ML090690301
| ML090690301 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 03/03/2009 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 06-845-01-EA, IA-05-052, NRC-2708, RAS C-106 | |
| Download: ML090690301 (144) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION DOCKETED USNRC' March 5, 2009 (10:30a.m.)
Title:
Oral Argument RE David Geisen OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Number: IA-05-052; ASLBP No.: 06-845-01-EA Location: Rockville, Maryland Date: Tuesday, March 3, 2009 Work Order No.: NRC-2708 Pages 2343-2484 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 Y,- o32-
2343 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION
+ ++ + +
3 4 ATOMIC SAFETY LICENSING BOARD PANEL 5 ORAL ARGUMENT 6
7 x Docket No.
8 In the Matter of:
- IA-05-052 9
- ASLBP No.
10 DAVID GEISEN : 06-845-01-EA 11 ------------- x 12 11545 Rockville Pike 13 Rockville, Maryland 14 15 Tuesday, March 3, 2009 16 17 BEFORE:
18 MICHAEL C. FARRAR, Chair 19 E. ROY HAWKINS, Administrative Judge 20 NICHOLAS G. TRIKOUROS, Administrative Judge 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2344 1 APPEARANCES:
2 On behalf of David Geisen:
3 RICHARD A. HIBEY, ESQ.
4 ANDREW T. WISE, ESQ.
5 Miller & Chevalier Chtd.
6 655 Fifteenth Street, NW, Suite 900 7 Washington, D.C. 20005 8
9 On behalf of the Nuclear Regulatory Commission:
10 LISA B. CLARK, ESQ.
11 KIMBERLY A. SEXTON, ESQ.
12 SHAHRAM GHASEMIAN, ESQ.
13 U.S. Nuclear Regulatory Commission 14 Office of the General Counsel 15 Mail Stop O-15D21 16 Washington, D.C. 20555 17 18 ALSO PRESENT:
19 DAVID GEISEN (via telephone) 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2345 1 T-A-B-L-E O-F C-O-N-T-E-N-T-S 2 Page 3 Oral Argument by Nuclear Regulatory Commission 4 Ms. Clark 2349 5 Ms. Sexton 2389 6 Oral Argument by Counsel for David Geisen 7 Mr. Wise 2408 8 Rebuttal Argument by Nuclear Regulatory Commission 9 Ms. Clark 2467 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2346 I P-R-O-C-E-E-D--I-N-G-S 2 10:00 a.m.
3 CHAIR FARRAR: Let's go on the record.
4 It's 10:00 a.m. Tuesday, March 3 rd. We're in what I'm 5 sure everybody hopes will be our last get-together, 6 not that it hasn't been fun, but our last get-together 7 in the enforcement proceeding involving Mr. David 8 Geisen and his challenge to an NRC staff enforcement 9 order.
10 Counsel identify themselves for Mr. Geisen 11 please.
12 MR. WISE: Good morning, Your Honor.
13 Andrew Wise and Richard Hibey for David Geisen who is 14 on the telephone.
15 CHAIR FARRAR: Mr. Geisen, you're there.
16 MR. GEISEN: Yes, I am.
17 CHAIR FARRAR: Okay. As you know,, the 18 purpose of today's argument is not to take new 19 evidence. We took all the evidence we're going to 20 have back at the trial in December. So, for your 21 benefit and those of the spectators, the purpose of 22 today's argument is for counsel to answer our 23 questions about the case, to raise questions of their 24 own about the other side's case and to explain what 25 conclusions we should draw from theevidence. So that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2347 1 being so, Mr. Geisen, your role unlike during the 2 hearing is just that of a spectator; but we're happy 3 to have you with us.
4 Is anyone else on the phone?
5 (No verbal response.)
6 Okay. For the staff.
7 MS. CLARK: Good morning. On behalf of 8 the staff, I'm Lisa Clark and with me today is Shahram 9 Ghasemian and Kimberly Sexton. Also sitting at 10 counsel table is Thomas Valentine. He is the 11 Department of Justice attorney who was the prosecutor 12 in the Geisen proceeding.
13 CHAIR FARRAR: Okay. Mr. Valentine, happy 14 to have you with us again.
15 MR. VALENTINE: Thank you.
16 CHAIR FARRAR: And with me, of course, are 17 my two colleagues, Chief Judge Roy Hawkins. He and I 18 are trained as lawyers and Judge Nick Trikouros who 19 has technical training.
20 What we'd like to do is have as we 21 indicated we put out an order on February 2 5 th with a 22 series of questions that we wanted the parties to 23 address at some point during the argument and then at 24 the end we said each party should structure its main 25 presentation to address the deficiencies asserted by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2348 1 the other side to exist in its position and to 2 highlight the deficiencies it sees in the other side's 3 position, in other words, rather- than a rehashing, why
.4 you think your case is good, address the shortcomings 5 the other side perceives and tell us the shortcomings 6 about the others.
7 I compliment you all on the briefs you 8 filed. We've all studied them extensively and this is 9 a complicated and difficult case and we hope that 10 today's session will help us understand the 11 implications of all the evidence that's in front of 12 us, Ms. Clark.
13 And we will be asking a lot of questions 14 from documents. If you would rather sit at counsel 15 table, that's fine or you can use the podium whichever 16 suits you. But I would expect we're going to have a 17 lot of rapid fire questions about documents, so 18 whatever suits you.
19 MS. CLARK: I'll start from the podium and.
20 we'l11 see how that works.
21 CHAIR FARRAR: Okay. Oh, and, Mr. Wise, 22 you have a speech to give at 1:00 p.m.
23 MR. WISE: I do, Your Honor.
24 CHAIR FARRAR: Okay. We will attempt 25 although I've never succeeded yet to stick to the time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2349 1 limits, but we'll take care of it one vray or another.
2 MR. WISE: Thank you.
3 CHAIR FARRAR: And your associate even 4 though he has limited experience I'm sure. can jump in 5 and help you.
6 MR. WISE: I'm~sure that's right.
7 CHAIR FARRAR: Go ahead, Ms. Clark.
8 MS. CLARK: I'd like to share my 9 presentation to you this morning with Ms. Sexton and 10 so we have divided up the subjects that you identify 11 in your order. I will be *addressing due process, 12 prosecutorial misconduct and the role of demeanor in 13 assessing credibility.
14 CHAIR FARRAR: Okay.
15 MS. CLARK: I'd like to start this morning 16 -
17 CHAIR FARRAR: And. feel free if we ask a 18 question that you would prefer to defer. to her just 19 defer. Just tell us that and we'll hold it until it's 20 her turn.
21 CHAIR FARRAR: Very well. I'll do that.
22 I'd like to start with addressing the 23 issue concerning the role' of demeanor in assessing 24 witness credibility. There is no question that 25 demeanor of the witnesses that you saw testify here NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2350 1 will give a great deal of information to help you 2 determine their credibility.
3 But we all know that an individual's 4 demeanor can't tell the whole story. There are 5 individuals who become very nervous even when they're 6 telling the -truth and other individuals that may 7 appear calm and collective even when they are shading 8 or hiding the truth.
9 Therefore in assessing credibility you 10 have to consider demeanor in the context of the other 11 information available to you. This information 12 includes the believability of the individual story in 13 light of the other evidence you've seen. You also 14 have to consider the consistency of the individual's 15 testimony and whether the witness has any motivation 16 to slant the testimony in any way.
17 You heard conflicting testimony from Mr.
18 Martin and from Mr. Geisen regarding the extent to 19 which and when he viewed the video tapes of the 20 inspections.
21 CHAIR FARRAR: Okay. Let's get right to 22 Mr. Martin because that's the context that thisarises 23 in. Not to say that this is necessarily what I or my 24 colleagues will write, but I found Mr. Martin to be 25 one of the most credible witnesses I ever saw and, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2351 1 given his background and how he handled himself, it 2 struck me that he absolutely believes that what he 3 wrote down in his notes and what got transcribed is 4 what he heard.
5 It's equally clear to me: that what he 6 thought he heard in no way comports with the truth.
7 So the only way I can reconcile that is the very 8 simple explanation that he and Mr. Geisen had a 9 conversation. Mr Geisen used the word "August 2001" 10 because that's when the bulletin came out. Mr. Martin 11 was not doing a transcript. He took notes and it came 12 out that there were interactions in August of 2001.
13 That's when he saw the video tapes.
14 I can see -- Of all the difficult 15 questions in this case, this seems like the simplest.
16 Mr. Geisen told his little history of what happened 17 which comports with everything else we heard and Mr.
18 Martin heard it and it wasn't a big deal. He only 19 wrote it down casually and got it wrong being very 20 truthful.
21 Why should we not go with that theory?
22 MS. CLARK: Well, that's certainly one 23 theory and one way of looking at the evidence.
24 However, when you look at his notes, he said that Mr.
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2352 1 for interactions with the NRC in August.
2 CHAIR FARRAR: But Mr. Geisen wasn't 3 involved with the interactions with the NRC until a 4 couple months later.
5 MS. CLARK: Mr. Geisen signed off on the 6 green sheet on 2731 at the end of August and that 7 serial letter was submitted-to the NRC on September 8 4 t.
9 However, I think you could fairly take 10 away two possible meanings from that statement. One 11 meaning is that he reviewed the video tapes for
- 12. interactions which were to occur in August and the 13 other meaning is that he reviewed the video tapes in 14 August in preparation for interactions with the NRC.
15 CHAIR FARRAR: Or the third meaning is he 16 reviewed the video tapes at some time which he may or 17 may not have stated and that was his job that arose in 18 connection with the interactions that had started in 19 August and he was vague about when he looked at them 20 and Mr. Martin conflated a bunch of stuff and said he 21 looked at them in August. Mr. Martin thinks he's 22 being honest and all the other evidence said there's 23 no reason that Mr. Geisen --
24 It's not that Mr. Geisen is lying about he 25 saw him in August. All the other evidence at least to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2353 1 me and I'm not speaking for my colleagues indicated 2 that Mr. Geisen had no occasion to be looking'at the 3 video tapes in-- August. That's the whole body of 4 evidence in front of us.
5 MS. CLARK: I don't -- Truthfully, I don't 6 interpret it that way because the question was asking 7 him when you became aware of the problem with the head 8 and his answer was talking about he became aware from 9 reviewing video tapes and that happened in August.
10 But getting back to --
11 CHAIR FARRAR: Let me ask you about Mr.
12 Martin. Suppose the Board adopted the theory that 13 I've just stated that Mr. Martin was honest, to this 14 day is honest, but misheard the conversation. Maybe 15 Mr. Geisen didn't communicate it clearly, whatever.
16 If you don't have the Martin testimony, assume that's 17 out. How critical is that to your case?
18 MS. CLARK: Your Honor, we have I believe 19 an overwhelming case, even putting aside that Martin 20 testimony. In fact, I think that we have an 21 overwhelming case establishing that Mr. Geisen knew 22 about the impediments to inspections and that he knew 23 about the existence of boron on the head from many, 24 many sources.
25 CHAIR FARRAR: So if you're right about NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2354 1 all that stuff, I'm not saying you are, but you're 2 right about that, you don't need the Martin testimony.
3 MS. CLARK: No, we do not. But I would 4 like to say that the only evidence contradicting Mr.
5 Martin is Mr. Geisen's testimony here because Mr.
6 Geisen has told us that he did not see the video tapes 7 until he stopped by Mr. Siemaszko's desk when Mr.
8 Siemaszko was developing his nozzle table.
9 And this brings us to the question of the 10 credibility of Mr. Geisen. And I submit to you that 11 when you look at these other factors regardless of 12 what your view was of his demeanor on the stand that 13 the other factors relating to his credibility 14 fundamentally demonstrate that you cannot believe what ls Mr. Geisen is telling us and this is nowhere better 16 illustrated than the story he has given us about what 17 he told the technical assistants.
18 Recall that he came to the NRC with his 19 superiors. They flew all the way to Rockville in 20 order to make a presentation to the Commissioners' 21 technical assistants. Mr. Geisen testified here 22 during the hearing that in order to prepare for that 23 meeting the only thing he did was read Serial Letter 24 2731.
25 Now Serial Letter 2731 recall was the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2355 1 information that was so inadequate that it prompted 2 all of these questions from the NRC. He testified 3 that he did not talk to Mr. Siemaszko even though Mr.
4 Siemaszko was developing the nozzle table. He 5 testified that he did not talk to Mr. Goyal even 6 though Mr. Goyal did the inspection and worked for 7 him. In fact, when I asked him on what basis he made 8 that statement that he could verify there was no 9 popcorn deposit on the head, Mr. Geisen testified that 10 he had basically no basis on which to make that 11 statement.
12 Now, of course, this creates an enormous 13 problem for Mr. Geisen when he has to submit findings 14 before you.
15 CHAIR FARRAR: Is that the worst part of 16 his case?
17 MS. CLARK: I think so.
18 CHAIR FARRAR: The inability to say where 19 that information came from.
20 MS. CLARK: Absolutely. But to me the 21 worst part of this case is what he said in his 22 findings. Because when he came in and submitted his 23 findings he told you a completely different story. He 24 came in with his findings and said that the reason --
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2356 1 far on different stories, the staff charging document 2 to the Commission spends a lot of time on a June 2001 3 memo that seems to be the driving, force for the charge 4 to the Commission and it seems to be essentially 5 missing in action from your brief at this point. Now 6 I'm not saying that you. have a section in your brief 7 that says we're not limited to the evidence that we 8 brought the charge on. We can bring in other 9 evidence. I'm not quarreling with that.
10 But the staff put great stock in this June 11 2 7 th, 1 think, it was June 27, 2001 document and it's 12 disappeared from the case. So who's changing stories?
13 MS. CLARK: I'm sorry. You'll have to 14 refresh my memory as to what this June memo is.
15 CHAIR FARRAR: It was in Exhibit 31.
16 (Off the record comments.)
17 MS. CLARK: Your Honor, I think that is an 18 important piece of evidence. That is the-- I 19 understand the Justification for Continuing Operation 20 or I guess it's called an Engineering Evaluation.
21 That was provided to Mr. Geisen. If it was not 22 mentioned in our findings, I believe that was simply 23 an oversight on our part. I'm surprised to hear that 24 actually.
25 CHAIR FARRAR: Did someone just --
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2357 MS'. CLARK: But it's not 2 CHAIR FARRAR: Hold on, Ms. Clark. Did 3 someone just join the telephone call?
4 REGION III PUBLIC AFFAIRS OFFICE: Hello, 5 this Prima (phonetic) from Region G Public Affairs 6 Office.
7 CHAIR FARRAR: Okay.
8 REGION III PUBLIC AFFAIRS OFFICE: This is 9 Nan.
10 CHAIR FARRAR: Just you.
11 REGION III PUBLIC AFFAIRS OFFICE: Yes, 12 that's it.
13 CHAIR FARRAR: Okay. Happy to have you 14 here. You're welcome to listen in.
15 REGION III PUBLIC AFFAIRS OFFICE: Thank 16 you.
17 MS. CLARK: But I will say that it's i8 consistent with all of the other evidence on which we 19 base our case and that evidence consistently shows 20 that Mr. Geisen was informed over and over again of 21 the same information and it was always consistent and 22 that information told him that he could not access the 23 entire head using the inspection techniques that were 24 being used and that there were large boron deposits on 25 the head.
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2358 1 CHAIR FARRAR: Let me ask you about the 2 head. Why for all these years did the staff allow the 3 system where we got a camera on a stick that can't see 4 parts of the head? I don't get that.
5 MS. CLARK:. I can't speak to that. I 6 don't know how much that the NRC staff was aware of 7 this situation. Certainly they were not informed of 8 that situation in response to the bulletin.
9 But I would like to get back again to-Mr.
10 Geisen's findings in this case because he has 11 presented you with a story which is completely 12 contradictory to the testimony that he provided at 13 this hearing.
14 CHAIR FARRAR: Okay. If we look at Mr.
15 Geisen in hind's sight by the end of all these 16 meetings, he appears to the go-to person for Davis 17 Besse. He's always shown up at all the meetings.
18 He's always talking. He's always writing stuff and 19 signing off on stuff and so you look back and say just 20 like we feel up here now we know a lot about this case 21 and had inspections and this and that that he knew 22 everything.
23 But if you look at his work history when 24 all this started he knew almost nothing. His job had 25 never involved anything like this except when he was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2359 1 at Outage Central in the 1 2 th refueling outage and had 2 to approve not because it was his department but
.3 because of his role as an outage manager had to 4 approve call it the steam cleaning of the head.
5 o So which is it? In hind's sight, we look 6 at it and say he must have known all this stuff. With 7 foresight when the case started, none of this was his 8 job. Other people were working on it. Some were 9 telling the truth. Some werelying and he was doing 10 the INPO inspection.
11 Do you agree the INPO inspection is a big 12 deal in a company's history?
13 MS. CLARK: Of course, it's always a big 14 deal, but as a manager he has a significant number of 15 responsibilities. What I don't buy is that once he 16 has an INPO evaluation for an entire month he doesn't
- 17. read any other emails or pay any attention to any of 18 his other duties. I just don't think that's 19 believable. In fact, he's told us --
20 CHAIR FARRAR: Don't we all in our 21 personal experience come to times where you're so busy 22 on one project you really let things slide even though 23 *you know you shouldn't. But you just can't get to a 24 lot of stuff.
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2360 1 we have numerous duties and we're involved in one 2 thing to the exclusion of certain others. But he's 3 asking us to believe that he would let a memo, an 4 important memo, from a consultant sit in his inbox for 5 an entire month and not even look at it. I just don't 6 believe that. He's testified to us that --
7 CHAIR FARRAR: Wait. We're talking the --
8 Wait, wait. We're talking the Gibbs memo.
9 MS. CLARK: Yes. Even when he's involved 10 --
11 CHAIR FARRAR: Now the Gibbs memo didn't 12 say that 2731 was hogwash, did it? The Gibbs memo was 13 very carefully worded.
14 MS.. CLARK: The Gibbs memo told him once 15 again about the problems with the head and --
16 CHAIR FARRAR: But it didn't say to the 17 company we made a big mistake with 2731. We didn't 18 reveal what we were supposed to.
