ML20082L202
| ML20082L202 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 04/17/1995 |
| From: | Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | |
| References | |
| CON-#295-16629 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9504210042 | |
| Download: ML20082L202 (10) | |
Text
_
/k;M DOCKETED
.UD'?C April 17, 1995
~55 fPR 17 P2 :57 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g.g,, _ -
ATOMIC SAFETY AND LICENSING BOARD g Before Administrative Judges:
Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy
)
In the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
)
50-425-OLA-3
.ttt. AL.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 INTERva;iOR' S STATEMENT ON THE DEFINITION OF WILLFULNESS AND THE BURDEN OF PROOF DURING PHASE II I.
INTRODUCTION The Board indicated to the parties at the April 7, 1995 status conference that one of its focuses during the Phase II hearing would concern the issue of willfulness.
The Intervenor submits this statement to assist the Board in understanding the issue wi11 fulness and the manner in which willfulness may be proven.
l In this brief Intervenor also addresses the issue of the l
I burdens of proof.
This discussion encompasses the burdens for a license amendment and for an enforcement action.
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II.
STATEMENT OF THE LAW A.
Willfulness l
The NRC Enforcement Manual defines willfulness as:
An attitude toward compliance with requirements that j
i ranges from the careless disregard for requirements to l
a deliberate intent to violate or to falsify.
Willfulness does not include acts that do not rise to the level of careless disregard.
l NUREG/BR-0195 at section 1.6, p. 6.
The Manual applies this definition of willful in stating that violations may increase in severity level "if the l
circumstances surrounding the matter involve careless disregard l
for requirements, deception, or other indications of-l willfulness."
NUREG/BR-0195 at section 5.4, p. 10.1
)
A willful violation or an act of wrongdoing is one in which an NRC requirement has been breached with some l
intent or purpose to commit the breach, rather than through mistake or error.
Wrongdoing consists of both j
deliberate violations of NRC requirements and violations resulting from careless disregard of or reckless indifference to regulatory requirements amount to intent.
NUREG/BR-0195 at section 7.2, p.
1.
The Commission has stated chat "the concept of ' careless i
disregard' goes beyond simple negligence...' careless disregard' connotes a reckless regard or callous indifference toward one's l
responsibilities or the consequences of one's actions."
NUREG/BR-0195 at Appendix H-8 (citing Trans World Airlines. Inc.
i.
v.
Thurston, 83 L.Ed. 2d 523, 537 (1985) and Reich Gao-Physical.
2 The Manual also states that " Willful violations are by definition of particular concern to the Commission because its regulatory program is based on licensees... acting with integrity and communicating with candor. Id., emphasis added.
2 I
l
i l
Inc., ALJ-85-1, 22 NRC 941, 962-963 (1985).
See also 10 C.F.R.
i Part 2, App. C IV.
C.
The Commission expounds on its view of l
1 l
willful violations by stating in its Enforcement Policy Statement l
that these type of violations "cannot be tolerated by either the l
l Commission or a licensee." NUREG/BR-0195 at EP-9, EP-10, Rev.
1 12/30/94.
The term " willfulness" as used in the Enforcement Policy l
l embraces a spectrum of violations ranging from deliberate intent to violate or falsify to and including careless disregard for requirements.
Id.
l In NUERG/BR-0195, Appendix H-8, the NRC explicitly cites to and adopts the leading U.S. Supreme Court case defining the l
meaning of " willful,"
Trans World Airlines. Inc.
- v. Thurston, j
105 S.Ct. 613 (1985).
In Thurston, the Court determined that a violation is willful if the individual either knew or showed reckless disregard for the matter of whether the individual's conduct was prohibited by a statute.
Id. at 625.
In reaching j
this decision, the Court relied in part on Nabob Oil Co.
v.
United States, 190 F.2d 478 (CA 10), cert. denied, 72 S.Ct. 167 (1951).
l The Nabob Court determined that an employer is subject to l
criminal penalties under the FLSA when he " wholly disregards the law...without making any reasonable effort to determine whether l
l the plan he is following would constitute a violation of the law."
Id.
