ML20082E136
| ML20082E136 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/23/1983 |
| From: | Curran D, Jordan W HARMON & WEISS, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8311280060 | |
| Download: ML20082E136 (46) | |
Text
.. 'o November 23, 1983 UNITED STATES OF AMERICA lbV23 P4 yy NUCLEAR REGULATORY COMMISSION h Sf
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
Public Service Company of New )
Hampshire, et al. ) Docket Nos.
) 50-443, -444 (Seabrook Station, Units 1 and 2) )
)
MOTION BY NEW ENGLAND COALITION ON NUCLEAR POLLUTION FOR DISQU ALIFICATION OF JUDGE HOYT I. Introduction Pursuant to 10 C.F.R. S 2.704(c), the New England Coalition on Nuclear Pollution moves that Administrative Law Judge Helen F. Hoyt disqualify herself from presiding over any further proceedings concerning the operating license for the Seabrook nuclear power plant. Judge Hoyt has, through illegal, intemperate and inappropriate conduct toward intervenors and local representatives in the proceeding, demonstrated a personal bias toward those parties. Even if Judge Hoyt considers that she does not feel that bias, her behavior has created an appearance of bias that would lead a reasonable j
person to question her ability to preside impartially over the operating license proceeding. Therefore, under Commission standards for disqualification, she must recuse herself from further participation in this proceeding. ,
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Judge Hoyt has displayed biased behavior toward intervenors and local representatives in a number of forms, including refusals to allow those parties to place arguments or evidence on the record; inappropriate egc parte contact with a local governmen t; conduct of an ex parte discussion of substantive matters; and harassing and intimidating conduct toward intervenors and local representatives. The effect of Judge Hoyt's improper behavior has been to create an atmosphere and an expectation of unfairness that pervades this entire proceeding. Regardless of Judge Hoyt's personal feelings or motivation with regard to NECNP and other intervenors, she must recuse herself in order to maintain the appearance of fairness that is essential to any administrative proceeding.
NECNP does not bring these charges lightly against Judge Hoyt. We are well aware of the discretion which the Commission invests in the Licensing Board to carry out its weighty responsibilities. We find, however, that Judge Hoyt has ,
overstepped the bounds of that discretion so often and so egregiously that she has destroyed any semblance of fairness in this proceeding. Having created an appearance of unfairness and impropriety, it is Judge Hoyt's duty voluntarily to recuse herself from the proceeding. Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 and 2), CLI-73-8, 6 AEC 169, 170 n. 4 (concurring remarks of Commissioner Ramey)
II. Standard for Recusal The Administrative Procedure Act, which governs NRC
l licensing proceedings pursuant to 42 U.S.C. 5 2231, sets a broad standard for disqualification. An adminiscrative law judge may be recused on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee . . .
5 U.S.C. S 556(b) (emphasis added) The standard for judicial conduct is especially high for administrative proceedings, "where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed." National Labor P. elations Board v Phelps, 136 F.2d 562 (5 th Cir.1943 )
In Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-101, 6 AEC 60, 65 (1973), the Appeal Board summarized the types of judicial conduct, derived from federal case law, that would call for disqualification under the Administrative Procedure Act:
[A]n administrative trier of fact is subject to disqualification if he has a direct, personal, substantial pecuniary interest in a result; if he has a " personal bias" against a participant; if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; if he has prejudged factual -- as distinguished from legal or policy -- issues; or if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.
The Appeal Board emphasized the importance of the criterion of appearance of prejudgment or bias, noting that:
[ A]n administrative hearing * *
- must be attended not only with every element of fairness but with the very appearance of complete fairness. Only thus can the tribunal conducting a quasi-adjudicatory proceeding meet the basic requirement of due process.
A
B B Id. at 65, quoting Amos Treat & Co. v. S.E.C., 306 F.2d 260, 267 (D.C. Cir. 1962) Thus, an administrative judge may be disqualified for the appearance of prejudice, even where actual bias or prejudgment cannot be shown.
In its most recent disqualification decision, Houston Light and Power (South Texas Project, Units 1 and 2), CLI-82-9,15 NRC 13 63, 1366 (1982 ) , the Commission also invoked the statutory standard for disqualification of federal judges, 28 U.S.C. S 455(a). Under that provision, Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
This provision was established by Congress in 1973 to promote the public's confidence in the impartiality and integrity of the judicial process by saying, in effect, that if any reasonable factual basis for doubting the judge's impartiality shall exist, the judge "shall" disqualify himself and let another judge preside.
Po tashnick v. Port City Cons truction Co . , 609 F.2d 1101, 1111 (5th Cir. 1980), citing 1974 U.S. Code Cong. & Admin. News. pp.
6351, 6354-5 (judge involved in business dealings with plaintiff's attorney required to recuse himself) Section 455(a) replaced a former standard based upon a judge's
" introspective estimate of his own ability impartially to haar i a case" with an " objective" standard. Roberts v. Bailar, 625 l
F.2d 125, 129 (6th Cir. 1980) (judge's remarks on character of defendant required recusal "in order to preserve the indispensable semblance of fairness." 625 F.2d at 130.)
l
5 5 In South Texas, the Commission stopped short of applying the substantive disqualification standard, however, on the ground that the conduct complained of was made "in the context of an adjudicatory hearing and was based solely on events which occurred during the proceeding, i.e., [the intervenor's] action and behavior during the proceeding." Id. at 1366. In so ruling, the Commission applied a judicial gloss that has no support in the language of the statute or the legislative history. As the First Circuit has recognized, S 455(a)
J permits disqualification of judges even if alleged prejudice is a result of judicially acquired information, in contradistinction to the prior law that required a judge to hear a case unless he had developed preconceptions by means of extrajudicial sources.
l United States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir.
1978) Thus, judges have been disqualified for courtroom conduct without regard to whether or not the conduct was
- "extrajudicial". See, e.g. Webbe v. McGhie Land Title Co., 549 F.2d 1358 10th Cir. 1977) (judge recused from rehearing for courtroom remark on his view of defendant's position); Roberts
- v. Bailar, supra, 625 F.2d 125.1 4
I Moreover, the Commission strains the meaning of the
" extra-judicial" qualification that has been put on S 455(a) by the federal courts. The limitation to extra-judicial bias is intended to distinguish between legitimate remarks or actions i by the court regarding the merits of a case and improper behavior resulting from personal prejudice. The requirement that prejudice be " extra-judicial" thus goes to the source of the bias, not the location of the biased conduct. As the Third Circuit defined it, extrajudicial bias is (footnote continued next page)
O e i
The Commission recognized, however, that the courts have established an exception to the extra-judicial conduct requirement for " judicial conduct demonstrating such pervasive bias and prejudice as would constitute bias against a party."
15 NRC at 13 66. See, e.g., U.S. v. Holland, 655 F.2d 44, 47 (5th Cir. 1981) (judge disqualified where remarks to defendant v)uld lead reasonable person to question judge's impartiality).
The Administrative Procedure Act and the statutory standard for disqualification of federal judges thus require disqualification of a judge for the appearance of bias.
Although the NRC has adopted a doctrine requiring that bias to be extrajudicial in nature, it has recognized an exception for biased conduct that pervades a proceeding.
Even under the narrow standard for disqualification adopted by the Commission, Judge Hoyt must disqualify herself from this proceeding. Judge Hoyt's conduct has gone far beyond the
" stares, glares and scowls" and (footnote continued from previous page) bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceeding. For example, in Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1020 (5th Cir. 1981), the court looked to the nature of the comments alleged as basis for disqualification, not to the location where the comments
- were made. -
Thus the court distinguished between " gratuitous insults" made in the courtroom, demonstrating " overt hostility or the like,"
which constitute grounds for recusal, and " final conclusions or immediate reactions on points of fact or law in the case,"
which are not a basis for recusal.