19 MS. CLARK: Well, no, we don't have and if 20 we had such admissions, we probably wouldn't be in 21 this hearing.
22 But going back to what he knew and when he 23 knew it, we can go back to the 12 RFO back in 2000.
24 We know that by the time that began, Mr. Geisen knew 25 a couple of things. He knew that Davis Besse had a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2361 1 problemwith flange leakage and they had problems with 2 boron on their head. He admitted. that.
3 He talked about reading the outage 4 insider. That information was in that outage insider.
5 He also 6 CHAIR FARRAR: Okay. Now you're putting 7 stock in that. Can't. we read that to go the other 8 way? Everyone at Davis Besse was concerned about this 9 enormous flange leakage problem that they had where 10 the lava is flowing all over the place and he reads 11 the outage insider that I think said Mr. Siemaszko 12 very cleverly got this thing cleaned when no one else 13 ever had. Why does that not count in Mr. Geisen's 14 favor that the little bit he knows as we focus on this 15 flange leakage problem and now it's kind of taken care 16 of and on to the next thing?
17 MS. CLARK: Exactly and that means that it 18 was common knowledge throughout the company that they 19 had this huge flange leakage problem that was causing 20 deposits of boron on the head.
21 CHAIR FARRAR: Was that common knowledge 22 to him whose job had been to deal with some kind of 23 pumps?
24 MS. CLARK: Yes, he admitted that. On the 25 stand, he said he knew that and that it was common NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2362 1 knowledge throughout the plant. He also admitted that 2 he knew there was a modification outstanding to cut 3 access holes into the head because they needed those 4 access holes in order to be able to do a complete and 5 thorough inspection.
6 And then mind you this is still well 7 before the first serial letter and during the outage 8 he got firsthand knowledge about the condition of the 9 head. He saw the red photo. He saw condition reports 10 talking about the problems with the large 11 accumulations of boric acid.
12 CHAIR FARRAR: Did we ever find out if the 13 resident inspector saw the red photo?
14 MS. CLARK: The resident inspector has 15 testified in a criminal proceeding against Mr.
16 Siemaszko and during that criminal proceeding he said 17 he did not recall seeing the red photo I believe. He 18 also --
19 CHAIR FARRAR: But we didn't learn about 20 that. It seemed to me we raised a question at one 21 point here and there was a flurry of protest and we 22 did not get the answer on this record. Is that 23 correct?
24 MS. CLARK: I don't believe so. There was 25 testimony on this subject in the Siemaszko hearing in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2363 1 the criminal proceeding. Mr. Geisen also was- privy to 2 a conversation with Mr. Siemaszko~and others who were 3 attempting to clean the head during the 12 RFO and he 4 personally approved cleaning of the head using hot 5 water at high pressure because of the problems they 6 were having. So even by 12 RFP he had substantial 7 knowledge about the impediments to inspections and the 8 boron on the head.
9 CHAIR FARRAR: Is there a difference 10 between knowledge that came to you once in one context 11 and knowledge that you focus on when you're doing your 12 particular job?
13 MS. CLARK: If you're saying that 14 presuming people might become, might take more notice 15 of information that's important to what their duties 16 are at the time or their responsibilities I would say 17 that's probably the case.
18 ADMIN. JUDGE HAWKINS: Ms. Clark, he knew 19 that there were impediments to the inspection because 20 of the geometry of the head. But would he have known 21 that it was actually impossible to look at the nozzle 22 area when it came out of the head so it would have 23 been impossible to really examine whether there was 24 any nozzle leakage there among those nine nozzles?
25 MS. CLARK: Yes, I think he was aware that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2364 1 because of those very small access holes and using a 2 camera balanced on a stick it was not possible to see 3 the very top of the head and therefore it was not 4 possible to make representations about whether there 5 might be these particularly small popcorn type 6 deposits they were looking for. That would require 7 directly examining those nozzle interfaces.
8 CHAIR FARRAR: But Mr. Holmberg testified 9 at some point that there were deposits there and they 10 were no problem and it was unclear to me from his 11 testimony how he knew that the deposits he saw were 12 not masking the popcorn deposits or maybe it was Dr.
13 Hiser. I'm not sure which one or the other of them.
14 MS. CLARK: I'm trying to recall. I 15 believe we heard testimony regarding how he -- He went 16 ahead and did his own independent assessment of the 17 nozzles looking, at the inspection video tapes and for 18 those nozzles that he could visualize he made an 19 assessment that you had to see a certain percentage 20 around the circumference in order to make a conclusion 21 as to whether there were popcorn deposits.
22 But he was not saying that it was okay to 23 make that conclusion if you couldn't see it at all.
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2365 1 he thought that in some instances you could still make 2 a conclusion.
3 CHAIR FARRAR: Was there an inspector 4 general. investigation of this?.
5 MS. CLARK: There was. -
6 CHAIR FARRAR: We were not favored with 7 that report, were we?
8 MS. CLARK: No.
9 CHAIR FARRAR: But there was a -- Johanna 10 reminds me that I think Mr. Geisen's. counsel had 11 introduced that report 27.
12 MR. WISE: I believe that's right, Your 13 Honor.
14 CHAIR FARRAR: Okay.
15 MR. WISE: Portions of it.
16 MR. HIBEY: Portions of it, yes.
17 CHAIR FARRAR: Ms. Clark, before I forget, 18 there's been mentioned several times a split between 19 the criminal prosecution and the civil investigation.
20 The people who did the 01 report, they ended up 21 working for the Justice Department. Is that right?
22 MS. CLARK: Correct.
23 CHAIR FARRAR: Okay. And you and your two 24 colleagues, when did you come into the case?
25 MS. CLARK: I came into the case I believe*
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2366 1 .it was August of 2007.
2 CHAIR FARRAR: Okay. So long after.-
3 MS. CLARK: Long after that.
4 CHAIR FARRAR: After everything's done.
5 MS. CLARK: Yes.
6 CHAIR FARRAR: All of a sudden there's a 7 challenge. Here it is. It's your case.
8 MS. CLARK: Yes.
9 CHAIR FARRAR: So you were not involved in 10 -- Okay, but at that time you were not allowed to talk 11 to the Oi people. Is that correct?
12 MS. CLARK: That-'s correct.
13 CHAIR FARRAR: And that's standard grand 14 jury stuff.
15 MS. CLARK: Yes. That was done at the 16 behest of the Department of Justice.
17 CHAIR FARRAR: Okay. So who did Mr.
18 O'Brien get to talk to? He couldn't talk to the 01 19 people.
20 MS. CLARK: He was not -- My understanding 21 is he was not allowed to speak to the investigators 22 about the case.
23 CHAIR FARRAR: But the investigator, was 24 he allowed to read their report?
25 MS. CLARK: Yes. We all had access to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2367 1 investigation report and the exhibits to that report.
2 CHAIR FARRAR: Okay. You've filed. Mr.
3 Leuhman I think with- his effort filed, that very 4 helpful report of the 50 cases of five year sentences.
5 -Do you agree with Mr. Geisen's counsel that in leaving 6 out the Davis Besse cases and leaving out three other 7 cases 44 of those the liability, the guilt, was open 8 and shut?
9 MS. CLARK: I Ehink I would like to defer 10 to Ms. Sexton on that question.
11 CHAIR FARRAR: Okay, and then when she has 12 her turn she can answer that and then also tell us why 13 that being the case that this was not the rare case 14 where Mr. O'Brien because he couldn't talk to the 15 inspectors because it wasn't open and shut should have 16 talked to Mr. Geisen. But we'll hold that.
17 MS. CLARK: Your Honor, on this point of
- 18. Mr. O'Brien's knowledge 19 CHAIR FARRAR: But wait on that before I 20 leave that point.
21 MS. CLARK: Okay.
22 CHAIR FARRAR: And you can throw this off 23 to Ms. Sexton if you want. Your brief said it would 24 be unfair for us to criticize the 01 people in our 25 decision because they never got a chance to be heard NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2368 1 here. Maybe it's just-me but there's some irony in 2 that because Mr. O'Brien didn't think it- was essential 3 for Mr. Geisen to be heard before he took his job away 4 from. him.
5 Do you want to answer that or do you want 6
7 MS. CLARK: I wanted to be clear here that 8 I believe that the questioning of Mr. O'Brien about 9 the investigation report may leave a misimpression 10 because the fact is as we've discussed Mr. O'Brien 11 was, he does not work with the Office of 12 Investigations. He was not part of that investigation 13 in any respect and was in fact prohibited from talking 14 to the investigators. Therefore, any questions posed 15 to him and there were questions posed to him about why 16 or whether 01 pursued particular leads are really 17 unfair because the reality is he would just have 18 absolutely no way of answering those questions and his 19 lack of knowledge should not be imputed as any absence 20 on the part of 01 from following those leads. We 21 really just can't answer those questions unless we 22 allow 01 to answer those questions.
23 CHAIR FARRAR: Okay.
24 MS. CLARK: Now with regard, there's been 25 a lot of allegations on the part of Mr. Geisen's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2369 1 counsel that the investigation was inadequate and the 2 reality is we have no facts on the record from which 3 you can make any assessment as to the adequacy of that 4 investigation.
5 CHAIR FARRAR: We know they didn't follow 6 up with Mr. Geisen about Mr. Martin's notes.
7 MS. CLARK: The fact is I don"t know that 8 we know that. We know that Mr. O'Brien doesn't know 9 if they did. That's all we really know. We can't say 10 anything more than that based on Mr. O'Brien's 11 testimony.
12 CHAIR FARRAR: Is Mr. O'Brien a lawyer?
13 MS. CLARK: No, he's not.
14 CHAIR FARRAR: Okay.
15 MS. CLARK: He's an engineer.
16 CHAIR FARRAR: Why was this not -- Your 17 brief, one or more of your briefs on various subjects 18 kind of takes the point don't worry about the 19 investigation. Don't worry about what happened.
20 We're just the prosecutor. Mr. Geisen gets his day in 21 court here. Well, 50 percent of Mr. Geisen's sentence 22 has already been served at the let me not the word 23 whim, but at the discretion of the prosecutor.
24 Doesn't in a non slam dunk case that argue 25 for a special care before the prosecutor imposes a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2370 1 sentence that it's going to have a dramatic, that it's 2 in essence unreviewable and don't tell me about they 3 could have challenged this and that. It's essentially 4 unreviewable and they didn't talk to Mr. Geisen. I 5 mean that confounds me. Does it confound you or would 6 you rather confound -Ms. Sexton when it's her turn?
7 MS. CLARK: I won't put that off on Ms.
8 Sexton. At the time the enforcement action was being 9 contemplated, it was the judgment of the enforcement 10 staff at the time that there was sufficient evidence 11 in order to take this action and this action was not 12 taken lightly. At the time they had a very 13 comprehensive investigation report. That report 14 included a transcribed interview with Mr. Geisen in 15 which he provided his version of all of the events 16 that were subject to the order.
17 ADMIN. JUDGE HAWKINS: Is it fair to say 18 that these questions that are focusing on the adequacy 19 of the inspection should really merge with the 20 question as to whether the staff has met its 21 obligation to show by a preponderance of the evidence 22 that the charges have merit and the sanction is 23 reasonable?
24 MS. CLARK: I believe those are two 25 completely independent questions and that the adequacy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2371 1 of the investigation report is not a matter for this 2 hearing and let me explain my basis for that.
3 As we know, our regulations provide that 4 Mr. Geisen had the opportunity to challenge the 5 immediate effectiveness of the order and that 6 challenge entitled him to make the claim that the 7 investigation upon which and the evidence upon which 8 OE was making that decision was inadequate. That was 9 the time for him to raise that claim.
10 CHAIR FARRAR: Okay, and suppose he had 11 done that. He'd filed the proper papers with us in 12 ten days and we rushed around and said, "Let's get to 13 a hearing." What could we have possibly learned in 14 that short period of time in this kind of complicated 15 case that would have let us say, "This thing is so far 16 bereft of any support that we're going to set that 17 aside"? That's an impossible standard and I can well 18 understand why Mr. Geisen's counsel decided not to 19 explore it because they would have lost.
20 MS. CLARK: But they are making that same 21 claim now. So why would we -- If they have an 22 opportunity to make that claim, that's the time to do 23 it. One may argue that it's a difficult claim to make 24 and it's hard to show. But that is their time to do 25- it.
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2372 1- CHAIR FARRAR: I have a different point.
2 That's the time for~the staff to say, "This isn't* a 3 clerical matter like those 44 out of those other 50 4 cases. This is a big deal that involves a person's 5 life. We've waited three ye ars. Yes, we think it'-s 6 deliberate misconduct. So we have the right to do 7 something effective immediately, but it's just not 8 right for the Government to treat its citizens that 9 way when we've waited three years already and this is 10 not a slam dunk and so let's not make it immediately 11 effective."
12 That's my question and you can tell me 13 that the only person on trial here is Mr. Geisen, but 14 there's a lot of history in this country about making 15 sure the Government treats its citizens properly and 16 I need that question answered. Why this had to be 17 done in this fashion?
18 MS. CLARK: Well, let me just say that the 19 decision to make the order immediately effective was 20 not based on an assessment of whether the case was, 21 how strong the case was. I think the decision was 22 based on the determination that it was necessary to 23 protect public health and safety. Now --
24 CHAIR FARRAR: That's not -- Now during 25 the hearing that's not what you said. You said NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2373 1 willful misconduct. We can throw somebody out 2 immediately and I asked the question, "How are the 3 citizens of Kuwani protected for three years when you 4 all come to the conclusion we got to protect the 5 public health and safety today by getting this guy out 6 of his job even though, Mr.-Mayor, it's okay that he 7 was working for three years in your community."
8 MS. CLARK: We know that Mr. Geisen was a 9 capable, competent manager in his job for many years 10 before these incidents ever happened. However, when 11 the time came that Davis Besse was facing a shutdown 12 and they wanted, it was important to the company to 13 prevent that happening, Mr. Geisen stepped up to the 14 plate and he was the one who was on the forefront of 15 misinforming the NRC of the true situation in order to 16 support his company. So the fact is --
17 CHAIR FARRAR: But a couple of times he 18 said, "Wait a minute. I made a mistake. I got to go 19 back and correct that." Isn't that totally 20 inconsistent with the notion of somebody who is saying 21 "Ah-ha, I'm going to advance myself in the company by 22 being the go-to guy who snookers the Commission."
23 MS. CLARK: I frankly do not get that at 24 all from this case. All I know is that he went to the 25 TAs. He told them something that he knew absolutely NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2374 1 was not correct. No matter how you look at it, o 2 matter what story you believe from them, he knew that 3 wasn't true-. He knew it was never- verified. Whether
- 4. he just made it up and had no grounds for it or who 5 knows what new story they might tell us today, but the 6 fact is after he got the nozzle table he says from Mr.
7 Siemaszko for the first time after the briefing, he 8 didn't come forward and tell the NRC that he told them 9 something was inaccurate. His only claimhere which 10 we can't verify is that he told this to his manager 11 and the next thing we know we get another serial 12 letter that doesn't say we make a mistake, highlight 13 the fact that we just told you something that was 14 directly wrong. It says, "We're going to supplement."
15 CHAIR FARRAR: Okay.
16 MS. CLARK: I don't believe -- And to this.
17 day, Mr. Geisen has not admitted that he 18 misrepresented the facts to the NRC. So this is not 19 a person who has taken responsibility.
20 ADMIN. JUDGE TRIKOUROS: Could you repeat 21 that last statement please? You said, "To this 22 day..."
23 MS. CLARK: He has not accepted 24 responsibility for making false statements to the NRC.
25 ADMIN. JUDGE HAWKINS: Well, he's not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2375 1 taken responsibility for knowingly making false 2 statements to the NRC.
3 MS. CLARK: Correct, and I think the 4 evidence is clear.
5 ADMIN. JUDGE HAWKINS: He has conceded 6 they were materially incorrect and inaccurate.
7 MS. CLARK: Correct. But to me that's 8 taking responsibility. When you say, like you say, "I 9 said something wrong" because you can't deny that it's 10 incorrect. But then you try to justify it and 11 rationalize it in any number of ways in order to avoid 12 responsibility for what he actually did which tell us 13 something he knew wasn't true.
14 CHAIR FARRAR: But that leaves out the 15 part about coming back from the TA meeting and saying, 16 "We got to correct this." Now I thought until three 17 minutes ago you had abandoned the claim that he didn't 18 go about that in the right way, that he should have
- 19. called the TAs and that gets into the NRC staff has a 20 way we like you to come right to us and every company 21 in the world has a way of saying, "Don't go to the 22 regulator without going through our corporate 23 regulatory department." So I thought you'd abandon 24 the claim that by going to his corporate regulators 25 and saying, "Fix this" and then they fixed it. Now if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2376 1 they hadn't fixed it, he has a crisis of conscience.
2 They didn't fix it. Now he has to know does he pick 3 up the phone himself. But they fixed it or they 4 thought they fixed it.
5 MS. CLARK: See, that's where we disagree 6 because I think his actions demonstrate that they were 7 not in fact fixing it. Their actions demonstrate that 8 what they did instead of they never came to the NRC 9 whether you think he should have done it directly or 10 whether the company should have done it in the next 11 serial letter. They never came forward to the NRC and 12 said, "We told you something that wasn't correct."
13 They said, "We're going to supplement" and then they 14 bury the new information in a very large serial 15 letter. That was not an acknowledgment that they had 16 given us this information.
17 CHAIR FARRAR: You're using the key word 18 here, the word "they," which I take it why these 19 people paid a $5 million civil fine, and $30 million to 20 the Justice Department so that no big people were 21 prosecuted. This case is not about "they." This case 22 is about Mr. Geisen.
23 MS. CLARK: Correct and I believe that he 24 having come here in person and himself told the NRC 25 false information he had a responsibility to see that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2377 1 it was corrected and he didn't do that.
2 ADMIN. JUDGE HAWKINS: I want to follow up 3 on a question by Judge Farrar coming at it a little 4 bit differently. I think he was inquiring why it was 5 necessary to make the enforcement order immediately 6 effective given the length of time from the alleged 7 misconduct and the fact that he had been an employee 8 in the nuclear licensed industry during that interim 9 of time and well regarded during that period of time 10 and you responded because we need to assure public 11 health/public safety and it was willful and if either 12 two of those requirements are met the regulations 13 permit you to make it immediately effective.
