .j i , 7 the town representatives. You are a member of the bar, sir. ! i a Ycu are perfectly capable of making such accusations, known. ! I 9j to the bar asscciations -- the bars that these gentlemen are i i :i - i 10 presentiv members of. The tcwn recresentatives are not in .I 11 that position. If you have anv. such allegatien, v.ou will i t 12 ; ! direct them to the ac.e.rce.riate authorities, within the areas l' 13 ' where these gentlemen serve. i i l 14 Now, that's the end of the I
.atter. We will proceed
- i. i 15 with the witness.
i .' 16 MR. BACKUS: Nith your indulgence, ma'am. : i
- 17 i JUDGE HOYT: "c, sir, Mr. Backus. Please be seated, l, l
18 I ' sir. i 1
'S BACKUS:
! "R.
I wculd like to state en the record, ! 20li V. adam -- , . 2' JUDGE HOYT: *'r. 3 a c k. u s , be .s e a t e d , sir. l < I 22 l "R. BACKUS: Madam, I weuld ust -- 23 i JUDGE HOYT: Sir, I have asked you please to be 24 ' seated. l U '4F . 3ACKUS: I wculd .1ke to make one more stateme.j !
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f W N } h1 t on the reco*~ . -- !I '
'} : JUDGE HOYT: Sir, clease be seated.
t The record [$
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3 l i will not reflect any additional statements by vou. I recuest ! 4 l sir, kindly, that you please be seated. +r 4 <. { f$ Ms. Curran, please re secrec. ! F$ ()+ e' MR. SACRUS: I f. I succes error in that' ruline to -- i i g$q
,' 7 ,
JUDGE HOYT: l u. . 4,
'Is . Shotwell, please be seated.
I
~
s MS. CURRAN: ) I have something to add. }I , i 9
- g JUDGE HOYT: No, ma'am.
to} to this record. The reporter is directed that these remarks You will not add anythinc
,5 h
ihi,h it will not be recorded. Ycu will please be seated. lpf@ iL l 1; 1
! Towns representatives are also added to tha' 'h 1
~
13 Thank you, ladies and gentlemen. t' I
. i 14 ;
Now, are .vcu read" with vcur witness,
. . si-' ,
6*
- 5 1 !!R . PERLIS: Thank vcu. Yes, I am. An i p ie ' JUDGE HOYT.- !$nn Please cresent the witness. : J
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e UNITED STATES OF AMERICA d 4 NUCLEAR REGULATORY COMMISSION $ i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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) .
Public Service Company of New ) Hampshire, et al. ) Docket Nos.
) 50-443, -444 (Seabrook Station, Units 1 and 2) )
)
AFFIDAVIT OF DIANE CURRAN 4 Diane Curran, being duly sworn, deposes and says: d
- 1. I am counsel for the New England Coalition on Nuclear ]
. Pollution (NECNP) in the above-captioned proceeding. j i
- 2. In this capacity, I represented NECNP in a hearing a before the Atomic Safety and Licensing Board in the Strafford County Courthouse, Dover, New Hampshire, on August 17, 18, 19, and 23, 1983. ;
- 3. On August 23, 1983, during the course of the hearing, I '
ros,e to make an objection to the Board's handling of certain allegations that attorneys for Public Service Company and the Nuclear Regulatory Commission had been observed coaching s witnesses regarding answers to cross-examination questions posed by counsel for intervenors. Tr. at at 1687. The Board s did not give me an opportunity to speak, but told me to "please be seated." When I did not sit down immediately, but attempted to state my objection, the bailiff approached me until he stood , directly in front of me on the other side of the counsel table - and remained there until I sat down. 4 i
- 4. At no time later in the hearing was I given an
! opportunity to state my objection to the Board.
~
/~) i
.) W Diane Curran 1
Subscribed and sworn to before me this 12th day of September, 1983. y
/ w m <.s WY$x" NOTARY PUBLIC '
9
7 ' APPENDIX C -
~
[
- (Aug. 19, 1983 IIearing s nn. 1531 et son.T e,-
{ j i - - i 3 1 pc2 1 Q Would that be the first symptem of that event? 1 2l A The first symptc= to the operator in 'he contrcl . f 3
,rocm; yes.
i d ~
, Q No other symptom would precede major damage to the 5
i spent fuel? As 0 ; A To the operator in the control rocm, ne. j g.4 i ,-, I
' ' Q I see.
8 - MS.. CURRAN: I have no further c.uestions. , 9 JUDGE HOYT: I think those were the only two . h M tol cross-examination plans filed. I l l l
- h. ~
11 i Do we have any redirect? WIb l Y.W a 12 l , MR. GAD: Am I up, your Honor? . w, k 13 JUDGE HOYT: If you wish to be. I' t s< i i MR. GAD: Do you think that maybe we could take our I atternocn smokinc. break and T.av.be vrac. this u.t in a couc.le
! 8.
i 10 lcf minutes after that?