" occasional outbursts toward counsel during a long trial" that the Commission ruled insufficient to require recusal in South l Texas 15 NRC at 1366. Her improper conduct has been as severe as it is varied, including obstruction of the record, illegal ex parte contracts, and attempts to intimidate intervenors and local representatives. Judge Hoyt's biased conduct has pervaded the Seabrook licensing proceeding, sparing virtually no intervenor or local representative. Her actions have left an impression upon NECNP and many members of the public (see newspaper articles, attached as Exhibit 1) , that she is determined to issue an operating license without regard to the interests of the public that she is assigned to protect. In such a pervasive atmosphere of bias against intervenors, no intervenor or other member of the public can be confident that Seabrook will receive a fair and impartial licensing decision from a panel led by Judge Hoyt.
III. Prejudice to NECNP Not only has NECNP been prejudiced by the pervasive atmosphere of bias created by Judge Hoyt, but her improper actions have directly affected NECNP's ability to participate effectively in the Seabrook licensing hearings by preventing NECNP from making objections or arguments on the record; by refusing to take evidence offered by local representatives that witnesses for Staf f and Applicants were being coached during cross-examination on NECNP's contentions; and by attempting to intimidate other parties who share NECNP's interest in a full
and fair hearing that will assure the safe operation of the Seabrook plant. 2 IV. Factual Basis for Recusal A. Blockage and Manipulation of the Record On numerous occasions, Judge Hoyt refused to allow counsel for intervenors or local representatives to state their objections and arguments or to place relevant f actual information on the record. Moreover, the Board attempted to intimidate local representatives from raising certain relevant issues, and forbade them from bringing them up during the hearing on penalty of being ejected from the hearing. Finally, Judge Hoyt manipulated the record by ordering that statements ,
not be recorded by the court reporter; and by issuing a post hoc order stating that an event had occurred during a hearing session that had never occurred at all. Judge Hoyt thus prevented or circumvented the right of NECNP and other intervenors to preserve their objections and place evidence on the record, or to have the events of the hearing accurately 2In her order of November 2, 1983, denying SAPL's motion for disqualification, Judge Hoyt cites Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 32-3 (1979), in support of her conclusion that SAPL had no standing to move for disqualification based on an invasion of the rights of others. In Puget Sound, however, the moving intervenors gave no indication that they had been injured by the Board's biased conduct toward another party. In contrast, Judge Hoyt's behavior toward other intervenors and representatives affects NECNP's interests in this proceeding, as documented throughout this pleading.
preserved for appeal.
The following examples demonstrate Judge Hoyt's illegal and improper conduct in preventing the establishment of a complete record in this proceeding:
- 1. At the third prehearing conference in Boston, the Licensing Board entertained comments from the parties on the proposed schedules for the emergency planning proceedings.
NECNP had submitted a schedule calling for a lengthier proceeding than that envisioned by the NRC Staf f, and William S. Jordan, counsel for NECNP, attempted to identify the factors that made NECNP's plan different from the Staf f's. When Mr.
Jordan identified as one of those factors the lack of intervenor resources, including the Commission's decision not to fund intervenors, the Judge silenced Mr. Jordan and refused to allow him either to clarify his own remark or to obtain clarification from the Board as to what part of his statement was objectionable.
( MR. JORDAN, continuing): I would remind the Board as well that if we take into account reality and we take into account the fact that the various Intervenors, including the towns, do not have the
, resources to be on this every day. The fact is that d hearing schedule of this sort is virtually unprecedented in any other sort of arena. Anything else this complex would take considerably longer than this, even the schedule I have proposed. Even with j fully-funded parties.
That is not the case here, and it seems to me that while certainly it is clear that the Interveners are not provided -- in fact, because Intervenors are 1 not allowed to have support from the Commission, the 4
Commission must take into account --
! JUDGE H0YT: Mr. Jordan, I am going to stop you
o .
right at that point. I am not going to encertain on behalf of' this Board any arguments of that nature, and I am going to only caution you the one time.
You know that this Board has not control over those matters, and indeed, this Commission does not.
MR. JORDAN: I don' t think I was at all suggesting that this Board --
JUDGE HOYT: I merely caution you the one time, sir. I suggest that you move along.
MR. JORDAN: I would be glad to, if I am clear --
JUDGE HOYT: Just move along, sir.
MR. JORDAN: I am sorry, I didn' t understand what you said to me, Your Honor. I attempted to ask you for a clarification and I was denied that opportunity. I think I am finished. Thank you.
JUDGE HOYT: Counsel, I am not going to warn you again.
Is that all you have on your plan?
MR. JORDAN: Yes ma'am.
JUDGE HOYT: Thank you.
Prehearing Conference, April 8,1982, Tr. at 907-908.
Apparently, Judge Hoyt perceived that Mr. Jordan was making a request for funding. As the transcript reveals, this perception was not correct. Mr. Jordan was merely citing the lack of financial support for impecunious intervenors as a f actor affedting their ability to meet the Board's tight hearing schedule.3 This was a legitimate issue, directly relevant to the Board's request for the parties' views on what 3 The transcript also refutes Applicants' claim that Mr.
Jordan was making a " critique of the Commission's policy on intervenor funding." See Applicants' Response to SAPL's Motion for Disqualification of Judge Hoyt, October 24, 1983.
the hearing schedule should be.
By refusing to allow Mr. Jordan to complete his argument, the Board prevented him from fully stating the reasons supporting his position on the time needed to conduct a full and fair licensing proceeding for Seabrook. The Board thus not only limited the record to be considered in its own scheduling determination, but prevented the completion of a record for appeal.
- 2. During cross-examination of Applicants' witness on NECNP Contention III.12/13 by Jo Ann Shotwell, counsel for the Commonwealth of Massachusetts, . Judge Hoyt read from a portion of the Commonwealth's cross-examination plan, which had been submitted to the Board in confidence. Ms. Shotwell objected i
( strenuously to Judge Hoyt's action. Tr. at 1063. When Judge j Hoyt demanded an apology for the substance as well as the tone of the objection, Ms. Shotwell refused to withdraw the substance of the objection. The Board then ruled that she would "not be able to continue to participate" in the proceeding. Tr . a t 10 66. When Ms. Shotwell attempted to state completely her objection to this ruling, Judge Hoyt countered loudly, so as to prevent Ms. Shotwell's remarks from being heard and recorded by the court reporter:
MS. SHOTWELL: We will be taking an interlocutory appeal to that decision.
l JUDGE HOYT: You may take whatever is lawful to provide --
MS. SHOTWELL: The record will reflect --
JUDGE HOYT: The record will not reflect -- the record will not reflect -- counsel will not participate any further if they do not wish to.
Tr . at 10 65-10 66.4
- 3. During the hearing on August 19, 1983, local representatives Guy Chichester of Rye, New Hampshire, and Roberta Pevear of Hampton Falls, New Hampshire, informed the Board that they had observed signalling of witnesses by counsel for Applicants during cross-examination by counsel for NECNP on NECNP contention III.l. Tr. at 1512 - 13. After listening to statements by counsel for Applicants and NRC Staff counsel and questioning, Applicants' witnesses, Judge Hoyt lectured Mr.
Chichester on the seriousness of his allegations, and told him that she questioned his ability to represent the town of Rye.
Tr . a t 153 9. Finally, Judge Hoyt forbade Mr. Chichester from raising the issue again, informing him that "the Town of Rye will remain in this case just so long as that sort of accusation is the first, last and only one you will make on this record." Tr . a t 1541.
4During this discussion, the court bailiff approached Ms.
l Shotwell and stood on the opposite side of the counsel table until she lef t the room.
The Board later cured its error by allowing Ms. Shotwell to reenter the proceeding after she apologized for the tone of the objection. However, the instance exemplifies Judge Hoyt's numerous efforts to manipulate the record by directing the court reporter not to record remarks by intervenors; by speaking loudly above the voices of the parties so that their remarks would not be heard by the court reporter; or by attempting to intimidate parties into withdrawing their objections from the record.
t
Mr. Chichester was not permitted to respond to Judge Hoyt's ruling. Tr . a t 15 41-4 2.