14 But why did it take so long and I think 15 you've addressed this before, but could you refresh my 16 memory? Why did you allow -- At the end of the day an 17 immediately effective sanction had to be imposed 18 because he was a threat to health and safety, why did 19 you allow him to continue working for those how many?
20 Was it a year and a half? Two years?
21 MS. CLARK: I'm afraid that I can't really 22 speak to the decision making process that occurred 23 during that time. I know that Mr. O'Brien testified 24 that we had to complete our internal reviews and 25 enforcement processes. Whether those processes-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23718 1 considered his employee at the time, I just couldn't.
2 say. So I'm afraid I really am not really able to 3 explain the decision making that occurred at the time.
4 ADMIN. JUDGE HAWKINS: It's 5 counterintuitive, would you agree,. to allow him to 6 work for that long if he in fact presented a real 7 threat to public health-and safety?
- 8. MS. CLARK: Well, yes. It does seem 9 counterintuitive.
10 CHAIR FARRAR: on the due process 11 concerns, did you say you were going to do that. or Ms.
12 Sexton?
13 MS. CLARK: Yes.
14 CHAIR FARRAR: Okay. If I understand it 15 correctly, the question of Mr. Geisen's liability or 16 guilt is kind of a de novo hearing in front of us in 17 which you have the burden of proof. But the question 18 of --Assume he were found guilty. The question of 19 the enforcement sanction I think you've asked that the 20 staff should get some degree of deference because of 21 their position and expertise. But if we think that 22 the staff's investigation and approach to this case 23 has serious due process concerns, wouldn't that be a 24 reason not to credit, not to start with 'Gee, is five 25 years right or not" but to start that de novo because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2379 1 we've lacked confidence in the staff, in the fairness 2 of the staff, approach to things?
3 MS. CLARK: I think that due process is 4 something that you must consider in the context of the 5 ultimate decision you make in this case. One can 6 certainly question judgments that the staff made in 7 bringing this enforcement action.
8 However, when it comes to due process and 9 the question of whether Mr. Geisen was deprived of any 10 of his constitutional rights, you have to consider any 11 errors that the staff may have made in the context of 12 this entire hearing process. Even if you believe that 13 Mr. Geisen should have been offered a conference 14 before the sanction was taken, the fact is that he had 15 now had the opportunity to testify before you.
16 CHAIR FARRAR: Yes; we can take care of 17 him going forward.
18 MS. CLARK: Right.
19 CHAIR FARRAR: What do we do -- I asked 20 this question the very first day we ever showed up 21 here. How long is too long for him to have this 22 hearing? The staff at the behest of the Justice 23 Department wanted to put off this hearing and we said, 24 "How long is too long" and I never got an answer then 25 and I'm not getting an answer now. He has -- What do NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2380 1 we do? Suppose we found him not guilty, 100 percent 2 not guilty. What do we do with this three years? So 3 if you can't give me an answer to that, how can you 4 represent that this hearing put salve on all the 5 wounds and all the problems?
6 MS. CLARK: I think that you have to look 7 at the entire adjudication in its totality in 8 determining whether he's been entitled to a fair 9 hearing. Now it is true that it has over three years.
10 Somewhat over three years now has lapsed since he was 11 banned by the NRC. However I think it's important to 12 keep in mind the reasons for that three years and they 13 are not simply because of staff actions.
14 First of all, his hearing actually began 15 immediately after he requested a hearing and it 16 proceeded in fact on an expedited schedule and was not 17 stayed by the Commission until February of 2007. Now 18 by that time written discovery had already been 19 exchanged and the parties were about to begin 20 depositions.
21 The NRC hearing at that time was scheduled 22 to start in March of 2007 and when the Commission 23 decided to stay the hearing it did so after balancing 24 the harm to Mr. Geisen against the harm to the 25 Government and it contemplated that the stay would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2381 I only last for approximately four months. And that was 2 because --
3 CHAIR FARRAR: And everybody because they 4 bought the hook, line and sinker what the Department 5 of Justice told about the Speedy Trial Act which 6 everyone who practices knows-isn't true.
7 MS. CLARK: I believe it was based on an 8 actual trial date that had been set at that time. I 9 think there was actually a date established for the 10 criminal trial at that point in time and the 11 Commission. made it clear in its ruling that if 12 circumstances were to change it would hear a motion 13 from Mr. Geisen to lift the stay.
14 Now the criminal trial was then postponed 15 until October and completed during that month and 16 sentencing didn't happen until much later in 2008.
17 But throughout that time, Mr. Geisen never filed a 18 motion to lift the stay and as soon as he did request 19 this hearing to be reinstated, it was-and it was done 20 so on an expedited basis.
21 So the fact is much of the delay is simply 22 caused by the nature of the hearing process itself.
23 It simply takes a long time and this is an extremely 24 complex case.
25 ADMIN. JUDGE HAWKINS: Let me ask a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2382 1 question, Ms. Clark, and it follows up again on Judge 2 Farrar's initial question. Let's assume this Board 3 finds that the staf f has not. met its burden and 4 therefor~e the sanction cannot stand. He doesn't have 5 a remedy for the three years that he's already been 6 barred from employment in the nuclear licensed 7 industry, does he? Or does he?
8 MS. CLARK: Well, he will have been denied 9 to some -- He will arguably have be~en denied the 10 ability to work in the nuclear, industry. Now that is 11 a limited property interest. He is not barred from 12 many types of employment that he is qualified to 13 undertake and another point is and this was brought 14 out in the Commission's decision is that when he was 15 fired following the issuance of the order the letter 16 to him regarding that employment action made it clear 17 thatit was based not only on-'the NRC order but also 18 on the grand jury indictment.
19 ADMIN. JUDGE HAWKINS: I understand that, 20 but, as a practical matter, if we find you have not 21 met your burden, that means a sanction was improperly 22 imposed. He's been subject to that sanction for three 23 years. Does he have a remedy for that given the 24 horrific impact on him, on his family, on his 25 reputation, on his income? I think the regrettable NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2383 1 answer is there is no real remedy to that unless you 2 can tell me there's one.
3 MS. CLARK: There is no remedy, but I 4 think that it's important to bear in mind that he has 5 now been criminally convicted.
6 ADMIN. JUDGE HAWKINS: I understand that.
7 I understand. Thank you.
8 MS. CLARK: So one can argue that his 9 limited employment opportunities are not solely due to 10 this ban that we put in place.
11 ADMIN. JUDGE HAWKINS: I understand that.
12 CHAIR FARRAR: How long did the jury 13 deliberate?
14 MS. CLARK: Maybe I can -- I don't know 15 offhand.
16 MR. WISE: I think it was about four days.
17 Four days.
18 CHAIR FARRAR: How did they get their arms 19 around this case in that length of time? I've been 20 deliberating on this a very long time.
21 MS. CLARK: It's a difficult, it's a 22 complex case.
23 CHAIR FARRAR: What's the status of the 24 appeal?
25 MR. HIBEY: Pending. They have implied we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2384 1 will be filed on or about the 20th.of.-March. Argument 2 will be set by the Court of Appeals after that filing.
3 CHAIR FARRAR: How fast are they 4 generally?
5 MR. HIBEY: I don't know. That's the 6 Sixth Circuit and we don't know.
7 ADMIN. JUDGE HAWKINS: Ms. Clark, a 8 response, an answer, an answering *brief by the 9 Government has been submitted?
10 MS. CLARK: Yes, I believe so.
11 ADMIN. JUDGE HAWKINS: Okay. Mr. Hibey, 12 Mr. Wise kindly provided us with a copy of their 13 opening brief. -Would the Government? Would the NRC 14 staff in conjunction with DOJ?
15 MS. CLARK: Yes, I will send you the 16 Government's brief.
17 ADMIN. JUDGE HAWKINS: Thank you.
18 ADMIN. JUDGE TRIKOUROS: Unfortunately, 19 you know this case deals significantly with 20 intangibles and it puts a tremendous burden on us to 21 understand his state of knowledge at a certain time 22 especially when a lot of things have transpired since 23 then and a lot of knowledge has been gained about the 24 truth since then and it is very difficult to go back 25 to that point. But somehow we have to do that.
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2385 1 But let me ask you a question. If I'm an 2 employee of a nuclear power plant and I clearly don't 3 want to shut the plant down if I don't have to in the 4 middle of winter or in the middle of summer. So 5 .clearly there's a great pressure. there. And if I 6 somehow -- And I lied to the Nuclear Regulatory 7 C ommission or to the technical assistants of the 8 Commissioners and I somehow as a result of this 9 ambition to not shut the plant down unless I have to 10 somehow convinced myself of something and I represent 11 that to the NRC, but I do believe it when I make that 12 representation. How do you view that in terms of 13 culpability?
14 MS. CLARK: I find that difficult to 15 answer in the abstract. To put it in this case, 16 there's no question and again I think this applies for 17 example in the TA briefing. They were coming here to 18 make a presentation to the Commission's staff and this 19 was their. last chance to make their case and they had 20 to make a strong case and they knew it. And Mr.
21 Geisen could have felt compelled to come out and make 22 a very strong statement to support his company's 23 position.
24 Given the context, if he were an 25 individual who didn't have perhaps the kind of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2386 1 specialized knowledge that he has and the experience 2 in the nuclear industry, perhaps one could imagine 3 that he could convince himself that what he was saying 4 was the truth. But given what we know about-Mr.
5 Geisen, I don't see how that could have happened.
6 He's an individual. I mean, he started 7 out in the nuclear Navy. He's been in the nuclear 8 industry for a long time. I think you -- I'm sure 9 you're aware. Anybody who has a position of 10 responsibility in the nuclear industry knows that you 11 have to verify. When you say you verified something, 12 that means something very specific and very important 13 and you can't say I verified something when you really 14 don't know.
15 And he's a very knowledgeable engineer.
16 He was well aware of the issues that were involved.
17 He knew of the importance of this information to the 18 NRC. I just can't believe that he could have 19 convinced himself that that was true.
20 ADMIN. JUDGE TRIKOUROS: But if he did, 21 would you see culpability?
22 ADMIN. JUDGE HAWKINS: I think you've 23 already answered that question. Deliberate misconduct 24 does not extend to innocent or good faith 25 misrepresentation.
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2387 1 MS. CLARK: Correct.
2 ADMIN. JUDGE TRIKOUROS: Okay. One other 3 point. Did you 4 ADMIN. JUDGE HAWKINS: I'm sorry. Yes.
5 ADMIN. JUDGE TRIKOUROS: One other point.
6 Mr. Geisen worked in an organization that- had a 7 horrible management culture. Mr. Martin testified to 8 that. He indicated that people were well aware of 9 that and they hired new management in an effort to 10 change that and in fact found that the new management 11 succumbed to that culture. The culture was entrenched 12 in a way that I'd actually never seen before to that 13 extent.
14 But there was enormous cultural pressure 15 in that organization that in my opinion led to all the 16 things that we've seen and Mr. Goyal sat right there 17 and testified that he had lied in essence to Mr.
18 Geisen and that he had succumbed to pressure by Mr.
19 Siemaszko and others to do that and yet they felt 20 compelled to lie to Mr. Geisen.
21 Do you see any significant to that that 22 they did not want Mr. Geisen to know the truth and in 23 that document presented him with incorrect facts which 24 he later then passed on? Do you see any significance 25 to that that he was not part of that, at least, that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2388 1 what I would gleam from that?
2 MS. CLARK: I'm not sure what document 3 you're referring *to where he was passing on incorrect 4 information. My recollection is that the evidence 5 showed that Mr. Geisen got very consistent information 6 regarding the matters that were relevant to these 7 serial letters and that information told him that 8 there was boron on the head and that the inspections 9 were limited.
10 I understand that there was a poor safety 11 culture at this licensee and the licensee was also 12 charged and paid a very large fine and has been 13 required to take some substantial corrective actions.
14 We, of course, recognize that these culture problems 15 exist at some of our facilities and that is one of the 16 reasons why we have regulations like 50.9, 50.5 that 17 place individuals under a responsibility and a duty to 18 ensure that information that's provided to the NRC is 19 complete and accurate and individuals are trained on 20 that and that is why it's such a vital part of our 21 regulatory process.
22 CHAIR FARRAR: Ms. Clark, given the time 23 constraints, you may want to unless you have some 24 points you'd like to make.
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2389 1 to Ms. Sexton.
2 CHAIR FARRAR: Right.
3 CHAIR FARRAR: Thank you.
4 CHAIR FARRAR: Thank you, Ms. Clark.
5 MS. SEXTON: -Your Honors, I think I'll 6 just stay here in case I have any point I need to 7 defer to co-counsel.
8 CHAIR FARRAR: As Judge Hawkins points out 9 at a greater distance from the problem people in the 10 room.
11 MS. SEXTON: Your Honors, it's just I like 12 to closer to Ms. Clark over here.
13 CHAIR FARRAR: Yes, I know.
14 MS. SEXTON: It has nothing to do with 15 that.
16 (Laughter.)
17 First. off, I would just like to address 18 your questions about-the table because that seems to 19 be some concerns that you have and, first of all, I 20 think that there may be just some misunderstanding as 21 to what our purpose of the table was and what maybe 22 Your Honors' and Mr. Geisen's counsel have read into 23 that.
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2390 1 merely requested a table with the series of five year 2 bans that we'd imposed since we had created the 3 Deliberate Misconduct Rule and just to. add in any 4 other information that we felt was necessary. And so 5 in doing that we took all of the five year bans that 6 we could find and made the table and in the process 7 put a few sentences of summary on-the other side and 8 I think that in the process of summarizing our 9 findings it may have been read into that the 10 complexity of the evidence that was weighed in the 11 process. In no way were we attempting to say that 12 these were slam dunk cases.
13 CHAIR FARRAR: No, and (1) we appreciated 14 the work that you did because it was precisely 15 responsive to what we were looking for and I 16 understand the little bit of disclaimer you're making 17 here. But it struck us in reading them and we 18 appreciate your candor in the way it was presented.
19 But it struck, at least, me that when someone says, 20 "I'm applying for work" and turns in his brother's ID 21 and somebody else's noncriminal record there's not a 22 lot of shades of gray of "Gee, did he happen to put 23 his hand on the wrong ID and he didn't notice it was 24 not his?" I mean, those, there may have been a little 25 more complexity to the case, but hiding urine samples NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-2391 1 -and stuff like that, those were things that cannot 2 possibly happen inadvertently.
3 MS. SEXTON: And there were definitely 4 examples of those specific types of cases. But I 5 think in the summary that.Mr. Geisen's counsel gave 6 saying that there, are 44 out of the 47 cases were all 7 slam dunk I think is a misreading of the way that the 8 table was presented.
9 The're are cases, yes, where* People 10 presented improper urine samples or gave the wrong ID 11 or said a fake name and in those cases in many times 12 it may seem obvious that there's a violation there.
13 But there are multiple other cases especially in the 14 materials world where we have the improper conduct in 15 radiography. We have people who misused sources and 1.6 things like that and in those cases while there may be 17 direct evidence that these people used the sources-18 wrong or conducted radiography improperly you still 19 have other types of evidence that you need to present 20 in order to make your case.
21 Did they know that there was a regulation?
22 Did the person actually know that the people 23 underneath them were doing this? And those are the 24 types of circumstantial evidence that you need to use 25 to prove your case. So it's not always just that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2392 1 someone was misusing a source. in a lot of cases, 2 people don't understand the rules that we have here 3 and we have to go through different circumstantial 4 avenues to prove that.
5 Did they take a course that they signed 6 off on? Did they attend a lecture? Those types of 7 things that aren't represented in the table.
8 CHAIR FARRAR: So you would not want us to 9 conclude then that most of these cases were easy and 10 the people who were used to handling easy cases were 11 almost by definition not up to the task of handling a 12 difficult case.
13 MS. SEXTON: Your Honor, as we have said 14 on multiple occasions, this was an extremely complex 15 case and one that doesn't come across our desk very 16 often. That being said, OGC, OE, 01, we're all 17 trained in having to handle these types of cases and 18 sifting through evidence and being able to put 19 together a case and in no way is the fact that there 20 are other cases wherein people submit improper urine 21 samples or turn in a wrong ID does that taint our 22 ability to handle complex cases,.
23 CHAIR FARRAR: If the three of you had 24 been involved in that decision, I'd be a lot more 25 comfortable about it than I was from the evidence that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2393 i was that was presented here. Was there anyone from 2 OGC involved?
3 MS. SEXTON: There are people from OGC 4 involved.
5 CHAIR FARRAR: Go ahead.
6 MS. SEXTON: Do you have any more 7 questions on the table?
8 CHAIR FARRAR: No.
9 MS. SEXTON: Okay.
10 CHAIR FARRAR: That's it.
11 MS. SEXTON: No, I have -- I mean I have 12 other.
13 CHAIR FARRAR: No. Go ahead.
14 MS. SEXTON: Turning to your questions on 15 collateral estoppel, I know you had a lot of concerns 16 there and we'd like to point out that we fully stand 17 by the fact that we think that jury convicted Mr.
18 Geisen based on his actual knowledge. As we've said 19 over and over again through the course, we think that 20 there's overwhelming evidence that supports Mr. Geisen 21 22 CHAIR FARRAR: Yes, but correct me if I 23 have the doctor wrong. The doctor is there were two 24 ways it could have gone and the next court that gets 25 it or next board that gets it, "Ah-ha, can I tell NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2394 1 which way they must have gone?" If I don't know today 2 which way I'm going, how can I tell from a jury case 3 on this extraordinarily complicated matter which 4 approach they took? In other words, today I'm not 5 sure we know where we are. How can we say, "Yes, they 6 convicted on the higher standard and not the lesser 7 one" particularly when the Government sure put a lot 8 of effort according to the arguments in front of Judge 9 Katz that I read. The Government sure put a lot of 10 effort in getting that instruction into the case.
11 ADMIN. JUDGE HAWKINS: And, Ms. Sexton, I 12 presume the Department of Justice has not withdrawn 13 that theory as a basis for affirming the jury verdict.
14 MS. SEXTON: No, Your Honor. And while 15 there may have been a desire to put the instruction 16 in, i think it's in there as an alternate theory.
17 They can find one way or they can find the other way 18 and, as I can't speak to how Your Honors are going to 19 come out.on this, as we've said over, we think that it 20 is actual knowledge and we think that the evidence 21 pointing to actual knowledge is much stronger than any 22 evidence that may in any way point to deliberate 23 ignorance.
