ML20154H695
| ML20154H695 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/17/1988 |
| From: | Backus R BACKUS, MEYER & SOLOMON, HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6378 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8805260037 | |
| Download: ML20154H695 (14) | |
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. i, ; r; ATOMIC SAFETY AND LICENSING BOARD Bef ore Administrative Judges:
Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour In the Matter of
)
Docket Nos. 50-443-OL
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50-444-OL PUBLIC SERVICE COMPANY
)
(ASLBP No. 82-471-02-OL)
OF NEW EAMPSHIRE, et al)
(Offsite Emergency Planning)
)
(Seabrook Station,
)
Units 1 and 2)
)
May 17, 1988 JOINT RENEWED MOTION FOR RECUSAL ON REHALF__DE_lHTElGTJQES INTRODUCIlDH This renewed Motion for Recusal results from che furnishing of the transcription of the telephone conference with the Board on a
May 10, which became available to counsel preparing this notion only on May 16th.
It is based on the f act that, as revealed in that transcript, the stated basis for the Board 's "large concerns about Mr. Thomas' forthrightness and candor"are either simply not supported by the record, illogically irrelevant to any assessment of Mr. Thomas ' testimony. (Tran. 11146)
In other words, the joint intervenors believe that the Board i
has made statements, without justification or basis, which clearly i
indicate a predisposition to disbelieve the testimony of a i
8805260037 880517 1
DR ADOCK 05000443 PDR 07 l
I critical witness in this proceeding, Mr. Edward Thomas, of FEMA.
IHE-B OAFD=HAS_IMEUGUED_THE_TESIIMDEY_.0E_EDEAED_A2_IHOMAS i
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The Board statements, as set forth in the transcript of the May 10th telephone conference, not only clearly state that the Board as a "large concern about Mr. Thomas ' forthrightness and candor" (11146) but went on to suggest that, as a result of this, Mr. Thomas should consider his right to a lawyet when he next l
appears.
(At the time the Board made these statements about Mr.
Thomas, it was aware that Mr. Thomas was going to be compelled to i
appear for a fourth time, having so indicated on the record at a 1
prior hearing session.)
The Board stated:
"And on this point, we've harbored sericus enough questions about Mr.
Thomas ' candor and forthrightness that we would like to remind him of his right e
to bring counsel." (Tr an. 1150. )
Indeed, at a later point, the i
Board went so f ar as to mention it had suggested counsel because "there is a civil penalty procedure in the NRC regulations and I
statutes which--attendant to pe0ple who provido, as the words go, false material information." (Iran. 11204)
In short, there can be absolutely no doubt that this Board l
has made extremely serious allegations concerning the sworn testimony of a witness before the Board, and has done so at a time with that witness was already aware that he would be called upon l
to testify again.
The Board 's statements can in f act, only be i.
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i interpreted as threatening or intimidating to the witness, whether l
l or not so intended.
IE E_HDBED.' S_ STATER _B A SIS _EDB_CONCEBH_ Ah2LLT_THE WITEESSES.'_CANDOB_AND JORTHEIGHINESS_ABE_NDI EEEEDETED i
The Board 's stated basis for expressing doubts about Mr.
Thomas ' candor and f orthrightness are set forth, in apparent i
entirety, at page 11145 and 46 of the transcript.
In pertinent i
part, that statement is as follows:
And we begin with a review of Mr. Thomas '
testimony on October 7th.
Mr. Thomas came to the hearing representing that he is a
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single witness on the beach population sheltering issue because that issue has i
1argely involved matters of policy.
And that he was the FEMA person responsible for explaining implementing FEMA polf cy.
i And he went on to explain that the FEMA l
position was arrived at in a collegial process af ter consultation with the Regional i
Assistance Committee, and that the process i
involves a RAC review and a RAC position.
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And that review is 6one by a consensus within the Regionnl Assistance Committee.
Although Mr,. Thomas did explain that the i
FEMA position involved more than RAC review, he did point out on several occasions that the RAC review is the bulk of the FEMA collegium, l
as he stated it.
He did make it clear that the RAC review is central but not all of the factors i
leading to the FEMA position.
We did not learn until Mr. Thomas was cross examined for the second time, that's the time 4
i on November 4th, that the RAC review constituted,
"non-agreement" by the other participants in the proceeding, except for FEMA, of course.
