ML20081D856

Affidavit of Ja Shotwell Re Atty General Fx Bellotti Motion for Disqualification of Judge Hoyt.Certificate of Svc Encl

ML20081D856
Person / Time
Site:	Seabrook
Issue date:	10/26/1983
From:	Shotwell J MASSACHUSETTS, COMMONWEALTH OF
To:
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ML20081D837	List: ML20081D836 ML20081D848 ML20081D856
References
ISSUANCES-OL, NUDOCS 8311010364
Download: ML20081D856 (14)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD BEFORE ADMINISTRATIVE JUDGES:

Helen F. Hoyt, Chairman Dr. Emmeth A. Luebke Dr. Jerry Harbour

)

In the Matter of ) Docket Nos.

) 50-443-OL PUBLIC SERVICE COMPANY OF ) 50-444-OL NEW HAMPSHIRE, et al. )

(Seabrook Station,~ Units 1 and 2) ) October 26, 1983

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AFFIDAVIT OF JO ANN SHOTWELL I, Jo Ann Shotwell, being duly sworn, hereby depose and say as follows:

1. I am an Assistant Attorney General in the Department of the Attorney General for the Commonwealth of Massachusetts and a counsel of record for the Department in this proceeding. I 4 was present at and participated in the hearings before the ASLB which were held on August 17-19, 23, and 31, 1983, as well as the three prehearing conferences held on May 6-7, 1982, July 15-16, 1982, and April 7-8, 1983.

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2. On numerous occasions throughout the August hearings, l many of which are specified in the Memorandum in Support of

Attorney General Francis X. Bellctti's Motion for Disqualification being filed herewith, Judge Hoyt interrupted

{ me and other counsel for intervenors and representatives of I l interested municipalities in a loud voice, interfering with our l 2  !

ability to make motions, objections, and supporting arguments  ;

i and to make a record for appeal. On other occasions (during

the prehearing conferences as well as the August hearings),

many of which are again specified in the Memorandum accompanying this filing, Judge Hoyt addressed me and other j intervenors' counsel and municipal representatives in a

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sarcastic, hostile, and even mocking tone. At no time did Judge Hoyt address counsel for the Applicants in such a fashion or interfere with their desire to make statements on the 1

] record. In fact, her tone and manner of address were notably l

l solicitous of both the Applicants' counsel and NRC Staff counsel.

3. I was approached during the August hearings by a number of people observing the proceeding who questioned Judge Hoyt's 1

impartiality. At a recess on the first day of the hearings, well before the incident involving Judge Hoyt's reading from the Department's confidential cross-examination plan occurred, l

I I was asked by one observer to the proceeding, in the company of others, whether I sensed hostility on Judge Hoyt's part toward me or toward the Department of the Attorney General.

There were general expressions of agreement among the other persons present at that time that such hostility was being demonstrated. One individual questioned whether it was

" futile" to participate in the proceeding. And another person, later in the same recess, asked whether Judge Hoyt wast n on a

" power trip." Following the hearing on August 23, two New Hampshire legislators observing the proceeding indicated to me that they were appalled at the manner in which Judge Hoyt had addressed the municipal representatives that day and felt that she had demonstrated profound disrespect for them.

4. During my cross-examination of Applicants' witnesses in the afternoon of August 17, Judge Hoyt began to read an upcoming question from the Department's pre-filed, confidential cross-examination plan. I rose quickly and emphatically stated my objection to that action in an effort to prevent any further prejudice to the Department. Judge Hoyt subsequently demanded that I apologize for my objection as a condition of continued participation in the proceeding. When I would not do so, Judge Hoyt in fact barred me from completing my cross-examination. I later explained that I could not apologize for the substance of

the objection and that I believed the objection to have been well-founded. Judge Hoyt then retreated from her earlier position and readmitted me to the proceeding after receiving my assurance that, in making the objection, I intended no personal offense to any member of the Board and that I regretted any offense which was taken. I note in this connection that the transcript does not accurately reflect Judge Hoyt's reading from the cross-examination plan. That portion of the August 17, 1983, transcript appearing at page 1063, lines 17-18, which reads " Judge Hoyt: I believe we're into adverse weather effect?" should read " Judge Hoyt: I believe we're into adverse weather affects...". The Department is moving that this correction be made to the transcript.