24 CHAIR FARRAR: So right now you're not --
25 For the case in front of us.
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2395 1 MS. SEXTON: Correct.
2 CHAIR FARRAR: In a sense do you care 3 anymore about collateral estoppel? I mean you think 4 you've proved your case here.
5 MS. SEXTON: We do.
6 CHAIR FARRAR: So you don't need 7 collateral estoppel or do you?
8 MS. SEXTON: Your Honor, I think we have 9 fully proved our case on every count that we had in 10 the order regardless of how you come out on collateral 11 estoppel. That being said, we think that perhaps a 12 ruling on collateral estoppel should have occurred 13 prior to going to hearing. Your Honor chose to take 14 a different route on that.
15 At this point, if we'd liked to keep 16 discussing collateral estoppel, we can. I think that
- 17. we would feel comfortable either way if you came out 18 on collateral estoppel or my counsel can correct me if 19 I'm wrong.
20 ADMIN. JUDGE HAWKINS: Let me ask you a 21 question please, Ms. Sexton.
22 MS. SEXTON: Yes.
23 ADMIN. JUDGE HAWKINS: In your initial 24 response to our question on the applicability of 25 collateral estoppel.
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2396 1 MS. SEXTON: Yes.
2 ADMIN. JUDGE HAWKINS: You seem to 3 indicate that it would not apply to the deliberate 4 ignorance theory. In response to our second inquiry, 5 you seem to retreat from that hard-. line stance 6 suggesting that we need not take a position. I'd like 7 to hear what your position is. Do you say that this 8 board is precluded from saying that collateral 9 estoppel would apply if the jury convicted Mr. Geisen 10 based on the deliberate ignorance theory?
11 MS. SEXTON: We feel that going based on 12 the pure basis of the language given the jury's 13 instruction and looking at how we viewed deliberate 14 ignorance we don't comfortable trying to make that 15 equation. We think that in the absence of the jury 16 instruction determining if something is deliberate 17 ignorance is a credibly fact-specific task and 18 something that you have to do on a case-by-case basis.
19 So we have pulled back from that very hard line stance 20 in every situation.
21 CHAIR FARRAR: Partly because your reg is 22 stricter. The reg that you proceed under does not 23 admit of that.
24 MS. SEXTON: Well, we don't have anything 25 in the NRC proceedings that mimic a deliberate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2397 1 ignorance instruction in either way. So we don't come 2 across that. So trying to say that one legal theory 3 that- doesn't really fit is always going to go.
4 Instead it's just.you have to look at it a case-by-5 case and we think in this instance it's actual 6 knowledge.
7 ADMIN. JUDGE HAWKINS: So you are 8 disavowing the applicability of collateral estoppel to 9 the deliberate ignorance theory or you are not taking 10 a position on it?
11 MS. SEXTON: We're not taking a position.
12 We're saying that instead of trying to equate both 13 theories to each other just look at the facts and in 14 this case the facts point to actual knowledge.
15 ADMIN. JUDGE HAWKINS: I understand that's 16 what you're saying. But I just want to make clear 17 whether you're not taking a position on whether 18 collateral estoppel would apply if the jury convicted 19 him based on deliberate ignorance.
20 MS. SEXTON: We think that that's more of 21 an academic question in this case because we don't 22 think that there's evidence to support that and given 23 that it's a case-by-case basis determination, it's 24 OGC's opinion that there's not sufficient evidence to 25 show that.
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2398 1 ADMIN. JUDGE HAWKINS: I understand. You 2 view it as an academic question which would heed not 3 address..
4 MS. SEXTON: Your Honor, and I'm not 5 trying to be combative here. It's lust that -
6 ADMIN. JUDGE HAWK INS: I'm not either.
7 I'm just looking for an answer to my question.
- 8. MS. SEXTON: I know and I feel like I --
9 ADMIN. JUDGE HAWKINS: If it's academic, 10 then is it fair to say that you're unwilling to take
.11 a position on it?
12 MS. SEXTON: In this scenario.
13 ADMIN. JUDGE HAWKINS: Thank you.
14 MS. SEXTON: Is there anything else that 15 you would like to discuss with respect to collateral 16 estoppel?
17 CHAIR FARRAR: No.
18 MS. SEXTON: You had a case in there.
19 CHAIR FARRAR: No.
20 MS. SEXTON: Would you like to talk about 21 Sarbanes-Oxley?
22 CHAIR FARRAR: Yes.
23 ADMIN. JUDGE HAWKINS: Actually, I would 24 have something related.
25 CHAIR FARRAR: Yes, go ahead.
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2399 1 MS. SEXTON: Okay.
2 ADMIN. JUDGE HAWKINS: And it doesn't deal 3 with deliberate ignorance, but it deals with the jury 4 verdict and how the jury assuming that it convicted 5 him on knowledge rather than under the alternative 6 theory deliberate ignorance concluded that he was not 7 aware until October, on or around October 1 7 'h, and 8 thereafter his action were knowing and willfully.
9 Now that's inconsistent with what you 10 presented to us. If we were to assume that that was 11 the case, everything he submitted prior, 12 representations he made prior, to October 1 7 th were 13 not knowing. Would that have an impact on the five 14 *year sanction?
15 MS. SEXTON: We don't believe so, Your 16 Honor, because the jury had to convict under a higher
.17 standard. They had to convict under beyond a 18 reasonable doubt. And so the jury may have figured 19 under a preponderance of the evidence standard that up 20 until that point that he might have had knowledge.
21 But they didn't cross the threshold of beyond 22 reasonable doubt until the October 1 7 1h date.
23 ADMIN. JUDGE HAWKINS: Understand. if 24 this Board agrees with the jury what you represent was 25 the jury's theory of the case, would that impact the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2400 1 five year sanction?
2 MS. SEXTON: I'm sorry. I'm confused as 3 to 4 ADMIN. JUDGE HAWKINS: If we agree.
5 MS. SEXTON: Yes.
6 ADMIN. JUDGE HAWKINS: That he did not act 7 knowingly until October 1 7 h.
8 MS. SEXTON: Okay.
9 ADMIN. JUDGE HAWKINS: Would we have- to 10 revisit? Would we be required to find the five year 11 sanction was unreasonable?
12 MS. SEXTON: Your Honor, there is nothing 13 from the staff that says that he got say one year for 14 2731, one year for 2735. There's nothing like that.
15 On each of those specific instances it could have 16 gotten a five year ban. So I don't think that finding 17 that he had knowledge after a certain date in any way-18 jeopardizes the fact that we think that Mr. Geisen 19 should have been banned from the nuclear industry for 20 five years. His actions amounted to that.
21 CHAIR FARRAR: In other words if you file 22 false information --
23 MS. SEXTON: Exactly.
24 CHAIR FARRAR: -- knowingly file false 25 information with the staff --
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2401 1 MS. SEXTON: Absolutely.
2 CHAIR FARRAR: -- you're done.
3 MS. SEXTON: Absolutely.
4 CHAIR FARRAR: Whether you do it one time 5 or ten times you're not the kind of person that system 6 can stand having in the system.
7 MS. SEXTON: As we had testimony from both 8 members of the Office of Enforcement lying to the NRC 9 is the worst thing that you could do.
10 CHAIR FARRAR: Let's do a minute on 11 Sarbanes-Oxley. We started that analogy by wondering 12 why the staff or the Justice Department didn't go
- 13. after Mr. Big under a Sarbanes-Oxley theory. If you 14 sign something, you're guilty and I think you told us 15 the case law is developing that even though Congress 16 wants the CEO to be on the hook for the financial 17 statements if the CEO is really ignorant and signs. it 18 you can't get a prosecution. Is that roughly correct?
19 MS. SEXTON: Correct.
20 CHAIR FARRAR: Okay. Let's go from there 21 to Mr. Geisen. Sometimes it strikes me you're 22 applying a Sarbanes-Oxley theory to him. He signed 23 something or he approved something and therefore under 24 Sarbanes-Oxley kind of theory, not practice, we're 25 going to hold him to the knowledge of it.
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2402 1 MS. SEXTON: Your Honor, I think that's 2 why we spent five days in the hearing and submitted so 3 many other multiple briefings just to show you that it 4 wasn't just as simple as that, that he signed it with 5 knowledge that the facts in each of those submissions, 6 either orally or written, were false and that he knew 7 it when he signed it.
8 CHAIR FARRAR: Okay. But there was one 9 document that was like 15 pages long and there was one 10 sentence in there that was damning if I can use that 11 word and it's like "Okay, he signed it. So he must 12 have known that." There's a point in your brief where 13 you say, "He saw these. He received them" and it's 14 like you impute all this knowledge to him because 15 these things were on his desk. That's a kind of a 16 Sarbanes-Oxley theory when he say, "Well, I didn't 17 focus on it" or "I trusted Joe on that" or whatever.
18 MS. SEXTON: Well, Your Honor, Mr.
19 Geisen's testimony that he didn't focus on it I don't 20 think you need to accept it at face value. I think 21 what you need to do is look at the volume of evidence 22 that we've presented that shows that although there 23 may be a sentence within a document these are really 24 strong sentences. The boron was lava like coming 25 through.
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2403 1 CHAIR' FARRAR': Okay. They're strong 2 sentences if you're focusing on them and if it's your 3 job to focus on it and if you have to take action on 4 it. Sometimes we all get long documents and we read 5 them and later we find out that there was something in 6 there we never noticed.
7 MS. SEXTON: And these are a series of 8 documents. Over time he's had multiple briefings on 9 the nozzle cracking issue. He signed- and approved 10 memoranda. He was in Outage Central wherein he had to 11 talk about how to clean the boron in the head because 12 it was impossible to do so using the mechanical means 13 that they'd already tried. I mean these are things 14 that occurred over time.
15 It wasn't such that by the end he became 16 involved. He was specifically tasked to become one of 17 the lead people on this issue and so to say that he 18 wasn't involved or he didn't know anything like that 19 I think is a misreading of the facts.
20 CHAIR FARRAR: And here's where your 21 colleague tells us even though the one thing that 22 trial judges are given nearly 100 percent discretion 23 is demeanor credibility and you're telling us don't 24 put any stock in what we might think we gathered from 25 watching Mr. Geisen for five days.
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2404 1 MS. SEXTON: No, Your Honor. We're saying 2 that in our estimation of how Mr. Geisen presented 3 himself, we think that these are the things that you 4 need to take into account. That's our version of it.
5 You, of course, may have a different,-.but this is the 6 way we think you should view it.
7 CHAIR FARRAR: Okay. We've taken a lot of 8 time. Do you have any other points?
9 MS. SEXTON: You had a question regarding 10 the significance of his testimony and you had specific 11 references.
12 CHAIR FARRAR: Oh yes. From the criminal 13 trial?
14 MS. SEXTON: Right.
15 CHAIR FARRAR: If I remember correctly the 16 question asked was kind of a two part question and he 17 answered yes and my recollection is that you allare 18 saying that he answered yes to both parts.
19 MS. SEXTON: Yes, that's correct, Your 20 Honor. And I understand where you might create a 21 pause at that. But I think if you look at the line of 22 questioning that precedes it, it becomes clear that 23 Mr. Geisen was well aware of where the Department of 24 Justice was headed in that questioning.
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2405 1 questions about what the bulletin wanted, what 2731 2 was asking for. It was clear that there was a leading 3 up to sort of the be-all, end-all question and at that 4 point, at one certain point, before that, there was a 5 multiple part question that was asked and Mr. Geisen 6 started to answer and then stopped himself and said, 7 "Hold on a second. That's a multiple part question 8 there. Can you break it up?" And so at that point 9 the question was broken up, maybe not brokenup as it 10 could have been, but specifically said, "You 11 previously stated that you knew and you signed" and I 12 think it couldn't be more clear that that what. was 13 elicited from him was that he had knowledge of these 14 things and that when he said yes he wasn't just saying 15 yes to the final part of the question, but that he was 16 saying yes to the entire question. And I think that 17 if. someone was asking you on the stand and said, "You 18 knew this, but you signed anyways," if you didn't know 19 it, you would have said, "No, I didn't know it. I 20 signed it, but I didn't know it." And in both of 21 those questions he didn't say that. He specifically 22 said yes.
23 CHAIR FARRAR: Okay. Well, we'll let Mr.
24 Wise address that. I take it the staff didn't think 25 much of that steel tank barge case.
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2406 1 MS. SEXTON: Your Honor, we answered the 2 question, as best as we saw fit. I'm not passing 3 judgment on the footnote at all. We answered the 4 question.
5 CHAIR FARRAR: You don't think that 6 applies here where you've done a good job of saying 7 there were no rules broken. You know, the policy 8 doesn't say you have to interview Mr. Geisen before an 9 enforcement action. There were no rules broken, but 10 just like that case all the rules can be followed and 11 things don't come out right, you don't think that's 12 this kind of case.
13 MS. SEXTON: Your Honor, I don't think 14 that -- I understand the Board's concern perhaps that 15 a predecisional enforcement conference wasn't offered.
16 But as the staff has pointed on multiple occasions and 17 we stand by this, Mr. Geisen was interviewed. He had 18 an opportunity. He did have an opportunity to 19 challenge the immediate effectiveness and he had an 20 opportunity to petition the Office of Enforcement for 21 a relaxation of the order.
22 When we put out the order, Mr. Geisen 23 responded to that order on a point-by-point basis.
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2407 1 decision making and it could have changed based on his 2 answers. But it didn't.
3 CHAIR FARRAR: You know you can say it 4 could have changed and I believe you believe that when 5 you say it. I saw a witness of yours sit here and 6 he's not ever changing his mind about anything any 7 time.
8 MS. SEXTON: If you are talking about 9 MistersO'Brien and Leuhman, I --
10 CHAIR FARRAR: No. I'm talking about Mr.
11 O'Brien.
12 MS. SEXTON: Mr. O'Brien honestly listened 13 to the evidence that was presented at this trial. Mr.
14 O'Brien is a very honorable person and if he thought 15 that anything would have changed his mind, he would 16 have done that. He's not the type of person who is 17 going to sit there and just cross his arms and not 18 listen to things and not let his mind be changed. Had 19 anything been said that would have changed his mind he 20 would have rethought that and come to a different 21 conclusion, but he didn't.
22 CHAIR FARRAR: Okay. Anything else you 23 need to cover?
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2408 i Honors, if we can reserve a chance to respond after 2 the end of Mr. Geisen's presentation.
3 CHAIR FARRAR: Yes.
4 MS. SEXTON: We would appreciate that.
5 CHAIR FARRAR: Okay. Mr. Wise, can we go 6 ahead without a break?
7 MR. WISE: Yes. Judge, I'm going to defer 8 to Mr. Hibey on questions relating to due process.
9 CHAIR FARRAR: Okay.
10 MR. WISE: Let me start by talking about 11 the October i 1ih technical assistants meeting which 12 the staff suggests is the worst fact for Mr. Geisen 13 and I think it's important for the Board to put what 14 was said and what led up to it in perspective. The 15 slide that was presented which the Board has in front 16 of it and has seen many times at Staff 55 included a 17 bullet that said "facts, all CRDM penetrations were 18 verified to be free from popcorn type of hazards using 19 video-recordings from 11 or 12 RFO."
20 Now the suggestion that Mr. Geisen went in 21 and said, "I have verified this. I can tell you that 22 I have verified it" is completely unsupported in the 23 record. And what Mr. Geisen said was that he believed 24 that that was drawn, that his belief that this flag 25 was true, was drawn, from 2731 which it states on page NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2409 1 three of 19 under a heading "Subsequent Review of 1998 2 and 2000 Inspection Video Tape Results, since May 2001 3 a review of the 1998 and 2000 inspection video tapes 4 of the RPV head has been performed. This review was 5 conducted to reconfirm the indications of boron 6 leakage experienced at the Davis Besse Nuclear Power 7 Station were not similar to the indications seen at 8 Oconee and Arkansas, i.e., was not indicative of RPV 9 nozzle leakage."
10 Now a couple things. First of all, the 11 Board knows full well that Mr. Geisen as he sat in the 12 hotel room on the 1 0 1h as he testified to and as he 13 spoke to this slide on the 1 1 th had said he reviewed 14 2731. But you also know that he had participated in 15 the October 2 nd phone call, the October 3 rd phone call, 16 and his testimony was that his session with Mr.
17 Siemaszko where he looked over the frames from the 18 videos occurred in the week after he had given Mr.
19 Siemaszko the assignment which followed the October 20 3 rd phone call. So you know that his universe of 21 knowledge as he presented this slide was more than 22 having just read 2731.
23 But more importantly what's in this slide 24 is in 2731. Okay. So this is not a situation where 25 Mr. Geisen has as I believe the staff indicated come NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2410 1 to this meeting with a belief that this was their last 2 chance to prevail upon the NRC and taken it upon 3 himself to make a statement furthering his company's 4 interest. He was wrong about what he said in that 5 bullet, but I don't think there's any basis to suggest 6 that he invented it out of -- or that he somehow 7 changed his story. The idea that the findings of fact 8 are inconsistent because Mr. Geisen-now says he relied 9 upon Mr. Siemaszko, Mr. Geisen has been saying that he 10 relied in large part upon Mr. Siemaszko for many of 11 the facts he communicated since 2002. The suggestion 12 that this is somehow a new out-of-left-field theory I 13 think has no basis in the record.
14 Now there is the question when you present 15 a slide that says "verified" should you have been 16 involved in the verification and that I think is an 17 open question. But the suggestion that the use of the 18 word "verified" when he relied on a document that said 19 the videos had been re-reviewed to "confirm the 20 findings" I don't think is the type of fact that you 21 can take and say, "This is indicative of a knowledge 22 of falsity and an intent to deceive."
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°2411 1 that we need to correct this. You don't have to take 2 his word for it. You have Steven Moffit's testimony 3 at the criminal trial who was his supervisor which was 4 in the record and Mr. Moffit talks about Mr. Geisen 5 coming and saying, "We need to fix this."
