Affidavit of RW Potter Supporting Motions for Judge Carpenter Disqualification,Judge Morris Disclosure of Further Biographical Data & ASLB Postponement of Special Prehearing Conference Until Issues ResolvedML20082D900 |
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Hope Creek |
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Issue date: |
11/18/1983 |
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From: |
Potter R NEW JERSEY, STATE OF |
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ML20082D894 |
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ISSUANCES-OL, NUDOCS 8311230129 |
Download: ML20082D900 (9) |
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Category:AFFIDAVITS
MONTHYEARML20101E8511984-12-20020 December 1984 Affidavit of RM Nelson Re Info Requested by State of Nj 841213 Second Set of Interrogatories & Request for Production of Documents.Personnel Files Maintained in Confidence.Related Correspondence ML20087M8151984-03-26026 March 1984 Affidavit of Jh Rodriguez on Applicant Motion for Deposition.Certificate of Svc Encl ML20082E4911983-11-21021 November 1983 Affidavit of RW Potter Re Timeliness of Public Advocate of Nj 831117-18 Motions.Motions Filed in Timely Manner. Certificate of Svc Encl ML20082E4741983-11-21021 November 1983 Affidavit of RW Potter Re Applicant Failure to Serve Public Advocate of Nj W/Fsar & Amends ML20082D9001983-11-18018 November 1983 Affidavit of RW Potter Supporting Motions for Judge Carpenter Disqualification,Judge Morris Disclosure of Further Biographical Data & ASLB Postponement of Special Prehearing Conference Until Issues Resolved ML18081A9301980-01-14014 January 1980 Affidavit Re Impact of Facility on Shortnose Sturgeon in DE River Estuary ML18081A8891980-01-10010 January 1980 Unsigned Affidavit Re Effect of Facility on Endangered Population of Shortnose Sturgeon.Generating Stations Not Expected to Impact Shortnose Sturgeon Population in DE River Estuary ML18081A8901980-01-0808 January 1980 Affidavit Re Effect of Facility on Endangered Population of Shortnose Sturgeon.Describes Circulating Water Intake Structure & Mods Effected to Ensure trouble-free Operation 1984-03-26
[Table view] Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARLR-N980595, Comment Supporting Proposed Rules 10CFR50,52 & 72 Re Changes,Tests & Experiments.Pse&G Supports Comments Submitted by NEI in Their Ltr1998-12-21021 December 1998 Comment Supporting Proposed Rules 10CFR50,52 & 72 Re Changes,Tests & Experiments.Pse&G Supports Comments Submitted by NEI in Their Ltr LR-N980588, Comment on Proposed Rule 10CFR50.65 Re Monitoring Effectiveness of Maint at Npps.Util Agrees with General Principle Behind Proposed Rulemaking,But However,Concerned That Proposed Rule Contain Language Open to Interpretation1998-12-14014 December 1998 Comment on Proposed Rule 10CFR50.65 Re Monitoring Effectiveness of Maint at Npps.Util Agrees with General Principle Behind Proposed Rulemaking,But However,Concerned That Proposed Rule Contain Language Open to Interpretation ML18106A8731998-09-15015 September 1998 Comment on Draft NUREG-1633 Re Assessment of Use of Potassium Iodide (Ki) as Protetive Action During Severe Reactor Accidents. Believes That NUREG Should Provide Balanced Discussion on Benefits & Risks of Use of Ki ML18106A8811998-09-15015 September 1998 Comment Opposing Draft NUREG-1633, Assessment of Use of Potassium Iodide as Protective Action During Severe Reactor Accidents. Believes That Discussion Contained in SECY-98-061 Should Be Included in Draft NUREG LR-N980284, Comment on PR-50 Re IEEE Std 603-1991 for Salem & Hope Creek Generating Stations.Lack of Adverse Comments to Draft RG Should Not Have Been Construed as Endorsement to IEEE 603-19911998-06-12012 June 1998 Comment on PR-50 Re IEEE Std 603-1991 for Salem & Hope Creek Generating Stations.Lack of Adverse Comments to Draft RG Should Not Have Been Construed as Endorsement to IEEE 603-1991 LR-N980149, Comment on Proposed Rule 10CFR50 Re Industry Codes & Stds. Comments Address Use of Engineering Judgment,Limitations on Use of Later ASME III Code Editions for Weld Leg Dimensions & Seismic Analysis1998-03-30030 March 1998 Comment on Proposed Rule 10CFR50 Re Industry Codes & Stds. Comments Address Use of Engineering Judgment,Limitations on Use of Later ASME III Code Editions for Weld Leg Dimensions & Seismic Analysis ML18102B4361997-07-0707 July 1997 Comment Opposing NUREG-1606, Proposed