ML20035E546
| ML20035E546 | |
| Person / Time | |
|---|---|
| Issue date: | 04/05/1993 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 9304160160 | |
| Download: ML20035E546 (31) | |
Text
{{#Wiki_filter:. 1 OFFICIAL TRANSCRIPT OF PROCEEDINGS O i l BON Nuclear Regulatory Commission Atomic Safety and Licensing Board Il}0: Lloyd P. Zerr Docket No. 93-01-PF; ASLBP No. 93-673-01-PFC O IDCATION: Bethesda, Maryland DATE: Monday, April 5, 1993 PAGES: 1-30 l t 160043 ANN RILEY & ASSOCIATES, Im go > O 1612 x se xm. s. 3. = m a c 20 m s o,
- 9304160160930405 (202) 293-3950 PDR MISC 9304160160 PDR WP
1 l e 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 4 ATOMIC SAFETY AND LICENSING BOARD 5 6 7 In the Matter of: ) Docket No. 93-01-PF 8 LLOYD P. ZERR ] ASLBP No. 93-673-01-PFC 9 10 Nuclear Regulatory Commission 11 East-West Towers 12 Fifth Floor Hearing Room 13 4350 East West Highway 14 Bethesda, Maryland 20814 15 16 Monday, April 5, 1993 l 1 17 1 ( 18 The above-entitled matter came on for prehearing 19 conference, pursuant to notice, at 10:10 o' clock a.m. 20 21 BEFORE: THE HONORABLE MORTON B. MARGULIES 22 Chief, Administrative Law Judge 23 24 25 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
i 2 1 APPEARANCES: 2 3 On behalf of the U.S. Nuclear Regulatory Commission: i 4 ROGER K. DAVIS, Esquire 5 DARYL M. SHAPIRO, Esquire t 6 Office of the General Counsel 7 Mail Stop 15 B 18 8 U.S. Nuclear Regulatory Commission 9 Washington, D.C. 20555 10 11 On-behalf of the Defendant, Lloyd P. Zerr: 12 TIMOTHY E. CLARKE, Esquire 13 5 North Adams Street 14 Rockville, Maryland 20850 15 16 Also Present: LLOYD P. ZERR 17 18 19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD. ' Court Reporters 1612'K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
l 3 1 PROCEEDINGS O i i 2 [10:10 a.m.] 3 JUDGE MARGULIES: Good morning. I am 4 Administrative Law Judge Morton Margulies. Scheduled for 5 this morning is initial prehearing conference in the matter 6 of Lloyd P. Zerr, docket number 93-01-PF, ASLBP number 93-7 673-01-F. 8 The proceeding is on a complaint of the Nuclear 9 Regulatory Commission alleging that the defendant, Lloyd P. 10 Zerr, in the period September 28, 1989 through December 24, 11 1990 made 23 false claims by voucher in order to obtain 12 monies from the government in violation of 31 United States 13 Code Section 3802. Defendant denies the allegations and 14 requests the dismissal of the complaint. 15 This prehearing conference is to discuss the 16 matters enumerated under 10 CFR 13.19(c) which should be 17 considered in preparing for hearing. They provide various 18 methods that can expedite the hearing process and make it 19 less costly while preserving fairness. 20 I will now take appearances. Who appears for the 21 Nuclear Regulatory Commission? 22 MR. DAVIS: Roger K. Davis and Daryl M. Shapiro. 23 JUDGE MARGULIES: Would you tell us where your 24 offices are located and whether you are admitted to 25 practice. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K_ Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l
I r 4 1 MR. DAVIS: Yes. I am Mr. Davis and I am from the i O e I 2 Office of General Counsel of the NRC at One White Flint i i 3 North, 11555 Rockville Pike. I was admitted to practice in 4 the District of Columbia. 5 MR. SHAPIRO: Daryl Shapiro, the office is the { 6 same and I am also admitted in the District of Columbia. } 7 JUDGE MARGULIES: Mr. Clarke. 8 MR. CLARKE: Good morning. Timothy Clarke on 9 behalf of Mr. Zerr. My office is at 5 North Adams Street in 10 Rockville, Maryland, 20850 and the phone number is 301-217-11 9379 and I am a member of the bar of the court of appears of 12 Maryland to practice in Maryland and am admitted to practice 13 before the federal courts in Maryland as well. 14 JUDGE MARGULIES: Thank you. If there are no 15 other matters to be raised at this time, we will go directly 16 to section 13.19(c) and go through the listings.in turn. We 17 start off under (c) (1) simplification of the issues. Is 18 there any need for simplification of the' issues? We will i 19 hear from the government first and then from Mr. Clarke. 20 MR. DAVIS: Your Honor, do you prefer that we 21 stand or sit? 22 JUDGE MARGULIES: Please be seated. It makes it a 23 lot simpler. 24 MR. DAVIS: All right. Our view is that there can 25 be some simplification of the issues by two methods. One ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