, Ii t I
6 i .. ... - 17 i l JUDGE HOYT: Yes. I think Judge Harbcur has been T
'Sl1chbying for that i for some time. -
1* f, (:e re s s 20 " JUDGE HOYT: The hearing will ccme to order. l P 6-cp Let the record reflect that all the -carries , s s 22 m:. 4 o the hearing who were present when the hearine. recessed are I 23 ' again present in the hearing rocm. l ~;j I' l Ms. Shotwell? Ng Madam, the reeresentatifes for
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'p :3 iitowns of Hampten Falls and 2Ve have .ndicatec to me on tne '
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- l break certain Observations that t h e' '. made with rescect to
- l 7! '
I ;g 1 - something that happened prior to the break. I feel that the i~ J
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I ,'cbservations shculd be put en the reccrd at this time, and - I& 1 1 i I indicated mv. co.inien en that score tc t"e rec.resentatives of , , [i s ; iw j . the towns, and thev have :.nd.cated nat thev w:,s.' te do sc. i h
. i.
g < l 7; I feel that the matter is poten:.:. ally very sericus, and I will 6 defer to the representatives of the towns to indicate their h i i s I g ' observations . wp 1, ! ., V. so l* E GE HOYT: Yes, sir. Proceed. l i j t ' I 1
.i MR. CHICHESTER: Sure. Cn the last cuestion that !
i 3: !was put to these witnesses, I cbserved Counsel Dicnan, before - l i ' answer was given, lcok directly at the table, move himself u inte a position where he could be seen, and shake his head u vicercusiv "no," like that, v:. c. c r c u s 1 . I ie . It is not for me to make cut what it was all i I 17 , about, but I was watching for this simply because I had seen
- s,during the course c:. t u.e tast few days situations like this, iclinotherwords, signals like that, which I didn't understand, I
I
- 0 and I wasn't about to sa,. that they were meant to he signals tc the witnecses. i l ..
Eut I did discuss it at lunch with cthers who !
- 3 t thought they saw the same thine, and we decided among us
- a ' we would lcok verv. carefull*. for : hat sert of thinc., to see if 1
- 3 ' in fact, what we thought we were seeinc might be very real. i, .i..
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Ig4 ' On the lact questien te these witnesses, before l ' [ r l lP I the ad]curnment, the recess, that is in fact what I saw. I I f 3,saw Mr. Dicnan shake his head vigercusly "no" before lW 9 d any answer was c_iven from the witness table, and, in fact, fl l i 5 =cve himself into a ocsition where he cculd be seen, looking ll l l t aM . p m I t directl*/ at the table.
- i :
7 JUDGE HOYT: Representative ?evear? ll I observe d the same thing: He shook
'hl' B -
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. PEVEAR: ;
kit
, *Ihis head and he leaned around the ccunsel from Massachusetts !
I [d ph i - i 10 so that he could be seen by me even better, and he shock his I l
!. l head vigcrousl. "no," and then thev answered "nc." I 1
e. i bW.=
'2 : I myself have ncticed this -- nct onl Mr. Dignan l I
i
'3 i but the counsel for the Staff or previcus -- i-4 t i i
'd
- JUDGE HOYT: Ecth of th_m, cr one of them? i gj 15 MS. PEVEAR: Mr. Lessy is the only cne I noticed, i i
i i i l l 10 'that when the expert witness would hesitate, I had seen they- i ll i
',' I,had i
nodded, but I cannet cive you specific questions at this -r i t e ; point. This one, I do know. I was watchinc. ! ,) l
! E I* '
MR. DIGNAN: Could I hace the last .:ue s t ion f t 20 answer from the witnesses? I hcnestly don't reme:nber the k WE 2' cuestion. . W3 yu,;
, a 22 JUDGE HOYT: Could ycu retrieve that, ma'am? '
fM 4 -
(The reporter read the record as requested.)
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6 I 1! MR. DIGNAN: Madam C'cairman, I ask the Board in t F . I i l 2 l its consideration whether this accusation has any merit to t l 3 ' thihk through the likelihcod that a lawyer whose backgrcund l
-n is rhilosec.hv. and law wculd c.urr.ert to sic.nal these threa 4 <
s -, s l ,
?w . 5, witnesses for what the proper answer is to the question o: w i
o* what symptem would first be observed in the event of a i j 7 radiological event such as the damage to the spent fuel. 8 That's number one. 9 Two, for the information of the Scard, I do 10 l recall shaking my head at that juncture which was when the 1 L 11 j examination was being ccmpleted, and it was in response to ! p 12 an inquiry which I normally don't bother to tell people, 13 because I'm at the counsel table, ' rem TV cartner, Mr. Gad, 14 i ' as to whether he should ask a certain cuestion on redirect, 15 to which I replied. "Are you sure,you knew what the answer is? Io i, -- te which he replied he wasn't. 17 And I said, "Ccn't a s:- it." And I shook my head. 18 That is the f act s. I don't like the accusation. 19 I would just as scen have these witnesses answer < 20 l under cath as te whether they have ever been told by..me to 21 to me for a sicnal fer an answer te a quest en. 22 - JUDGE HOYT: I wculd like to have that ~ responded l 23
- to bv the witnesses.
i 24 First I will take ycu, '4 r . "acDonald. Have you , 25 ever been signalled to or instructed by "r. Dignan to give 1 i
g F
,:- 2 , .
