ML20112D873

Affidavit of Ty Au Supporting Motion to Disqualify Judge I Smith from Proceedings.Certificate of Svc Encl

ML20112D873
Person / Time
Site:	Three Mile Island
Issue date:	01/11/1985
From:	Au T PENNSYLVANIA, COMMONWEALTH OF
To:
Shared Package
ML20112D866	List: ML20112D865 ML20112D873
References
SP, NUDOCS 8501140532
Download: ML20112D873 (7)

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UNITED STATES OF MERICA NUCLEAR REGULATORY OcttGSSIW BEFORE 'IIIE ATWIC SAFETY AND IlCENSING BOARD In the Matter of:

FETROPOLITAN EDISW CWPANY, )

) Docket No. 50-289 (Three Mile Island Nuclear ) (Restart)

Station, Unit No. 1) )

AFFIDAVIT OF 111 MAS Y. AU IN SUPPORT OF FUf1W TO DISQUALIFY AMINISTRATIVE LAW JUDGE IVAN SMITH I, Thomas Y. Au, swear and depose as follows:

1. I an an attorney adnitted to the Bar of the United States Suprene Court, the Pennsylvania Supreme Court,'and other courts, and have represented the Comnonwealth of Pennsylvania during hearings in the above captioned matter since those hearings began on Novanber 14, l'984 in Harrisburg, Pennsylvania.

2. I have read the Motion to Disqualify Administrative law Judge Ivan Smith and aver that the facts alleged therein are true and correct i

to the best of my knowledge and belief.

3. .On Wednesday, January 2,1985, Administrative Iow Judge Ivan Smith, of the Atomic Safety and Ilcensing Board, released a copy of a letter dated Decanber 27, 1984 that he had written to Judge Sylvia Raubo of the United States District Court requesting leniency in the sentencing of Mr. Janes Floyd. Mr. Floyd was the TMI-2 licensed operator who was

' convicted of cheating on his NRC examination. A copy of the letter he  !

released is attached hereto as Exhibit 1. l i

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4. Judge Smith has on several occasions criticized the 1983 Stipulation Agrement between the Comomealth and General Public Utilities, which agreement terminated the Cmmamealth's participation L in the appeals process for GPU's comitment not to utilize Mr. Husted and others in licensed operator activities. These cm ments were made on the record, and reflected his view that the Comonwealth unfairly penalized licensed operators and had deprived the of a livelihood, and his view that the Carmomealth may seek to unfairly penalize others.

- These cmments were not relevant to the proceeding, and are not within the. scope of this reanded hearing. Judge Smith used a loud voice and l

l harsh tones when criticizing the Cmmonwealth on this matter. The cmments were clearly unwarranted at the time and reflect a bias against Comomealth participation in these proceedings. (Transcript pp.

i 29,092 - 29,095; 32,211-32,315; 32,317-32,325; 33,084 - 33,097).

l O M , bl- w 111 MAS Y. AU /

L Assistant Comsel Subscribed and sworn to before me this //M day of January,1985.

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11125 Powder Horn Drive Potemac, Maryland 20854  ;

December 27, 1984 Honorable Sylvia H. Rambo U.S. District Judge

% Robert Ruth, Probation Officer U.S. Probation Office Federal Building 3rd and Walnut Harrisburg, Pennsylvania 17108 Re: United States v. James R. Floyd Crim. fio. 84-00099 (M.D. Pa.)

Dear Judge Rambo:

I hope that the Court will be lenient with James R. Floyd. As an administrative law judge with the Nuclear Regulatory Conmission, I have served since August 1979 as the Chairman of the Atomic Safety and Licensing Board presiding over the proceeding considering the proposed restart of Three Mile Island Unit flo.1. Much of this proceeding has  ;

involved issues of the integrity and competence of the managers and operators of Three Mile Island fluclear Station. [ have been infonned that the recommendation contained in the Board's decision of July 27, 1 1082 (16 NRC 281, 344-55) brought about the investigation and subsequent indictment of Mr. Floyd.

While serving as Chairman of the Three Mile Island Licensing Board I have had an excellent opportunity to gain some insight into the events and the affected persons following the 1979 accident at the station. I hasten to add, however, that I know nothing about Mr. Floyd except the information produced on the public hearings most of which is set out in our July 1982 decision. Also, my comments are personal and I do not speak for the fluclear Regulatory Commission or for any other person.

I have basically two grounds for believing that leniency is appropriate.

The first pertains to the background against which Mr. Floyd's actions should be judged. Mr. Floyd worked very hard in the months folicwing the accident. He possesses excellent technical skills. M1nagement depended very, heavily upon him in addressing the many problems needing solution on the island. I have always felt that Mr. Floyd's deception was an impulsive act and that it was not motivated by personal ambition.

He could have sought relief from his other duties in order to train properly for' the requalification examination, to his personal benefit.

He could have passed easily without deception. One senses he neglected hit examination responsibilities out of a misguided but altruistic effort to attend to matters of perceived greater urgency, in addition, he apparently felt that he was well qualified notwithstanding his licensing status.