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But we had also learned through what we called belabored cross examination, I mean, hard work, earlier that the NRC was in disagreement.
We then received the applicant's motion to subpoenas Lazarus and Bores.
And those matters are not in evidence..
But we are concerned that Mr. Thomas, when he testified the third time about the RAC meeting in early January in answer to my question, said he did not believe that there was any difference between his account of the July 30 RAC meeting and the account represented by Dr. Bores in the Bores Memorandum to Mr. Turk, which Mr.
Thomas was familiar with.
So we really have some serious concerns about Mr. Thomas ' perception of what had happened in the RAC.
And we today have based upon the evidentiary record so f ar have very large concerns about Mr. Thomas' forthrightness and candor on this subject.
We leave unresolved further doubts about that matter until we have been able to hear from Dr. Bores and Mr. Lazarus on this subject.
Each_and_eyerv statecent_relled_ussn_the_ Board _in_the_above p o r tisas_nf _t h e_. ira nscr12t _19_e s 1 ablis h_a _ b a sl a _Ior._c ha r a cle rizia a tiruIbstas.' testimony._Is_lacklu_candcr_and_ forthrightness _Is 211h2I.IAl_n91_DIDDir1%_s2_ construed QI_lkl a_ flat _Dissialeceni_Qf hirA_IbsEAS.'_lestlmanh We deal with the allegations separately.
I.
We did not learn until Mr. Thomas was cross examined for the second time, that's on November 4th, that the RAC review constituted "non agreement" by the other participants in the proceeding, except f or FEMA, of course.
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t This statement is untrue.
Mr. Thomas had revealed on October 7th that NRC, through its RAC representative on the Seabrook case, i
was in non-agreement.
(Trans. 3120)
At that point in the transcript, Mr. Thomas was questioned as l
follows.
Q:
But did the NRC member, at that meeting, exoress disagreement with the position that FEMA had taken?
A Yes, sir.
(Iran. 3124)
Moreover, Mr. Thomas, on October 7th stated in response to the question:
Did any other member of the RAC express disagreement with the FEMA position?
THE WITNESS (Thomas):
I have to answer your question as being no.
And let me be, but again, I don 't want to mislead.
i There were a ' ot of very pointed que.stions i
d irec ted a t F EMA.
Disagreement, I would
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have to say, no, But there certainly were--
I don't wanc to.be accused of misleading you--there certainly were a number of RAC l
members who had a lot of quections in their r
mind that they felt needed to be resolved nefcre_this_would endo:Ee_ thal.Jass111snx l
(Emphasis added.)
The joint intervenors submit that this was clearly a statement that there was non-agreement, not only by NRC, but by other members of the RAC.
I Finally, it must be pointed out that whatever may have been j
the Board 's impression of Mr. Thomas ' testimony on Cetober 7th, i
and on his second voir dire on November 4th, the fact is that this i
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Board, having seen Mr. Thomas testify twice, stated, on the record, on December 1s t, that it had reviewed the transcript of the testimony that was involved.
We, all three Members of the Board did, read it in its entirety, more than once, as a matter of fact.
And we noted that the testimony from Mr. Thomas, was not easily adduced, we might say.
He was concerned, from the very outset, that simple answers might nc t be a full explanation of how FEMA arrived at its pos Jcion.
ID_loQking_At the entirg_ggthang h we find _no. reason, whaigygr_lo gugation Mr.
Thomas.'. inigELilya (Emphasis added.)
We don 't want to comment further on the total effect of the testimony, because that is still an open matter, and there will be further examination of Mr.
Thomas ' tes timony.
(IIAn. 67 2 8, Dec. 1, 1987 )
In short, whatever may have been the Board 's impression of Mr.
Thomas' description of the July 30th RAC neeting as described on November 4th, as contrasted with the description on October 7th, it cannot justify the Board 's present extraordinary hostile und untimely statoccats suggesting the witness had established on the record a lack of candor and forthrightness.
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II.
But we learned also through what we called belabored cross examination, I mean, hard work, earlier that the NRC was in disagreement.
(Tr an. 11146)
If this refers to Mr. Thomas' October 7th voir dire, it is untrue, since that cross-examination cannot by any means be f airly described as "belabored. "N The October 7th cross-examination was a f riendly cross, and not at all belabored.
Attorney Dignan himself said, af ter 14 pages of examination on that day:
Q.