I b.d
' specific testimony in this case?
. . r; 2 WIT';ESS MAC DC:'ALD : Absolutely not.
W 3 JUDGE HCYT: So, vcu are under oath, and vou cive T' i pM.
'! that response under oath? ;
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m4 0 JUDGE HOYT: Mr. "hemas, hate vcu ever been h.M i 7 signaled to, instructed by Mr. Dignan to give testimony in i k js;. a this case? ,
. And remember, sir, ycu are under cath.
30 WITNESS THCMAS: I have not. JUDGE HCYT: Mr. Anderson, I ask the same question i f(h d 12 of you, sir. ,h [ .
'3 W TNESS ANDERSCS: Absolutely not, four Honor. -
3d JUDGE HCYT: Mr. Lessy, you have also fallen 15 under the evil spell. So, may I have your response?'
'* I'd like to remain seated, Your Honor.
MR. LESSY: t
'7
- k. .
Unfortunately, Mr. Urbanik has left, and I don't 18 - - - -" have any speci: cs. : w l l k l I can just state that, one, there was no such 20 signaling. I do recall shaking my head a couple of times R Hr 21 I 1 like tnis, ves, to what Dr. Urbanik had to say. I don't mean hc. l ,,
! R I these comments to go to substance. I nave never werked with gg.
23 him before, althcuch I have heard of hin, his reputation, and S/ m. 24 reviewed a lot of his testimony. And in fact, in preparing :-%
$b 25 his testimony here fcr this proceeding, I did not do the j h ew.
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y I p 1 7-Q sDsc j I i initial pre;.aration. One cf the other counsel did. But I 2 was very impressed with what he had to say, and I learned a i i l 3 lot about the subje:t matter. i
? . . . . . . .
4: In fact, tn :nat parttcu ar sun,ect matter, thts i 5' is the first time I have, in fact, litigated that contention oi er a cententien it.<e that. v.r . Perlis has been r.cstly doing 7 that because of events in another case -- l I 8 JUDGE HOYT: Let me just cet vou dcwn to the i i 9 signaling bit, .v.r . Lessv.. i 10 Did you signal? 11 .v.R . LESSY: No, Your Hcnor.
~
12 JUDGE HOYT: Have you signaled any witness in this 13 case? 14 Remember r sir, v.ou are a l a w v. e r
- and you are 15 subject to the cancns of ethics of our profession.
16 .M Q. . T u*C V. .
.T . "I e s .
17 And I'm afraid I don't have the knowledce Cf th': - 8 I J 18 sub,ect matter of Dr. Urbanik to even encace in t'-it even if 19 I were able to. i
- o so, I had wished that 'f there was a feeling in
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1 22 i Ms. Pevear I u cout another subject matter. I wish she had 23 brouc.ht it to mv. attention. We could have exc.lained it off 24 the record. But if she wants to go en the record with it, 25 it's a very generalized sind Of thing. The cnly thinc I - i l . W 1-l [ e qF PF ill c ,. N k I V ^ W _ - - - - - - . G- .
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W.~, W- . . cculd say is that it's 'ust catenti'.- incorrect. f! h*x 2 br c And I'm sure that there's really nothing more at 3
; this point that can be added.
p d ' . mr. The st.z ect .i.trer c: ,:entrollinc these hearines
- IRMf6 5
is a function of the Scard, and the Scard -- p 1 M mw$. 6 i JUDGE HOYT: The Scard intends to exeicise its W . n 7 ,
- functicn, Mr. Lessy. ; 'n i
8 , MR. LESSY: Could I finish my sentence? M.* 9 JUDGE HOYT: Go ahead. Let*s have it, quicklv. i
' lQ h,w. x f.
30 MR. LESSY: y' The 3 card is in as much cosition as NN 33 l _ ,f. the other cbservers tc, and I'm sure the Ecard has been j ' 12 t]. f exercising it's function, Your Ecncr. .. 13 $8.ig JUDGE HCYT: All right, Mr. Dignan. I l' l MR. DIGNAN: I'd 1ike to ask one thing, Judge Hoyt. , ave 4' . o I sort of rise to a point of personal privilege.
- 16 4
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- iy integrity as a lawyer has been attacked in public. Wmt,d.