Exhibit 1

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s My second reason for hoping for lenient treatment for Mr. Floyd is that severe punishment is not necessary as a deterrent. I recognize that, whatever his motive, cheating on the requalification examination was a .

very serious matter and cannot be condoned or appear to be condoned. l However, Mr. Floyd's damaged career and public humiliation will be seen .

i by others as too high a risk and price for any gain frcm cheating, I

More important, however,. a severe criminal penalty against Mr. Floyd, is l in my personal view, not-needed to insure the integrity of the NRC operators' licensing process at Three Mile Island, nor would it be useful. The civil regulatory scheme presently administered by the NRC is exceedingly thorough. It is adequate to assure that the operators of

'Three Mile Island are persons of competence and integrity. Many weeks i of public NRC hearings have been devoted to the issue of TMI management l integrity and operator competence and, in fact, hearings on that very issue are still in progress. I have confidence that the NRC administrative regulatory process, with extensive public participation, will provide an orderly and reliable mechanism for assuring that any problems caused by deception respecting Three Mile Island will have been i identified and resolved. Deception in the future is very unlikely. A l severe sentence for Mr. Floyd would add nothing. ,

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- Sincerely,

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• k , U-5+ 3 L b Ivan W. Smith cc: William J. Fulton, Esq.

Herzel E. Plaine, General Counsel,flRC Parties to TMI-1 proceeding l

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l. WITED STATES " AFERICA t

NUCIIAR REGULATL" 20FMISSIm BEFORE THE ATGIIC SAFEIY AND LICENSING BOARD In the Matter of:

l FEIROPOLITAN EDISW CWPANY, )

) Docket No. 50-289 l (Three Mile Island Nuclear ) (Restart) *

! Station, Unit No. 1) , )

REIFICATE OF SERVIG I hereby certify that copies of the foregoing bbtion to Disqualify Administrative Isa Judge Ivan Smith and Affidavit in support thereof .

t was mailed, first class postage prepaid to the persons on the attached Service List this 11th day of January,1985.

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WILLIle1 B. CALDER, JR.

Assistant Counsel O

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l UNITIED STATES OF AMERICA NUCIEAR REGULATORY CGHISSIQ1 BEFORE 'IIIE ATGIIC SAFErY NID LICENSING BOARD j In the Matter of:

MET. ROPOLITAN EDISQ1 COMPANY, )

) Docket No. 50-289

('Ihree Mile Island Nuclear ) (Restart) -

Station, Unit No.1) )

SERVICE LIST Docketing and Service Section Henry D. Hukill, Vice-President Office of the Secretary GPU Nuclear Corporation U.S. Nuclear Regulatory Ccmnission P. O. Box 480 Washington, D.C. 20555 Middletown, Pennsylvania 17057 Ivan W. Smith Ms. Marjorie M. Aamodt Administrative law Judge R.D. #5 Atcmic Safety and Licensing Board Coatesville, Pennsylvania 19320 U.S. Nuclear Pogulatory Cannission Washington, D.C. 20555 RIGRY/'IMI PIRC 1037 lbclay Street Sheldon J. Wolfe liarrisburg, Pennsylvania 17103 Adntinistrative Judge Atanic Safety and Licensing Board Ms. Iouise Bradford, 'IMI Alert (1.S. Nuclear Regulatory Cannission 1011 Green Street Washington, D.C. 20555 llarrisburg, Pennsylvania 17102 Gustave A. Linenberger, Jr. Michael F. McBride, Esquire Adninistrative Judge IcBoeuf,12mb, Iriby & MacRae Atanic Safety and Licensing Board 133 New llanpshire Ave. , N. W. Suite 1100 U.S. Nuc1 car Regulatory Ccanission Washington, D. C. 20036 Washington, D.C. 20555 David E. Cole, Esquire-George F. Trowbridge, Esquire Smith & Smith, P.C.

Shaw, Pittman, Potts & Trowbridge 2931 11. Front St.

1800 M Street, N.W. liarrisburg, Pennsylvania- 17110 Washington, D.C. 20006 Michael W. Maupin, Esquire Jack Goldberg/lois Finkelstein llunton & Willians Office of the Executive Ingal Director 707 East Main Street U.S. Nuclear Pegulatory Comtission P.O. Box 1535-Washington, D ,C. 20555 Riclinond, Virginia 23212 Ellyn. R. Weiss Joanne Doroshow Ilannon & Weiss 'lhe'Christic Institute 1725 Eye Street, N.W., Suite 506 1324 North Capitol Street Washington, D.C. 20006 Washington, D. C. 20002

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Nunzio L. Palladino, Gairman U.S. Nuclear Regulatory Comtission l Washington, D.C. 20555 Lynne Bernabel, Esquire Govemment Accour.tability '>roject .

1555 Connecticut Ave.nue d.W. '

Washington, D.C. 200v9 Atanic Safety and Licensing Appeal Board

• U.S. Nuclear Regulatory Cu1 mission Washington, D.C. 20555 O

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