ML081970482
| ML081970482 | |
| Person / Time | |
|---|---|
| Site: | Kewaunee  |
| Issue date: | 07/07/2008 |
| From: | Hibey R Miller & Chevalier |
| To: | Mike Farrar, Hawkens E, Nicholas Trikouros Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 06-845-01-EA, IA-05-052, RAS C-8 | |
| Download: ML081970482 (7) | |
Text
,; - ýA_5 DOCKETED USNRC July 7, 2008 (9:58am)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR'REGULATORY COMMISSION ATOMIC :SAFETYAND LICENSING BOARD:
- BeforeAdministraftive Judges:
..Michael, C;. Farrar,,Chairman
,E.- RoyHa0wkenso Nicho-las.G`. Trikouros In the Matter of
)
Docket No. 1A-05-052 DAVID GEISEN.
)
ASLBP, No.,067845-1-OlEA BRIEF OF DPAVIDC., GEISEN,'
IN RESPONSE TOBB0ARD*'S oRDERDATED JUNE 30, 2008 On.June 30,A2008, the Board issued anOrderýr in response to:Mr. Geisen' s- June 24, 2008, letter. In the Order; the Board sought Mr.Geisen's position on a number:of issues relating to the above-captioned proceeding in light of the recent,resolution of Mrt.Geisen',s-criminal trial in the United States District Court for the Northern District OftOhio. This brief will. seek to respond to each of the Board's questions in the order in which the Board set them forth.
I
- 1.
Relief sought by Mr; Geisen:
On January 4, 2006,ý the Staff issued to Mr. Geisen an Order prohibiting him from any involvement in NRC licensed. activity for a period of five years. The Staff made that Order immediately effective and it resulted: in-Mr. -Geisen's termination from his employment at Kewanee Nuclear Power Plant. That termination marked the interruption of a twenty-five year career in nuclear energy that included six years in the United States Navy. The allegations in the 1
Order constituted the first time Mr. Geisen had been accused of misconduct or dishonesty in the commission of :his work.
Two. and half years have. pa.ssed sinceitheStaff.issuedtheOrder. The, relief.thatMr.
Geisen seeks::is-a reduction of ithe~duration* ofithe ban:imposedý.upoh -himnfrom five years to two and one,-half years with credit for. the time:.that he hasteen disabled from worký inthe industry.
As the Board properly notes, Mr. Geisenwas found guilty and is -serving a sentence in a parallel criminal proceedin g: in the District Cou in Ohio:..(Mr. Geisen was:_convicted on three
-counts: of-False Statemenitsýand acquitted on two, others.) TJhat case is onappeal to the United States Court of Appeals for the Sixth Ciircuit'nd the primary,.issues, son thatiappeal will include the'propriety of a jury.instructioni, that allowed the jurvyto:consider whether Mr. Geisen "willfully blinded",I himself to:the inaccuracy:of,statements made to /the NRC (a theory fOr whichMr.
Geisenrvcontends there was noevidentiary.,basis'but upon WhichttheU jrconvicted according to jurorsi statements to the defense and prosecution lawyers following the verdict), the sufficiency of the_ evidence on-iequisite zelements including knowledge and intent, and the significance of the government's failure to prove the NRC'sreliance:on statemenits.made by Davis-Besse. While Mr. Geisen believes strongly in the merit 0f these issues on appeal, the existence of that appeal should not impair the Board's ability to consider and resolve the remaining issues in this proceeding. Mr. Geisen does not seek to relitigate.the factual issues that formed the basis for the Order or which were the subjectr of the parallel litigation. The Board has for its consideration the trial and sentencing transcripts developed through thatproceeding and can make its relevant determinations without any further discovery, as discussed further below.
2
- 2.
Whether there has.been an "outcome." tothe criminal:case, as~that.term would be understood 'inrelation to the principles the Commission, was furthering when it issued the stay.
On February, 1,,2007, the Commission stayed.,this'proceeding at *the.request:of, the.Staff and the United States Department of Justice. :CLI-07-06;.65 NRC,, 112,. ThetStiff's request,'
which included-a six-page affidavit from DOJ Trial Attorney Riichard Pole, was based upon claims that proceeding with its;casewould prejudice the DOJ:'s crimninal 'prosecution by allowing Mr,,Geisen-.access to information and witnesses that the *Federal Rules of Criminal Procedure or.
g,
.anu would normall y.dsallovw,. See;q, NRC Staff Motion' forStay f'Proceeding (January 8,2007). The Commission cited.that prospect, as welleasl6gistica6lobstaqes'an',enfrceenent.hearing might pose tothe DOJ's efforts to prepare its witnesses for tral. 65 NRC~ati 1'5-i119.
The Board has asked whether "with an appeal pending, [therehas]been an"outcome" to the-criminal case, as'that term would be 'understoodin relatiofito the principlesthe Commission was furthering whenit issued the stay.": Orderat.2.M.R Geisen -submitst the answer. to that question is clearly yes:: The criminal-trial has now occurred, and the witnesses the DOJ.sought to sequester in advance of that trial have now testified'.': More importantly, however, those individuals will not be involved in the resolution of -this proceeding because Mr. Geisen will not seek discovery on the factualmieritýs-ofthe Staffs Order or-seek t0o1elitigate factual issues upon which those witnesses mightrhAve knowledge. Simply, the interests that drove the Commission's Order are no longer applicable because the trial stage of the DiStrict Court case is complete.
- 3.