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'8 }i I wish to advise the Scard, which may be aware, i 2
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there is a decision in the books of the this Commission in i @f"n - C s 20 , the Vermont Yankee croceedinc bv the Acceal Scard which : l & spel 21 ' mentions me by .ume. W5
! Nde4 %l
' 2 I wculdn't bring it up rcrmally, but it's an bNI gf 23 interesting dec:.sion, because, :. r it, the ;ppeal Bcard went m,:;)) k
,a m.,e w..
cut of its way to compliment .y cander as a practitioner $W< g p; ac
'- . ;,-,e 9 i
hefore this acencv. , It care ac, cut as 2 resu.t er. tne :act 94ttI ..M i a M. mu .svi m.:qa
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0 38 i l y .x 1 e'. i i that I received a decisien frem the Appeal Scard which 2 permitted a client's reactor to coerate. 3' I But I aisc observed in that decision that the 4 l Appeal Scard has misunderstood a factual matter in the record f 5 -- that is to ray they cited as part of the reason for their l e findings an affidavit that I knew had been surerseded. ' i 7l SeCause We Were going to gC cn-line, I immediately , l ' l e called the chairman of the Appeal Board and brought this to . i 9 his attention, because I felt, as a lawyer, that is vour role I l' io -- while vou ficht hard, you never mislead a board. That is
, l 11 ! the way I have conducted myself for this agency and throughout i 12 my professional life.
13 I resent the implications that have been made here. 14 i I resent that an Assistant Attorney G:neral lent her high ~ I 15 l office to bring it to the attentien of the Board, before i 16 l them. I don't like it. And I, frankly, exc.ect a n a c. o l o c. v , at , i l 17 l least, frcm counsel who are members of the har insofar as ; I is l she allowed this to be perpetrated. ' ic MS. SHO".NEL : I believe I had a professicnal 20 , resc.onsibility to indicate that these Observations had been . I i 21 brought to my attenticn.
- . believe that the cbserv m :ns needed to be put 23 ' en the record.
24 I still sc believe. 25 ' I wish for the record to reflect that I have been ; t
. 44,
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9 < r i p6 '*'9 n I i I i I i . 1: seated throughout these proceedings directly in front of the table for counsel for the Applicants, and I am in no position ' 1, 3, to observe and have indicated no such cbservation that has
'l 4
- been indicated on the recorc. .
I a Goard conferrenc. ) - . t JUCCE HCYT: Mr. Chichester, I think it was
! l.
7 indicated to you in this proceeding earlier there have been 8 a s'eries of firsts for me, and this is the first time that I I have ever had counsel that appeared before me accused of i I ! 10 i such a serious accusation. 11 Ycu have placed into question the integrity of I ,' ! professional persons that appear before this Ccemission.
'3 Were the. accusation to be true, it would fall upon this Chairman to bring these matters to the attention 15
. cf the ac.crooriate bar association.
l I have observed these counsel in this case from I '~
'7 the beginning in scme almost two years now that we have been -
i 1 - 18 .. in session. . 2 .: ave not found ccunsel :.or any side to have . 19 any cause to be questioned on their professional integrity -- 20 counsel for all the states involved and counsel for the t ', I ei
- 1
, Intervenors.
t l l == It is .o untti thic c nine. when v.eu have chosen 4 23 l -- o- -=- er enis a- a--ron, l wnen vru r. ace choser to brinc : t 24 such a sericus accusaticn 'efere r -- c
-card, that : sericusly l 25 ,
l i cuestion your abilit; tc represent cour t cw.. . l : l - i i 4 e E
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i 1! New, I have ceen :ortunate cr unfortunate, as the l I i 2; case may be, sittine here on a raised clat:crm wnere I coul. i - 1 3i observe all ecunsel at all times. There has been, by no l. d counsel, any conduct that I can determine -- and I have i 5: observed them throughcut -- that wculd cause me to censure l l c I counsel. 7 I am shocked and ama ed that you would feel that i 8 for the first time as a participant of a city or town in l
, this state to make such a sericus professional accusa icn of 10 .isconduct.
- ) - . . e . .e ,. _,. ,., '= _=
, . s_ c. e . . _ ,
i _ __ ..c_...."c.__- - _- . . ' . = _ .e c... a_ l 12 l profession, such an accusation, totally unsubstantiated, to 13 be brought before us -- and I am shocked even further that id counsel fer the very hencrable Cc=menwealth of Massachusetts 15 would lend herself and her position to that serious an lo accusation. 4 17 ! I am saddenec that it has happened. I hc pe that . 18 in my entire professional career, as icng as it goes, I shall never experience that feeling again. 20 What you chose to do about it, Ms. Sho twell ,- is , 21 i cf ccurse, scmething fou well have to l_ve with four own
,3 . .
consctence w th. Ycu did nct observe ::: you did not see 23 anything and have so stated for this record, that your back 2' was turned to these counsel. I 25l New, I do net wish tc bring this matter any ! l
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I I i further. 2 I i If you take seme sert of steps, which you may do, 3 1 that is your pleasure -- to cure this very serious fault. 4 You did not see anything3 you are not e"en in a position, as , 5 you have admitted, to being able to cbserve ccunsel. :w* I 9 p1 0l You will have to take my representatic~n that I saw ;h 7 i no signal. I see signals of shaking of heads. I see signals j~v 8 of'ycu moving papers. I see questions being passed to counsel l - o when I know that counsel did net have those questions in i[ i (Ap: . [' 10 their cross-examination plan. And I have not chosen to make fkh 11 that observation of record. h 12 Now, the Tcwn of Rye will remain in this case just ! 13 so long as that sort of accusation is the first, last, and
-l '
14 . only one ycu will make en this record. l l 15 i ' Ms. Shotwell, I w:.ll expect , in the crivacy of a l l
- l. j lo l l
meeting with 2'.r. Dignan, to work something cut tith him that g. 17 : WJ is mutually satisfactory to both of you. And I nope that that l 1
;-w 18 '
is the end of the matter. ,l 19 g MS. SHOTWELL: Any decisions about the matter will .- 20 . be made by my superiors. , 21 - i MR. CHICHESTER: Madar Chaiman -- % l i We - 77 N' ";' JUDGE HOYT: Sir, we do not wish to hear you. You i-t 73 W w. I may be seated. ;.. ;.