I 5 1 1 would be by request for admissions regarding the 2 authenticity and coatents of documents and perhaps some \\ 3 substantive admissions as well which might obviate the need l 4 to bring in witnesses from Georgia since most of the 5 witnesses are in Georgia and the other possible method is we 6 think that there may be some potential for partial summary f l 7 judgment on several aspects of the liability but certainly i 8 not all. l 9 JUDGE MARGULIES: Mr. Clarke. 10 MR. CLARKE: If, in fact, we can receive the 11 documentation, that would be a major step in the direction 12 of looking at what the government has and I have a written { 13 request to deliver to the government's counsel today 14 requesting documents to be provided pursuant to the 15 discovery provisions. l 16 I think it is impossible to say what can be i 17 simplified until we have a chance to take a look at those. i 18 I think once we have seen them, there may be a number of 19 documents, for instance, that are signed by Mr. Zerr, that 20 obviously those can be stipulated to and there may be other 21 kinds of documents that may be the subject of stipulation. 22 I think once we have that, it is probably too soon to have 23 an answer to the stipulation question. 24 JUDGE MARGULIES: I don't think you have any 25 problem with that, Mr. Davis, in terms of making those ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
6 1 documents available and starting the ball rolling in terms O 2 of looking toward stipulations. i 3 MR. DAVIS: No. 4 JUDGE MARGULIES: Is it your position, Mr. Clarke, I 5 that it would be premature to pursue the matter further in i 6 terms of stipulating testimony and anything of that sort? 7 MR. CLARKE: Yes. It is premature in that regard, B yes. l 9 JUDGE MARGULIES: Do you have anything further, 10 Mr. Davis? 11 MR. DAVIS: No. Certainly we are ready and the 12 documents will be available upon request as soon as we can i 13 make them available for inspection or copying. I guess I 14 would suggest in terms of discovery, I recognize that the 15 rules provide that unless there is agreement, that request 16 has to come to you so any discovery requests, it would be my l 17 intent to show to Mr. Clarke and see if there is agreement 18 that it is reasonable and then if not, come to you. 19 JUDGE MARGULIES: We can pick that up under item 20 eight when we get to that. 21 MR. DAVIS: All right. 22 JUDGE MARGULIES: As to.the matter of partial 23 summary disposition? 24 MR. DAVIS: We haven't prepared that yet but I do 25 think that we are evaluating and believe that there may be b ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202)'293-3950
i ) 7 1 some potential on some claims and we certainly intend to Ow 2 serve that early in this process or in the middle of this 3 process of the schedule. f l 4 JUDGE MARGULIES: I think it would be helpful if l 5 the parties would sit down and discuss these things in 6 advance, it may save filing pleadings and such, that is, I i 7 both sides are reasonable in terms of looking for an i 8 expeditious disposition of the proceeding and probably a lot l i l 9 of this can be handled on an informal basis rather than to t l 10 looking to formal motions. i 11 Let's go down to item two, the necessity or 12 desirability of amendments to the pleadings including the 13 need for a more definite statement. Mr. Davis. t 14 MR. DAVIS: At this point we are not aware of any 15 need for further amendment of the pleadings or a more l 16 definite statement. 17 JUDGE MARGULIES: Hpw about you, Mr. Clarke? 18 MR. CLARKE: This basically gets back to the 19 question of the documentation. Our answer had to be almost 20 every paragraph prefaced by the clause that subject to 21 receipt of the documents we may have something further to 22 say. I don't really see that there would be a necessity for 23 an amendment to the answer or a more definite statement in 24 that regard because I believe that we can resolve that with 25 the documentation issues. ANN RILEY & ASSOCIATES, LTD. j Court Reporters { 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 ) (202) 293-3950
1 JUDGE MARGULIES: Would you need more information O 1 2 beyond the documentation? 1 3 MR. CLARKE: At this time I can't think that we 4 do. i 5 JUDGE MARGULIES: We will move to item'three, 6 stipulations and admissions of fact or as to the contents i 7 and authenticity of documents. Mr. Davis. 8 MR. DAVIS: Yes. I do think that the documents 9 hr.ve to be provided to Mr. Clarke first and it was our hope 10 or our intent to request admissions as to the authenticity 11 and contents of the documents once he has had a chance to 12 review them. Of course, there is also the possibility of I 13 think developing stipulations as well if there is any i 14 objections in the context of number seven when there is an l 15 exchange of the exhibit list, could require parties to note i ) 16 objections and bring them to the final prehearing 4 17 conference. 18 But we would like to know as soon as Mr. Clarke 19 has had a chance to review them, I think we would like to 20 sit down with him and find out if there is going to be any 21 problem because again as I say, a lot of the people involved l 22 are in Georgia. l l 23 There are some substantive facts, I think, that we 24 would like to develop requests for. But again, I will 25 present them to Mr. Clarke first and see if there is any ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l l