6 CHAIR FARRAR: Whose witness. was Mr.
7 Moffit?
8 MR. WISE: He was called by the Government 9 and he testified.
10 CHAIR FARRAR: Are they then forbidden to 11 disclaim what he said?
12 MR. WISE: I don't think they're forbidden 13 as an evidentiary matter. They certainly could have 14 argued to the jury "You can't credit what Mr. Moffit 15 said on direct," but no one has suggested that. The 16 Government never suggested that. They never impeached 17 him on cross examination. No one has contested and 18 Mr. Geisen did this with Mr. Moffit that they together 19 went to Mr. Lockwood who was the head of Regulatory 20 Affairs and that they submitted 2735 and Ms. Clark 21 says it was buried in this serial letter. Twenty-22 seven thirty-five indicated that in 2000 which had 23 previously been described as an inspection that 24 yielded some accumulation of boron on the head and 25 nozzles. There were a number of nozzles that were not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2412 1 viewable. I believe the number was 45 of 69. Now 2 that is not a situation where a number has been buried 3 and I don't think the Board can reasonably-conclude 4 that that evidence suggests an intent to deceive.
5 Judge Trikouros, in -the hearing at one 6 point, I believe it was when Mr. Geisen was on the 7 stand, you asked a question about whether 2731 8 contained "the Big Lie." I think it's important for 9 the Board also to recognize what was in 2731 and what 10 was not.
11 Twenty-seven thirty-one did not indicate 12 that 2000 had been a fine inspection. It did not go 13 into the detail that maybe it should have about what 14 was precluded. But it did disclose that in the 2000 15 inspection some areas of the head/nozzles were 16 obscured by the boron that it attributed to the flange 17 leakage.
18 I think that's important because I know, 19 I sensed, at least, Your Honor, that one of the 20 questions that you were driving at was this question 21 of how could Mr. Geisen have read 2731 and not had 22 bells go off. Was it perhaps because he wanted to 23 help his company? I think it's important to realize 24 though what the basis was of knowledge, what Mr.
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2413 1 document itself.
2 The staff spent a lot of time talking 3 about the emails that talked-about how Oconee had a 4 pristine head and how it was the pristine head that 5 allowed them to find the popcorn boron. I think it's 6 important to recognize that by the time that Serial 7 Letter 2731 has been submitted and the October 3 rd 8 phone call is occurring, I don't believe there's any 9 belief that Davis Besse has represented that they have 10 a pristine head. Twenty-seven thirty-one has 11 suggested some accumulation of boron based on flange 12 leakage.
13 On the October 3 rd phone call, if you take 14 a fair reading of Dale Miller, Al Hiser and Mel 15 Holmberg's notes, it's clear that if Mr. Geisen was 16 the one who spoke to the 2000 inspection which he does 17 not contest based on Mr. Miller's notes, what he said 18 was it was a 100 percent inspection except for five or 19 six nozzles I think is in one set of notes, except for 20 some of the nozzles.
21 There's no reasonable reading of those 22 notes to suggest that Mr. Geisen said, "We inspected 23 the entire head without obstruction." And part of I 24 think what makes you understand why that is so is a 25 question that you asked, Judge Trikouros, about Mr.
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2414 1 Moffit having testified at the criminal trial. I'm 2 sure that they, and I'm paraphrasing here, I'm sure 3 Dave didn'.t say we saw the entire head because I knew 4 that wasn't true and that would have stuck out to me.
- 5. I think it's also clear that that would have stuck out 6 to any of the NRC readers who had read 2731 and seen 7 the reference to some accumulation of boron from the 8 flange leakage.
9 That's important because I don't think you 10 are working from a baseline where someone like Mr.
11 Geisen who comes into this situation when he does 12 right before the October 3 rd phone call as reading a 13 document that represents things that anybody would 14 have had to know are false.
15 Judge Hawkins, you asked a question about 16 did he know that the inspection could not be 17 successfully conducted with a camera on a stick and I 18 think Mr. Geisen testified about what he knew, about 19 how he knew that there were some problems but hadn't 20 been involved in the past inspections and didn't 21 necessarily know the extent of how difficult it was.
22 One of the documents you have is the staff 23 exhibit that is Mr. Goyal's August 17 h email in 24 response to a request from Steven Fifige (phonetic) 25 and the language that the language that the staff NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2415 1 focused on at great length was Mr. Goyal's statement 2 not taking credit for the 2000 inspection. The reason 3 you would not take credit for the 2000 inspection 4 obviously is because there was. boron on the head 5 obscuring some of the nozzles which is a fact that I 6 don't think Mr. Geisen ever came close to denying that 7 he had knowledge of.
8 What the staff ignored is the line before 9 that when Mr. Goyal says, "Can we go back to 1998 10 which was the last time we had a good inspection?"
11 The suggestion of that and I don't want to oversell 12 this because Mr. Geisen did not say it on the stand 13 nor could he reasonably have said on the stand that he 14 had a recollection of that email and he knows that 15 that meant that the 1998 inspection allowed him to see 16 it. So that meant you could see every nozzle with the 17 camera on the stick. That I think would be completely 18 inconsistent with how he received the information that 19 was given to him in that nine months, but it is part 20 of the universe of information.
21 So to the extent that he knew that there 22 was a problem using the camera on the stick, the 23 communications that were going back and forth would 24 not have told him that it was impossible to see those 25 nozzles. And to the extent that there was a request NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2416 1 for a modification that he was well aware of, I don't 2 think there was any evidence that it-was put in there 3 because there was some suggestion that you either 4 could not conduct an inspection or could not clean.
5 No question it made it more difficult.
6 And that was, I think, the relevance of the 2000 7 cleaning information. He knew after the 2000 8 inspection that the lack of holes in the surface 9 structure made it more difficult to clean. He also 10 believed coming out of that inspection for a good time 11 that it had been done.
12 So I think - and this goes back to some of 13 the Board's questions about what his role was in these 14 things, which I think leads into Jack Martin. Because 15 I don't think the Board needs to decide that you 16 either credit Mr. Geisen or you credit Jack Martin.
17 CHAIR FARRAR: Is. their reconciliation 18 theory okay by you?
19 MR. WISE: I think it is. I think 20 it's a very reasonable way of taking that view.
21 CHAIR FARRAR: Mr. Geisen said that 22 he knew, and Mr. Martin heard it differently 23 because Mr. Martin wasn't following all the ins 24 and outs, and Mr. Martin honestly wrote down what 25 he thought he heard, which would be a simple way NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2417 1 to misunderstand that communication.
2 MR. WISE: I think that is very 3 possible. And I think if you look at the context 4 of that conversation you can see what on this 5 point it is eminently reasonable.
6 If the discrepancy had .been about when 7 Mr. Geisen said something about what he did in 8 outage central in 2000, which was the focus of 9 Jack Martin's interview, it would be a little bit 10 more difficult to reconcile those. But Mr.
11 Martin clearly was not focused on when anyone 12 looked at the videotapes as the focus of the 13 conversation. And I think the possibility is 14 absolutely there.
15 The other thing that I think is really 16 of note on this though is that there really is no 17 plausible belief that Mr. Geisen actually did 18 look at these tapes in August given all the other 19 things that he described.
20 He described INPO which the Board has 21 a much better understanding of than I do, quite 22 frankly. He also described all of the 23 responsibilities for 13 RFO that he had pending 24 at that very time.
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2418 1 staff says essentially you have to take Mr.
2 Geisen's word for it. You do to some extent, 3 because Mr. Geisen has said, I didn't view those 4 tapes at that point. So part of the question is, 5 do you credit him, do you believe what you saw in 6 him, do you evaluate his demeanor and credibility 7 in that way?
8 But part of it is that the staff has 9 the burden as well. And there has not been a 10 single piece of evidence, or a single witness, 11 who has testified that Mr. Geisen saw those 12 videotapes in August.
13 You didn't hear from a single witness 14 who said, Mr. Geisen came to me and asked for the 15 videotapes. You didn't hear from a single 16 witness who said, we knew we were going to be 17 describing the re-review of the videos. in 2731 18 and Mr. Geisen was going to do that part of the 19 bulletin.
20 You haven't heard a single witness who 21 said he was involved in drafting the language on 22 2731. Not only do you know all the other things 23 that Mr. Geisen was involved in during that time, 24 but he wasn't - there was no evidence he was 25 involved in a function that would have put him in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2419 1 a place to do that.
2 So I think there are a number of ways 3 you can resolve that issue with Mr. Martin's 4 notes.
5 CHAIR FARRAR: In order to. accept 6 your theory of the case, do I have to view this 7 as like a hurricane analogy? Is all this stuff 8 swirling around, all these big winds and all 9 these documents, and all these statements, and 10 Mr. Geisen is right at the center of it. And are 11 you asking us to say, he was the eye of that 12 hurricane. All this stuff was happening around 13 him. But none of it really touched him. And it 14 looks later like, boy, he was at the center of 15 everything. But he really wasn't on top of or a 16 part of or generating all those winds and stuff.
17 MR. WISE: No, I don't - I wouldn't 18 use that analogy at all. I think that is the 19 analogy that frankly the government has tried to 20 give this Board, and I think that was the 21 dominant theme in the criminal case.
22 But I don't think that that is really 23 a fair read of what was going on.
24 CHAIR FARRAR: Well, if you push it 25 to its extreme it exonerates him.
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2420 1 MR. WISE: Right, but I don't like to 2 go that far out in the storm if I don't have to.
3 And I don't think the Board really has to, and 4 this is why.-
5 The -testimony of Mr. Goyal, the 6 selective emails that were presented that talked 7 about all of these warnings that were given to 8 Mr. Geisen, and that would form the body of the 9 hurricane, were not at the time warnings. At 10 least not to Mr. Geisen. And I think that is 11 fairly clear. The June documents that Mr. Goyal 12 referred to as a JCO that had the sentence in it 13 that Mr. Swim, according to Mr. Goyal, suggested 14 that he edit out.
15 I'm not sure what to tell the Board to 16 think of that. - But in order for that to be a 17 hurricane, I think there would have to be 18 consternation around that decision, with Mr.
19 Goyal going to other superiors and talking about 20 what is going on, and some effort to keep him 21 from talking about these things.
22 I know that is to some degree how he 23 portrays it now. I'm not sure that that is an 24 accurate depiction of how things were going down 25 at the time. But it certainly wasn't as to Mr.
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2421 1 Geisen that the conversation at the time the 2731 2 is being filed, and Mr. Siemaszko and Cook go 3 speak to Mr. Goyal, he now references that as a 4 situation where I believe he was trying to 5 suggest he was being pressured. There really is 6 no evidence of that either.
7 Now that may be what was happening.
8 But I think to characterize these things as a 9 hurricane I think takes them - blows them out of 10 proportion and ignores all the other things that 11 were going on at that time.
12 I mean I think of the INPO, quite 13 frankly, and this is a policy issue that I'm sure 14 the staff will lament, and they may well be 15 right. But I think it's fairly clear from Mr.
16 Moffett and Mr. Geisen's testimony that the INPO 17 examination in August was much more important to 18 Davis-Besse than 2731, and if you need evidence 19 of that, you can go back to August 28, where the 20 boss comes in and says to Moffett, I just got a 21 call from the NRC. They want us to shut down.
22 And Moffett says: send my underling out to take 23 care of this. I've got to finish up the INPO.
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2422 1 characterization.
2 CHAIR FARRAR: The INPO thing was not 3 just something that the company wanted to get a 4 good grade? As I understand it, if you look back 5 at the last 20 years, the industry will say that 6 it's performance is significantly because of the 7 work INPO does.
8 MR. WISE: I think that's right.
9 CHAIR FARRAR: It's not just that 10 they wanted to get a passing grade. This is a 11 big deal, both in terms of the company, the 12 industry, and protection of the public health and 13 safety.
14 MR. WISE: I think that is correct.
15 ADMIN. JUDGE TRIKOUROS: Mr. Wise, 16 you said August 2 8 h, that that conversation took 17 place on September 2 8 th 18 MR. WISE: September 2 8 th, thank you, 19 that's right.
20 CHAIR FARRAR: Mr. Wise, reduced to 21 its utter simplicity, the staff's case, page 25 22 of their opening - or their proposed findings of 23 fact and conclusions of law, makes it real 24 simple. Mr. Geisen's knowledge is in two parts.
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2423 1 top of the head with the inspection technique.
2 And the second is that boron deposits impeded 3 head inspections.
4 If you reduce it to its simplicity, 5 it's like I think they are telling us he knew 6 those two things. I think they are suggesting now 7 that he knew them. Everybody knows those two 8 things.
9 And even with our limited experience, 10 I sit here and say, of course everybody knows 11 those two things. Are you contesting those two 12 things?
13 MR. WISE: I don't think the first is 14 accurate, I think for the reason that I discussed 15 especially in response to Judge Hawkins' question 16 about what he knew about what you could see, I 17 think it's clear that Mr. Geisen knew it was 18 difficult to do the inspection. I don't think 19 the evidence supports that he knew it was 20 impossible to do inspections. I do think that 21 it's clear that he did know that flange leakage, 22 had he thought through the issue as he read 2731, 23 I think it is clear that Mr. Geisen knew that 24 there was flange leakage found at the as-found 25 state in 2000 which would make 2000 an inspection NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2424 1 that you couldn't look at every nozzle even if 2 you could get to the top with the camera.
3 CHAIR FARRAR: Did Davis-Besse have 4 worse flange leakage than most other places?
5 . MR. WISE: I can't speak to that, 6 although I don't think anybody on our side of the 7 case would tell you, knowing what we know now, 8 that the flange leakage was not significant and 9 extensive.
10 CHAIR FARRAR: Because I get the 11 feeling there is a coloration in this case that 12 the people of Davis-Besse, that was such a big 13 problem it. massed, I don't know physically but 14 figuratively, it masked their ability to see 15 other problems.
16 MR. WISE: I think that may be fair 17 in retrospect, Your Honor. I think what most - I 18 think what Mr. Geisen would say, and has said, is 19 that they worked under a mistaken belief that 20 they had a history of flange leakage, and that 21 what they were finding was a result of that 22 history.
23 And to the extent that led them not to 24 be more aggressive about exploring whether they 25 had a second cause, I think he spoke at great NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2425 1 length in his 01 interview about how that was 2 technical arrogance; about how that was something 3 that was a huge oversight -as a team on their 4 part. And I do think it colored what they 5 believed they were looking at.
6 CHAIR FARRAR: Before we get too far 7 down the road here, tell us about the testimony 8 from the criminal trial that we featured in one 9 of our bullets, and Ms. Sexton and I had a 10 discussion about.
11 MR. WISE: I think that also funnels 12 into your last question, which is that when you 13 boil the staff's case down to two things, even if 14 we conceded those two things I don't think that 15 ends the case. Because this is not a case about 16 had he been exposed to certain facts at a point 17 prior to the issuance of a bulletin, and then did 18- he sign up on the bulletin, even though those 19 facts weren't represented in the bulletin.
20 The question is, when he signed the 21 green sheet, when he approved the statements, did 22 he do so knowing that they contained false 23 statements, and intending to deceive the NRC.
24 And those are different questions.
25 Because I think what you see in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2426 1 criminal trial, and frankly what you saw a little 2 bit of in this case, is a situation where the two 3 issues about do you acknowledge that a fact was 4 brought to your attention, and was it on your 5 mind at the relevant time, are conflated.
6 And I think that is clearly what was 7 going on in the criminal trial. To the extent 8 that there was a failure by Mr. Geisen's lawyer 9 to object to a compound question, I don't think 10 you should hold that against him.
11 To suggest that somehow he was - that 12 the point of that cross-examination - admitting 13 yes, in fact, when I signed 2731 I knew it didn't 14 include things that I knew the question was 15 asking for, and I passed on it anyway, I just 16 don't think is consistent with what he has said 17 from the start in this case.
18 What he has acknowledged - and I don't 19 think you should hold this against-him - but what 20 he has acknowledged is that there were these 21 emails sent to him; he was advised that there 22 were issues with getting to the head because of 23 the lack of holes. I don't think he's ever 24 denied that he received these, which is why we 25 said from the very beginning of this case there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2427 1 were very few actual fact questions at issue.
- 2 And you weren't going to hear from Mr. Geisen who 3 said, I know my name is on. that email, but I 4 never read my emails, or something like that.
5 CHAIR FARRAR: But if you-push your 6 theory too far, we can never convict anybody of 7 anything. Because he says, okay, I read that 8 intensely yesterday. My boss and I talked about 9 it. But the next day when I did something else 10 it wasn't on my mind; I swear to you it wasn't on 11 my mind.
12 MR. WISE: Well, I don't think you 13 would believe that testimony if someone gave it 14 to you. And that is where demeanor and 15 credibility comes in.
16 What you have here is not that 17 situation. It would be a very different 18 situation if Mr. Geisen, this was at the core of 19 his responsibilities; it was what he had been 20 assigned to do from the start of the bulletin 21 responses; and he said to you, I know I read 22 that. I know it's the center of what I was 23 supposed to be doing. I know it was directly 24 relevant to what I was supposed to be focusing on 25 with a singular focus at the time. And I just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2428 1 missed it.
2 The fact that a witness-would say that 3 to you doesn't mean the Board would have to 4 credit it. And the other thing you would often 5 have, I think, that would tell you if somebody 6 who said that were being untruthful is some 7 evidence that they had a belief that what they 8 were saying was not true. And you could infer 9 from behavior, from emails, from communications, 10 if you had a single person who said, Dave Geisen 11 told me, don't tell the NRC this. Dave Geisen 12 said, don't put that in a table. Dave Geisen 13 said, don't send Andrew Siemaszko to the NRC a 14 week after I was there to show them videotapes.
- 15. If you had any of that type of 16 evidence, you would be able to take from that an 17 inference that notwithstanding what the witness 18 was telling* you, it was not credible, not 19 believable and not consistent with the other 20 evidence in the case.
21 But you don't have any of that. Which 22 is why I think it's a different situation from 23 the hypothetical you just posed to me.
24 CHAIR FARRAR: How strong an 25 indicator of truthfulness is it that he showed up NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2429 1 unannounced, unprepared, - and showed these 2 videotapes? I mean that is unheard of in my 3 experience.
4 MR. WISE: I do think that is 5 actually very indicative of his lack of 6 knowledge. Because as I said to you in December, 7 when we wrapped the case, essentially if you 8 believe that Mr. Geisen had viewed those 9 videotapes and knew what wag on them, and went 10 into that room with no familiarity with the room, 11 no familiarity with the equipment, with the means 12 of a videotape, i.e. not CD, not easily 13 controllable, you would have to believe that he 14 was a riverboat gambler to think that he could 15 pull that off.