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" I MR. CHICHESTER: Well, you have chosen to bcth h ni
.g l reprimand me -- 5 a st 1
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2 1 JUDGE HCYT: Sir, vcu will be seated, and you
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m fi 2 w_e seatec. i:=e c. .iately, sir. G. I
- 1 3 MR. CHICHESTER: --
and to denicrate the -m i W x M 4 I represenatation -- -
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.n, 5' JUDGE HCYT: Sir, I will only ask vcu cne more
- 2 a
o time. " 7i l m 3 Thank you. I j l - t i 8 s . :: t MR. CHICHESTER: In fairness, you should allcw us i
- 4 9 . te respond.
e ->3 3 wa to JUDGE HCYT: i Mr. Chichester, that is ;t. I3 I t, 11 : MR. CHICHESTER: W e The record is clear. :q i 12 JUDGE HCYT: I would like to proceed on inte this 13 case. ._, m 14 al Do vcu have anv. redirect of these witnesses,
, i . .e. e - m.
n 16 MR. GAD: Very brief redirect, jour Mcnor, if I N W 17 :tigh t prcceed new, _ n 18 JUDGE HCYT: Yes, clease. k-m ic , =..rn..m..e.C. -N e.v.e . ". . . n- . m. a, _ 20 cv .v..n. . unD. l 21 i t
- Mr. ::acCcnald, begin wi 5 .s there a typcgraphical
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a 22 i error en *able A.5 -- I was suppcsed to call to your l $ _ 23 attention at the outset -- m- - 24 A (Witness MacDonald) fes, "r. Gad, there is. M.
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.,a 25 C Would ycu please set it straight new, i b 1
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APPENDIX D = (Aug. 8, 1983 Side Bar Conference 2 b 00 2 et _son _ _. ) . I i W/e=1 1 i P R 0 C E E D I N G S 4:40 p.m. 'i 1 2 JUDGE H0YT: The reporter is instructed to take I 3' this conference verbati-I d . i The Board is concerned that this hearing is Y' i 5 t dissolving into a shouting match. I think that there are ::* t 6 : appropriate methods and ways in which everyone dan zet their N!. l I Dj 7 case on this record. I am very disturbed that no matter l 8 w h'a t occurs in this case, what question is asked, there are I r V# 9 objections, and this conduct is absolutely ou t o f hand , and c
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10 1 and Dr. Harbour will not tolerate this any longer. k.
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3 '; . 11 I In the case of the attorneys in this case, 1 . . . 12 cannot believe that we cannot demand a hfgher standard of %df 13 conduct than what I have seen exhibited in this case so far. - E.
-%N' Id Now, I suppose that it falls on me to attempt to 15 implement some mechanism that will insure that we will get a fI to 'W"h complete record and a fair record. But, I can assure you, j I
17 each and every one of you, that we are not going to tolera te ff 18 this any longer. Such exhibitions as occurred yesterday
~. E 10 will not occur again. #
I thought those ::.ings had ended and 1^ l 20 we could have a fresh day. We do not seem to be a b l,e to 21 ' arrive at that point. 2-,. An
. "t Now, I am going to ask each of zou here in tnis .. $Y$)
23 hearing room at this time to give ne some sort of an idea egjj
,d [$N what we can expect. Are we zoint ta expect a better and a gyj 25 +43 campleter hearing, and a fairer h e .i r i n e sithout all these
[fd.d, _7 Yl k Q. P.R - j I M liia2Ea
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' innuendoes and this aosolute erosien or al; trarpings of s
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' i civilized behavior in a courtroom?
3 ' i I have never, in my entire long life, been addressec ? d j in some of the fashions that I have seen here today and I e
<esterday. I suppose c:her judges with a lot broader 6
{ experience than I will ever have, may have, but I have not. 7 I have newr been so much as la:e for a courtroom, because I -- 8 knew be::er. 9
*'e a are going :c be prompt, and we are coing to ,
t ,s f 10 1 earn courtesy one way or the other, or believe me, I am Il not hesitant, not in the least, to see that the sanctions I 12 that we can impose on the persons and parties of this I i
'3 i hearing, are imposed to the fullest.