I ^ i 9 l 1 problem with those. I O. 2 JUDGE MARGULIES: Mr. Clarke. t 3 MR. CLARKE: I would concur. We need to take the i 4 step of reviewing the documentation. We certainly are not i i 1 5 going to stand on some formality of having a person appear 6 simply to say, "yes, that is'my signature" when in fact we i l 7 can find that out and verify it in advance. We will do 8 everything we can to accommodate in that regard because it-9 expedites the hearing and makes it less costly. { 10 MR. MARTIN: We will move over to item five, 11 whether a party chooses to waive appearance at an. oral 12 hearing and submit only documentary evidence subject to the 13 objection of other parties and written argument. Would it l 14 be premature to discuss that at this point? 15 MR. DAVIS: At this point for the NRC I think that 16 we would believe that an oral hearing is needed and we would l 17 like to present live testimony. I 18 JUDGE MARGULIES: That is except to the extent 19 that you would move. 20 MR. DAVIS: Yes, with certain exceptions. 21 MR. CLARKE: WL are not in a pocition to suggest 22 that a submission of this case on the record would be 23 appropriate. I think that testimony is going to be required 24 in this matter and I don't think that it is going to be a 25 submission on record plus argument. O i 4 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 I
1 I 10 q 1 JUDGE MARGULIES: Item six, limitation of the 2 O 2 number of witnesses. 3 MR. DAVIS: I don't see any real need for this. i t 4 It doesn't seem to me to be that large of a case even if the 5 numbers to get to be ten or 12, I would not think that the i 6 testimony would be very lengthy for most of the witnesses so i l l 7 I would not see any need for this. 8 JUDGE MARGULIES: That would be a ballpark figure, j 9 Mr. Davis, of what you are thinking of at this point? 10 MR. DAVIS: Yes, ten or 12 and potentially a few 11 more if we had problems with documents but I assume that we l 12 won't, I hope we won't and that is sort of an outside l 13 figure. z 14 JUDGE MARGULIES: Mr. Clarke. l O 15 MR. CLARKE: We expect that we will probably wind 16 up seeking to obtain testimony from a number of the 17 government's witnesses but in, addition to that we would have 18 a number of our own witnesses. I am guessing that our 19 number is probably about half of theirs and I would expect 20 that some of those may be government officials and some of 21 those may be other individuals who were involved in this 22 process. 23 JUDGE MARGULIES: Next item, scheduling dates for 24 the exchange of witness lists and of proposed exhibits. I 25 think that probably on its face is premature. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
i 1 I 11 I 1 MR. DAVIS: I was going to suggest a target date 2 of May 15th so that if there are any problems with the 3 witnesses or any objections to exhibits, I suppose in 4 particular, and so that the parties can prepare for trial 5 which will be one month later, I was going to suggest that 6 we do that on May 15th and then that we have final pre-i t I 7 trial on May 26th through 27th where we can deal with any 8 problems that are arising as a result of witnesses or 9 exhibits identified. 10 of course, it is a suggestion just to make sure r 11 that we have deadlines to shoot for and if further i 12 information becomes available, of course, I would assume l 13 that we wouldn't object to any additions or likewise, on 14 their part if it was new information but I was thinking that i k 15 it might be advisable or we were thinking that it would be 16 advisable to have a target date for that to make it a smooth. 17 pre-trial. 18 MR. CLARKE: If we are talking about having 19 another pre-trial conference and having basically a final 20 pre-trial conference the last week in May, I think that we 21 are agreeable to that. I think it probably is a good idea. 22 As far as getting the information, our position is 23 that the government has all.the information. They have all 24 the records. They have had months and we have had at this 25 point assuming we got the documents in the next two weeks, ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) = 293-3950
I i i 12 I we will then have had four weexs to be prepared.. All of 2 that is dependent on what we get and what we see. 3 JUDGE MARGULIES: Why don't we leave that as a j i 4 date that should be kept in mind but not having seen the j l 5 documents, you certainly are not in a position to commit i 6 yourself. I i 7 MR. CLARKE: Yes. 8 JUDGE MARGULIES: Item eight, discovery. 9 MR. DAVIS: As I mentioned earlier, we are r 10 planning to seek some request for admissions from Mr. Zerr l 11 and we would also request at some point a deposition of Mr. 12 Zerr. We are not aware of any further needs for discovery 13 at this point unless again, there develops a need to depose O people in Georgia who are involved in the case who for some 14 1 15 reason it would make sense to have a deposition in lieu of 16 trial but we realize that would be expensive and we would 17 hope that that would not be necessary. 18 JUDGE MARGULIES: Do you contemplate conducting 19 discovery, Mr. Clarke? 20 MR. CLARKE: We contemplate first getting the i l i 21 documentation. We contemplate then being able to verify 22 some of those documents and at this point, I do not l 23 anticipate the necessity of having to depose or seek a i 24 deposition of any of the government's witnesses on the 25 perhaps assumption but the reliance on the fact that some of E ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l