Judge Hoyt's order forbidding Mr. Chichester ever again to raise observations he might make of signalling to witnesses by counsel was an extraordinary sanction without legal basis.
Such observations would be highly relevant to the fairness of the entire proceeding. The Board had the opportunity to take evidence from the parties and rule on the merits of the allegations. This would have been an adequate response to the charges.5 Instead, Judge Hoyt took the unnecessary, unf air, and highly intimidating step of threatening to remove local representatives who brought up the issue again. See Tr. at 1541, 1750.
The Board's ruling that the local representatives must never again report to the Board any observations of witness coaching also directly prejudiced NECNP, whose contentions constituted the major subject matter being litigated in the August hearings. Again, Judge Hoyt attempted to manipulate the record by forbidding the placement on the record of information 5 In f act, Judge Hoyt rejected a, motion by SAPL for an evidentiary hearing on the subject Tr. at 1685. NECNP would have supported this motion but was not given an opportunity to speak. See discussion at 15, infra.
NECNP has not taken a position on the question of whether signalling to witnesses took place, since counsel for NECNP was seated throughout the hearing with her back to counsel for Applicants and Staff. However, we don't believe the Board permitted the establishment of an adequate record to support its determination that no such signalling took place.
that could be relevant to the fairness of NECNP's opportunity to litigate its contentions.
- 4. On August 23, Hampton Falls representative Roberta Pevear attempted to introduce a statement regarding her ,
observations of witness coaching on August 19. Judge Hoyt remarked that the information in her statement was the same as she had presented the day before. When Ms. Pevear noted that the last paragraph of her memorandum contained new information, Judge Hoyt nevertheless refused to allow her to speak. Tr. at 1
1681 - 82.6 Thus, Ms. Pevaar was prevented from placing on the record f actual information relevant to the issue of whether NECNP had been given a full and fair opportunity to litigate Contention III.l. Not only was NECNP deprived of a fair examination of the issue at the hearing level, but the Board's ruling resulted in an incomplete record for purposes of appeal.
- 5. On August 23, local representatives from South Hampton and Kensington, New Hampshire, reported to the Board that they -
had observed signalling of witnesses by counsel for Applicants and Staff. Tr. at 1680, 1683. After taking statements from.
Applicant and Staff counsel and witnesses (excluding an absent NRC witness, who was directed through NRC Staff counsel to 6/Later, Ms Pevear made another attempt to correct Judge Hoyt's account of her previous observations. Judge Hoyt refused to allow her to speak, and directed the court reporter not to record her ramarks. Tr. at 1747.
produce an affidavit), Judge Hoyt reprimanded the representatives in scathing language, and threatened to remove them from the proceeding if they raised the issue again. (See discussion at 23-4, infra.) ,
- 6. Having forbidden local representatives from raising the issue of witness signalling again, Judge Hoyt gave the NRC Staf f an additional opportunity to address the matter. At a meeting with the Massachusetts Civil Defense Director on August 31, Judge Hoyt allowed Roy Lessy, counsel to the NRC Staff, to testify and make arguments concerning the witness coaching allegations, in addition to the statements he had already made during the hearing. Tr. of August 31 meeting at 1681-87.
Thus, although Judge Hoyt had foreclosed any further discussion by intervenors and local representatives, she did not apply this order equally to all parties.
- 7. When counsel for NECNP and SAPL attempted to object to the Board's handling of the allegations of witness coaching',
they were prevented by Judge Hoyt from speaking, and the Judge directed the court reporter not to record their remarks.
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, Madam -
JUDGE HOYT: Mr. Backus, be seated, sir.
MR. BACKUS: Madam, I would just -
JUDGE HOYT: Sir, I have asked you please to be seated.
MR. BACKUS: I would like to make one more statement on the record.
JUDGE HOYT: Sir, please be seated. The record will not reflect any additional statements by you. I request sir, kindly, that you please be seated.
Ms. Curran,'please be seated.
MR. BACKUS: I suggest error in that ruling to -
MS. CURRAN: I have something to add.
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.
Tr . a t 16 86-8 7. During this discussion, court bailiffs approached Ms. Curran and Mr. Backus and stood on the opposite side of the counsel table from them until they sat down.
The objection NECNP had attempted to state was that the Board had not fully permitted the local representatives to place their observations upon the record. NECNP would further have requested an evidentiary hearing on the question of whether witnesses were coached during cr6ss-examination on NECNP's contentions. If the alleged coaching had occurred, it could have seriously prejudiced NECNP's ability to conduct effective cross-examination, and thus its right to a, full and fair hearing on the issues.
i By preventing intervenors from objecting to Board rulings, Judge Hoyt obstructed the parties' essential right to state their objections to her decisions and thereby preserve the issues for appeal. Thus, NECNP and other intervenors and local representatives were deprived of their fundamental right to
make objections and "present an effective presentation" in the proceeding. Appalachian Powers Co. v. EPA, 477 F.2d 495, 502-3 (4th Cir. 1973)
B. Ex Parte Contact with Local Government On August 29, 1983, by telephone, Judge Hoyt contacted Mr.
J.P Nadeau, Chairman of the Rye, New Hampshire, Board of Selectmen. This conference was unrecorded, and no other party was included in the discussion.
There is no record of the discussion that took place. It is apparent from correspondence between Judge Hoyt and the Town of Rye (letters from Rye Selectmen to Judge Hoyt of August 31, 1983, and September 26, 1983, attached as Exhibits 2 and 3, respectively), that Judge Hoyt called to complain about the behavior during the hearings of Guy Chichester, the town's official representative in the licensing proceedings, and to suggest that Rye replace him. As a result of the conversation, the Board of Selectmen later wrote to Judge Hoyt, extending an apology for any " breach of decorum" by its representative, and withdrawing a recusal motion submitted by Mr. Chichester on Rye's behalf. (Letter from Rye Selectman to Judge Hoyt, dated August 31, 1983, Exhibit 2)
The August 31 letter from the Rye selectmen leaves the impression that this wholly improper contact served to intimidate the town of Rye into disciplining its representative and withdrawing a substantive pleading that might have had an adverse effect on Judge Hoyt's continued participation in the
proceeding.
Equally disturbing is Judge Hoyt's later representation, in an order of September 8, that she had dismissed Mr. Chichester from the licensing proceeding on August 26. (attached as i
Exhibit 4). The transcript of the August 26 hearing shows only that ' Judge Hoyt ordered Mr. Chichester to remove himself from the hearing room.7 This does not amou'nt to a dismissal from the proceeding. And, according to the Rye Board of Selectmen, Mr. Chichester's dismissal from the proceeding was never conveyed to Mr. Nadeau in the telephone conversation of August 29.8 Letter from Rye Selectmen to Judge Hoyt, dated September 26, 1983, attached as Exhibit 3) These circumstances i
create the appearance that in the telephone conversation of August 26, Judge Hoyt attempted to persuade the Rye Board of Selectmen to remove Mr. Chichester as their representative in the licensing proceeding. When that attempt failed, Judge Hoyt i made an unsupported, po'st hoc announcement that she had removed Mr. Chichester from the proceeding earlier.8 7
Judge Hoyt',s exact language was:
The representative of the town of Rye will remove himself from this hearing room. We have put up with enough behavior from you, sir.
Tr. at 1810.
8 The date of Mr. Chichester's d'ismissal from the hearings is crucial to a determination of the unfairness and impropriety of Judge Hoyt's ejc parte converaation with Rye Selectman Nadeau. Had Mr. Chichester already been (footnote continued next page)
O e The question of Judge Hoyt's actual motivation in taking I
this strange action is irrelevant. It is the appearance of impropriety and unfairness created by her acts that requires her to recuse herself from this proceeding. A reasonable person, viewing these circumstances, would not believe that the ;
public is receiving fair treatment in this proceeding.