5. Because of Judge Hoyt's treatment of the municipal representatives in the proceeding, I was prompt.ed at the August 19 hearing to assist two of those representatives in gaining access to the Board and the record with respect to their observation, previously made known to me, that counsel for the Applicants and the NRC Staff had signalled certain answers to their witnesses during cross-examination. I performed that access-gaining function, in part, because of my belief that Judge Hoyt would have prevented the municipal representatives from raising even such a serious matter had they attempted to

do so on their own. It chould be noted that the Board members were not in a position readily to observe any signalling of witnesses by Applicants' or Staff counsel when they were facing witnesses and awaiting their responses. Intervenors' counsel were seated with their backs to Applicants' and Staff counsel such that it would have been highly unlikely for them to have seen any such signalling. The only participants in the proceeding who were seated directly opposite and facing the Applicants' and Staff counsel were the witnesses and the representatives of the interested municipalities.

6. During the hearing on August 23, 1983, I was prevented

, by Judge Hoyt's refusal to allow statements by intervenor counsel from entering into the record the Department's desire for a fuller hearing into the municipal representatives' allegations that counsel for the Applicants and the NRC Staff had signalled their witnesses. If allowed to speak at that time, I would have moved the Board to allow the complaining

. municipal representatives an opportunity to rebut the denials by Applicants ' and Staf f counsel of their allegations. It was my perception that Mr. Backus was attempting to make a similar request on behalf of his client and was also refused the-opportunity to speak. During his exchange with Judge Hoyt on this occasion, as during the entire hearing, Mr. Backus did not

1 so much as raise his voice, but rather quietly and reservedly requested the opportunity to speak on behalf of his client.

Following the August 23 hearing, I was presented by Ms. Pevear, a New Hampshire legislator and the representative in the proceeding of the Town of Hampton Falls, with the memorandum attached hereto as Exhibit A. I was informed by Ms. Pevear that it was the substance of this memorandum, and particularly the last paragraph thereof, which she was attempting to bring to the attention of the Board and to state for the record when Judge Hoyt would not allow her to address the matter of the alleged signalling of witnesses.

5. Prior to the commencement of the hearing on August 31, Judge Hoyt called all counsel to her chambers. In the absence of the representatives for the Towns of Rye and Hampton Falls who were present for the hearing, Judge Hoyt indicated that she had, on the preceding Monday (August 29), telephoned the Chairman of the Board of Selectmen for the Town of Rye and indicated to him that Mr. Guy Chichester could no longer serve as the representative of the Town in the proceeding. Judge Hoyt then indicated to all counsel present in chambers that she would not commence the hearing that day as long as Mr.

Chichester was in the hearing room, or at least as long as he

i d I was seated in the section reserved for town representatives, and that she did not want to have him physically removed from his seat. Judge Hoyt then asked if counsel would urge Mr. Chichester to leave. When no counsel offered to do so, Judge Hoyt indicated a willingness to reconvene the hearing to another room so as to exclude Mr. Chichester. I indicated my unwillingness to do so and further relayed that I had conversed i by telephone the preceding day (Tuesday, August 30) with the l

Chairman of the Board of Selectmen for Rye and that, in light of the substance of our conversation, I did not believe that he could have understood that Mr. Chichester was being barred from the proceeding. Judge Hoyt responded that she had made that 4

" perfectly clear." Shortly thereafter the in-chambers conference ended. Judge Hoyt did not come to the hearing room and commence the hearing until approximately one hour later, immediately af ter Mr. Chichester lef t the hearing room stating that he had a prior commitment elsewhere. The hearing began approximately 1-1/2 hours after the time at which it was scheduled to begin. Following the hearing, the Chairman of the Board of Selectmen of Rye indicated on the record that Judge Hoyt did not at any time during her ' telephone conversation with

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him on Moncay, August 29, state that she was barring Mr.

Chichester from the proceeding. (See Exhibit B hereto.)

Signed under the pains and penalties of perjury this 26th day of October, 1983.

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Jo Ann Shotwell COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.