I I l 13 i i these people have been investigators who have tracked this l 2 matter in an orderly fashion and presumably have kept l some 3 record of that and will be able to glean from the documents j 4 themselves the nature of the government's case. 5 I would suggest that this is not an entirely new I t 6 issue with respect to Mr. Zerr which is the subject we would 7 like to raise when we get to item ten on this list about k 8 other matters. But that is going'to impact a little bit on i 9 the question of what we need to get from the government. We 10 would hope also to be able to avoid any necessity of going [ 11 to Georgia. } i 12 JUDGE MARGULIES: It would appear to me that the l ( 13 most useful thing would be for the government and defense ( 14 counsel to sit down and look at the documents, exchange ] 15 whatever documents that are going to be provided and come up 16 with some concept and let me know as to when you would like i 17 to set up scheduling dates for the exchange of witnesses and 18 proposed exhibits and what kind of discovery schedule there 19 should be and what it should cover. I think it would be 20 most helpful to do it in that manner than to do it on a 21 formal matter. i l 22 MR. DAVIS: I may have omitted the fact that in 23 terms of information from Mr. Zerr, we do have reports of { j 24 interviews that will be made availatie to Mr. Clarke and the 25 underlying investigative report. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
i I i l i 14 i 1 It was somewhat of a surprise to us when we read O 2 the answer that he did not have the vouchers but I will be 3 asking Mr. Clarke from our perspective, we do not know what f 4 other documents he might have or what individuals with i 5 knowledge and that would be just the basic questions we will 6 be asking and hopefully can work it out without formal i 7 discovery. l 8 JUDGE MARGULIES: The time and place of the 9 hearing. We have scheduled it for June 15th in this hearing E 10 room. That date can be subject to change but I guess it is l 11 a date that we should be shooting for, isn't that so? i 12 MR. DAVIS: We believe so, yes. j 13 MR. CLARKE: It is a date that we would like to l ? l 14 focus for, yes. i l 15 JUDGE MARGULIES: All right. Item number ten, I j 16 such other matters as may tend to expedite the fair and just i 17 disposition of the proceedings. 18 MR. DAVIS: I had no additional matters to 19 present. 20 MR. CLARKE: We would. This is yet again another l 21 round in a continuing series of differences between the NRC t 22 and Mr. Zerr. As can be indicated from our answer, there 1 23 was a criminal proceeding that took place that was resolved 24 and concluded between Mr. Zerr and the United States 25 government and that was resolved with certain dollar figures l l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 1
15 1 and certain stipulations that are on some of these very same j 2 issues and when I say stipulations, statements on the record i 3 by the government of the United States saying, to 4 paraphrase, "Oh, we are sorry, that is not the claim, we 5 agree that that was not an issue." I I 6 Some of those very.same issues are now coming back i 7 to haunt him again in this proceeding. I realize that we 8 are under separate statutory authority. However, we would 9 submit that there are legal questions of some import that 10 need to be raised with respect to that in addition to f i 11 estoppel issues which are going to be raised with respect to i i 12 some previous stipulations made on behalf of the government [ f 13 of the United States and I think the government is bound by [ 14 those whether it is a separate proceeding or not. 15 That is certainly going to be something which I 16 think we are going to need to be able to focus on as soon as { 17 we have a chance to review the documents and compare those i 18 with the decisions made by the United States government in 19 the Georgia case and in other proceedings. I 20 There are essentially three simultaneous matters -1 21 and I think that there are three different arms of the 22 octopus that are coming after Mr. Zerr here and I think that 23 each of those arms need to be coordinated and we are trying 24 to attack them individually but I think in this particular 25 hearing, they will all have to be presented and that is one O ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l 1