16 It's inconsistent I think with what 17 you saw of him,, and it's also inconsistent with 18 basic commonsense.
19 Now as you look back on it, I think, 20 volunteering - and this I think I believe one of 21 Judge Trikouros' questions, his willingness to 22 volunteer to do tasks when he didn't have a 23 wealth of knowledge about what was on those 24 videotapes also looks a little bit crazy. But if 25 you put yourself into that time, he has been for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2430 1 two months- trading on information that he. has 2 been - not two months, strike that, five weeks -
3 trading on information that he has been gathering 4 from sources that he believes are the most 5 informed sources. He's been getting information 6 from Andrew Siemaszko, who as far as he 7 understands, has been familiar with these 8 videotapes, working with the videotapes, did the 9 2000 inspection, owns the head. He is taking 10 information from another engineer and 11 communicating. And I think he's said on a number 12 of occasions he wishes he had been much more 13 critical. But at the time he was not.
14 But to suggest that he walked into 15 that room knowing what was on those tapes, 16 thinking he could pull off whatever it is that he 17 is suggested to have pulled off I think is not 18 consistent with commonsense.
19 CHAIR FARRAR: He was not charged by 20 anybody with improperly showing those tapes, was 21 he?
22 MR. WISE: He was not.
23 ADMIN. JUDGE TRIKOUROS: Can you tell 24 me for a moment about Mr. Miller? Mr. Miller 25 gave Mr. Geisen those tapes to show to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2431 1 Commission - or to the staff, didn't he?
2 MR. WISE: I don't think that is Mr.
3 Geisen's recollection. I believe his testimony 4 was that he received them from Mr. Lockwood on 5 that afternoon when he arrived in D.C. after the 6 rest of the team. And Mr. Lockwood said, we've 7 set up a session with the staff; here *are the 8 videotapes. And then there was the afternoon 9 meeting that Mr. Geisen and Dr. Heiser (phonetic) 10 were in, and then they went to that session.
11 I don't believe Mr. Geisen said that 12 Mr. Miller provided those videotapes.
13 ADMIN. JUDGE TRIKOUROS: Lockwood, if 14 I remember correctly, he is licensing.
15 MR. WISE: Head of regulatory 16 affairs.
17 ADMIN. JUDGE TRIKOUROS: Miller is 18 licensing?
19 MR. WISE: Right.
20 ADMIN. JUDGE TRIKOUROS: And we did 21 see an exhibit where Mr. Miller indicated in a 22 footnote something to the effect that if the 23 staff sees these videotapes we are in trouble.
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- 2432 1 frankly know the context in which Mr. Miller 2 wrote that document.
3 CHAIR FARRAR: Come back to my 4 hurricane. Up until those five weeks Mr. Geisen 5 isn't really involved in these issues.
6 MR. WISE: No.
7 CHAIR FARRAR: I mean, yeah, he 8 approved the cleaning of the head and so forth.
9 But he's out there, and then all of a sudden all, 10 this stuff happens. So by the end of the case we 11 think he is the world's leading expert on this 12 subject.
13 MR. W ISE: Right.
14 CHAIR FARRAR: But that is hindsight.
15 Is the case totally different if you look forward 16 from August than if you look backward from 17 November?
18 MR. WISE: I do think it is 19 significantly different. But even looking back, 20 you have two enormous binders of documents 21 including the serial letter submissions. But we, 22 have, focused almost entirely on single lines or 23 single pages. Ms. Clark and I do agree that 24 these bulletins were extensive, or that the 25 serial letters were extensive. For example if NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2433 1 you look at 2735, that we focused on, had been a 2 couple of lines about the 1996 inspection.
3 There was an enormous presentation in 4 that document of the beginnings of the crack 5 growth rate and the propagation models which Mr.
6 Geisen has also said was a primary focus of his 7 management responsibilities was working with the 8 engineer that was constructing those models.
9 So even looking in hindsight I think 10 you can create a sense of focus on a singular 11 issue, when in actuality it was much greater than 12 that. The late discussions were much more 13 focused on the crack growth rate and the 14 propagation models.
15 Now there is no question that to some 16 extent they relied upon the inputs of Mr.
17 Siemaszko and the discussions of the past 18 inspections. But I don't think it would be 19 accurate to say that the five or six weeks that 20 we are talking about were solely focused on what 21 was in the 1996 inspection videotape. It was a 22 much greater discussion than that as well.
23 Let me address collateral estoppel 24 very briefly, because I think many of the issues 2.5 on the collateral estoppel are resolved.
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2434 1 I think the cornerstone for the Board 2 though is this. Collateral estoppel is a 3 discretionary application in a situation where 4 the Board can presume that a rational jury 5 resolved questions that were actually at issue 6 before us.
7 I think that the deliberate misconduct 8 instruction is a real issue, because I don't 9 think you can conclude what this jury was looking 10 at.
11 But one of the things we haven't 12 talked about yet is the acquittal on count five, 13 and that is an incredibly important point, I 14 think especially, Your Honor, in connection with 15 your question about what if the Board were to 16 conclude that the staff's suggestion was correct; 17 that this jury concluded Mr. Geisen had knowledge.
18 on October 1 7 th. Because in count five he is 19 acquitted for a document that makes a 20 representation about the nozzles that were viewed 21 in 10 RFO. If that jury concluded that Mr.
22 Geisen had actual knowledge that that was a false 23 statement on October 3 0 th, which is why they 24 convicted for count three, it cannot be that they
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2435 1 by November 1 S", which is why they acquitted on 2 count five.
3 Now I think there are a number of 4 things you could suppose as to-what led that. We 5 presented one of them in our brief- which I would 6 suggest is by far the most logical, which is that 7 this jury as many circuits have cautioned about 8 deliberate ignorance, took that instruction as 9 shorthand for, you can convict him on a 10 negligence theory or a should-have-known theory, 11 and concluded that on or about October 1 7 th when 12 Siemaszko comes back to him and says, here are my 13 results. We got to go back to '96, Geisen should 14 have been more skeptical of Siemaszko, and 15 therefore statements he makes based on Siemaszko 16 after that he is guilty for, whereas statements 17 based on the work of another, and 2745 was the 18 crack growth rate propagation model which was 19 largely the work of another engineer, if that 20 were the jury's thinking, it would not apply to 21 that count.
22 But I think the fact that I am 23 standing here speculating for you as to what I 24 believe is a reasonable interpretation undercuts 25 the belief that this-is a rational action by the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2436 1 jury that you can clearly conclude what they must 2 have concluded.
3 You've now heard from.Mr. Geisen, from 4 Mel Homburg, from Jack Martin. I think to apply 5 collateral estoppel now, in a situation where 6 presuming the Board found Mr. Geisen to be 7 credible, but felt obligated to find him less 8 than credible based on this convoluted jury 9 verdict I think would almost turn collateral 10 estoppel on its head.
11 So I think that is why it's sort of 12 inappropriate to apply it to this case, given the 13 inconsistent verdicts, the alternative theories, 14 and now the fact that any application of it would 15 actually mitigate against the efficiency 16 interests that often drives the application of 17 it.
18 If the Board has more questions on 19 factual record issues, I'm happy to take them.
20 If not, I'm going to defer to Mr. Hibey for 21 discussion of the due process issues.
22 CHAIR FARRAR: You've covered the 23 testimony from the criminal case sufficiently in 24 your mind?
25 MR. WISE: I think I have, Y our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2437 1 Honor. But the fact that you ask me about it 2 suggests that I have not. So let me -
3 CHAIR FARRAR: No, on, I recall you 4 addressing it, but it was as an adjunct to 5 something else. I wanted to make sure.
6 MR. WISE: I think the important 7 thing that the Board can take away from that 8 testimony is two things. One, to the extent that 9 it was a compound question and Mr. Geisen 10 answered yes, I think you can draw limited 11 conclusions from that.
12 Two, the suggestion that somehow- by 13 answering yes to the compound question of what 14 was asked, that he was somehow disavowing his 15 clear statements that when he signed 2731 he did 16 not know that that document contained a false 17 statement I think would be an unfair read from 18 that testimony.
19 But most importantly I think those 20 questions do conflate the issues. Because the 21 issue is not, did he know this fact at some 22 point. The question is, as he sat there and made 23 the statements, did he know what he was saying 24 was false and intended to deceive? And on that I 25 think there is just not sufficient evidence. In NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2438 1 fact I would submit there is no evidence that he 2 had knowledge and intent to deceive at the time 3 he was speaking.
4 CHAIR FARRAR: Thank you. Don't go 5 away. Don't go away.
6 On page 14. of your brief, paragraph 7 33, it's like you have a concern there that you 8 are saying that some of the things in documents 9 he did remember. He said, oh yeah, I did this 10 because that document said that.' But then he is 11 not held to knowledge of other things. Are you -
12 I was a little concerned you might be cherry 13 picking there, that he said, oh yeah, I took from 14 all that that the head was clean. But he didn't 15 take from that the stuff in the previous 16 sentences. Or am I misinterpreting that?
17 MR. WISE: I think that's a. fair 18 concern. That certainly wasn't our contentioh.
19 But the point of this paragraph similar to the 20 point that I was making a little bit earlier 21 about the August 1 7 th email, which discussed the 22 '98 and 2000 inspections, was really almost the 23 converse of your question, Your Honor, and that 24 is this: if we are going to assign to Mr. Geisen 25 knowledge out of some memorandum, we have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2439 1 fairly assign him the knowledge of everything 2 that is in it. I don't-think quite frankly that 3 it would be fair to take that document and say 4 that he had that in his mind, because I do think 5 he was asked that specific question, which is, as 6 you sat and did your green sheet, or as you sat 7 on the October 3 rd phone call, were you thinking 8 back to this document? And I believe he credibly 9 answered no, that he was not.
10 But I understand the Court's question, 11 especially on re-reading this as I stand here.
12 It was not our intention to suggest that he 13 absolutely knew the 2000 cleaning had been 14 successful based on this,.but rather, that if you 15 are attributing some, there are other things in 16 all of these documents that put it into context.
17 CHAIR FARRAR: Did we learn at the 18 hearing why Mr. Geisen always said we did 100 19 percent head inspection, and then a few seconds 20 later comes a qualifier? In other words, if you 21 asked me did you do 100 percent inspection? The 22 answer would be, no, we can't, but here is what 23 we did do. We did all but six nozzles or eight 24 nozzles. I'm puzzled by every time you say this, 25 yep, we did 100 percent inspection, but there is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2440 1 always a but-for, that, comes later, but that is 2 not how I would talk about things.
3 is there any conclusion we should -
4 MR. WISE: I can say this because Mr.
5 Geisen is on the phone and on mute, he is not a 6 short-winded man. If you read the 01 interview, 7 which is at staff exhibit 79, near the end of the 8 session, he is asked, do you have anything 9 further, and he says no and then he speaks for 10 four pages.
11 He I think has said that when he used 12 the term, 100 percent inspection, or whole head 13 inspection, he understood that to mean an 14 inspection that was not a sampling. There is no 15 question that he could have communicated that 16 more clearly.
17 But I think that the important point 18 for this proceeding, where he is accused of 19 trying to deceive, is that there always were 20 these qualifiers.
21 And that is a critical point. And now 22 that I have said that, let me veer off into one 23 other issue that I just realized I'd forgotten to 24 address, which is this, and it deals with the 25 Martin and the Geisen notes.
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2441 1 The suggestion that somehow that Mr.
2 Geisen may have been given an opportunity to 3 clarify what he said to Mr. Martin is just not 4 supported by the record. You have his interview; 5 it's a staff exhibit. It was, done two weeks 6 after they interviewed Jack Martin. They had his 7 notes. He is not asked a single question about, 8 didn't you tell Jack Martin you saw them in 9 August. And that is the importance of the 10 failure of the 01, is that you are now being 11 presented with evidence seven years later that 12 should have been clarified, that could have been 13 clarified, and was selectively not clarified.
14 CHAIR FARRAR: Thank you, Mr. Wise.
15 MR. WISE: Thank you.
16 CHAIR FARRAR: Mr. Hibey.
17 MR. HIBEY: Good morning, Your Honors.-
18 I think Mr. Wise has covered a considerable 19 amount of what the Court has asked us to address.
20 I think that perhaps a couple of comments with 21 respect to three bullet points that I think are 22 left for me to address in some fashion.
23 The first appearing on page two, the 24 second bullet point, the third bullet point, and 25 the bullet point regarding the table, Attachment NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2442 1 1 to the staff's.
2 The point of departure for what I have 3 to say, addressing issues of due process, is the 4 same that was characteristic of the Supreme 5 Court's -questioning of advocates. during J.he 6 Warren Court era. The. principal question before 7 the Court in matters of criminal procedure was, 8 was it fair? Was the process that was visited on 9 this person a fair one?
10 Now ordinarily that can be assumed 11 especially when you are in the context of a 12 hearing, of an administrative hearing 13 particularly, where there is a great deal 'of 14 attention paid to the rights of a respondent.
15 But what we have here is, based on the 16 totality of all the facts and circumstances which 17 have been discussed already, with the questioning 18 of the staff, and also to an extent Mr. Wise, 19 what we have here is that in the totality of the 20 circumstances that lead to the prosecution of Mr.
21 Geisen by the staff in this proceeding, we have a 22 break down in due process, and that break down 23 extends to the integrity of the fact finding that 24 formed the basis upon which the staff has put 25 forth a case.
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2443 1 Now in respect to the bullets that 2 speak to the question of limitations on the 3 staff's claim that any due process concerns may 4 be disregarded, because the staff is just a 5 prosecutor, I think points up what I'm trying to 6 convey to you here. In the circumstances of a 7 case where their investigation went on and where 8 this man was employed in a nuclear regulated 9 industry for a period of three years. When they 10 came out not coincidentally shortly before the 11 indictment was returned in this case, they acted 12 in this instance not only just as the 13 prosecutors, but as the judge, the jury and the 14 executioner.
15 And I don't think that that thought 16 can be or should be lost on us. I'm not going to 17 review with you what has already been discussed 18 about how the coalescence of time and 19 circumstance worked to such disfavor. Let me 20 move on to the next bullet point and see if I 21 can't go from that to the last point that I'd 22 like to address.
23 CHAIR FARRAR: Wait, suppose one or 24 more of us agreed with you on what you just said, 25 that they-acted as prosecutor, executioner and so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2444 1 forth, what should we do with that? Does that 2 provide a basis if we think Mr. Geisen is 3 otherwise guilty to say he's not guilty because 4 he was maltreated? Or does it say if.we find him 5 guilty it's a-basis for not giving the staff any 6 credence to its sentence because they don't know 7 what they are doing, or give him some time off 8 from his sentence because he was badly treated by 9 his government? What do we do if we were to 10 agree with what you just said?
11 MR. HIBEY: What you do is understand 12 what the impact of that phenomenon is on the 13 question that I would pose to you is, where this 14 impact should be assessed. And that is, not as a 15 matter simply of unfair administration of a 16 process, you could write and comment about that, 17 and hopefully the NRC at some point will 18 understand they've got a real problem here. But 19 to take the flaws that are so wrapped in a 20 violation of due process and ask yourself the 21 question, does it in fact affect the integrity of 22 the fact finding? Of the evidence that is now 23 being adduced, in support of a position calling 24 for the maintenance of a five year ban on this 25 man's life?
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2445 1 And what I would suggest to you is.
- 2. that it goes to the Very question of the 3 integrity of the fact finding.
4 ADMIN. JUDGE HAWKINS: Could you back 5 up for a *second?
6 MR. HIBEY: Please.
7 ADMIN. JUDGE HAWKINS: It's not clear 8 to me when you say this was tainted by due 9 process violations because of the timing, vis-a-10 vis the indictment.
11 MR. HIBEY: Not only that, by the 12 timing, yes -
13 ADMIN. JUDGE HAWKINS: And why, wrap 14 it all up, because I don't see a due process 15 violation, and I'd like you to explain it to me 16 if you would.
17 MR. HIBEY: For us the due process 18 violation begins with the manner in which the 19 *evidence was assessed, gathered and assessed by 20 the 01; the manner in which it was then processed 21 by the enforcement people, Mr. O'Brien and his 22 group. Thus leading to a conclusion which you 23 could see upon cross-examination of Mr. O'Brien 24 fairly held up. Mr. O'Brien, once you put aside 25 the question of, well, I'll have to look into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2446 1 that, and let me get back to you, as if it were 2 some kind of deposition, Mr. O'Brien could not 3 explain the process that the enforcement panel 4 people went through to come to the conclusions 5 that were being advanced to him .and his people by 6 the 01 - an O with whom he never had a 7 conversation, an 01 that had before it the wide 8 open language that Judge Trikouros referenced in 9 the Miller notes.
10 But no one ever pursued, no one sat 11 down with Mr. Miller and said, all right, now 12 wide open, what does that mean?
13 ADMIN. JUDGE HAWKINS: Mr. Hibey, if 14 this board were to disagree with your view of the 15 evidence and find that the staff met its burden, 16 does that - what does that do then to your due 17 process argument?
18 MR. HIBEY: The - I would say it would 19 strike a very difficult blow to it. It would 20 leave us wondering how you got there. But it 21 might have a bearing on the issue of the 22 punishment or the sanctions that you would 23 impose, because then it would be a question fo 24 whether, notwithstanding that you feel that the 25 staff met its burden, has he been fairly treated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2447 1 as a matter of administration.
2 ADMIN. JUDGE HAWKINS: It's similar 3 to the question I asked the staff, doesn't this 4 due process argument - if I understood them, it's 5 we have to put that aside, that is clear and 6 distinct from the merits.
7 I view it as merging with the merits.
8 If it's tainted, then it certainly is an argument 9 that you can advanced. But it's merged with the 10 merits, and'not independent, not standing alone.
11 MR. HIBEY: That's right, Your Honor.
12 And I think we are saying the same thing but 13, using different frames of reference. When I 14 merge it with the merits-, I'm talking about the 15 issue that I call the integrity of fact finding.
16 That goes to the merits. I'll give you a good 17 example-18 ADMIN. JUDGE HAWKINS: And ultimately 19 it goes to the sufficiency-20 MR. HIBEY: - of the evidence.