On this day Jo Ann Shotwell appeared before me and swore that she had read this af fidavit and that the statements in it are true to the best of her knowledge and belief.

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2xhibit a erg @ tate of New Eampsltre i

'#]MID II. HOUSE OF REPRESENTATIVES

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CONCORD 9:00 P.M.

8/19/83 MEMD TO FILE (Seabrook):

The following are ny observations of events at approx. 4: 10 P.M., this dates Miss Curran of NECNP was questioning the PSC panel of witnesses, with Mr. Dignan acting as attorney for PSC concerning emergency procedures at the Seabrook Plant. She asked her final questions concerning list of events and question ed"if there was a more specific list and no other procedures?".

) Before Mr. Mcdonald answered, Mr. Dignan - who, in my line of vision was partially obscured by the Mass. Ass ' t. A.G. , shook his head from side to side.

Mr. Dignan, then, proceeded to lean way over to his right and forward, so that he was com-plately in my line of vision, to Miss Shotwell's

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right, and vigorously shook his head from side to side.

The witness, Mr. Mcdonald, then answered no to the questions.

During this time, Mr. Gad, also of PSC, did not move his lips or open his mouth or give any indication he was carrying on a conversation with Mr. Dignan.

Roberta C. Pevear

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Exhibit B G

Fa OFFICE OF SELECTMEN RYE, NEW HAMPSHIRE September 26, 1983 )

Honcrable Judge Helen Hoyt Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Tashington, D.C. 20555 Re: PSN~ci, et al Docket Nos. 50-443OL and 50-44401

Dear Judge Hoyt:

Te wish :o have placed on the record in these proceedings our objection to your con-duct at the August 31, 1983, hearing session relative to the continued participation by one of our Town's representatives, Mr. Guy Chichester. ,

Te have conferred with individuals who were in attendance at that hea' ring, and we have reviewed newspaper accounts covering the' events of the 31st. At no time, dur-ing you unusual call to our office the Monday before, did you advise that you had

' dismissed" Mr. Chichester from further participation on behalf of the Town of Rye, nor was any such impression given by you or understood by us. We acknowledge that you suggested that we consider appointing a new representative, but the whole tenor of our conversation centered around your concern to avoid future confrontation. Our

!etter cf response was intended to assure you that we would counsel our representa-tive on courtroom demeanor expected in judicial as well as semi-judicial proceedings.

t Had you even inferred that you had in fact " dismissed" Mr. Chichester from further representation and that it was necessarv for us to obtain new representation, we most definitely would have advised you of our objection to same in writing. From our conversations with several residents and non-residents of Rye, who were in atten-dance during the sessions giving rice to this, incident, we are hard pressed to find any conduct en the part of Mr. Chichester that would warrant such a severe sanction as distnissal.

Honorable Judge Helen Hoyt ,

Page Two September 26, 1933 If our understanding of our pronouncements at the August 31 hearing concerning this issue is other than what you intended, then of course, you should disregard this let-ter. However, if it is your intention not to recognize Mr. Chichester at future hearings, we respectfully request that you place such an order and the reasons there-fore in writing to us so we may note our exception and preserve our appellate rights.

Very truly yours, BOARD OF SELECTMEN adeau, Chairman Mbm.r.e' Mayg afd/L. Y6ung / '

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. Frances I. Holway 4 pih cc: JoAnn Shorwell, Esquire, Assistant Attorney General, Environmental Protection Bureau, Department of the Attorney General, One Ashburton Place,19th Floor, Boston, Massachusetts 02108 i

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CERTIFICATE OF SERVICE I, Margaret A. Zaleski, Esquire, counsel for Massachusetts Attorney General Francis X. Bellotti, hereby certify that on October 27, 1983, I made service of (1) Attorney General Bellotti's Motion for Disqualification and Recusal of Judge Helen F. Hoyt and Motion for Reconsideration of Judge Hoyt's Ruling on Motion f or Summary Disposition and Motion for Rehearing , and (2) Attorney General Bellotti's Memorandum in Support of the Motions, with attachments, and (3) Affidavit of Jo Ann Shotwell, with attachments, by mailing copies thereof to the parties nameq below:

Helen Hoyt, Chairper son

• Representative Beverly Hollingwort Atomic Safety and Licensing Coastal Chamber of Commerce Board Panel 209 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 Washington, DC 20555

Dr. Emmeth A. Luebke* William S. Jordan, III, Esquire

• Atomic Safety and Licensing Diane Curran Board Panel Harmon & Weiss U.S. Nuclear Regulatory Commission 1725,I Street, N.W.