t 6 l l 1 of the things which we would suggest is going to have an l 2 impact on this hearing. 3 It is going to have an impact on scheduling. We 4 are not sure what that impact is at this point because we t 5 are early on in this process but I think it is only fair to 6 say that at some point after -we have had some preliminary i 7 review of the government's position and an opportunity to 8 suggest informally to the government's counsel here the 9 position that we take with respect to this and they may then { 10 say, "Well, we think you are right" at which point there is 11 no dispute or they may say, "Well, we think you are wrong," 12 at which point we are going to have to be here on some, I 13 think, substantial legal issues that will be raised rather i 14 than simply the factual questions. O i 15 JUDGE MARGULIES: How would you plan to raise 16 that, by written motion in advance of the hearing? t 17 MR. CLARKE: Certainly we would file a written 18 motion in advance of the hearing with respect to those items f 19 and to be as specific as possible I think that some of the i 20 individual items we are able to relate to individual counts 21 in this complaint and that may make it a simpler matter to l 22 resolve and it could be in the nature of a partial summary f 23 judgment with respect to each of these counts. 24 It may also be a motion that would have to do with 25 the entire legal basis for the hearing; that is, the fact of O*. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
17 I having multiple prosecutions as it were for the same matter. 2 Each of those are things which I think we would file 3 separate motions for and I think those probatly are items 4 which should clearly be filed before we would have or at l l 5 least shortly before, I guess, the final prehearing i 6 conference. I 7 JUDGE MARGULIES: When you indicate that there are 8 three proceedings involving Mr. Zerr, there is this one and d 9 what are the other two? l 10 MR. CLARKE: There was a criminal proceeding in 11 Georgia that is concluded at this point. I 12 JUDGE MARGULIES: In the United States District i 3 6 13 Court? i r 14 MR. CLARKE: In the United States District Court O i 15 in the Southern District of Georgia and that proceeding i 16 ended by a dismissal through a Diversion program, i 17 essentially again to summarize in some respects that 18 proceeding and I would indicate that I was not counsel of l 19 record in that matter, that the proceeding went forward, the 20 United States Attorney &nd counsel for Mr. Zerr met along 21 with Mr. Zerr, reviewed a lot of information, a lot of 22 documents, and came to a conclusion that there may have been 23 a disagreement about some dollars and cents which was 24 resolved and then the charges were dropped. 25 That is one proceeding. Obviously, this is O. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202)- 293-3950
t 18 [ 1 another and we will place this in the center and then there i l 2 are other administrative proceedings which are not in a 3 status of any hearing but in an ongoing correspondence t 4 situation and I think that that is also going on. So we are i 5 trying to deal with each of those and I think that all of l 6 those have an impact on the nature of these proceedings. l 7 JUDGE MARGULIES: In terms of the last aspect, is 8 that in the nature of employment when you say administrative l 9 proceedings? l 10 MR. CLARKE: Nature of employment, well, Mr. Zerr l 11 no longer works for NRC. 12 JUDGE MARGULIES: I see. So the last category 1 l 13 does not relate to his employment? 14 MR. CLARKE: No. O i l 15 JUDGE MARGULIES: All right. Do you wish to 1 16 comment, Mr. Davis? i 17 MR. DAVIS: Mr. Shapiro would like to comment.. t 18 MR. SHAPIRO: We may have to respond formally in 19 writing to a motion but our position on the first issue 20 dealing with the pre-trial diversion agreement which we view l 21 as a plea is that estoppel would not attach. This was an j. 22 agreement between the government and the defendant in a i 23 criminal case as to an agreement in lieu of prosecution and 24 anything the government would agree to in some sort of plea '25 agreement or pre-trial diversion would not bind the ANN RILEY & ASSOCIATES, LTD. Court RdF6rters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
l 19 1 government in a future civil action. 2 Secondly, as to multiple prosecutions, we again 3 would respond to any double jeopardy motion. However, we l 4 don't think it is timely until after the trial. We are 5 required to state in the complaint the maximum penalties the 'I 6 defendant may be liable for and I think as you stated in 7 your notice of hearing, the trial is sort of in two stages. I 8 The first stage is to establish liability and the second I 9 stage to establish remedy and penalty. It is only after 10 that point in time any decision as to the punitive nature of 11 a civil penalty could be assessed. 12 JUDGE MARGULIES: Is it your position, :Mr. 13 Shapiro, that if the Defendant comes forth with clear-cut 14 evidence that some of these counts are erroneous that you 15 would not be able to drop the counts prior to hearing? ( 16 MR. SHAPIRO: We could always amend the pleadings i 17 but the complaint states the 23 counts that we are going on i 18 and we anticipate trying them at trial. i 19 JUDGE MARGULIES: That is irrespective of whatever j L 20 the defendant comes forth with prior to trial? I 21 MR. SHAPIRO: If he came forward with evidence 22 that we based a count on erroneous information, of course.we 23 would drop it. I am not sure I understand the question. 24 Excuse me. 25 [ Counsel for NRC conferring of f the record.] lt ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l ~ _ _ _ _, - l