I' Appeal boards, the Commission and the courts may 15 overrule me, but I am going to at least try to bring come 16 se=blance to this hearing, some semblance of intelligent, I7 mature behavior. And I haven't seen it up to this point. I 38 I am sorry to have to inflict this upon the Town
" Representatives. however, jou are into it just as well as 20 the rest of us are here, and if you would have participated, 21 A the same remarks would have applied c you. Very fortunately,
'2 l j o u have not.
23 But, I am appalled at the professional conduct
*4 that is being exhibited in this room.
25 i .: o w , I am goinz to ask each of you on this record I
m 4 W k 1 to give me dome sort of assurance :ha: :his is not going to
; 2 happen again.
3! Ms. Sho:vell, if you want to start off. go right i m. d i ahead. I 1 VS. SHOTWELL: : have a response ! s ould like to e make on the record, your Honor. 7 JUDGE H0YT: Yes, ma'am. 8 MS. SHCTWELL: I would like :o say cha: I, in my C entire life and experience in courtrooms and outside, have h 10 never been addressed by anyone in the tone in which I believe 2 11 you address se repeatedly. ' 12 JUDGE HOYT; Ms. Shotwell, let =e stop your righ: I 13 there. I am not interested in whether you like the hearing 14 or not. The problem is, each of us have our task to do. The .. w 15 o nly thing that I want from you is some sort of indication that 16 ve can conduct this hearing in a fashion : hat is not degenerate 17 to our profession. 18 MS. SHOTWELL: Madam, what I am saying is -- i e I 19 JUDGE HOYT: You just can try and judge Ms. Shotwell,
}
20 if you will. 21 MS. SHOTWELL: I believe I can respond in kind. ZiA 22 JUDGE H0YT: Very well. th 23 MS. SHOTWELL: kLSN{y j If I am spoken to in a respectful 24 manner, I respond in a respdCtful manner. hy@f( _( i 25 . kWf Thm . JUDGE H0YT: Ms. Shotwell, there has been no j.$$$$b I i l 615c' 5 A@Jg% t w # 5' w
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na: 3 discourteous conduct on my par: towards vou at any time - 2 in this hearing, and you know that. m 3l MS. SHOTWELL: I dsagree with that entirely, madam. - I e' 5 JUDGE HCYT: You are entitled :c it. But, we are . 2 3 trying a case before the public, and if thev think this is the s
- 7 I way we conduct the hearings, or the conduct in the courtroom --
8 I'm sorry, but I feel this is something we have just got to -
, stop at this point. 4,,
MS. SHOTWELL: I feel, for that very reason tha 10 , i 33
'we should both stop.
12 JUDGE H0YT: Ms. Shotwell, the relationship here 33 is not between two lawyers. The relationship that we have in y this courtroom, so far as I as concerned, is as a judge and 15 y u as a counsel. This is not the same relationship. You 3, have never been spoken to in such a fashion, and this is a f 37 terrible, terribly erroneous thing that you are trying to do. 18 Now I am not gcing to become angry in each and 39 every-case because I as -- nor, do 1 intend to allow you to 20 do so either, because the public is not interested in that. og
' I l W e' are net trying a jury case, Ms. Sho:vell, we are trying a t
technical case, and I, for one, would 'ike :o proceed along 22 . i 23
'those lines. -
1 l
,a MS. SHOTWELL: I am coing ny best to try the case.
t JUDGE :iOYT:
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I I I a 9 .=3 1 Ms. Shotvell. ~" 1 2 Mr. Bisbee, do you have anything you want te add? 3 MS. S H OT'J ELL : I must state on the record that I ' a d disagree with that charactert:stion of the manner in whic' Nd -
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5 l you have addressed me in this proceeding. 3 6 JUDGE H0YT: Ms. Shotvell, please sit dcEn. I 2P f 7 Thank,you. 8 Mr. Bisbee, do you have anything you wish to add' ( b,; 9 MR. BIS 3EE: I believe you asked something from us? .. IG*.^ x. d ,$-' I did, Mr. 31sbee. pb 't to JUDGE H0YT: q 6 Il MR. SIS 3EE: I a= happy to respond. g ff i 12 JUDGE H0YT: I a= trying to get some thoughts from l 13 you. I ' I' MR. SISSEE: I would like the record to reflect l ( If that =y participation in the last two days has been very lo li=ited. 1 do apologize for arriving late after the lunch 2 3, 17 break today. n But, jo .'t' 18 JUDGE H0YT: I wasn't aware that you had. g2 - S*: l' very well. Thank you, y g fj-20 MR. BISSEE: I am co==itted to representing # E And I ~) 21 j client in the cost full and proper way that I can. 1
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[E 22 vill make every effort to conduct myself in such a way as m WJN W
, ,1:g vill not offend any party or any member et. the Board.