Regulatory Guidance Re Implementation of 10CFR50.59 (Changes,Tests or Experiments). Util Endorses Comments Submitted by Nuclear Energy Inst ML20132A8961996-12-0606 December 1996 Comment Supporting Pr 10CFR50, NRC Draft Ps on Restructuring & Economic Deregulation of Electric Utility Industry ML20084H9251995-06-0202 June 1995 Comment Opposing Proposed Change in State Cooperative Agreements Program Concerning NRC Intention to Reduce Scope of Work.Believes That NRC Should Maintain Environ Monitoring Program & Find Other Ways to Reduce Duplicative Svcs ML20080G8321995-02-0606 February 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Npp.Encourages NRC to Reevaluate Regulatory Analyses in Light of Higher Costs.Concludes That Addl Rules on Shutdown & Low Power Operations Not Necessary ML20077L8631995-01-0303 January 1995 Comment Supporting Proposed Rules 10CFR2,51 & 54 Re NPP License Renewal.Util of Belief That Proposed Rev Reflect Positive Effort Towards Establishing Regulatory Process Requirements for Continued Operation of Nuclear Facilities ML20056G4121993-08-31031 August 1993 Comment Supporting Proposed Rule 10CFR2 Re Review of 2.206 Process ML20126F2721992-12-21021 December 1992 Comment Endorsing Positions & Comments of NUMARC & BWROG Re Draft GL, Augmented Inservice Insp Requirments for Mark I & Mark II Steel Containments,Refueling Cavities & Associated Drainage Sys ML20095B2411992-04-10010 April 1992 Comment on Draft NUREG-1449, Shutdown & Low-Power Operation at Commercial Nuclear Power Plants in Us ML20072T2421991-04-11011 April 1991 Comment Re Proposed Change to 10CFR50.55A Re Inservice Testing of Containment Isolation Valves.Proposed Rule Should Be Revised to Allow Plants within Last 12 Months of Current Interval to Substitute Deferred Rv Shell Exams ML20246H8141989-07-0505 July 1989 Comment Supporting Proposed Rule 10CFR50, Acceptance of Products Purchased for Use in Nuclear Power Plant Structures,Sys & Components ML20235T1861989-02-24024 February 1989 Comment Supporting Proposed Rule 10CFR50 Re Ensuring Effectiveness of Maint Programs for Nuclear Power Plants, Extension of NRC Authority to BOP Portion of Plant & Misapplication of Adequate Protection Std of Backfit Rule ML20195H0331988-11-21021 November 1988 Comment on Proposed Rule 10CFR26 Re Fitness for Duty Program Which Includes Random Drug Testing.Util Strongly Favors 180- Day Period for Implementation of Rule & 360-day Implementation Period for Random Drug Testing ML20153F9681988-08-17017 August 1988 Comment Opposing Proposed Rule 10CFR50 Re Licensee Flexibility During Natl Crisis.Deferral of Issuance of Final Rule Until Proper Implementation Guidance Formulated Encouraged ML20247N7531988-07-28028 July 1988 Petition for Rulemaking PRM-50-53 Requesting NRC Action to Review Undue Risk Posed by BWR Thermal Hydraulic Instability.Nrr Should Issue Order Requiring All GE BWRs to Be Placed in Cold Shutdown for Stated Reasons ML20154G1421988-04-20020 April 1988 Comment Opposing Proposed Rules 10CFR50 & 73 Re Policy Statement on Nuclear Power Plant Access Authorization Program.Nrc Should Establish Program Mutually Agreed Upon Between Union & Util,Per Hope Creek & Salem Programs ML20154G4601988-04-18018 April 1988 Comment Opposing Proposed Rule 10CFR50 Re Notification of Inspector Visits to Facility ML18093A6331988-02-0101 February 1988 Comment Supporting Proposed Rule 10CFR50 Re Proposed Policy Statement on Integrated Schedules for Implementation of Plant Mods ML20207H6521986-07-21021 July 1986 Transcript of Commission 860721 Discussion/Possible Vote on Full Power OL for Facility in Washington,Dc.Pp 1-76. Supporting Documentation Encl ML20203D9661986-07-21021 July 1986 Corrected Page 5 to 860721 Transcript Re Facility ML20107A5261985-02-19019 February 1985 Joint Motion for Leave to Withdraw as Party to Proceeding & Dismissal of Admitted Contentions.Draft Order Approving Both Requests,Settlement Agreement & Certificate of Svc Encl ML20114A6911985-01-23023 January 1985 Response Opposing Intervenor,Public Advocate of State of Ny Notice of Deposition & Motion for Protective Order. Certificate of Svc Encl.Related Correspondence ML20113H7211985-01-22022 January 1985 Response Opposing Applicant Motion for Sanctions Re Discovery.Certificate of Svc Encl.Related Correspondence ML20114B7361985-01-21021 January 1985 Applicant Response to Intervenor Third Set of Interrogatories & Request for Production of Documents Re