C. Ex Parte Discussion On August 23, 1983, counsel for NECNP received a telegram notice that the Licensing Board intended to hold a meeting with the Director of the Massachusetts Civil Defense Agency on August 31, 1983. The stated purpose of the meeting was to:
discuss the status of the emergency plans for Massachusetts and the Massachusetts towns, in order to give the Board an idea as to the timing of the remainder of the proceedings.
NECNP had also been informed by David Lewis, Law Clerk to the Board, that the Board would be discussing the timing of the submission of the Massachusetts plans, and would not be discussing matters substantively affecting NECNP in the proceeding. With the understanding that the meeting was for information gathering purposes only, NECNP decided not to attend.
(footnote continued from previous page) dismissed, Judge Hoyt's ex parte contact might have been excused as a reasonable attempt to determine how the town of Rye wished to proceed. Absent a ruling of dismissal, however, the contact was not only improper for its ex parte nature, but because the Judge circumvented the officia Trepresentative of the town, Mr. Chichester, to conduct a substantive discussion with the party he represented regarding his own representation. This behavior is inexcusable.
- - _ . - _-_ - -. . .. _. - _ _ _ . = -
l l
i The meeting, however, was not restricted to its stated purpose. After being briefed by the Massachusetts Civil Defense Director on the timing of the Massachusetts emergency planning submissions, Judge Hoyt sought " suggestions" fron counsel present at the meeting 9 regarding the " effectiveness" of cutting the schedule for filing contentions and discovery which had been set by an earlier order. Tr . a t 18 37-38. The i.
Board then entertained arguments by counsel, including recommendations by counsel for the Applicants of " slashing down" the periods for filing contentions and interrogatories, 4
and placing no time constraints other than those imposed by NRC rules of practice on summary disposition motions. Tr. at 1844. Judge Hoyt then announced that "we are going to look at cutting all of the three periods at the very minimum in half,"
noting that "unless counsel can give me some reason here today, I can't see why there is going to be any great difficulty in formulating contentions." Tr . a t 18 45.10 (emphasis added) 9The meeting was attended by counsel for NRC Staff, Applicants, the State of New Hampshire, the Commonwealth of Massachusetts, and local representative Roberta Pevear of Hampton Falls. Counsel for NECNP and SAPL, and other local representatives were not present.
10 Later, Judge Hoyt stated that she would give all parties an opportunity to brief the scheduling issue. NEC NP filed an object'.on to the Board's ex parte discussion and presented its ~
own view that the schedule established by the earlier order is the minimum necessary for effective participation in the proceeding.
(footnote continued next page)
Judge Hoyt's willingness to entertain arguments by counsel for Applicants on the the issue of whether the already-tight schedule for filing pleadings should be cut drastically demonstrates the degree of her bias towards Applicants and against intervenors. Moreover, her announcement that unless anyone could show her otherwise on that day, she was determined to cut the schedule substantially, shows a prejudgment of the issue without regard to the views of other parties who were not present.
At the August 31 meeting, Judge Hoyt also held a conference with attorneys in chambers from which local representatives Roberta Pevear and Guy Chichester were excluded. (See Town of Hampton Falls Opinion in motion to Disqualify Judge Hoyt, dated November 7, 1983). In an apparent attempt to avoid convening the meeting with Mr.Chichester present, the Board remained in chambers until Mr. Chichester had lef t the hearing room, and then commenced the meeting. (See affidavit of Jo Ann Shotwell (footnote continued from previous page)
NECNP also objected that the Board's determination to cut procedural rights in order to adhere to a strict schedule is unnecessary, since the NRC Staff is predicting a fuel loading date of early 1986 (Applicants continue to state that the plant will be completed in late 1984). Therefore, NECNP requested that a hearing on the expected plant completion date be conducted by an independent tribunal. NECNP also asked that, considering the prejudice accrued to it by the ex parte meeting, all further decisions regarding scheduITng of pleadings and hearings on offsite planning be made by the independent tribunal.(NECbT Objection to Improper Board Conduct, Response to Applicants' Position as to Scheduling of Emergency Planning Issues, and Request for Hearing on Licensing schedule, filed October 5, 1983) 1 m__, - _ . , _ _ _ .
in support of Attorney General Francis X. Bellot1's Motion for Disqualification and Recusal of Judge Helen F. Hoyt, dated October 28, 1983.) At that time, Judge Hoyt had made no written or oral statement that Mr. Chichester was officially dismissed from the licensing proceeding. Thus, there was no basis for the prejudicial treatment of either Ms. Pevear or Mr.
Chichester by Judge Hoyt.
Judge Hoyt's mistreatment of the local representatives in this instance also prejudiced the interests of NECNP. NECNP shares many of the same interests and goals in this proceeding as the local representatives, namely the assurance that offsite planning provides the best possible protection for the residents of the seabrook area. As our resources are limited, we depend on the ability of all public representatives to participate freely and effectively in this proceeding for the protection of our own interests. In this particular instance, NECNP was all the more prejudiced by the Board's entertainment of arguments from Applicants out of the presence of most of the intervenors and local representatives. Thus, the public perspective on the scheduling needs regarding offsite planning was poorly represented, and the Board may have formed opinions at the session that can' t be changed by later opportunities for comment or argument.
C. Attempts to Intimidate Intervenors and Local Representatives Not only did Judge Hoyt attempt to pre 7ent intervenors and
- - , , -,.-g -p a , , , , ,
,n-,
. o local representatives from making a full record in the hearing, but she also severely reprimanded them for doing so, attempting to intimidate them from raising important issues. This had a chilling effect on the parties' ability to participate freely and effectively in the proceeding. The following are examples of this improper conduct:
- 1. Twice during the hearing local representatives reported to the Board that they had observed coaching of witnesses by attorneys for Applicants and Staff. The Board responded by seeking statements from the attorneys; questioning Applicants' witnesses; and asking for an affidavit from the NRC Staf f witness, who had left the state. The Board refused, however, to allow the local representatives to completely state their views and place relevant information on the record, and then severely chastised them for having raised the issue at all, threatening to remove them from the proceeding if they raised it again:
t JUDGE HOYT: Now we have called these witnesses. I want to explain something to the town representatives because you ladies are not members of the legal profession and you are not in this case as such.
However, when you play baseball, you play by baseball rules. When you play football, you play by football rules. And when you play in this hearing l room, or participate in this hearing room -- which is
! a much better way of putting it -- you will observe i the rules of conduct of a legal proceeding. If you
( place yourself in that role, then your conduct must l meet the rule in which you have elected to i participate.
Now, at expense and certainly at inconvenience because of what you think you may have seen, this Board has compelled the Applicant to call from Concord, Massachusetts a witness who had been here l
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last week. Now I don't expect to have to go through this ritual with you ladica ever again.
, If you have some problem with the attorneys in this case, then I suggest that you contact the bar associations of this state or the bar associations to which counsel may be members. This Board will not tolerate unprofessional conduct, allegations of a juvenile nature to be ever again alleged against the honorable members of the profession that appear in this hearing room, regardless of which side they may be representing, be it the Applicant, be it the counsel for the NRC or the attorney generals of the Commonwealth of Massachusetts or the attorney general of the State of New Hampshire, or to Ms. Curran or to Mr. Backus, who are members of the bars of respectively, I guess, of D.C. , Ms. Curran, and of the state of New Hampshire.
Now I don' t know whether your [ sic] realize the seriousness with which this Board views your actions, but I can assure you that if again such frivolous allegations are made in this hearing room, serious consideration will be given to the removal of such representatives from this hearing room.
We do not wish to irapose sanctions upon anyone who represents the town. As a matter of fact, we welcome your participation. But that is the last time this Board intends to have to go through this ritual.