We appreciate that, Mr. 31sbee. We k# kh4 2d JUOGE H0YT-
@$$d? n +.m 25 vish te give you full and free .' e p o r t u n i t *, to represent your W, *
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_ l 7 I I i i client to :he fullest. 1. 2 Ms. Curran? 1
, 1 3 MS. CURRAN: I don't believe that NECNP has l i
4 i conducted itself improperly in this proceeding. 5, .UDGE H0YT: Let =e ask you this, Ms. Curran; e Le: =e be a li::le bit fuller. I have never conducted any , 1 7 proceeding off the record. The implication that you left 1 i l 8 before the me:Sers of the public that were sitting back . :' r ?/ ' c I o there is that so=ething evil had occurred; that some to off-the-record conference had occurred; some meeting that i 1 it the public was not privy to, t 12 The perception that :he public has of what is is occurring in this hearing room is what they see and what they i4 hear out there, not what is in fac sometimes happening. And 15 it is that public perception that I fel keenly aware of j 16 when you =ade the remark earlier today. And that was the 1 17 reason that it had to be stopped at that pint. l t 18 MS, CURRAN: Your Honor, excuse me. I wasn': 19 i n t e r.e s t e d in affecting the public perception. I was 20 , in t e re s ted in naking a record. I 1 21 i I JUDGE HOYT: I a=, Ms. Curran. 22 MS. CURRAN: I have one other comment, and.tha: 23 is if the Board wishes to chastise all the Parties, the 24 representatives of the Parties in this proceeding, then I 25 believe it should be done before :Se public. I do not agree , i l l l 1
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ai l 4 7 i wi:h t he Scard 's procedure c: excluding the public from this 2 meeting, and I believe that everythir.; that has happened here I,l 3 should be something that the public should have heard. li f
' l MS. SHOT *; ELL: I agree.
4 , , 3g e JUDGE H0YT: Mr. 3ackus? 3 ..
. L
MR.3ACKUS: Jucge Hey:7 . N ., , e i 7 JUDGE H0YT: Mr.Backus? MR. BACKUS: Ma'am, I respectfully disagree with 8 ! l 9 the Chair's character 1:ation of the conduct of counsel in this - 4 i M;m3 10 proceeding. I think counsel has been at all times considerate L I g 33 and polite. wsm 3; On behalf cf the Seacoast Anti-Pollution League : l 13 have a duty 2nder the Canon of Ethics and Code of Professional @( u Responsibili:y to vigorously -- the word is zealously --
'j. , _ 11
[ 6 represent =y client. I intend to do so. I intend to do so Ttf " : 15 with perfect regard for the decorum of this courtroom and a I have done so and will continue to do so, g f 17 this tribunal. k 18 and I will speak out when it is necessary for my clients' n l . [ I 19 interests. un JUDGE H0YT: That is what we expect you to do, 20
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r De the Towns of Rye or Seabrook wish to I'm - I - [
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sorry, the Town of Hampton Falls? r(
;3 9 MS, PEAVER: I don't know whether I am o v e r s t e p p i n s; 6;e.gg.
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- 5 i,this case as a lawyer, I would like to state that I have )
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At this point I would lawyers, judges for seven vears. 3, for 4 i he Called a paralegal, but in that day I was a secretary.
; used to go to court vtth my bosses, by the way.
5
'4 hen I went into the first proceeding that I went 3 ;
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' to on this proceeding, it was preconference hearing in Portsmouth. I was surprised when there was an argunent 8
g between Massachusetts counsel and Judge Hoyt over whether 10 or not Massachusetts counsel had received some pleadings. ii And Judge Hoyt asked Massachusetts counsel if she had looked , 12 behind the file cabinet. And since then, I feel -- and I mean this as no 33 i4 disrespect to you, because ! Just a= not that type of person -- but I do feel as an outsice person watching this, 33 It is as if my brother and I 36 that it is not all one-sided. 17 vere fighting, which we do. JUDGE H0YT: Ms. Peaver, ycu understand the 18 relationship is not one that is necessarily that kind ig MS. ?EAVER: I do uncerstand that. 20 I JUDGE H0YT: - ef brotherly relaticnship?
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M S . ? E A'.' E R : Oc understand tnat. But when I
;;j 23 heard that first preconference hearing I was not used to that
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;< enployers and ! had never seen that where the judge asked 1
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the counsel if she." locked behind the file cabinet." l f . . ,
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3 JUDGE 'd O Y T : Ms. Peaver, I can only indicate to you 4 ,that that is incomprehensible, that ecu cannot have taken that I 5, in the light in which it was asked at the time. But, you E9 _m m are entitled to tour opinion, c: course. t'M D
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7 Does Seabrook vish te have an. k 8 , MS. RANDALL: I guess that I would say, that it has [
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ag 9 been pre::y obvious to me, and I am sure to the public too, ;
- that there has been scme obvious tension in the air.
P IC %+, 80 ij JUDGE H0YT: You understand this is an adversa.; n. a n 12 type of proceeding? I ' 13 MS. RANDALL: Yes, and I guess some of that one
- 4 would expect. I can see more tension that is happening.