i l i I 20 l \\ 1 MR. SEAPIRO: Maybe the point they are making is l O. l 2 that we gave them dollar credit toward some counts in the i 3 pre-trial agreement as part of a bargain to enter into this 1 i 4 pre-trial diversion program. If they are talking about i 5 estoppel as to those, no, we wouldn't be bound to that here. 6 JUDGE MARGULIES: Do you wish to say something 7 further, Mr. Clarke? l 8 MR. CLARKE: I think it is clear that we are going i l 9 to have to litigate on this issue. What I hear the 10 government saying is that essentially whatever we say isn't i 11 going to matter, they are going to go to trial on 23 counts. 12 The-only other thing that I would comment upon was 13 the initial statement and that was the fact that if this is l 14 a jeopardy issue, if this is a double jeopardy kind of a t l 15 question, it doesn't simply wait until after the penalty ~ 16 stage of this proceeding. 17 It needs to be raised now or else it is going to i 18 be deemed waived and I could then hear the government saying i 19 that we had waived it by waiting too long. If, in fact, we 20 are not talking about the punitive damages portion of this 21 case, if that issue is withdrawn from the consideration by ) 22 the government, then we may be able to rapidly expedite this 23 entire proceeding. 24 That is what is driving this proceeding in its 25 length and in its complexity is their request for the extent ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 i
~~ i i 21 J 1 of penalties, not a question of reimbursement because we O 2 would submit that much of that issue has been resolved i 3 between the government and Mr. Zerr. 4 JUDGE MARGULIES: Mr. Davis. j 5 MR. DAVIS: I would just say that this is a civil J 6 statute with civil penalties and there is a very strong 7 presumption that these are civil and not second prosecution 8 or punitive remedies that are being sought. 9 I would also point out that among the factors that i 10 you are to consider in. deciding the actual assessment is 1 11 under section 13.31(b) (5) and is the value of the 12 government's actual loss including foreseeable consequential 13 damages and the cost of investigation which were very ? 14 substantial in this case. So we believe that there is no i 15 possibility of a proving of this to be a punitive sanction 16 should you decide to impose the maximum. 17 JUDGE MARGULIES: I,take it though that neither 18 side takes.the position that there is no room for compromise 4 l 19 and settlement prior to hearing. L 20 MR. DAVIS: We would certainly entertain an offer. 21 Yes, we would not rule that out but at this point we are l 22 concerned that we seem to be on different playing fields in 23 terms of the view that simple restitution is the only thing 24 that is on the tabic. 25 JUDGE MARGULIES: That would certainly be a matter ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 i (202) 293-3950
22 1 for discussion and further inquiry. Do you have any problem O 2 with that, Mr. Clarke? l 3 MR. CLARKE: We have no problem. I have never 4 found a legal matter that isn't worth discussing from a 5 possibility of settlement point of view but I do think that 6 we are on the same playing field. We are talking about one 7 proceeding here in which the United States government at one i 8 point was trying to put Mr. Zerr in jail and at another 1 9 point, they are trying to take his wallet. I think that i 10 under those circumstances, it is still the actions of the 11 government in a punitive fashion. So I think we are going t { 12 to have to litigate on that issue. i 13 JUDGE MARGULIES: Do you have any problem in terms 1 f l 14 of looking at the possibility of compromise and settlement i 15 while developing the case for hearing? 16 MR. CLARKE: No. I think there are some things 17 that come up, speaking on beh,alf of Mr. Zerr, just as an f l 18 example, if in fact the documentation were provided along { 19 with reasonably straightforward information that could be 20 corroborated that would suggest that they could prove a fact f 21 and that we would have difficulty, substantial difficulty, l l 22 in being able to do anything else about it other than admit i 23 to that, then it would be silly to drag the proceedings out i 24 with respect to that item. l 25 As I indicated though and we are certainly happy ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006-(202) 293-3950 l