There is only one more matter that needs to be settled, and that is the affidavit from Dr. Urbanik, because I do not intend to order that witness back l from Texas to please what appears to be a juvenile l whim of the representatives of the towns now before I the hearing. This will end the battle. There will be l
no further comment.
Ms. Curran, there's no further comment, you may be seated.
Tr . a t 17 49-5 0. 11
- 2. Similarly, Judge Hoyt reprimanded Diane Curran, counsel for NECNP , for attempting to place on the record an order, made Similarly, Judge Hoyt told Rye representative Guy Chichester that he could remain in the proceeding only so long as he refrained from bringing up the issue of witness coaching. Tr. atl541 . Mr. Chichester was later expelled i from the proceeding.
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in a previous unrecorded discussion, that NECNP would not be allowed to send nonlawyer representatives on a site tour with Judge Harbour. Tr . a t 12 97-1299.12 12L ater, at a side-bar conference from which Judge Hoyt had expelled the public and reporters, the Judge revealed that in berating Ms. Curran for her legitimate remarks, she was chiefly motivated by her own sensitivity to the public's perception of the event.
JUDGE HOYT: Let me ask you this, Ms. Curran: Let me be a little bit fuller. I have never conducted any proceeding off the record. The implication ycu lef t before the members of the public that were sitting back there is that something evil had occurred; that some of f-the-record conference had occurred; some meeting that the public was not privy to.
The perception that the public has of what is occurring in this hearing room is what they see and what they hear out there, not what in fact is sometimes happening. And it is that public perception that I felt keenly aware of when you made the remark earlier today. And that was the reason that it had to be stopped at that point.
MS CURRAN: Your Honor, excuse me. I wasn't interested in affecting the public perception. I was interested in making a record.
JUDGE HOYT: I am, Ms. Curran.
MS. CURRAN: I have on other comment, and that is if the Board wishes to chastise all the parties, the representatives of the parties in this proceeding, then I believe it should be done before the public. I do not agree with the Board's procedure of excluding the public from this meeting, and I believe that everything that has happened here should be something that the public should have heard.
Side-bar conference, August 18, 19 8 3, Tr . a t 7 -8 (emphasis added).
The blocking or discouraging of objections for the personal motive of maintaining appearances in the courtroom is highly improper judicial conduct. Judge Hoyt's personal fears concerning the appearance of the proceeding have clearly affected her ability to conduct the proceeding in an open and fair manner.
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- 3. Twice during the hearing, while attorneys for intervenors were attempting to state an objection on the record and the Board refused to recognize them, bailiffs approached the ittorneys and stood before them across the counsel 13 ta' te. At no time did the conduct of these attorneys manifest any physical threat or violent conduct that would require the intervention any bailiffs. Nor wer the attorneys asked to leave the room before the bailiffs approached. Their presence and actions served merely to create an atmosphere of intimidation in the courtroom.
D. Hostile and Insensitive Treatment of Intervenor Counsel and Local Representatives on numerous occasions during the hearings, Judge Hoyt directed denigrating and sarcastic remarks at intervenor counsel and local representatives. Again, this highly inappropriate conduct demonstrates Judge Hoyt's disregard for maintaining any appearance that she is impartial toward all the parties in the proceeding.
- 1. When Dana Bisbee, counsel for New Hampshire, respectfully declined Judge Hoyt's invitation to present local representatives' cross-examination questions, Judge Hoyt suggested sarcastically that Mr. Bisbee was not adequately Id[ A oailiff approached Diane Curran, attorney for NECNP, and Robert Backus, attorney for SAPL, when they rose to make an objection to the Board's handling of the allegations of witness signalling. A bailiff also approached and stood by Jo Ann Shotwell, attorney for Massachusetts, when she objected to Judge Hoyt's reading from Massachusetts' cross-examination plan.
representing the citizens of his state:
MR. BISBEE: I would like to make one final point. I don't think you do fully understand -- respectfully ma'am -- the relationship of the State of New Hampshire and its representatives and the towns.
JUDGE HOYT: I am certain I don' t, Mr. Bisbee.
MR. BISBEE: There's been reference to advice given to the towns. I am not in a position to offer them advice, under state law. I am bound to give my advice only to state agencies and the legislature of the state; therefore, I am really not in a position to offer any advice to the town representatives.
I think, for that reason, it would be inappropriate for me as a representative of the State of New Hampshire to be asking their questions, for which they have their concerns.
JUDGE HOYT: Mr. Bisbee, if you do not wish to meet the needs of the citizens of your state, that's your problem. It's certainly not the Board's.
Tr . a t 14 31-3 2.
- 2. At a prehearing conference on April 7 and 8, 1983, Judge Hoyt suggested that counsel for intervenors were not adequately representing their clients' interests because they had used only interrogatories in conducting discovery:
JUDGE HOYT: And I am asking you to tell me how we can sharpen (the discoverf process] up if you have a mechanism. The only thing I have seen is interrogatories. I have not seen any admissions, I
- have not seen any other types of discovery, I have not r seen any persons being deposed and I have not seen anything except the one type.
Now you have locked yourself into this position.
If you want to use other mechanism, they are out there to be used and we have all been to law school.
I am suggesting to you, counsel, that it is about time that someone used some of these things that will help us do this record quickly and better. We want to do a good job because we are the public servants that must do it, and you in turn must do yours to your client. I don't think your clients are getting represented as well as they should if they are not i
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getting that type of input. ,
Tr. of April 8 prehearing conference at 923 (emphasis added)
- 3. In response to allegations by local representat'.ves that counsel for Applicants and Staff had coached witnesses, i
Judge Hoyt referrred to the local representatives as " juvenile" and " frivolous." Tr. at 1749-50. (See discussion at 23-4, supra.)
- 4. During cross-examination on August 19, Jo Ann Shotwell, Assistant Attorney General for the Commonwealth of Massachusetts, made and withdrew an objection. Judge Hoyt responded by ridiculing Ms. Shotwell, stating "I think the record should reflect that at 11:40 we reached a new high."
Tr. at 1411.
- 5. Over the protests of numerous local representatives and a United States Senator from New Hampshire, the Licensing Board located the third prehearing conference in Boston, Massachusetts, fifty miles from the plant. Judge Hoyt was aware from these protests of the difficulty that local representatives would have in attending the prehearing conference. Yet, when one representative arrived late and attempted to identify himself and participate in a discussion of the hearing schedule for emergency planning, Judge Hoyt refused to recognize him. Following the lunch break, the Judge allowed Mr. Shivik to identify himself. In failing to allow Mr. Shivik to come forward earlier, however, the Board arbitrarily and unnecessarily foreclosed him from participating
in discussions that affected his interests. ,
Judge Hoyt's verbal attacks on intervenors and local representatives have charged the atmosphere of the Seabrook
, proceeding with tension, and created the impression that she is unable to view the parties impartially. Regardless of what her personal feelings and motivations must be, her behavior has created an appearance of prejudice toward these parties that taints the entire proceeding.
CONCLUSIQN As the record demonstrates Judge Hoyt's improper and unf air conduct toward NECNP and other intervenors and local representative pervades this licensing proceeding and raises serious doubts as to the fairness of the hearings. Moreover, regardless of whether Judge Hoyt is actually biased, the appearance of fairness and impartiality has been irreparably chattered by her conduct. She must be recused.
Concurring in the Appeal Board's decision upholding Judge Hoyt's refusal to recuse herself on the basis of SAPL's disqualification motion,. Judge Rosenthal express dismay at the
! depths to which this proceeding has sunk. Without citing examples, he noted that "the majority of the actors on the scene -- representatives of the parties as well as the Licensing Board itself -- have indulged in their fair share of untoward commentary." He concluded that it made no difference what conduct was provoked by whom, but that the " bickering"
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should stop. ALAB-74 8, November '16,1983, sjip op. at 8-9.
We respectfully disagree with Judge Rosenthal's conclusions.