33 There is an undercurrent that is going on between individual i3 as opposed to between issues. I am not sure how much of that n 17 is obvious to the public. I don't feel that I have been la involved with the interactions of this group long enough to i 19 make a definite judgment. But I do feel that there is = ore - 4 20 than just orders being given or responses being challenged l l ' I
;j that is going on. I am not quite sure where that is cosin e .
r [] , [ro3. ' i Q 23 JUDGE H0YT: Thank fou very much. tp@q 3
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Donna Sgrignuoli of Dover, testifying a: Tuesday's public - rneeting on the Seabrook nuclear plant, recounts her experi- - I. p ence of being pregnant and living eight rniles from the Three d.fj hjy
% 't Mile Island plant when it experienced a near-disaster in 1979. g' -
W ' (Democrat phcto - Lorette) Public. comment m ] D- ' Hampshire for the "Pubne Service Cempany of New # [ Seabrook site, notmg that an acet-4 i,M
- p. .-' dent such as the one that occurred at Hampshire should not be alhmed to teopardite our ecunntry and our pub- i ,,
Three Mile Island could happen here I
;' "I thought nmcern pewer was a i i c h alth ar.d safety by completmg '
a this obsolete project." she said. ' x. o - e. . great new ms ention until Three . tic nerardmg the four days of beens-
?5* 6 t 'Nl 1sland, w ben my mrd was complete- j .c g I ,5:yS f, I 4
;y changed.- she sad "I ca n't t r" m i' hearmas. Ms ahwarit said. e3 cY s.y y derstand tne lac,x of apparent con ~ "My t;nh otandmr of the (NRC) n:and.ite w as that it regulate the nu S ,gf I [ { {R-cern for our children and E ,c % o f c ._
8 l grandchildren - they are the ones c' car industry in order to protect g r. E {,5' I :g :E ~g put,He healtn and safety but in these l who will have to deal with the waste N, q gj and the mutations. hearmss NRC acts as an advocate for the 1;;dustry. ph. g]E jhy [ p.
%'c}** - I On the other stdc of the coin. Alden Howard of Rye, chairman of the New Hzmp6tre Busines s and Industry Other opponents concentrated on the ecacuation procedarcs at the nu- g" Er~
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c :c;,r she. arann with estimates t,y T g [C# ' f' AssociatioTs energy committet, tes- ' EI E
.g'5 7 3 =[ i PSNH that the area could be cleared 4
y tified that the "quahty of hfe"in the state is dependent on industry. safely in the event of a disaster. [3: # gge857o$j48 go ggj
- t. And, because industry is depend- Richard Kaufman of Durham re- F lI lated to the board the traffic jam
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ent on energy. the Seabrook nuclear that occurred m Newington when the &
--'M =o-6 Sr plant is needed to provide a " stable' E ox Ren Mall optned (arlier this k price for that energy- ,.
g "The BIA fects the capacity Seabrook station is needed," How ard e., 3 ear. At that tim 0. be baid, only 30.000 , x:agc ,j C aEc
, ', , ,e l peop; acre trymg to get to one area. - e , c. c Eg5(
N I said. "We are distre x d by the es- . - 6yEm (M calatmg costs, but any further del:0 h It Md be ddferen'. and impossibie. . 'E E 1., ll; jg gg:}y[ M l m brmging Seabrook v. Ime w di be to clear a mmde radius around C w.c S = c f detrim ental. ' Seabrook on a 3ummer seekend day, ' 7 . ;g 5 S I " 'E tf g ( he said. ' J 3 Also in f avor of nuciest power as a Denris "I hom of Hampton said' S:5t # EOY5= viable ahernative to other energy < 5,MS q z :'EI there are alw ays const ant traffte
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)5roko3 e sources were Howard Stiles et Man- p jams cn the streets art und Scabrook
- t. m 'g chester and Ehnbeth Mudge of Ne* Just froni the change ef shift of work-
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T London. Ms. Mudge referred tu nu' g5CE c
- r, clear power as providing a " lot ces at the stle lie ako um offense to the licend $, 07: 5%ojh
%g G h m 2t term economic advanta':e." g 6 y o2
#f,f me board not allow mg testimony M .#!-
I[5E {=g*5$t]gy: Susan Schwart: of Keer.e. a staff t 4 6 member of New England Coalition from liampton Pohce chief Robert %
" Mark to t;e entered into the record at c, tPi.yEj
)2 m on Nuclear Pollution, lashed out at the hearmp last week 6Z4IE TOI the construction operations at "If it is a hea ring, everything )
{ Seabrook, and the nature of tlje Nu- r: -oA~e . [o" j 6 should be heard." Thom said. P clear Regulatory Commissmn s role Harriet M uen of Deser said she i 5 Q .$ 5:E in the 1 censing hearmo hem in 7 .S 'E 'C 7 = ? c lc N.
- Doser last week and Tuesday, u .as concerned about how the utili- ~E ." 5375.4 6 ties planned to dapase of the waste Ijf f? #Eoy%Af She said she has observed among
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h , the workers at the platti a " severe f rom the nuc! car plant once it goes 'O U 2 2 *d " I incompeter tk @aa8M
' and " markedly apa-on line She cited that as one reason why she does not want the plant lj ;
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