Mr. Thomas you have been very responsive, and I understand these are difficult questions.
And if you will notice, I haven't done any of this yes or no stuff.
(Iran. 3115-16)
In addition, and in particular, it took no "hard work," or "belabored cross examination" in order to have disclosed the f act that it was the NRC RAC representatives who were in disagreenent with the prior FFJG position.
Mr. Thomas promptly and unequivocally revealed this, delayed only by colloquy between FEMA i
couns?1 and NRC counsel over the issue of whether or not executive privilege should be claimed before disclosure of this f act.
(Sce Transcript at page 3117-3120)
At 3117, Mr.
Dignan asked the question.
And what was that agency?
Which was that Agency?
With no further interjection by the witness, and only colloquy of counsel, Mr. Thomas then forthrightly answered at page i
3120 of the Transcript.
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The Witness (Thomas)
Yes, sir, it was the Nuclear Regulatory Commission.
It is permitted for me to just state why I was concerned about answering this, is that allowed?
III. We then received the Applicants' Motion to Subpoena Lazarus and Bores.
And those matters are not in evidence.
The parties now know that two and a half months after the July 30th RAC meeting, and af ter Mr. Thomas had testified about his recollection about which transpired in that meeting in his first voir dire on October 7th, NRC Attorney Turk had the NRC attendees memorialize their recollection of that meeting.
Those recollections do appear to couthin certain dif f erences f rom the recollection as testified to by Mr. Thomas.
However, these differences cannot justify the Board 's disparaging characterization that Mr. Thomas' testimony for several reasons.
(1)
The memcranda are unsworn documents, not presently in evidence, and which were prepared at the request for a party to this proceeding, the NRC staf f.
(2)
The nemoranda were not only prepared long af ter the event, they were prepardd at a time when the NRC staff had indicated it was going tu take a position adverse to FEMA in this proceeding, and thus had demonstrated it was a hostile party.
See outline of proposed rebuttal NRC testimony prepared by Attorney Turk and distributed to the parties af ter or approximately at the time Mr. Thomas' first voir dire on October 7th.
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(3)
The Board cannot choose to credit the unsworn memoranda prepared by witnesses for a hostile party, and long af ter the events described, when those memoranda have not yet been admitted in evidence, or defended, as a basis for characterizing the testimony of another witness to that meeting is lacking candor and forthrightness.
( 4)
The Board apparently acknowledges the truth of this when it states that "those matters are not in evidence."
(Iran. 1146)
( 5)
The Board did not suggest that the discrepancies would lead to a suggestion that the NRC witnesses, Dr. Bores and Mr.
Lazarus, who apparently had the dif fering recollection of the July 30th RAC meeting, should consider NRC civil pena!. ties or their
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right to bring counsel when they testify.
The Board sure.?.y cannot prefer to credit the unsworn cIE2121 fhaik mer.oranda prepared by NRC witnesses, merely because this is a NRC proceeding.
IE9 We are concerned that Mr. Thomas, when he testified the third time about the RAC meeting in early January in answer to my question, said he did not believe there was any dif ference between his account of the July 30th RAC meeting and the account represented by Dr. Bores in the Bores Memoranda to Mr. Turk, which Mr. Thomas was f amiliar with.
The Board has already acknowledged that this statement is in error.
Transcript of May 16.
Mr. Thomas did not testify that there were no dif ferences between his recollection of the July 9
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30th RAC meeting, and the recollection as presented in the Bores and Lazarus' memoranda of October 15, 1987.
Mr. Thomas, quite to the contrary, had testified as follows:
I had seen them [the Bores and Lazarus memoranda]
for the first time, I believe, January 4th.
I was unaware of their existence prior to that time.
However, I was aware from my conversation with Dr. Bores that his recollection of the July 30th meeting was different from mine in some aspects that at least some people think are significant.
Judge Smith:
Yeah.
Well.
Yeah.
Do you?
The Witness (Thomas):
Pardon me, you are asking me to be candid; no, sir, I don 't.
Judge Smith:
Okay.
(Tran. R898, Jan.13,1988)
In short, whereas the Board characteri:ed Mr. Thomas' testimony in January, as indicating that he did not appreciate f.here were any diff erences between his recollection of the July 30th RAC meeting and those of the NRC witnesses, the Board in f act misstated Mr. Thtmas ' testimony.