NEC NP , although tempted, has been careful not to breach the decorum of the courtroom in any respect. We have sought only -
to achieve the full and fair participation in this proceedin to which we are entitled, which included a complete record of our objections and arguements. At all time we have made our objections respectfully and impersonally. We believe the same has been true of other intervenors.
The actions on which this motion is based constitute far more than mere bickering on the part of Judge Hoyt. Blockage and manipulation of the record, improper ex parte contacts, and efforts to intimidate parties from rightful and full participation in this case seriously affect the appearance of fariness. Moreover, by adversely affecting the actions of the parties, particularly those local communities who are, as permitted by Commission regulations and practice, not represented by counsel, the Judge's actions may have seriously affected the record in ways that cannot be readily identified.
Equally important, this is a proceeding of great significance to the public, and one that attracts great public interest. It must be handled by a judge who is firm, but who is sensitive to this forum.
We agree with Judge Rosenthal that the atmosphere of this proceeding has been poisoned. But the poison has not come from N ECNP , nor does NECNP believe that it has come from any of the
intervenors. The source of the poison is arbitrary and unfair treatment by Judge Hoyt, as detailed above. We urge that she disqualify herself from the proceeding, and if she refuses to do so, we urge that she be removed by the Appeal.
Respectfully submitted, p
(j,_
ne Curran ~'N
$g_ / Df hf Williad Jordan, III HARMON & WEISS 1725 I Street, N.W.
Suite 506 Washington, D .C. 20006 November 23, 1983 (202) 833-9070 l
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
Public Service Company of New )
Hampshire, et al. ) Docket Nos.
) 50-443, -444 (Seabrook Station, Units 1 and 2) )
)
AFFIDAVIT OF DIANE CURRAN IN SUPPORT OF MOTION FOR DISQUALIFICATION OF JUDGE HOYT Diane Curran, being duly sworn, deposes and says:
- 1. I am counsel for the New England Coalition on Nuclear Pollution in the above-captioned proceeding.
- 2. I attended the April 7 and 8, 1983, prehearing conference in Boston and th'e August 18-23, 1983 hearings in Dove, New Hampshire.
- 3. The description of the events at the April 7 and 8 and August 18 - 23 hearings contained in NECNP's Motion for
- Disqualification of Judge Hoyt is true and correct to the best j of my knowledge and belief.
Diane Curran a
l Subscribed and sworn to before me this-c3 day of November,1983.
/b2: %n __ Sk$.y notary Puolic My co.nmission expires $4e /e?.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
Public Service Company of New )
Hampshire, et al. ) Docket Nos.
) 50-443, -444 (Seabrook Station, Units 1 and 2) )
)
AFFIDAVIT OF WILLIAM S. JORDAN, III IN SUPPORT OF MOTION FO DISQUALIFICATION OF JUDGE HOYT William S. Jordan, being duly sworn, deposes and says:
- 1. I am co-counsel to the New England Coalition on Nuclear Pollution ( " NEC NP " ) in the Seabrook operating license proceeding.
- 2. In the course of that proceeding, the Licensing Board held a meeting with the Director of the Massachusetts Civil Defense Agency on Wednesday, August 31, 1983 in Dover, New
! Hampshire. I was informed of this meeting when an individual identifying himself as David Lewis, law clerk to the Licensing Board, telephoned me at the end of the previous week. To the best of my recollection, our conversation took place on Friday, l August 26, 1983. Mr. Lewis informed me that the Board Chairman has requested this meeting with the Director in order to discuss the schedule of completions for the Seabrook-related emergency plans for the Commonwealth of Massachusetts and those l
2 Massachusetts towns communities for which such plans are required. Although I cannot now be absolutely certain of the precise language, I specifically asked Mr. Lewis whether this meeting would be limited to obtaining scheduling information from the Director and would not involve any arguments that would affect the rights of the parties. I raised this issue because NECNP has extremely limited resources and cannot afford to have counsel present unless its rights might be affected. I informed Mr. Lewis of my reason for raising the issue. Mr.
Lewis assured me that he understood the meeting would be limited to obtaining the scheduling information from the Massachusetts official. I had the clear understanding as a result of the conversation that the meeting would not involve any argument or discussion on issues chat might affect NECNP's rights or interests in the proceeding. Accordingly, I was shocked to learn that the Board has not so limited themeeting and had entertained arguments on the hearing schedule and on methods that might be used to minimize the time available to intervenors to litigate the emergency plans in question.
- 3. As reflected in the prehearing conference transcript for April 8, 1983, Judge Hoyt cut off my attempt to explain how the limited resources of NECNP and other intervenors should be taken into account in developing a schedule for this i proceeding. Having participated in requests for intervenor funding in the past and researched the applicable law and Commission actions, I was fully aware chat intervenor funding
3 was not available and that any request for such funding would be frivolous. I had no intention whatsoever of making any such request.
I would have detailed the extent of NECNP's resources and the amount of time that counsel could devote to the proceeding so that the Board could make a reasoned judgment concerning a schedule that would result in a well prepared case and produce a sound record. There is no prohibition on such arguments.
Indeed, Licensing Boards must take such points into account in scheduling, and they necessarily do so every time they make scheduling decisions. I would simply have provided more detailed information in order to provide a sound basis for the Board's scheduling decision. I was cut off in this effort, and I was refused the opportunity to clarify what I was doing or to receive a clarification of what the Board intended.
A ME &
WilliamSg'JordatIII Sworn and subscribed to before me this4 S day of November, 1983 e 7.Q,, 5 b, notary Public .
My Commi.2sion expires Y"M h
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OR Mm' JCDGMEXT PREJEDGMETT?]. .
s To many participants,'the hearings i
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on licensing Seabrook were an empty exercise By Hank Nichols .
i llE ATOMIC Safety and Licensing Board (ASLB)
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nuclear power plant.
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and then an operating license. In 1976, after submitting a 'f f 20 volume application and going through intetminable 1
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struction perinit. 1.ast year the company submitted a 4 e.
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last month the board came to New llampshire to hear com- AD 'e < ' i l'* 2 ***' - . t. .
9 ments from intervenors on Public Service Company's at> Sitting in judgment: Controversial administrative judge Helen Hoyt presided over the Soabrook plicarion. De three-member , board consists of ts r hearings.
techm, cal experts and an admtmstrative law judge, Ifel ' ,
floyt. .
The substance of the four days of formal hearings "he question is: What is the standard for an accep-centered areund thace areas where the intervenois question- Y iTSELF, the conin ntation between lloyt and
' ' ' ' - Shm.dl vin aat of geca ccmc.p.eme, but it it- uble evacuatica. plan? The re is none. Wi!! Pubhc Service be
tor Safegwa, and that gn 9p hm zu.oneni:J in.st ;!.e NRC grane o loepower oper ating bcense to I ublic Service, ,
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4 last month the board came to New flarnpshire to hear com-ments from intervenors on Public Service Company's ap-plication. The three-member board consists of two Sit'ing in judgment: Controversial administrative judge Helen Hoyt presided over the Seabrook hearings.
technical experts and an administrative law judge, llelen -
, lioyt. .
The substance of the four days of formal hearings j } centered around three areas a here ihe meervenors question- Y 11SEI F, the confrontation between lioyt and "The question is: What is the standard for an accep-f ed the proposal of Public Servite:
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Shotwell was not of great consequence, but it il- table evacuation plan? There is none. Will Pubhc Service be
- Did Public Service properly list some equipment as lustrates the strained emotions and the short tempers that denied an operating license? That hinges on a reasonable
" safety grade?" Safety-related equipment has to function characterized the hearings. On another occasion lioyt and adequate evacuati on fl an. If it takes 15.6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> to get under harsh conditions, such as high temperatures and high ordered se courtroom cleared so she could talk with people out of the area, is that reasonable and adequate?
humidity, and the intervenors questioned whether some of lawyers about the proceedings, but she had no success in Rep. Roberta Pevear says an> thing over 30 minutes
, , the equipment would meet the test. her attemrt to smooth those troubled waters. miy not be reasonable and adequate. "We tried for years 3
- Did Public Service Company properly classify the Diane Curran, a lawyer for the New England Coalition to find out how long it uould take people in llampton Falls
, severity of certain accidents in setting emergency action on Nuclear Pollution, said intervenors were not allowed to to be contaminated if there was an accident at the Seabrook
{ lesels? This involves the method of classifying accident raise points they considered important to the case. "We plant. We were finally told it would take 30 minutes. There i
scenanos and the emergency responses to them. can't challenge the numbers," Curran said. "We've been is no way we could possibly get people out of here in 30
- Were Public Service Company's time estimates for foreclosed on." mmutes in a safe and timely way."