Pipe Cracks.Related Correspondence ML20113H7321985-01-21021 January 1985 Second Supplemental Response to Preliminary & First Sets of Interrogatories & Request for Production of Documents. Certificate of Svc Encl.Related Correspondence ML20113H9441985-01-18018 January 1985 Notice of H Sonn 850130 Deposition in Trenton,Nj.Concurrent Depositions of Listed Applicant Employees Requested.Related Correspondence ML20113H9671985-01-18018 January 1985 Fourth Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20113H8091985-01-17017 January 1985 Response to Applicant 850114 Objections to Intervenor 850104 Third Set of Interrogatories & Request for Production of Documents & Motion for Protective Order.Certificate of Svc Encl.Related Correspondence ML20112J2841985-01-15015 January 1985 Second Set of Interrogatories Requesting Production of Documents Re Listed Definitions & Instructions to Public Advocate.Certificate of Svc Encl.Related Correspondence ML20112G4171985-01-14014 January 1985 Applicant Objections to Intervenor 850107 Third Set of Interrogatories & Request for Production of Documents to Applicants & Motion for Protective Order.Certificate of Svc Encl.Related Correspondence ML20112G3921985-01-14014 January 1985 Motion That ASLB Impose Sanction of Dismissal of Contentions Due to Intervenor Failure to Respond to ASLB 841121 Order to Show Cause Why OL Proceeding Should Not Be Dismissed. Related Correspondence ML20112D8631985-01-10010 January 1985 Response Opposing Intervenor 850107 Motion to Compel Responsive Answer to Interrogatory III.7 of Intervenor Second Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20112C0001985-01-0707 January 1985 Joint Motion for Issuance of Protective Order Re Personnel Info.Draft Protective Order,Unexecuted Affidavit & Certificate of Svc Encl.Related Correspondence ML20112C9651985-01-0707 January 1985 Motion to Compel Responsive Answer to Interrogatory III.7 of Intervenor 841213 Second Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20101Q6111985-01-0404 January 1985 Third Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20101Q7911985-01-0404 January 1985 Intervenors Supplemental Response to Applicants Preliminary & First Set of Interrogatories & Requests for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20101P9441984-12-31031 December 1984 Response to Second Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20101L1861984-12-28028 December 1984 Motion to Correct 841224 Record.Applicants Never Agreed to Discovery & Trial Preparation Schedule.Certificate of Svc Encl ML20101M5731984-12-28028 December 1984 Response to Applicant Objections to Intervenor 841213 Second Set of Interrogatories & Request for Production.Document Request & Motion for Protective Order Should Be Denied. W/Certificate of Svc.Related Correspondence ML20101E8381984-12-21021 December 1984 Objections to State of Nj Second Set of Interrogatories & Request for Production of Documents & Motion for Protective Order.Disclosure Will Constitute Unwarranted Invasion of Privacy.Related Correspondence ML20101E7821984-12-21021 December 1984 Notice of Appearance in Proceeding.Certificate of Svc Encl ML20101E8511984-12-20020 December 1984 Affidavit of RM Nelson Re Info Requested by State of Nj 841213 Second Set of Interrogatories & Request for Production of Documents.Personnel Files Maintained in Confidence.Related Correspondence ML20101A1651984-12-13013 December 1984 Second Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl.Related Correspondence ML20108E1161984-12-10010 December 1984 Response to ASLB 841121 Order Directing Public Advocate to Show Cause Re Dismissal of Contentions.State of Nj Safety & Environ Concerns Essential.Prehearing & Hearing Schedule Rerequested.Certificate of Svc Encl ML20099E7201984-11-23023 November 1984 Notice of Appearance in Proceeding 1998-09-15
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'i'iISSION Before the Atomic Safety and Licensina Board In the Matter of
, PUBLIC SERVICE ELECTRIC AND GAS CO., et al., Docket No. 50-354 OL (Hooe Creek Generating Station, Unit-1),
AFFIDAVIT OF R. WILLIAM POTTER, ESQUIRE 4-I,-R. WILLIAM POTTER, of full age, being duly sworn, upon my oath, depose and say that:
- 1. I am counsel of record in this proceeding for the intervenor, Joseph H. Rodriguez, the Public Advocate of the State of New Jersey. Since February, 1982 I have been
'the Assistant Commissioner of the Department of the Public Advocate.