CONCLUSIQB The joint moveants have not had suf ficient time to digest the factual matters involved in this motion, and to prepare a legal brief in support of this motion to recuse.
However, in view of the requirement to bring these matters to the attention of the Board at the earliest possible time, and the likelihood that Mr. Thomas may be testifying shortly, the joint intervenors do respectfully renew their motion for recusal on the 10
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i basis that the Board has made statements expressly doubting the candor and forthrightness of a witness to be heard f rom, when the l
Board 's only stated reasons for making such serious and r
potentially threatening statements are without support in the l
record.
Accordingly, in order for Mr. Thomas to testify as a part of this proceeding, the joint moveants again renew their motion th'at this Board should step aside, and authorize another board, or some other hearing officer to take the testimony from Mr. Thomas, and,
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if necessary the other witnesses on the issue of the FEMA position on the beach population.
Respectfully submitted, Seacoast Anti-Pollution League, Massachusetts Attorney General, I'
Town of Hampton, and New England Coalition on Nuclear Pollution I
BybRobert d$ Backus, Esquire B ACKUS, MEYER & SOLOMON 116 Lowell Street P. O. B ox 516 i
Manchester, HB 03105 (603) 668-7272 i
I hereby certify that copies of the within motion have been furnished by first class mail to the attached service list on this i
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/[TL day of May,1988.
Robe'rIA7 Backus, 5 squire 12
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lian W. ' Ssith, Choirwan Robsrte Pavaar Edward Thoman At6mic Safety and Licensing ~
State Rep, Town of Harpton FEMA l
Becrd Falls 442;g.,y;[McCormack (POCH)
U.S.
NRC Drinkwater Road Boston)tHA 02109 W:shington, DC 20555 Hampton Falls, NH 03t44 13B MAY 20 P4 :16 i
Dr. Jerry Harbour Docketing & Serv. Sec.
aprQomas;Dignap. Esquire Atcaic Safety and Licensing Office of the Secretary 00 gap 6W. &s Gray M L Board U. S. NRC 225 iRedsklin Street
-U.S. NRC Washington, DC 20555 Boston, MA 02110 t
Wtshington, DC 20555 Gustave A. Linenberger Jane Doughty Office of Selectmen Atomic Safety and Licensing SAPL j
' Town of Hampton Falls Board 5 Market Street H:apton Falls, NH 03844 U. S. NRC Portsmouth, NH 03801 Washington, DC 20555 r
Ashod N. Amirian, Esquire Joseph Flynn, Asst. Gen. Cnsl.
George Dana Bisbee, Esquire 376 Main Street Fed. Emerg. Mgmt. Agey.
Attorney General's Office Hcvsrh111, MA 01830 500 C Street SW State of New Hampshire r
Washington, DC 20472 Concord, NH 03301 Carol Sneider, Esquire Sherwin E. Turk, Esquire Sandra Gavutis Assistant Attorney General Office of Exec. Legl. Dr.
Town of Kensington One Ashburton Place U. S..NRC Box 1154 19th Floor Washington, DC 20555 East Kensington, NH 03827 Bostop, MA.02108 i
I t
Mr. Angie Machiros, Chairman Judith H. Mizner, Esquire Charles P. Graham, Esquire Town of Newbury Silvergate, Gerner, Baker, McKay, Murphy and Graham Town Hall Fine, Good & Mizner 100 Main Street l
3 25 High Road 88 Broad Streat Amesbury, MA 01913
, Nswbury. WA 01951 Boston, MA 02110 l
f t
Ellyn Weiss, Esquire Paul McEachern, Esquire William S, Lord, Selectman I
Harmon & Weiss Matthew Brock, Esquire Town Hall 20001 S Street NW 25 Maplewood Avenue Friend Street Sutto 430 P.O. Box 360 Amesbury, MA 01913 Wochington, DC 20009 Portsmouth, NH 03801
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.$$naterGard:nJ.Humphrey U. S. Senate W :hington, DC 20510 Attn: Janet Coit Atcalc Safety and Licensing Board U. S. NRC Fcurth Floor Reception Area East West Towers, West Bldg.
4350 East West Highway Bathesda, MD 20814 J. P. Nadeau 9
Town of Rye 155 Washington Road Ryo, NH 03870 l
Adjudicatory File Ato:1c Safety and Licensing Board Panel U. S. NRC l
W:chington, DC 20555 l
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