, evacuating the area around the Seabrook plant adequate Robert Backus, lawyer for the Scacoast Anti Pollution Pevear attended the hearings and she was not im-and reahstic? I cague, said after the hearings had ended that it was the pressed. "I have never seen anything hke the performance it was not surprising that most of the discussion in the procedural bickering that caused the hearings to last as long at those hearings," she complained. "There was no indica-
, hearings centered around the evacuation planning question, as Ihey did. "There was not enough testimony for Iwo days tion that they were sitting there for our protection. The l but the debate was tricky because the intervenors were in of hearings," Backus grumbled. "Their goal is to speed NRC staff never once said there is something we need for i the awkward position of being allowedro question only the things up and they accomplish exactly the opposite." the people, they only objected when Public Service Com-j time factors without questioning the plans themselves. Most of the non-procedural testimony centered pany objected. Everything she (Judge lioyt) did was biased l 1 ater this year, or sometime next year, the board will take a around estimates of the time it would take to evacuate the against the towns and the people. The NRC says it is con-look at the evacuation plans, but the August hearings were Scacoast area around the power plant. An estimate cerned about its image, and if you could see the way they not allowed to cross into that area. The result was some prepared for Public Service Company set evacuation time operate, you'd understand why they are concerned."
I fansy footwork and more than a few confrontations be- at six hours and five minutes, but this estimate did not m- The board sat and listened. but many at the Seabrook tween Judge lloyt and the intervenors. clude the city of Portsmouth. T hat city must now be includ- hearing felt the board had already made up its mind. In a On the first day of the hearings, attorney Jo Ann ed in the area to be evacuated. A study for the NRC staff statement read by his wife, David Mcdonald of Rye said Shotwell, representing Massachusetts, was ejected from the said Pub!ie Service Company u>cd optimistic assumptions the board, particulaiy Judge lloyt "show a uniform indif-hearings by Judge lloyt after Shotwell objectcJ to the about traffic flow and set the evacuation time at 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, ference to the concerns of the public and a predisposition
! judge's discussion of her planned cross examination of but that estimate also failed to include Portsmouth or favorable to the interests" of. Public Service.. "It's Public Service witnesses. Testimony by Public Service was several towns that must now be incorporated into evacua- become clear that this board perceives justifying the is-l filed with the board before the hearings and the intervenore tion planning. suance of a license as its purpose," Mcdonald concluded.
l were required to file their cross examination plans. When And then, figuring a 30 percent factor to allow for bad The Atomic Safety and 1.icensing Board had planned i Shotwell jumped up to object to lloyt's open discussion of weather m the area, such as heavy fog, an evacuation time to hold hearings on the evacuation planning in December, her planned cross examination, lloyt told her to sit down, of 15.6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> was submitted. Backus said none of these but Massashusetts does not have its plan ready and may not and Shotwell refused. "In seven years in administrative estimates is realistic. have it ready by that time, forcing a delay in the next round proceedings,1*ve never been addressed in that tone by According to Backus, the Seacoast Anti Pollution of hearings. And, when Massachusetts dou come in with a counsel," lioyt said. She demanded an apology, Shotwell League has taken the position that "No place in the U.S. plan there is a good chance that the Bay State Attorney refused, and lloyt had her removed from the courtroom. has a more severe evacuation problem than Seabrook. General's Office will oppose that state's own plan.
Iater, Shotwell apologized fur the tone but not the Other places have larger populations, but none has as big a " Curiouser and curiouser," Alice said during her visit substance of her objections and she was allnwed back into population as close to the plant with such limited protec- to Wonderland. Alice would have loved nuclear power the hearings. tion.. regulation. E page 14 New Hampshire Times - September 12,1983
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l1 Is deck stacked?
Whatever one might think of the public's opinion expressed '
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the Seabrook nuclear plant, it at the hearing would make 1 N does seem the recent series of any difference in the licensing ,
(. licensing hearings were con- prxess.Preston said, "I think the -
( ducted in a rather heavy- deck is stacked," and then '
$ handed manner.
T At the risk of being cited for went on to challenge Judge " ' ; -
lloyt to" prove me wrong. _
contempt, we would have to Executive Councilor Dudley
} say Judge IIelen lloyt certain- Dudley made the point that is 3 -
ly behaved as an autocrat of increasingly worrying the bench.
8 Oh, we don't blame her for everyone of all political per-ousting one particularly ob- suasions and stations in life.
noxious participant, but she That is, the increasing costs of ,
was, or appeared to be, more Scabrook. ',g than a little impatient with a Said Dudley. "The economic -
number of speakers and their hazards posed by these plants
- legitimate interests. may outdo the health and safe- l
- State Sen. Ilobert Preston 1
perhaps best expressed the ty hazards.
could increase inElectric New Ilamp- rates I :
- j mood of the people. Ile said he shire as they never have [
[. resented the attitude that "the anywhere else in the coun- ;5
] plant is to go on the line at any try."
J cost and the public be damn- That is a fast growing con- } 3 i ed." cern for the state and the peo- Lo j lie expressed skepticism, and he's probably r!ght, that ple wholive and work here. ,7
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EXHIBIT 2 OFFICE OF SELECTMEN _
@,r u3Ler-.., a RYE. NEW HAMPSHIRE M
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August 31.19S3 "d3 SEP -9 Pi2 :16 n t' -. . ..
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Honorable Helen F. Hoyt CCCKEie,G & SU ,'!i.-
Atomic Safety and Licensing Board 3 RANCH U.S. Nuclear Regulatory Commission Washington, D.C. 20555 SERVED SEP 91983 RE: PSNH, et al Docket Nos. 50-u3OL and 50 acOL
Dear Judge Hoyt:
This is to acknowledge your telephone conference with Chairman 3.P. Nadeau on Monday, August 29,19S3.
We extend to you our apologies for any breach in decorum which may have occurred during the course of your proceedings and which involved any representatives of the Town of Rye.
Although you advised in your telephone conference that a MOTION FOR RECUSE AND REHEARING. dated August 24,19S3. and which was submitted on stationary from our office, had not been filed during the hearing session, nevertheless, we are now advised that such a motion may have been placed in the mails to you. Af ter our now reviewing the content of that motion, we are hereby withdrawing same.
It is our understanding that one or more participants in the proceedings before you may consider a motion for recuse and/or rehearing. When we have reviewed all of the facts pertaining to such and particularly the record of the proceedings to date, we will then formally consider whether or not to sponsor and/or join in such a motion.
The present representatives on Rye's Nuclear Intervantion Committee consist not only of Mr. Guy Chichester, but also includer Mr. Richard Tompkins and Mr. David MacDonald. Action by that committee requires a majority vote of it's members, all of which is sub i ect to Board of Selectmen approval. By copy of this letter, we are reminding those members of the guidelines which this Board set in estatalishing that committee.
We recognize that your task is a difficult one and we trust that you recognize how vital our concerns are.
Very truly yours, BOARD OF SELECTMEN
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J., N!cesTa,' Chairman'
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Frances 1. Holway \
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EHXIBIT 3 OFFICE OF SELECTMEN OccxETEc
[ RYE, NEW H AMPSHIRE USNRC September 26, 1933 83 SEP 30 PS:10 CFFit,E OF SH,P: a.