23 i 1 to discuss this matter, but I think that if you look at the 2 remedy that is being sought here, if you bifurcate the 3 remedy that is being sought by the government, then there is 4 a substantial ability to deal with this question. The j 5 punitive nature of their remedy is what is, as I said t 6 before, is that which is driving this case and its 7 complexities. 8 JUDGE MARGULIES: It would seem to me that the 9 most practical thing to do is for the government to get the 10 documents over to Mr. Clarke and to give him the opportunity 11 to review them in detail and for him to get back to the 12 government and to sit down and try to resolve these issues 13 in terms of scheduling and witnesses and if you can't 14 resolve some of these matters, then it will be a matter of l Os 1 15 coming up with a recommendation on the part of the parties 16 as to a schedule for when prehearing motions should be held 1 17 and as to when discovery and the exchange of documents 18 should take place. 19 I would suggest that it would be appropriate at 20 that time to also discuss compromise and settlement and come 21 back to me with your proposal in these areas. When do you i t 22 expect to be aF'.e to get these documents over to Mr. Clarke? l 23 MR. DAVIS: Certainly this week and hopefully 1 24 within a few days. The underlying investigative report 25 shouldn't be difficult at all to make available. f ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
~. 24 1 MR. CLARKE: Or course, we will be happy to have 2 them as soon as possible. From a scheduling point of view, 3 I would indicate that one of the most difficult things for a 4 solo practitioner of law to do is to try to find a couple of 5 days to get away and about a year ago I drew a line through 6 Wednesday through Friday of this week that I have been 7 trying to keep open and had plans to be out of state. B Short of that, we will certainly be back here and 9 have a chance to review them and as soon as we get them we 10 can review the documents and of course, the government has 11 had an awfully long time to look at theses things and we p l 1 12 haven't had a chance to do that very much. i 13 JUDGE MARGULIES: Cun we look at a calendar? 14 MR. SHAPIRO: We will certainly have the documents 15 to Mr. Clarke this week. j 16 JUDGE MARGULIES:, Could you tell us, Mr. Clarke, f 17 how much time you would anticipate you would need to review 18 the documents and get a feel for the matter? 19 MR. CLARKE: We need to know how many documents 20 there are. Do you. remember? 21 MR. DAVIS: Here is one set of most of the 22 exhibits that go to the investigative report and the report 23 itself is not that thick. Now there are some additional 24 miscellaneous documents and we are still collecting a few 25. but this is the bulk of the case so it is about one full [A ANN RILEY & ASSOCIATES, LTD. \\ Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) -293-3950 1
~ l 25 1 file folder for the bulk of the underlying material. 2 MR. CLARKE: Are we talking about a file that has 3 been prepared by the Inspector General? i l 4 MR. DAVIS: Yes. 5 MR. ZERR: Does that include all of the 6 depositions? 7 MR. CLARKE: There are copies-of the interview i 8 notes and what not that are in that file? i 9 MR. DAVIS: Yes. 10 MR. CLARKE: What is not in the file? t 11 MR. SHAPIRO: Interview notes, what they do, it is r 12 not a transcribed interview. They w'ite up a report of 13 interview and that is what we are working off of. There are 14 maybe ten percent of the documents there that weren't part 15 of the IG investigative record we would turn them over as 16 well, things that we have asked to supplement the record. i 17 MR. CLARKE: Based upon what is represented as the ( i 18 size of the materials and considering the fact that they i 19 have had a couple of years, would certainly like to have 30 20 days to at least read them and figure out what it is we are 21 dealing with from the time of the receipt of'them which I 22 would put us up to about the middle of May as far as that is i 23 concerned. 24-JUDGE MARGULIES: What is your feeling, Mr. Davis, 25 as to that request? ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Straet, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950
26 1 MR. DAVIS: That would take us to May 7th. 2 MR. SHAPIRO: The pre-trial motions would come 3 after that 30-day period? 4 JUDGE MARGULIES: I would prefer that the parties 5 at some point at the conclusion of that period to sit down 6 and iron out among yourselves as to a proposed schedule in 7 terms of where you are going, in terms of what you have 8 reviewed and in terms of what would be required in terms of 9 section 13.19 on scheduling dates, limitations on number of 10 witnesses, discovery and matters of that sort. 11 MR. CLARKE: Following up on that could I suggest 12 that perhaps some time in the week commencing May loth, 13 sometime mutually agreeable during that time, chat counsel 14 meet. ( 15 JUDGE MARGULIES: That is what I am speaking 16 about. 17 MR. CLARKE: Not with you? 18 JUDGE MARGULIES: That is correct, for the parties i 19 to get together and then having discussed all those aspects i 20 then getting back to me, it doesn't have.to be a pre-hearing 21 conference, you can do it be a single letter if-you agree to l 22 everything or by separate letters stating your various 23 positions as to schedules and what you propose in terms of a 24 future schedule. i 25 MR. CLARKE: That certainly I think is the-best ANN RILEY & ASSOCIATES, LTD. i Court Reporters-1 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 j
