ML20083A072

Answer Opposing Seacoast Anti-Pollution League Petition for Review of ALAB-748.Review Should Be Denied Per 10CFR2.786(b)(4)(ii).Certificate of Svc Encl

ML20083A072
Person / Time
Site:	Seabrook
Issue date:	12/15/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
Shared Package
ML20083A056	List: ML20083A053 ML20083A072
References
ALAB-748, ISSUANCES-OL, NUDOCS 8312200152
Download: ML20083A072 (8)

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UNITED STATES OF AMERICA before the NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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

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(Seabrook Station, Units 1 and 2 )

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APPLICANTS' ANSWER OPPOSING SAPL'S PETITION FOR REVIEW BY THE U.S. NUCLEAR-REGULATORY COMMISSION OF ALAB-748 Introduction This'is a petition for Commission review, filed pursuant to 10 CFR S 2.786(b) by the intervenor Seacoast Anti-Pollution League-(SAPL), of a decision of the Appeal Board, Public Service Company of New Hampshire (Seabrook Seabrook 4

Units 1 and 2), ALAB-748, 18 NRC (Nov. 16, 1983),

affirming the decision of Licensing Board Chairperson, Administrative Judge Helen F. Hoyt, denying SAPL's motion for her recusal on the grounds of alleged bias against SAPL and other intervenors.

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In ALAB-748, the Appeal Board noted the uncontested fact that none of the alleged conduct of Judge Hoyt relied upon was extra-judicial and that, therefore, as a matter of law, in light of the Commission's decision in Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI 9, 15 NRC 1363, 1365 (1982), none of that conduct could be the basis for disqualification absent a showing that the

. conduct demonstrated a " pervasive bias and prejudice."

ALAB-748, Slip Op. at 2-6. The Appeal Board then went on to say it had " carefully canvassed the materials submitted by SAPL in connection with its motion," ALAB-748 at 6, and that, en the basis of that review and its own familiarity with the context of the litigation, the Appeal Board had found as a fact that none of the events relied upon by SAPL,

" independently or collectively rise to the level of demonstrating a preconceived opinion on the merits or a showing of pervasive bias or prej'udice by [ Judge Hoyt]."

ALAB-748 at 7. This same factual finding has been made by a unanimous Appeal Board twice since the issuance of ALAB-748 in disposing of two other essentially identical-in-basis recusal motions filed by other intervenors in this case.

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, le NRC , Slip Op. at 9-10 (Nov.

28, 1983); Public Service Company of New Hampshire (Seabrook r

. . 1 Station, Units 1 and 2), ALAB-751, 18 NRC , S)ip Op. .at 3 (Dec. 6, 1983).

The Claims on Appeal Stripped to its essentials, the Petition makes three assertions of error with respect to ALAB-748. First, the Appeal Board is said to have erred in not analyzing in print each of the specific incidents relied upon by SAPL in alleging bias. Petition at 9. Second, it is stated that the rule adopted by this Commission in CLI-82-9, supra, is

" improper ~for application in these proceedings." Petition at 10. 'And finally, it is charged that both Judge Hoyt 1 and the Appeal Board erred in not addressing "the fact that reasonable prudent New Hampshire citizens perceive the Judge as.being heavily biased 2 against intervenors and municipal representatives." Petition at 10. -

1SAPL takes pains (to the point of requiring its -

petition to run beyond the lO-page limit imposed by 10 CFR 5 2.786(b)(2)) to demonstrate alleged deficiencies in Judge Hoyt's decisions, Petition at 4-7. It is not, however, Judge Hoyt's decision of which Commission review is (or can be) sought, but rather only that of the Appeal Board.

, 2This charge is based upon three cited newspaper articles purporting to quote or state the views of five people. These are: State Rep. Roberta Pevear: NECNP Attorney Diane Curran; one David Mcdonald, in a statement read by his wife; State Sen. Robert Preston; and an anonymous editor of the Portsmouth Herald. All other

r 1 131e Petition Should be Denied t None of the above-described assertions make a case for Commission review. The first is.an assertion of an error of fact as to an issue where the Appeal Board reached the same result as Judge Hoyt. Thus, review should be denied under the provisions of 10 CFR 5 2.786(b)(4)(ii). The second is a request for a review of a question of law and policy which is not novel and to which the Commission has spoken very recently. CLI-82-9, supra. The third point raises an irrelevancy. Prescinding from the fact that the disinterested " prudent New Hampshire citizens" referred to actually number only two people (one of whom is anonymous),

persons' comments quoted in the various articles did not refer to any alleged bias on the part of Judge Hoyt.