Washington, DC 20555 Suite 506 Washington, DC 20006 Dr. Jerry Harbour

• Edward L. Cross, Jr., Esquire

• Atomic Safety and Licensing Assistant Attorney General Board Panel Dana Bisbee, Esquire U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, DC 20555 Office of the Attorney General 208 State House Annex Concord, NH 03301 Atomic Safety and Licensing Appeal Roy P. Lessy, Jr., Esquire

• Board Panel

• David A. Repka, Esquire

• U.S. Nuclear Regulatory Commission Robert G. Perlis, Esquire

• Wa shi ng ton, DC 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire *

. Board Panel 116 Lowell Street U.S. Nuclear Regulatory Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Dr. Mauray Tye Assistant Attorney General Sun Valley Association Department of the Attorney 209 Summer Street General Haverhill, MA 01830 Augusta, ME 04333

• By Express Mail

t o-David R. Lewis Thomas G. Dignan, Jr., Esq'uire Atomic Safety and Licensing Robert K. Gad, III, Esquire Board Panel Ropes & Gray U.S. Nuclear Regulatory Commission 225 Franklin Street Rm. E/W-439 Boston, MA 02110 Washington, DC 20555 Charles Cross, Esquire Ms. Olive L. Tash Shaines, Madrigan, & McEachern Designated Representative of 25 Maplewood Avenue the Town of Brentwood P.O. Box 366 R.F.D. 1, Dalton Road Portsmouth, NH 03801 Brentwood, NH 03833 Roberta C. Pevear Edward F. Meany.

Designated Representative of Designated Representative,of the Town of Hampton Falls the Town of Rye Drinkwater Road 155 Washington Road Hampton Falls, NH 03844 Rye, NH 03870 Mrs. Sandra Gavutis Calvin A.'Canney Designated Representative of City Manager the Town of Kensington City Hall R.F.D. 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Patrick J. McKeon Jane Doughty Selectman's Of fice Field Director.

10 Central Road Seacoast Anti. Pollution League Rye, NH 03870 5 Market Street Portsmouth,.NH '03801 Richard Sullivan, Mayor Docketing and Service Section Town Hall Office of the-Secretary- '

Newburyport, MA 01950 U.S. Nuclear Regulatory -

Commission Washington, DC 20555 Brian P. Cassidy Representative Nicholas J. Costel' Regional Counsel 1st Essex District FEMA Region 1 Whitehall Road John W. McCormack Post Office Amesbury, MA 01913

& Courthouse Boston, MA 02109 s Mr. Angie Machiros, Chairman Diana P. Randall Newbury Board of Selectmen 70 Collins Street  ?

Town of Newbury, MA 01950 Seabrook, NH 03874 '

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l Patrick J. McKeon Anne Verge, Chairperson Chairman of Selectmen, Rye, Board of Selectmen New Hampshire Town Hall 10; Central Road South Hampton, NH 03842 Rye, NH 03870 Donald'E. Chick I Maynard B. Pearson Town Manager Board of Selectmen 10 Front Street 40, Monroe Street Town of Exeter, NH 03533 Amesbury, MA 01913 Selectmen of North Hampton Mr. Daniel Giratd Town of North Hampton Civil Defense Director New Hampshire 03862 25 Washington Street

- Salisbury, MA 01930 Senator Gordon J. Humphrey Senator Gordon J. Humenrey l Pillsbury Street U.S. Senate Conco rd , 11H 03302 Washington, DC 20510 (Attn: Herb Boynton) ) (Attn: Tom Burack)

Signed under the pains and penalties of perjury, this 28th day of Oc'tober, 1983.

lq' GAL Margdret A. Zaleski bek(

Assistant AttgrWey General Public Protection Bureau One Ashburton Place Boston, MA 02108 1

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