21 ADMIN. JUDGE HAWKINS: - of the 22 evidence.
23 MR. HIBEY: Yes, Your Honor. That is 24 correct. I was going to indulge in another 25 analogy, but I don't think it's necessary because NEAL R., GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2448 1 you get my point.
2 And what I am saying is that we look 3 at something like the wide open memo, or the
- 4. failure to give Mr. Geisen an opportunity to 5 explain himself at a time when he knows that he 6 is- that he is the target of an investigation, 7 that did not happen when they interviewed him in 8 '02, they simply interviewed him; gave him no 9 warnings, nothing.
10 And when you take a look at the 11 testimony of Mr. O'Brien who is - who could not 12 explain how it is that the 01 would write in its 13 report that the Martin testimony that it received 14 was of no value, and yet somehow we have here a 15 prosecution predicated on a memorandum of Mr.
16 Martin that is not in his original hand; was 17 typed by somebody else; which is loaded with 18 typographical errors that raise questions about 19 person and tense and mood. And then you see how 20 that particular memorandum is referenced in an 21 enforcement panel memorandum where they don't 22 even focus on the use of the word, interactions, 23 but simply say, interacting.
24 I mean those are - those are important 25 points, or are they? They are, because that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2449 1 what the staff is -relying on here to continue the 2 imposition of this m an's penalty, and command or 3 demand that a conclusion flow therefrom that it 4 was right to impose that penalty on him in the 5 first place.
6- Now we don't think that is the .case.
7 That has all been I think more than adequately 8 argued by Mr. Wise, and I'm not going to repeat 9 it 10 Let me go on with this due process 11 overlay if you will that I think is important to 12 your deliberations.
13 The question is put to us: the 14 applicability of documents *from criminal cases 15 that prosecutorial misconduct can taint a verdict 16 not withstanding the adjudicatory role of the 1.7 court. I think. we have attempted to explain 18 that.
19 But I wanted to stop at that point.,
20 because the phrase, prosecutorial misconduct, at 21 least in the criminal law, has a very narrow 22 application. It. speaks to the conduct of the 23 prosecutors and no one else. It doesn't embrace 24 the misconduct of the police. The misconduct of 25 the police is otherwise addressed.
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2450 1 In the case of prosecutors for 2 example, if they withhold evidence favorable to 3 an accused under the principles of Brady, the 4 Supreme Court case in Brady, they can be held to 5 account for that, and if that withholding -of 6 evidence goes to the degree that it affects not 7 only the fairness but the integrity of the 8 prosecution, the prosecution can be set aside.
9 Or if you have a situation in which 10 the conduct of the prosecutors shocks the 11 conscience under the Supreme Court case, the 12 flagship case, Rochin against California. Then 13 yes, of course in Rochin as I recall the stomach 14 pumping was done by the police, but it shocked 15 the conscience.
16 There are cases in which that 17 particular standard is used in cases where 18 prosecutors -misbehave, egregiously. We have 19 cases where -
20 CHAIR FARRAR: What do we have here?
21 Do we have anything here -
22 MR. HIBEY: I'm not going to label 23 anything in the nature of misconduct by these -
24 by the staff.
25 And certainly if whoever drafted this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2451 1 bullet never had that in mind in terms of these 2 people. It was more a catch phrase, analogy, for 3 all the bad things that we talked about, 4 possible, potentially bad things. that ,.happened 5 during the course of the investigation and 6 enforcement proceeding and* so forth. And not 7 anything -and that's the way staff lawyers 8 handled themselves, so it was more an analogy.
9 CHAIR FARRAR: Are the things that 10 happened here sufficiently analogous to 11 prosecutorial misconduct of the kind you talked 12 about so that something needs to be done?
13 MR. HIBEY: Yes.
14 CHAIR FARRAR: Okay, tell me what 15 that is.
16 MR. HIBEY: Basically yes. For the 17 reas-ons that I've just shared with you in terms 18 of the enormous flaws which are immediately 19 evident and which were explored in the hearing 20 with reference to the manner in which the 21 evidence was brought together by the 01, and 22 particularly the manner in which the enforcement 23 panel evaluated and took its actions and 24 recommendation, I say offends the system. of 25 fairness that we constitutionally have a right to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2452 1 expect.
2 CHAIR FARRAR: Is waiting three years-3 to do an immediately effective order part of 4 that?
5 NR...HIBEY: Yes, undeniably. .The man 6 is working in the sector for three years without 7 incident. And from all indications honorably..
8 And yet, at a certain moment in 2006, that all 9 changes. I suggest at a minimum, cynically so, 10 because of the fact that he was about to be 11 indicted.
12 ADMIN. JUDGE HAWKINS: Let me 13 - understand your position. Is it your position 14 that the staff may not impose an immediately 15 effective enforcement order and the Commission 16 may not at the same time defer to a request by 17 the Department of Justice to hold off on an 18 administrative challenge to that order pending 19 the completion of a criminal action? That's a 20 due process violation?
- 21. MR. HIBEY: We think it is. I don't 22 'know that you need to get there, because that is 23 a question of the administration of justice.
24 This does not necessarily take us to the question 25 of how the integrity of the fact-finding that led NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2453 1 to any kind of prosecutio0n of this man in this 2 court was arrived at.
3 What you just pointed out I think is 4 one of the most cynical positions that I have 5 heard in terms of the administration: of justice; 6 that they could wait three years, decide that he 7 is a danger to the public health and safety, take 8 his right to work away from him; and then no less 9 than four times come before this panel and demand 10 that you continue the case so as to accommodate a 11 criminal prosecution of this man.
12 ADMIN. JUDGE HAWKINS: What impact on 13 your position would it be if the Board were to 14 find that the staff showed by a preponderance of 15 the evidence that he was in fact guilty of the 16 charges? Then there would be no due process 17 violation, would you agree?
18 MR. HIBEY: There would not be a due 19 process violation that would affect the verdict 20 on the merits of whether he lied. I believe I'd 21 have to concede that.
22 Now, then we'd be arguing about -
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2454 1 aspect of it?
2 MR. HIBEY: No, Your Honor, I would not 3 concede that. I'd consider that an outrage. But 4 as you can imagine, we are here to argue that he 5 in fact is not guilty of anything.
6 CHAIR FARRAR: Are we only arguing 7 about its impact on him, not upon the impact of 8 these peculiarities on the public's interest in 9 the fair administration of justice?
10 MR. HIBEY: Well, I think they are one
- 11. and the same.
12 CHAIR FARRAR: Judge Hawkins' 13 question correctly goes to, did it - if he's 14 found guilty did it affect him. Can you concede 15 - can you say to him, yes, it didn't affect him, 16 but this is not the way the government-should be 17 permitted to do its business?
18 MR. HIBEY: Yes, I can say that. I 19 think we are saying that. It's just that that is 20 - I have to recognize that within the spectrum of 21 possibilities, taking on this argument of due 22 process, that that is certainly an argument we 23 make. That completes the logic of our position.
24 But that's at the end of the spectrum, 25 and in terms of strictly in terms of results, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2455 1 we. are all about results for our client, the 2 impact on the public, and on the citizen's right 3 to be fairly treated in whatever form- of 4 government he appears in is of extreme 5 importance, certainly to this Agency, and this 6 court.
7 It is of importance to us because we 8 raise it. But the significance of all that 9 comes, for us, in the spectrum of things before 10 we get to that point, where it truly affects the 11 very questions of his guilty or innocence. And 12 that is why we felt that this was an important 13 point for us to make on the basis of the evidence 14 in this hearing that came out through the 15 testimony of Mr. O'Brien.
16 So that when we turn, lastly, to the 17 analogy in the bullet, regarding Sarbanes-Oxley, 18 and the necessity under that statute to prove 19 actual knowledge, notwithstanding the purpose of 20 the law, I think that that has been addressed 21 here in the arguments this morning.
22 But if L might put still another finer 23 point on it, I will. I think in the staff's 24 brief they recognized, or they acknowledged that 25 they could talk about Sarbanes-Oxley in response NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2456 1 to a question put by the court, they didn't think 2 Sarbanes.Oxley had any immediate application.
3 But we can learn something from 4 Sarbanes-Oxley. We can learn something also from 5- the history of the legislation involving the 6 Foreign Corrupt Practices Act.
7 Sarbanes-Oxley,. the focus is on actual 8 knowledge. The prosecution of a CEO who signs 9 off is based upon his actual knowledge of the 10 content of the document. Something he is now 11 charged with under a whole panoply of laws and 12 requirements that arose as a, result of the 13 collapse of Arthur Anderson and Enron. That 14 should be distinguished from what is happening 15 here, where I think you have ample evidence in 16 terms of the testimony you've heard, that when 17 Mr. Geisen signed 2731 at the end of August,
-18 2001, he was looking for the technical accuracy 19 generally. He wanted to be sure that the people 20 who were the specialists had signed on before he 21 did, or at that point in time where he would be 22 called upon to do so.
23 That is a far cry from the kind of 24 actual knowledge that is being imposed on a CEO 25 of a public company who is :being asked to sign NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2457 1 off and certify his knowledge of a very 2 complicated document.
3 Now, in the Foreign Corrupt Practices 4 Act, just to be able to give you a sense of the 5 importance of the actuality of knowledge, in 1977 6 when that statute was passed, it would prosecute 7 a violator who knew or had reason to know that a 8 payment made to a foreign official was to obtain 9 or retain business for the company.
10 There were a number fo attempted 11 prosecutions from that date in December of 1977 12 until I think well into the - through the '80s 13 and I think probably into the early '90s, where 14 it was realized that this was a very unfair 15 standard, because they were prosecuting somebody 16 criminally for what he knew, or had reason to 17 know.
18 So they amended the statute, and left 19 it only in terms of actual knowledge. So that 20 the prosecution of an individual for foreign 21 corrupt payment would be based upon his knowledge 22 that that payment was being made to obtain or 23 retain business from payment to the foreign 24 official.
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2458 1 because it, I think, should drive the -manner in 2 which the court focuses upon the question of 3 actual knowledge and intent to deceive.
4 Now, what is that function of 5 knowledge that we ask you to bring to your 6 deliberations? It is the difference that we have 7 highlighted in our brief between imputation on 8 the one hand and inference on the other.
9 It is the difference between looking 10 at the liability of a corporation, something that 11 I dare say and I'm only guessing here, a-lot of 12 that comes before the Board in various ways when 13 companies before the.Board, versus the liability 14 of an individual.
15 So if you think about the knowledge 16 function in terms of an individual, then it is 17 not right to impute a pile of carbon copied 18 emails over a period of however many months that 19 contained slivers of information of one sort or 20 another, and are never capped off - never capped 21 off - by one-on-one conversation between the 22 author of these trip reports or these various 23 other memoranda, and our client, Mr. Geisen.
24 And at a critical moment, for Mr.
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2459 1 end of August, 2001, when he had a conversation 2 the day before he signed, and sent an email 3 wondering about whether we should have certain 4 language in 2731, then signs 2731, signs it, so 5 that the document now is in the format that goes 6 after other signatures through Mr. Geisen. The 7 day after he signs it, he contradicts the verity 8 of the content of 2731 and therefore his 9 signature does not absolutely nothing about it.
10 And does not at any time in that time frame or 11 any time preceding on the basis of his evidence, 12 have reported to us one nanosecond of a verbal 13 conversation between him and Mr. Geisen.
14 And what we have is the clear evidence 15 on this record of this man's admission that he 16 lied to the NRC. That's what we are -
17 ADMIN. JUDGE TRIKOUROS: Mr. Hibey, 18 that email that Mr. Goyal sent out prior to 19 signing 2731, refresh my memory, I believe we 20 ascertained in the hearing that Mr. Geisner was 21 not on copy for that; is that correct?
22 MR. HIBEY: That is correct, Your 23 Honor. That is what I'm sorry if I didn't make 24 that clear in my little rant. He is not copied 25 on that email. He is not copied on the email NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2460 1 immediately after. And there is no conversation 2 whatsoever between him and Mr. Geisen on the 3 subject.
4 Now that needs to be evaluated in 5 terms of Mr. Geisen's knowledge. What we are 6 suggesting to you is the need for you to - before 7 you can conclude that he has in fact lied, in 8 these documents frankly to you, is that he had a 9 conscious awareness at that moment of all the 10 facts the government wishes to impute to him.
11 And I don't think you can do that.
12 CHAIR FARRAR: And if I don't know if 13 I can do it, do you win the burden of proof?
14 MR. HIBEY: Yes, because you can't 15 prove the knowledge factor, even before you get 16 to the question of whether he intended to lie.
17 And I'm suggesting to the Court that's 18 the kind of deliberation you need to understand 19 on the basis of this evidence.
20 CHAIR FARRAR: Is the case that we 21 thought was so complicated that simple? We don't 22 know if he knew, burden on the staff, they lose?
23 MR. HIBEY: I think it can be simply 24 stated. I don't know that I could have done this 25 for you before the hearing. I don't - we know so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2461 I much-more. We have gotten evidence in. We have 2 -heard from witnesses. This is where the 3 credibility and demeanor function that you have 4 as part of your deliberations comes into play.
5 The idea of coming to a judgment is-to 6 render it in terms ultimately that are simply 7 understood. It doesn't mean that the issues are 8 simplistic to begin with. This is why we have 9 the experience of taking the evidence; we 10 deliberate upon it; and we form a judgment. And 11 that is a process I'm asking you to indulge.
12 But I am trying to advance for your 13 consideration the methodology within those 14 deliberations that I think is important. That 15 there is a difference between imputation and 16 inference; and there is a real difference between 17 what you are going to impute to a company- bad 18 management, horrific management, whatever the 19 description was that Judge Trikouros' offered 20 earlier in the colloquy with Mr. Wise. And the 21 knowledge, and intent, of Mr. Geisen at the 22 specific moments in time that had been focused on 23 by virtue of the charges that have been brought 24 to him.
25 CHAIR FARRAR: Mr. Hibey, if that -
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2462 1 MR. HIBEY: I think that does it,
-2 because I think what we've had to say about the 3 table is laid out in our brief, and I don't think 4 .any more need be said about that.
5 ADMIN. JUDGE HAWKINS: One question 6 for you, Mr. Hibey. Your position that there Was 7 a due process violation because this proceeding 8 was held in abeyance pending a criminal action, 9 would that violation have been remedied if the 10 staff had taken away the immediate effective 11 aspect of the penalty during the pendancy of the 12 criminal proceeding in your mind?
13 MR. HIBEY: I think it would have 14 changed the circumstances, dramatically, yes, if 15 he could have still maintained his employment 16 wherever he was, in Kiwanee (phonetic) I think 17 was the name of the place.
18 ADMIN. JUDGE HAWKINS: That leads to 19 a follow up question, though. The staff has an 20 obligation to make it immediately effective if it 21 concludes it's willful or it's a threat to the 22 public health and safety. And those are, I think 23 you would agree, significant public interests, if 24 the staff makes that conclusion, it should have 25 the power to act, and make an order immediately NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2463 1 effective.
2 MR. HIBEY: They have the- power; it's 3 a question of how you use it. What we have here 4 is an abuse of the power. And that's where I'm 5 troubled. But I'm suggesting to you that while 6 that is the case, and it speaks to the 7 administration of justice, what happened before 8 hand is really terrifically bad and unfair, 9 because it goes to the very essence of the facts 10 that are now being laid out before you, and you 11 are being asked to conclude that this man lied.
12 It's just -
13 CHAIR FARRAR: They didn't make a 14 finding - they said it was willful, but they did 15 not make a finding that he was a threat to the 16 public health and safety, did they?
17 MR. HIBEY: Who?
18 CHAIR FARRAR: The staff.
19 MR. HIBEY: Somebody did. They pulled 20 his ticket.
21 CHAIR FARRAR: Well, I thought they 22 said that you can pull his ticket - as you just 23 said, they have the power to pull his ticket if 24 it's willful. You said, well the fact that they 25 have the power doesn't mean they exercised it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2464 1 properly.
2 MR. HIBEY: That is correct.
3 CHAIR FARRAR: I take it it would be 4 a proper exercise if they said, not only do we 5 have the power, but we have to do it because he 6 is a danger.
7 MR. HIBEY: But again it's a question 8 of how you exercise the power. I mean they have 9 always used the phrase, danger to the public 10 health and safety. I suppose that is almost 11 mantric around here. So it's a question of how 12 you exercise your power to enforce the question 13 of public health and safety, and how you do that 14 on the facts as they have done it here is 15 evidence to us that that power was not properly 16 exercised.
17 ADMIN. JUDGE HAWKINS: And I 18 understand, and this goes a lot towards your 19 view, that there is simply inadequate evidence to 20 support it. But looking at it through the lens 21 of the staff, at the time they concluded there 22 was adequate evidence, and if they concluded a 23 willful violation occurred, it's not an 24 unreasonable leap, given that they rely on the 25 integrity of the employees of the nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2465 1 licensed industry to assume that somebody who is 2 going to lie to them will pose a threat to public 3 health and safety, is it?
4 MR. HIBEY: That is the logic of it.
5 ADMIN. JUDGE HAWKINS: That's 6 illogical?
7 MR. HIBEY: That's - I say that is the 8 logic of it. That is the logic of it. Where the 9 collision occurs is with the reality, and that is 10 what we, unfortunately, are confronted with, 11 especially with a client who has been out of the 12 business for God knows how many years.
13 So I don't disagree that that is the 14 process in the ideal. How the process was 15 applied is another question altogether, and 16 that's the one we bring to you. And we say it 17 was unfairly applied to him, - and worse, the 18 process entertained a flawed mechanism.
19 ADMIN. JUDGE HAWKINS: In this 20 particular case, I just want to understand the 21 scope of your argument. You are not saying the 22 process on its face violates due process. You 23 are saying the specific facts here violates due 24 process?
25 MR. HIBEY: That is correct, yes, Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2466 Honor.
2 CHAIR FARRAR: Thank you, Mr. Hibey.
3 Ms. Clark, you or Mr. Sexton, did you 4 want to reserve some time for rebuttal?
5 MS. CLARK: Yes, thank you. Can I 6 just have a minute or two?
7 CHAIR FARRAR: Yeah, and during that 8 minute have somebody look at footnote 16 of the 9 staff response to our questions.