Should a decision on. the preceding issue be made in the first-instance by this Board, or is it within the exclusive purview of the:Commission.
The Commission did state, in its February 1; 2007; Order, that "if circumstances change significantly" it was amenable to considering a motion from Mr. Geisen to lift... [the] abeyance" it imposed. 65 NRC at 121. It appears clear from the Commission's Order, however, that the 3
abeyance was granted for the purpose of protecting interests of the.DOJ before the criminal trial and that, as such,.itnecessarily expired once the trial.was concluded. 65'NRC 112;,passim. The Commission's statement regarding changed circumstances, f6llowedits discussion of the interests of the DOJ:,Staff, andMr. Geisen as thieyaligned`before the criminalbtrialbthatiwas,*thený.
scheduled tobeginApril* 16, 2907. Id. at 11617, 1119. None of-the concerns articulated by the Commission -- discoveryimbalance, logistical complications, and-testimonial inconsistencies --
apply once thecriminal trial is concliuded. The Commission did not articulate an intent to maintain exclusive puriew over this issue folloIwingithe concl-usi'ooftheýcririnial:tria;, and the Board should not read in such:an intent -from ithe, Commission's hlaguage.
- 4.
Theý impact, if anyý,.of the doctrine of collateral estoppel given. the.outcome of Mr.
Geisen's criminal, trial.:
.*,.This issue would, be, th subject of extensive briefing and argument. if.Mr. Geisen were seeking to relitigate the factual issues that were the subject of:the criminal trial.: While he does not concede-the issue of whether-he knowinglymade' false statements to. the NRC, he does recognize that the conviction removes that issuePfrom the Board's consideration. In order to fully comprehend the meaning and weight of the verdict, it is important for the Board to consider the findings and conclusions of the jurors and the trial judge as memorialized in the parties' sentencing memoranda and the sentencing transcript. But, given theverdict,: Mr. Geisen does not intend to contest factual liability upon resumption of this case, merely the reasonableness of the punishment imposed.
4
- 5.
What remains to be done to prepare for an evidentiary hearing and the number of witnesses and estimated length of that. hearing.
Given Mr. Geisen'.s position as.-set forth.above, preparatioin foriadispositive-hearing should be brief andshould not include',any further depositions or written discovery. TheýBoard (and the Staff) will have available*to ittheabove-referenced sentencing materials. Counsel-will make arrangements to provide the.transcript from-.the :criminal trial if the, Board and Staffwishes to reviewýthose materials. eWe.do not.intend to callany.,,witnesses at :the hearing given the absence of anyfatuaA ssues for reslutin.
d*Itis difiult toimagie that*the hearing would take more thanra single,.day to *comfplete, -as the majority.ofthe discussion,,will focus, on whether a five-year:ban :from licensed activity. is. a fair andjustifiablepunishmn't given the Staff's treatment of similarly-situatedindividuals and Mr. Geisen' s history of exemplary work.
'Respectfully Submitted,
.4 Andrew.T.. Wise MILLER & CHEVALIER CHARTERED 655. 1 5T Street, N.W., Suite 900 Washifigton, D.C. 20005 (202) 626-5800 Counsel for David Geisen Dated: July 7, 2008 5
CERTIFICATEKOF SERVICE I HEREB u
0CERTIFY tthat,,on the 7th da of July,.20O8;tue and;genuine copies of the foregoing.were served oýnthe flliowingpersons by electronicmiaila:and; asindicated with an (*),
first-classmail, postage prepaid:
Michael C. Farrar* **
AdmiinistrativeJudge,,.
Atomic' Safetyand LiceIsing Bo~ard U.S:..Nuclear Regulatory,Commission:
'Mait Stop: T-3 F23 Washington, D.C. -20555.
E-lma il,: mcf(@c;gov E. Roy Hawkens***
Chief Administratiye 'eJu.d.ge, Atomic Safety hand. Licensing Boad.
U.S. N eu*ar Regulatory Commission, MailStop: T-3TF23;.
Washington, D.C. - 20555 E-mail:o erhnrc.gov Nicholas*.G: :Tfikouros**
- Admihiistrative,Judge, AtomiicSafety andLicensing Board U.S. Nuclear Regulatory, Commission Mail Stop: T-3F23 Washington, D.C. 20555 E-mail: ngt(2nr&.gov Libby Perch* **
Board Staff Atomic Safety and Licensing BoardPanel Mail Stop: T-3 F23 Washington, D.C. 20555 E-mail:emp I @nrc.gov Johanna Thibault *.*
Board Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 6
Washington, D.C. 20555 E-Mail: Johanna.Thibaultgnrc. gov Adjudicatory File-,*
Atomic Safety ardiLicensing Boafd U.S. Nuclear Rlegulatory Comnission Mail: Stop. TJ3F23 Washington, D.C. 20555 Office of the Secretary***
Attn: Rulemaking and Adjudications Staff U1.5: NuclearRegulatory Commission Mail Stop: 0-!16C CI Washington, D.C., 20555ý
,-E-Mail: hearingdokeýt(nrjc.gov Office of Commission Appellate Adjudication
- U.S. Nuclear Regulatory Commission Mail Stop: 0- 16 C Washington, D.C.'20555 Catherine L. Marco E-mail:: Catherine.Marco@(nrc.gov Kimberly A. Sexton E;mail: Kimberly. SextonCnrc:gov U.S. Nuclear Regulatory Commission Office' of the GeneralC ounsel Mail.Stop: O-15 D21 Washington, DC 20555-0001 RkP'dA.Hie 7