ML20112G515

Affidavit of L Bernabei & J Doroshow Supporting Motion to Disqualify Judge Iw Smith from Proceedings

ML20112G515
Person / Time
Site:	Three Mile Island
Issue date:	01/14/1985
From:	Bernabei L, Doroshow J CHRISTIC INSTITUTE, GOVERNMENT ACCOUNTABILITY PROJECT, THREE MILE ISLAND ALERT
To:
Shared Package
ML20112G502	List: ML20112G497 ML20112G515
References
SP, NUDOCS 8501160368
Download: ML20112G515 (4)

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.. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [.50

'85 Jm ;5 p,9 ,t BEFORE THE ATOMIC SAFETY AND LICENSING BOARD (, .

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In the Matter of )

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart Remand on (Three Mile Island Nuclear ) Management)

Station, Unit No. 1) )

AFrIDAVIT OF COUNSEL LYNNE BERNABEI AND JOANNE DOROSIIOW Joanne Doroshow and Lynne Bernabei, being duly sworn, do depose and say: ,,

l'. The undersigned are attorneys representing Intervenor Three' Mile Island Alert ("TMIA") in the reopened and reinanded hearings on management integrity. The purpose of this affidavit is to support TMIA's Motion to Disqualify Ivan W. Smith.

2. All facts alleged in TMIA's Motion to Disqualify Ivan W. Smith are true and correct to the best of counsel's knowledge and belief.

3. The factual statements set forth below are derived from publicly available documents. When counsel were not present at any hearing referenced in the motion counsel have cited to the of ficial transcript for that date.

4. The following are factual statements which THIA counsel obtained from publicly available documents:

a) . Judge Smith's December 27, 1984 letter to U.S. District

-Court' Judge Sylvia Rambo, upon information and belief distributed

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to all parties at the January 2, 1985 hearing, TMIA's Motion at 4-5, O

. -p b) Atomic Safety and Licensing Board Partial Initial De-cisions, TMIA Motion at 2-4, 11-12.

c) Commonwealth of Pennsylvania Motion to Disqualify Administrative Law Judge Ivan W. Smith, January 11, 1985; TMIA Motion at'5.

d) Special Master Gary L. Milhollin Decision on cheating incidents, April 28, 1981; TMIA Motion at 3; e) ALAB-772, May 24, 1984; TMIA Motion at 4; f) Settlement Agreement between Licensee and Commonwealth of Pennsylvania, July 6, 1983; TMIA Motion at 3.

5. Upon information and belief the following factual state-ments were made at hearings on the training issue which have been F

- held from December'18, 1984 through January 11 1985:

.l a) Judge l ',

Smith submitted a letter requesting leniency for u . Mr. Floyd after a request'from Mr. Floyd's attorney, Tr. at 32600

.(Jan.-4, 1985), TMIA Motion at 4; b)- .GPUN initiated settlement negotiations which led to the July 6, 1903' settlement agreement between GPUN and the Commonwealth,

- Tr. at 32322 (Jan. 2, 1985), TMIA Motion at 3-4; and

j. c) ,

Judge Smith's. unwarranted attack on TMIA for causing a morale problem and poor operator attitude at TMI, Tr. at 32396-32401 (Jan.-3, 1985), TMIA Morion at 18-19.

6. Hearings on the Dieckamp Mailgram issue were held from November 14, 1984-to December- 14,.1984, TMIA Motion at 4.

7. Judge Smith made the following statements during~ hear-ings, and the November 9, 1984 pre-hearing conference, on the 1

Dieckamp Mailgram' issue'in which we represented TMIA:

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o l p a) On November 20, 1984, Judge Smith attacked Mr. Gamble as having a mechanical approach and his testimony as " naive and simple", Tr. at 29034-29035 (Nov. 20, 1984); TMIA Motion at 15; b) Judge umith later apologized for his inappropriate re-marks, Tr. 29059 (Nov. 21, 1984), TMIA Motion at 15; c) Judge Smith's attack on Mr. Gambla for what he (Smith) perceived as unethical or illegal investigative techniques, Tr. j at 30684-30688 (Dec. 7, 1984), TMIA Motion at 1C-17; i

d) Judge Smith's unsubstantiated speculation about TMIA's improper motives, Tr. at 27841 (Nov. 9, 1984), TMIA Motion at 17; e) Judge Smith's unsubstantiated charge that TMIA had misled proposed witnesses, Tr. at 27870 (Nov. 9, 1984), TMIA Motion at 18; j f) Judge Smith admonishes TMIA counsel for conferring

' during hearing, Tr. at 30958 (Dec. 11, 1984), TMIA Motion at 20; g) Judge Smith's attack on TMIA counsel for placing ob-jections on.the record about format of findings, Tr. at 31707-31710 (Dec. 14, 1984)'TMIA Motion at 20; h) Judge Smith's definition ~of his responsibility as one to

. protect operators accused and/or found to have cheated, Tr. at 29092

(Nov. 21, 1984), TMIA Motion at 20-21; and i) Judge Smith's attempt to elicit testimony favorable to licensee from witness Robert Boyer, Tr. at 31454-31455 (Rochino),

- 314f8, 31563-31564 (Boyer) (Dec. 13, 1984), TMIA Motion at 22-23.

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v v Ly e Bernabei Gov nment Accountability Project l'555 Connecticut Ave. , N.W.

Washington, D.C. 20036

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A canne Doroshow The Christic Institute 1324 North Capitol Street, N.W.

Washington, D.C. 20002 Sworn and signed before me l this 1 th day of January, 1985. ,, J Notary Public Y

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