t 27 I way of doing that. That would give us a chance to take a () 2 look at the documents and then respond to them. I think at 3 that point we will know best how perhaps the government 4 wishes to go forward as far as any of their requests for i 5 admissions or what-not and we will certainly know what more ( 6 we would need to do. P 7 JUDGE MARGULIES: Is that all right with the i 8 governaent? 9 MR. DAVIS: Yes, I think so and hopefully we can 10 make a lot of progress at that point. 11 JUDGE MARGULIES: As I understand it, by April 12 9th, the government will make its file available to the 13 defendant except for some minor documents that may not be 14 immediately available,-is that correct? 15 MR. DAVIS: That's right and any privileged 16 material we identify. We will have to go to the Office of 17 Inspector General and go through the investigator's actual 18 file and make e,re that we have -- I am sure a lot of it I 19 will be duplicative but we will be able to do that. There 20 might be some privileged material but I don't know of any 21 and I was just going to add subject to any privileged 22 material we would identify. 23 JUDGE MARGULIES: Is the 9th satisfactory or would 24 you want to move it up? 25 MR. DAVIS: Yes, we will get it done by the 9th. ANN RILEY & ASSOCIATES, LTD. . Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 i
28 1 MR. CLARKE: May I suggest that since we are O l 2 talking about calendaring items and having deadlines, I 3 certainly don't want to be party to any further delay in 4 this matter but could we make it the 13th instead of the f 5 9th? Otherwise, they can deliver it but I am not going to 6 read it and so if they need to have a few more days, that [ 7 would give them over the weekend until Tuesday. 8 MR. DAVIS: Good. 9 JUDGE MARGULIES: Then you would need through May 10 7th to complete that review? f 11 MR. CLARKE: That is correct. 12 JUDGE MARGULIES: As I understand it, you will sit 13 down and have a conference sometime the following week. 14 MR. CLARKE: Correct. (% { i 15 MR. DAVIS: Correct. 16 MR. SHAPIRO: Yes. t 17 JUDGE MARGULIES: In terms of reviewing the 18 various positions of the partier and to come up with a 19 proposed schedule for motions and other prehearing matters. [ 20 MR. CLARKE: At this point I would submit that i 21 perhaps Thursday, the 13th, if we are going to writing out l 22 calendars. I don't know if that is agreeable, but that is t 23 agreeable with me and I would toss out that date of May. 24 MR. SHAPIRO: That's fine. Why don't we leave it 25 open. You may finish your review early or something may i l ANN RILEY &_ ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l 7 .--v rv
29 l 1 come up on that date, why don't we just leave it open that 2 we will do something that week if not earlier. 3 JUDGE MARGUL t.3: Or not later than May 13th. s 4 MR. SRAPIRO: Certainly not later. ) i 5 JUDGE MARGULIES: Is that satisfactory? 6 MR. CLARKE: That is fine with me to leave it t 7 open. Things have a tendency to fill up unless they have 8 lines drawn through them but it is fine. We will make sure t 9 that we do something that week. l 10 JUDGE MARGULIES: All right. You will come forth 11 with a written proposal to me by May 19th, would that be 12 satisfactory to the parties? 13 MR. DAVIS: Yes. 1 l 14 MR. CLARKE: Yes, a written proposal of our future i 15 scheduling requirements. l 16 JUDGE MARGULIES: Of prehearing matters as we I 17 discussed today and as outlined in 13.19. 18 MR. CLARKE: Yes. 19 JUDGE MARGULIES: From the nature of the 20 discussions here and the willingness of all the parties to 21 work together, I expect to see a lot of progress. Is there 22 anything further? 23 MR. CLARKE: I don't believe so. 24 MR. DAVIS: No, we don't have anything further. 25 JUDGE MARGULIES: All right. The schedule that we I / l I'(_/ JJUJ RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 ~ (202) 293-3950 l l
30 1 discussed will be adhered to and I will look forward to () 2 seeing the document at the period indicated. There being 3 nothing further, we stand in recess. Thank you. 4 [Whereupon, the prehearing conference was i 5 concluded at 11:00 o' clock a.m.] i 6 i 7 l l-8 l 10 l l 11 i t 12 13 i i 14 i f~ i 15 l [ 16 i ~ 17 i l 18 t 19 l 20 1 21 22 1 23 l 24 25-ANN RILEY & ASSOCIATES, LTD. s Court Reporters-1612 K Street, N.W., Suite 300 Washington, D.C. 20006 i -{202). 293-3950
l l REPORTER'S CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear. Regulatory Commission i in the matter of: I NAME OF PROCEEDING: Lloyd P. Zerr l DOCKET NUMBER: 93-01-PF; ASLBP 93-673-01-PFC PLACE OF PROCEEDING: Bethesda, MD l were held as-herein appears, and that this is the i j original transcript thereof for the file of the l United States Nuclear Regulatory Commission taken l by me and thereafter reduced to typewriting by me j or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings. ' A n s a /,',- n ?h i. .n / Official Reporter Ann Ril,ey & Associates, rtd. i i l-I l O 1 l i . - -. - - -}}