- 2. I have drafted and prepared the attached Motions'and Memorandum of Law including the " Statement of 8311230129 831118
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PDR ADOCK 05000354 C PDR
r Facts". All the facts and arguments contained therein are true and accurate to the best of my knowledge and I incorporate them here as if fully repeated.
- 3. The Public Advocate files these motions in good faith.and with full understanding of their seriousness. In so doing, it should be noted that we do not allege that Dr. Carpenter or Dr. Morris has in fact prejudged any issue that may be placed into con-troversy in this proceeding. Nor does'the Public Advocate allege that either' judge.has shown any actual bias against the intervenor or partiality to the
{ applicant utilities, PSE&G and Atlantic Electric Co.
3.
- 4. The basis for the motions is the Public Advocate's-concern that public confidence in the inte-grity of the process for adjudicating the health, safety and environmental impacts of operating Hope Creek requires that (a) Dr. Carpenter disqualify (or recuse) himself from this proceeding, (b) Dr. Morris reveal his prior involvement, if any, in the AEC's review of the Newbold Island or Hope Creek application, and (c) that the Board postpone the Special Prehearing Conference
-until these motions are settled.
- 5. Dr. Carpenter has revealed that he worked i
l .for twenty years as a consultant "to eight different
1 a
electrical utility companies (on) . . . the environmental effects of the operation of electricity generating plants, both nuclear and fossil fueled." Among his projects was the Oyster Creek Nuclear Generating Station, a 640 mega-watt boiling water reactor (BWR") -which was manufactured by the General Electric Company, the same company which designed the Hope Creek BWR.
- 6. In addition, the Honorable Marshall E.
Miller, Chairman of the Licensing Board, has written that Dr.
Carpenter- was a consultant to the applicant in this case, PSE&G. Specifically, Judge Miller stated that "[d]uring the mid-60's, Dr. Carpenter . . . also performed some dye studies of Newbold Island,' part of the Delaware River, for the Public Service Gas and Electric Company."
- 7. Since Newbold Island was the original site chosen by the' applicants for the reactor now under con-struction at Hope Creek, and the subject of this proceeding, it is reasonable to conclude that, (a) PSE&G employed Dr.
4 Carpenter on matters relating to factual environmental questions that may be disputed and resolved by the Board, and (b) PSE&G retained him specifically with' respect to the applicant's choice of the Hope Creek site and the impacts of operation of what is now the Hope Creek reactor.
- 8. Accordingly, Dr. Carpenter's prior employ-5- i a
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ment by PSE&G raises a reasonable apprehension that he may not be able to discharge his duties as a judge in this proceeding with complete impartiality. This apprehen-sion is underscored by Dr. Carpenter's wide-ranging employment on behalf of electric utilities regarding matters of potential relevance to the Hope Creek applica-tion.
- 9. Again, it is important to emphasize that the Public Advocate does not contend that Dr. Carpenter will in fact or has in fact prejudged any material issue that the Board will admit into controversy. Neverthele ss, the
, well-established principle that the objective appearance
- of impropriety, bias, partiality or conflict of interest is enough to dictate disqualification of a judge compels a similar result in this proceeding. t4orevoer, the time to do so is prior to any decision on whether to admit into controversy the contentions filed by the Public l Advocate. If a judge should disqualify himself from the L
hearing he should do so prior to the creation of any
[
j possible " taint" to the proceeding.
j 10. Taken together, Dr. Carpenter's employment record shows that (a) he has devoted a substantial part of 20 years as a consultant to utilities regarding the environmental imoa:ts of nuclear reactors; (b) among l
these employers was JCP&L, which retained him to prepare
the equivalent of an environmental impact statement on a reactor similar to the facility now before this Board; and
.(d) he performed various studies for the Bechtel Cor- .
poration, the builder of Hope Creek, although the studies were apparently unrelated to this reactor,
- 11. Standing alone, Dr. Carpenter's employment with PSE&G on a matter potentially related to the factual issues to be decided by this Board should dictate that he voluntarily take the prudent step of disqualifying himself from this proceeding. Such a step is permitted by the rules of the Commission, 10 C.F.R. S 2.704(b).