10 MR. HIBEY: What is the date of that?
1i CHAIR FARRAR: January 3 0 th.
12 MR. HIBEY: Thank you.
13 (Whereupon at 12:45 p.m. the 14 proceedings in the above-entitled 15 matter went off the record to return 16 on the record at 12:48 p.m.)
17 CHAIR FARRAR: Ms. Clark, how much 18 time do you think you will need?
19 MS. CLARK: I would expect I'll be 20 done within 30 minutes, certainly.
21 CHAIR FARRAR: Thirty?
22 MS. CLARK: Yes. Fifteen minutes, 23 perhaps?
24 CHAIR FARRAR: Yeah. I mean we don't 25 try to equalize time, because we had more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2467 1 questions of you than we had of Mr. Geisen. But -
2 MS. CLARK: I will endeavor to be 3 brief.
4 CHAIR FARRAR: I think I'm older than 5 I was in that case you cited in footnote 16, and 6 I'm not sure I can go another half hour.
7 okay, go ahead. Mr. Wise, you are all 8 set?
9 MR. WISE: I am, thank you, Your 10 Honor. If the court doesn't mind if I stay until 11 about five until, thank you.
12 CHAIR FARRAR: Thank you.
13 REBUTTAL TESTIMONY BY COUNSEL FOR THE COMMISSION 14 MS. CLARK: I'd like to start to talk 15 a little bit about the investigation.
16 Mr. Geisen's counsel has made some 17 allegations that the- investigation was somehow 18 woefully inadequate. And I'd like to put on the 19 record some facts about our investigation.
20 This investigation was conducted by 21 three full-time staff individuals, and it was 22 conducted over the course of 16 months from 23 initiation until the issuance of the 24 investigation report.
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-2468 1 required over 4,400 hours0.00463 days <br />0.111 hours <br />6.613757e-4 weeks <br />1.522e-4 months <br />. The total man hours 2 for that investigation totaled nearly 8,500 3 hours.
4 The NRC issued six subpoenas, 5 conducted 92. interviews, reviewed 82,000 pages of 6 records, and evaluated 400 minutes of inspection 7 videos.
8 The investigation report included 272 9 exhibits.
10 This investigation was subject to 11 extensive oversight here in the agency. 0I 12 management received multiple briefings on the 13 investigators' preliminary findings. Briefings 14 were provided to the regional administrator in 15 Region 3; the director of NRR; the executive 16 director of operations; and the Commission.
17 In such an incredibly extensive and 18 complex investigation it is not surprising that 19 Mr. Geisen's counsel has been able to identify 20 one or two areas where one could argue that oh I 21 could have done some more inquiry. But this 22 certainly does not mean that the investigation 23 was in any respect woefully inadequate. One 24 could say that about virtually any investigation, 25 I dare say, that one has the opportunity to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2469 1 review.
2 Furthermore, in the context of due 3 process, it is not clear to me how Mr. Geisen is 4 entitled to some sort of threshold level Of 5.- adequacy of the investigation. If there was..a 6 problem in the fact finding of this case, in the 7 terms of the inadequacy of the facts to support 8 Mr. Geisen's guilt, then that would be remedied 9 by the fact that the staff in making its case 10 would be unable to meet its burden.
11 CHAIR FARRAR: That gets to footnote 12 16. You cite in support of the notion that the -
13 what the staff does is kind of irrelevant because 14 they are only the prosecutor. It's up to the 15 licensing board to be the fact finder.
16 That case was a not immediately 17 effective order. It was a civil penalty only.
18 So when you say, hey, we the staff - I'm 19 paraphrasing - we the staff throw out these 20 orders whether our investigation is good bad or 21 indifferent doesn't matter, because before 22 anything happens this person is going to get a 23 hearing in front of a board that will be fair, 24 and his rights will be taken care of - that is a 25 great case for that proposition in that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2470 1 -circumstance.
2 This was an immediately effective 3 order that took his job away. So as valid as the 4 radiation technology case might be in its 5 context, it tells us nothing about this case, 6 does it?
7 MS. CLARK: Well, I agree 8 wholeheartedly with what you have said. And the
- 9. distinction I was trying to make earlier, which I 10 think I did not do clearly enough, is that there 11 is a mechanism whereby individuals who are 12 subject to immediately effective orders can 13 challenge them based on the adequacy of the 14 investigation that supported the fast action.
15 And that is the hearing that they are entitled to 16 request on the immediate effectiveness.
17 CHAIR FARRAR: But we know what is 18 going to happen in that hearing. You are going 19 to ask a lot of questions, and you are going to 20 say you are asking too many questions, and you 21 are going to run to the Commission and say, they 22 are asking too many questions. They only get a 23 very limited review. And here goes the licensing 24 board trying to make it too big a review. That 25 gets held to the merits.
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2471 1 MS. CLARK: But the staf f in that 2 hearing has to establish that it has obtained 3 sufficient evidence to support its enforcement.
4 CHAIR FARRAR: And it can't lose, 5 because it will come up with some stuff and 6 nobody will know enough to challenge it at that 7 point. There is no discovery; there is no 8 nothing. Mr. Martin will come in with his notes, 9 and we will not have reason to disbelieve him, 10 and it's taken us all this time to get to the 11 bottom of this case, and to figure out what's 12 really at stake, and what really happened here, 13 and there is no way we can do that, and if we try 14 to do it in 10 days you all will run up to the 15 Commission and say, there they go again.
16 MS. CLARK: You are correct. it 17 takes - it's a long complex process. It. takes a 18 lot of time. That is primaril y the reason that 19 we are here so much after the fact, when he was 20 actually banned.
21 However, the question with regard to 22 the adequacy of the investigation is really 23 besides the point here. The question is whether 24 there was some misconduct or error that violated 25 Mr. Geisen's right to a fair trial.
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2472 1 CHAIR FARRAR: Or under the Steeltank 2 Barge case, where there was a convolution of 3 circumstances, each one of which was okay, but 4 which added up so that you said at the end, hey, 5 this can't stand.
6 MS. CLARK: Correct. And the way 7 that happens is the circumstances where evidence 8 has been suppressed, or the government has relied 9 on improper evidence -
10 CHAIR FARRAR: In Steeltank Barge 11 nothing wrong was done. Every single step in 12 that case -
13 MS. CLARK: There was, I believe 14 there was an inadequacyin notice.
15 CHAIR FARRAR: No, no, they followed 16 all the rules.
17 MS. CLARK: Yes, but fundamentally 18 the way the rules work, they didn't give him real 19 notice.
20 CHAIR FARRAR: But every step was 21 followed.
22 MS. CLARK: Correct.
23 CHAIR FARRAR: Okay, keep this case 24 real simple. Here you have at the end of the 25 enforcement case here, you are allowed to give NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2473 1 Mr. Geisen an opportunity to be heard.
2 MS. CLARK:. Correct.
3 CHAIR FARRAR: And they chose not to 4 give him that opportunity.
5 MS. CLARK: I understand that, and I 6 understand that you are concerned about -
7 ADMIN. JUDGE HAWKINS: Well, I don't 8 think that is a concession you have to make, 9 counsel. He had an. opportunity to request a 10 hearing to challenge 11 CHAIR FARRAR: No, no, I meant before 12 the enforcement order issued.
13 MS. CLARK: I was referring to the 14 enforcement conference. And I hear your concern 15 about offering him an enforcement conference.
16 And - but the question before you now is whether
'17 that resulted in any unfairness that would taint 18 your decision on the merits.
19 CHAIR. FARRAR: It's not going to 20 taint - well, I don't look at it now as tainting 21 my decision. I look at it as imposing three 22 years of horrible burden on him which could have 23 been avoided.
24 MS. CLARK: Correct. But the 25 standard for violation of due process is whether NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2474 1 the error or misconduct tainted the process so 2 that the outcome of the final adjudication was 3 unfair. And that won't happen in this case, 4 because you were able to hear Mr. Geisen's 5 testimony for yourselves.
6 CHAIR FARRAR: If he loses, in a 7 sense we have no problem. If he loses we'll all 8 say, yep, the system worked out right; he was 9 guilty; he lost; who cares whether he paid for it 10 ahead of time or afterwards.
11 If he wins that is when we're really 12 concerned. He wins, and in the vernacular, he 13 got screwed.
14 MS. CLARK: And I can-understand your 15 concern. But I don't believe that you should 16 allow that concern to influence your decision in 17 this case. I think your obligation to make your 18 decision on this enforcement order based on the 19 evidence that was presented before you in this 20 hearing, if you find that the staff has met its 21 burden of proof here, you must find that he is 22 guilty, and you must judge the sanction based on 23 the severity of the violation.
24 CHAIR FARRAR: Okay, is the sanction 25 - does the sanction depend on the unfairness of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2475 1 it? In other words if I suffer a three-year 2 penalty because I good and well deserved it, I 3 may not be happy but that's life. But if I 4 suffer a three-year penalty without having a fair 5 hearing, without having a fair hearing first, 6 that's the kind of thing that drives people crazy 7 and why we have a limited form of government 8 because we don't want the government doing that.
9 So my question would be, suppose he is 10 found guilty. He served three years already 11 without having had what he is supposed to get is i2 a hearing in advance. So can we say the three 13 years plus that insult is the same as the five 14 years?
15 MS. CLARK: Your Honor, under our 16 adjudicatory processes, and our enforcement
- 17. processes, Mr. Geisen and any other individual 18 who is subject to an immediately effective order, 19 does not - is not entitled to a hearing before 20 the imposition of that sanction.
21 CHAIR FARRAR: Even in the criminal 22 law people are entitled - Bernie Madoff is still 23 walking around New York City. The prosecutor 24 can't impose the penalty. That's fundamental to 25 American jurisprudence, except in this room where NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2476 1 you all think you can impose the penalty, and 2 we'll get around to it later. Where does that 3 come from?
4 MS. CLARK: My answer would be that 5 that comes from the Commission's adjudicatory 6 processes, and the way to fix that problem is to 7 request or ask the Commission to alter its 8 processes.
9 ADMIN. JUDGE HAWKINS: Doesn't -
10 hasn't Congress effectively ratified this type of 11 process in the APA where it allows immediately 12 effective orders so long as the individual has an 13 opportunity to a reasonably rapid challenge of 14 that order?
15 MS. CLARK: Yes, and the Commission 16 dealt with this directly, when they afforded the 17 provisions in 2.202 that allow individuals the 18 opportunity to immediately - challenge the 19 immediate effectiveness of the order.
20 And once again those are the processes 21 that we are operating under. And to the extent 22 that they are - you feel that they are deficient 23 that the way to fix it is to alter the 24 regulations.
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2477 1 suggested, for you to exercise your power with 2 some - and I'm not talking to you personally 3 because you weren't in the case - exercise your 4 power with some judiciousness and some discretion 5 and say, we are about to ruin this guy's life.
6 We are entitled to invite him in for a 7 conference. Let's do that for him, because once 8 we act he is done for; he is not - particularly 9 when the Department of Justice is lurking around, 10 and they are going to say this, that and the 11 other about not affecting their case, this - a 12 lot of my concern about this case would have gone 13 away if Mr. O'Brien had invited him in for a 14 conference. The result might have been the same, 15 but Mr. Geisen wouldn't be sitting there saying, 16 wow, they did that to me, and they never even 17 gave me a chance.
18 Shouldn't that -. the Commission 19 doesn't bar you from doing that. The policy 20 encourages you to do that. Why wouldn't you do 21 that in a case like this, and even if Ms. Sexton 22 is right that not all these other cases were open 23 and shut and so forth, why wouldn't say, wow, 24 this case is a big deal, we have to do it right, 25 and we have to do it fairly?
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2478 1 MS. CLARK: Your Honor -
2 CHAIR FARRAR: In other words, you 3 don't need to change the rule, you don't need to 4 change the law, you don't have to change the APA.
5 You change the way you treat people. And I have 6 no brief for Mr. Geisen. If he's guilty, we 7 don't want that - I totally agree, the Commission 8 cannot function without being able to count on 9 people to be able to be scrupulously honest with 10 them. There is no debate here.
11 But that doesn't mean you can't give 12 people a chance to be heard before they are 13 consigned to wherever they are consigned to. I 14 guess that's a question.
15 MS. CLARK: Just to - just to answer 16 that by telling you that your concerns are being 17 heard by the staff. When I received your order, 18 and the questions therein, I invited and we have 19 with us today the director of the office of 20 enforcement. We have they director of the office 21 of investigations. And as you know we have also 22 a representative of the Department of Justice.
23 We take these concerns very seriously, 24 and I can assure you that your comments will be 25 taken into account by staff.
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2479 1 I would like to before I finish just 2 talk a little bit about-our proof ofMr. Geisen's 3 state of mind.
4 We heard argument today that - and 5 it's true of course - that we cannot absolutely 6 know for' certain what is happening in Mr.
7 Geisen's mind. That is of course the nature of 8 any circumstantial case.
9 However I just would like to point out 10 that this is something that is commonly 11 encountered in the criminal context. And there 12 are jury instructions that deal directly with 13 this, that basically say that while you can't get 14 inside a defendant's head, you are to look at all 15 the evidence. And you can draw inferences about 16 a person's state of mind from that information.
17 And lastly I just want to talk once 18 again about how - the circumstances here 19 concerning your assessment of Mr. Geisen's 20 credibility.
21 CHAIR FARRAR: How much do we draw on 22 our own experience, that business you just talked 23 about about getting inside someone's mind, how 24 much do we draw on our own experience from being 25 overwhelmed with documents occasionally, you pick NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24.80 1 them up and you read them, and say gee, I really 2 ought to pay more attention to this but I can't 3 now. And then you f orget something, and then 4 later somebody says, but that was in that memo we 5 sent you._ Oh, man, I forgot it.
6 His testimony, when you talk about 7 demeanor, credibility, his testimony is not so 8 foreign from what I've seen in the business and -
9 well, the business world that I would reject it 10 out of hand. Can we draw on our own experience?
11 MS. CLARK: Oh certainly. And I 12 think one of the. most important things you can do 13 is consider what he is telling you in light *of 14 your sense of simple commonsense. And I think 15 that when you look at it in that context it's 16 clear that these were not small insignificant 17 matters in the plant, or to any of the management 18 there.
19 The fact that there was a big problem 20 with flange leakage, and there was large amounts 21 of boron on the head was well known throughout 22 the plant. The problems with the inspection 23 techniques were also widely known, and I think if 24 you read Mr. Geisen's testimony carefully you 25 will see over and over again that he conceded NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2481 1 that he read those emails. He as asked about 2 them specifically, and over and over again he 3 said, yes, I read it, and the information was not 4 new to me; I already knew that. And so I don't 5 really think there is even much of a question 6 here as to whether he knew those facts.
7 CHAIR FARRAR: But you can know 8 facts, and you can not focus on them. And I 9 don't recall any evidence of eight people in the 10 company saying, this whole deal with the head is 11 really messy; let's make it a top priority for 12 the company to figure out what is going on here 13 and what we are going to do about it. In which 14 case if I'm Mr. Geisen and I say, oh man, Mr. Big 15 just told me to do this, I'm going to read and 16 retain and analyze, like I marked up your briefs 17 in the last few days, I'm going to really think 18 about everything.
19 Nobody did that. The big pressure for 20 Mr. Big was, we've got to keep this plant open.
21 MS. CLARK: Well, I believe it did 22 happen. Because recall after the O'Brien-Shearon 23 phone call, Mr. Geisen was made the lead on this 24 issue. He was given the responsibility to 25 oversee the nozzle by nozzle table that Mr.
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2482 1 Siemaszko prepared. And he was the person that 2 presented the information about the inspection at 3 the TA briefing.
4 CHAIR FARRAR: But that was for the 5 purpose of convincing the staff that theifacility 6 should stay open, not for the purpose of finding 7 out why do we have the dirtiest head in the 8 industry.
9 MS. CLARK: But that was the whole 10 premise of their argument to the Commissioners 11 was that the reason we are safe to operate is 12 because we know that there is none of this 13 popcorn deposits on the head. That was the whole 14 foundation for their argument. And that was his 15 responsibility and his lead to make that 16 statement.
17 And again if you read his testimony 18 about why he said that, he could not give, he 19 could not articulate, any reason to believe that 20 what he said was true.
21 I specifically called out the language 22 in 2731 and asked him to tell me where it said 23 that, and he couldn't do that.
24 Now for him then to come in in his 25 findings and claim that he relied on Mr.
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2483 1 Siemaszko who told him the wrong information, a 2 completely different story than what he testified 3 in this hearing, and we are talking about two 4 stories within a period of say six weeks here, 5 you have to ask yourselves how you can believe 6 anything he told you.
7 I submit to you that there is no way 8 you can find that Mr. Geisen in this case was 9 credible. The evidence here is overwhelming, and 10 we have more than satisfied our burden of proof 11 here.
12 CHAIR FARRAR: Thank you, Mr. Clark.
13 My colleagues have no questions?
14 Okay, then we are at the end of the 15 public road in this case. We will now turn to 16 completing the decision that we have been trying 17 to draft.
18 And I want to make it clear that none 19 of our concern about government - the government 20 not doing things the way it should has anything 21 to do with the three of you sitting there. You 22 have jumped into this case late after the 23 criminal trial was over, and we put it on a 24 hurry-up schedule. You all did your best as Mr.
25 Hibey and Mr. Wise to give us everything we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2484 1 needed as fast as we can, and I am - the trial 2 and the various sets of briefs put a lot of 3 burdens on you - and I compliment you for your 4 efforts. It's been very helpful.
5 - We will do our best to get this out as 6 quickly. as possible. We have a number, each of 7 us has a number of other proceedings we are 8 working on. But this has our first priority.
9 So with that we will be adjourned. If 10 you are lucky we will not think of some question 11 we should have asked you. Fill us in further, 12 but we will just complete things as best we can.
13 Thank you all for your time and your 14 contributions.
15 (Whereupon at 1:13 p.m. the proceeding 16 in the above-entitled matter was 17 adjourned) 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: David Geisen Name of Proceeding: Oral Argument Docket Number: IA-05-052; ASLB No. 06-845-01-EA Location: Rockville, Maryland were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
James S nro-.
Official Reporter Neal R. Gross & Co., Inc.
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