Attorney Diane Curran is not a New Hampshire citizen and therefore SAPL is properly not relying on the attorney for its ally NECNP as a basis for its charge. State Rep.

Roberta Pevear is the representative (i.e. advocate) of the Town of Hampton Falls in the proceeding; she opposes the plant; she and some of her fellow town officials are on i record as intending to refuse to help in emergency planning for the town. State Senator Robert Preston originally intervened in opposition to the plant, but was later dismissed from the proceeding. Neither of these individuals can be viewed as disinterested. This leaves the double hearsay of Mr. Mcdonald and the anonymous views of an editor of the Portland Herald.

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note 2, suora, even a veritable plethora of adverse perceptions of a judge gleaned from selected articles in the press cannot be the basis for disqualification. To allow this consideration to be given weight in a judicial or quasi-judicial system would mean chaos. For those willing to do so, it takes no effort to organize a group of persons to give quotes to the press demeaning a judge sitting on any controversial case.

CONCLUSION The petition should be denied.

Respect ull submitt d,

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Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Dated: December 15, 1983

CERTIFICATE OF SERV' ICE I, Robert K. Gad III, one of the attorneys for the Applicants herein, hereby certify that on December 15, 1983, l I made service of the within APPLICANTS' ANSWER OPPOSING SAPL'S PETITION FOR REVIEW BY THE U.S. NUCLEAR REGULATORY COMMISSION OF ALAB-748 by mailing copies thereof, postage prepaid, to:

Nunzio J. Palladino, Victor Gilinsky, Chairman Commissioner ,

U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 John F. Ahearne, Thomas M. Roberts, Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 James K. Asselstine, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Alan S. Rosenthal, Chairman Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory l Commission Washington, D.C. 20555

Helen Hoyt, Chai rp erson Diana P. Randall Atomic Safety and Licensing 70 Collins Street Board Panel Seabrook, NH 03874 U.S. Nuclear Regu: >:ory

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Commission Washington, D.C. 20555 Dr. Emmoth A. Luebke William S. Jordan, III, Esquire  ;

Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U.S. Nuclear Regulatory Suite 506 Commission Washington, D.C. 20006 Washington, D.C. 20555 Dr. Jerry Harbour G. Dana Bisbee, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory 208 State House Annex Commission Concord, NH 03301 Washington, D.C. 20555 Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory. P.O. Box 516

-Commission Manchester, NH 03105 Washington, D.C. 20555 Philip Ahrens, Esquire ' Anne Verge, Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall General South Hampton, NH Augusta , ME 04333 9

Charles Cross, Esquire JoAnn Shotwell, Esquire Shaines, Madrigan & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney General P. O. Box 366 One Ashburton Place, 19th Floor Portsmouth, NH 03842 Boston, Massachusetts 02108 r

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l Ms. Roberta C. Pevaar Mr. Patrick J. McKeon Assistant Attorney General Selectmen's Office the Town of Hampton Falls 10 Central Road

.Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 .

Mrs. Sandra Gavutis Mr. Calvin A. Canney Assistant Attorney General City Manager the Town of Kensington City Hall RFD 1 126 Daniel-Street East Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, D.C. 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Richard E. Sullivan 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950 Mr. Donald E. Chick Town Manager's Office Town Manager Town Hall Town of Exeter Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 Brian P. Cassidy, Esquire Brentwood Board of Selectmen Regional Counsel RFD Dalton Road' Federal Emergency Management Brentwood, NH 03833 Agency - Region I 442.POCH Boston, MA 02109 Gary W. Holmes, Esquire Holmes & Ells i 47 Winnacunnet Road l Hampton, NH 03841 I

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Robert K. Gad III I

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