When Dr. Carpenter's PSE&G employment is considered along with his other work, described above, the conclusion is inescapable that his continued presence creates a grave l
potential for prejudgment and bias, and the objective l
appearance of potential prejudgment and bias. Therefore, the only course which will have the necessary insulating l
l effect is to disqualify himself now prior to involving himself in any decisions which could define the outcome of this proceeding, such as preliminary rulings on the admission of the Public Advocate's contentions.
! 12. Regarding Dr. Morris, we do not know at i this point whether there are grounds to request the 1
disqualification or recusal of Dr. Morris. However, his
resume' reveals that he held positions of' authority at the AEC at a time when PSE&G application for a construction permit for the Newbold Island or Hope Creek units may have been pending and under his overall investigation. If Dr. Morris, directly or through his staff, reviewed and l investigated the Newbold Island application and partici-
! pated in the staff position that the facility should be constructed at Hope Creek, he may have prejudged factual questions concerning the licensability of the Hope Creek unit. Alternatively, the public could reasonably be expected to believe that Dr. Morris has prejudged important factual issues relevant to this proceeding, f regardless of whether in fact this is true.
- 13. Accordingly, in the interest of assuring full disclosure, and guaranteeing a fair and impartial hearing, the Public Advocate requests that Dr. Morris elaborate on the information contained in his resume.
Specifically, we request that he disclose and discuss the extent if any of his prior involvement in the AEC's investigation of the Newbold Island units, the staff decision that they should be moved to the present site, and the further review of the Hope Creek site, and facility _itself at that early stage.
- 14. The Public Advocate further believes that
- ,e
,, -, e
- the public interest requires that these motions and requests be resolved prior to the holding of a Special-Prehearing Cor.ference, where the Public Advocate's
-contentions and the ultimate party status of the Public Advocate will-be determined. 10 C.F.R. S2.751(a) . At that conference, now scheduled for November 22, the Board will be called upon to exercise its discretion to (a) admit, (b) modify and admit as modified, or (c) reject the Public Advocate's contention. The hearings which will follow will be limited expressly to those contentions admitted ~by the Board.
- 15. The Public Advocate believes that these motions have been filed in a timely manner. While the Board admitted the Public Advocate as an intervenor on October 18, the intervenor was required to direct his attention first i to (a) responding to PSE&G's lawsuit in state court, PSE&G v. Rodriguez, Docket No. A527-83T3, which seeks
{ to forbid the Advocate from intervening in any federal proceedings, and (b) preparing factual contentions on L the company's application for an operating license at l
Hope Creek. The latter, as the Board knows, was due by November 7, when they were filed.
l
- 16. Shortly after completion of the November 7
-filing, I turned'my. attention to the question of whether there was grounds for concern that Judge Carpenter or Judge Morris should disqualify or excuse himself. Basic research was not completed until Thursday, November 17. This means that I consumed only-five (5) working days
- to research the sensitive issues raised.
- 17. By November 17 I had reached '
the conclusion that, in the interest of public confidence in the integrity of the proceedings, it was advisable that the Public Advocate file these motions (including a request that the prehearing conference be postponed accordingly).
l 18. Given the sensitive nature of the motions and after conferring with my colleagues, including Ms. Remis, I attempted to consult with Commissioner Rodriguez, the State Public Advocate, before proceeding L .
l further. (This is the usual decision-making procedure 1
at the department.) Thus, I endeavored to reach Mr. Rodriguez by phone on November 17, as he was attending the second of two days at the State League of Municipal-ities Conference in Atlantic City. However, it was not possible to reach Mr. Rodriguez by phone.
At some point i
- November 8 was Election Day (state holiday) and November 11 was Veterans Day (also a holiday) Ms. Remis, also attorney of record, had been assigned to assist in writing a brief to the U.S. Supreme Court.
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i in the afternoon, Mr. Rodriguez called the office. I then explained the course of my research, and he con-i-
curred in my recommendation.
- 19. At about 4:00 p.m. I called the offices of Judge Miller, and left a message with his secretary ;
summarizing the motions and suggesting a conference call as soon as possible. She said that she would convey j my message to Judge Miller.
Dated: November 18, 1983 { ,
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)s, V llin T-a4' R. WILLIAM POTTER Assistant Commissioner /
Assistant Public Advocate Department of the Public l
' Advocate State of New Jersey l
Sworn and subscribed to 1
i I
before me this /fd day l of November 1983 h -
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- NOTA 3Y PU3i..C Ci {1{a9[,
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