00CKETING & SE6v:0 BRANCH SERVED OCT 31583 Honorable Judge Helen Hoyt Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission T ^^ '~ ' i --- . . .
Washington, D.C. 2055'S ' d $83 Re: PSNH, et al Docket Nos. 50 443OL and 50-44401
Dear Judge Hoyt:
We wish to 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.
We have conferred with individuals who were in attendance at that hearing, and we have reviewed newspaper accounts covering the events of the 31st. At no time, dur-ing your 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 letter of 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.
Had you even inferred that you had in f act " dismissed" Mr. Chichester from further representation and that it was necessary for us to obtain new representation, we most definitely would have adviseo you of our ob}ection to same in writing. From ou conversations with several residents and non-residents of Rye, who were in atten-dance during the sessions gising rise te this incident, we are hard pressed to find any conduct on the part of Mr. Chichester that would warrant such a severe sanction as dismissal.
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. e Honorable Judge Helen Hoyt Page Two September 26, 1983 11 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
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Maceau, Chairman Y7 Maynafd'L. Y6un v r b" . '.?
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France's 1. Holway 6 pin cc: JoAnn Shotwell. Esquire, Assistant Attorney General, Envirorunental Protection Bureau, Department of the Attorney General, One Ashburton Place,19th Floor, Boston, Massacnusetts 021CS 9
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EXHIBIT 4 CUW[
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 SEP -9 All:35 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: $j ?. 3,f;h '$
Helen F. Hoyt, Chairperson sm:c i Emmeth A. Luebke Jerry Harbour 91983 SERVED SEP In the Matter of Docket Nos. 50-443-OL 50-444-OL PUBLIC SERVICE COMPANY ) (ASLBPNo. 82-471-02-OL) 0F NEW HAMPSHIRE, el a_1_. )
(Seabrook Station, Units 1 and 2) September 8, 1983 ORDER (Reaffinning Suspension of the Representative of the Town of Rye, New Hampshire)
On August 26, 1983, this Board suspended from the proceedings the representative of the Town of Rye, New Hampshire--Mr. Guy Chichester.
Tr. 1810. Mr. Chichester's conduct had been contemptuous and disruptive. He had previously made frivolous attacks on the conduct of counsel for Applicants and the Staff, and has besmirched their integrity and the integrity of these proceedings. Tr. 1531-42. Curing hearings on August 26, 1983, he persisted in shouting remarks while the Board was conducting the proceedings.
Pursuant to 10 CFR 5 2.713, representatives are required to conduct themselves with honor, dignity, and decorum as they should before a court of law; and a presiding officer may, if necessary for the orderly conduct of the proceeding, reprimand, censure or suspend from participation in the particular proceeding pending before it any party or representative who shall refuse to comply with its directions, or who shall be guilty of disorderly, disruptive, or contemptuous conouct.
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See also Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981), attached to this Board's Memorandum and Order, dated January 31, 1983 and served on all parties. The Board was convinced that Mr. Chichester would not contribute to the proceeding.
It chose, therefore, as the appropriate sanction, the suspension of the representative. This sanction does not prevent the Town of Rye from participating further in these proceedings through a new representative.
The Board has so advised the Chairman of the Office of Selectmen of Rye.
Tr. 1869-70.
The Board has reviewed these matters, and hereby reaffirms its prior oral decision. Mr. Chichester is permanently suspended from participation in this proceeding. The Board advises the Town of Rye and its fonner representative that they may, within ten days after issuance of this Order, file an appeal with the Atemic Safety and Licensing Appeal Board and request a stay. 10 CFR 5 2.713(c)(2). The procedures are set out in 10 CFR 9 2.713(c)(3),(4), attached.
After the Board suspended Mr. Chichester from the proceedings, the Board received a motion for recusal, filed and signed by Mr. Chichester.
The motion was dated August 24, 1983, but the postmark revealed it had in fact been mailed on August 29, 1983. The motion was subsequently withdrawn by the Town of Rye. Letter from Board pf Selectmen, Rye, NH i
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- 3-to Helen F. Hoyt (August 31,1983). Accordingly, the Board will not 1
rule on the motion.
IT IS 50 ORDERED FOR THE ATOMIC SAFETY AND LIC NSING BOARD
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Helen F. Hoyt, Gnairperson ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 8th day of September, 1983.
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CERTIFICATE OF SERVICE I certify that on November 23, 1983, copies of MOTION BY NEW ENGLAND COALITION ON NUCLEAR POLLUTION FOR DISQUALIFICATION OF JUDGE HOYT were served on the following by first-class mail:
Helen Hoyt, Esq. , Chairperson Rep. Roberta C. Pevear Atomic Saftey and Licensing Board Drinkwater Road Panel Hampton Falls, NH 03844 ,
U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A. Luebke Phillip Ahrens, Esq.
Administrative Judge Assistant Attorney General Atomic Saftey and Licensing Board State House, Station #6 U.S. Nuclear Regulatory Commission Augusta, ME 04333 Washington, DC 20555 Dr. Jerry Harbour Robert A. Backus, Esq.
Administrative Judge 111 Lowell Street Atomic Saftey and Licensing Board Manchester, NH 03105 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Thomas G. Dignan, Esq.
Panel R. K. Gad, III, Esq.
U.S. Nuclear Regulatory Commission Ropes and Gray Washington, DC 20555 225 Franklin Street Boston, MA 02110 Atomic Safety and Licensing Appeal Dr. Mauray Tye, President Board Panel Sun Valley Asociation U.S. Nuclear Regulatory Commission 209 Summer Street Washington, DC 20555 Haverhill, MA 01830 Docketing and Service Roy P. Lessy, Jr. Esq.
U.S. Nuclear Regulatory Commission William F. Pa tterson, Esq.
Washington, DC 20555 Office of the Executive Legal Director Town Manager's Office U.S. Nuclear Regulatory Town Hall - Friend St. Commission Amesbury, MA 01913 Washington, DC 2055$
Mr. Angie Machiros Anne Verge, Chair Chairman Board of Selectman Board of Selectmen Town Hall Newbury, MA 09150 South Hampton, NH 03842
I Jo Ann Shotwell, Esq. George Dana Bisbee, Esq.
Assistant Attorney General . Edward L. Cross, Jr., Esq.
Department of the Attorney Asst. Atty. Generals General State House Annex 1 Ashburton Place, 19th Floor Concord, NH 03301 Boston, MA 02108 John B. Tanzer Letty Hett, Selectman Town of Hampton Town of Brentwood 5 Morningside Drive RFD Dalton Road Hampton, NH 03842 Brentwood, NH 03833 Edward F. Meany Sandra Gavutis Town of Rye Town of Kensington 155 Washington Road RFD 1 Rye, NH 03870 East Kensington, NH 03827 Carole F. Kagan, Esq. Diana P. Sidebotham Atomic Safety and Licensing Board R.F.D.2 U.S. Nuclear Regulatory Commission Pu tney, VT 05346 Washington, DC 20555 Richard E. Sullivan, Mayor Donald E. Chick City Hall Town Manager Newburyport, MA 01950 10 Front Street Exeter, NH. 03833 Alfred V. Sargent, Chairman Brian P. Cassidy, Esq.
Board of Selectmen FEMA Region I T,own of Salisbury, MA. 01950 J.W. McCormack Post Office and Courthouse Boston, MA. 02109 Diana P. Randall 70 Collins Street Seabrook, NH. 03874 Senator Gordon J. Humphrey Senator Gordon J. Humphrey U.S. Senate 1 Pillsbury Street Washington, D.C. 20510 Concord, NH 03301 (Attn: Tom Burack) (Attn: Herb Boynt;-)
> Selectmen of Northampton Calvin A. Canney Town of Northampton City Manager New Hampshire 03862 City Hall 126 Daniel Street Portsmouth, NH 03801
>- a Diane Curran