This standard is "substantially in accord with the l
I 3
1 l
I l
interpretation of ' willful' adopted by Court of Appeals."
Thurston, 105 S.Ct. at 624.
Furthermore, there is a general principle that "in criminal statutes wi11 fulness generally requires bad purpose or the absence of any justifiable excuse... In civil actions, however, these elements need not be present.
Rather, willful conduct denotes intentional, knowing and voluntary acts."
In re Griffith, 161 B.R.
727 (Bkrtcy. S.D. Fla.1993) (Other courts have expressed the same view of willfulness).*
Intervenor intends to show that the individuals employed by Licensee showed reckless disregard for NRC regulations.
B.
Circumstantial Evidence In general, circumstantial evidence is usually the only mean; by which willfulness may be proven.
Relevant case law states that circumstantici evidence is intrinsically as probative as direct evidence and that circumr,tantial facts may be convincing enough to overcome direct testimony to the contrary.
29 Am. Jur. 2d Evidence 5313 (1994).
Furthermore, certain crimes in which intent is an element of the offense may be proven purely by circumstantial evidence.
37 Am. Jur. 2d Fraud and Deceit S472 (1994).
In fact, crimes such as fraud and deceit are "not 2
See Mondav v.
United States, 421 F.2d 1210 (7th Cir. )
cert, denied, 91 S.Ct.
38 (1970); Domanus v.
United States, 961 F.2d 1323, 1326 (7th Cir. 1992).
In re Gilder, 122 B.R.
593, 595 (Bankr.M.D.Fla. 1990).
In re Kirk, 9 8 B. R. 51, 55 (Bankr.M.D. Fla.
1989);
U.S.
v.
- Toti, 149 B.R.
829 (E.D.Mich.
1993).
In re Fernandez, 112 B. R. 888 (Bankr.N.D. Ohio 1990) ; In re Lanalois, No.
91-91194 (Bankr.S.D.N.Y. 1992). In re Jones, 116 B.R.
810, 815 i
(Bankr.Kan. 1990).
i 4
l readily susceptible of direct proof and it is seldom that they l
can be so proved." Id.
Nuclear Regulatory Commission case law refers to the enforcement policy and examines the attitude of a licensee as one l
of the indications of whether a violation is willful.
Reich j
l l
Geo-Physical Inc.(1019 Arlington Drive, Billings, Montana), ALJ-85-1, 22 NRC 941, 962-963 (1985); Egg Also 10 C.F.R. Part 2, App.
C, III C.
In Reich Geo-Physical, circumstantial evidence was used to demonstrate willfulness.
Specifically, the combined i
l circumstances of repetitive violations were determined to meet the enforcement policy criteria for willful and careless
\\
disregard of the regulations.
Id. at 963.
l Accordingly, the following section will demonstrate the probative value of circumstantial evidence and how it is to be 1
utilized to prove questions of intent and willfulness.
i.
Circumstantial Evidence Used to Prove Elements of Willfulness Circumstantial evidence, that allows an inference of an unlawful intent, may be used to demonstrate the intent necessary to support a conviction.
U.S.
v.
Accarwal, 17 F.3d 737, 740-41 (5th Cir. 1994).
Accarwal dealt with a challenge to the sufficiency of the circumstantial evidence alone to prove the specific intent to commit fraud.
Id. at 740.
The Court held that circumstantial evidence alone could be " sufficient."
Id.
ii.
Tvoes of Circumstantial l
Evidence Used i
l 5
l
Crimes which necessitate a finding of intent may be proven by circumstantial evidence.
Fraud is an example of a crime which requires proof of intent.
In Bradford v.
Commissioner of Internal Revenue, 796 F.2d 303 (9th Cir. 1986), the court determined that an individual had the intent to commit fraud.
In reaching this decision, the court stated "[blecause fraudulent i
intent is rarely established by direct evidence, this court has inferred intent from various kinds of circumstantial evidence."
Id at 307.
The circumstantial evidence which the court used to I
ascertain the wi11 fulness needed to find fraud included:
inadequate records, understatement of income, failure to file tax returns and implausible or inconsistent explanations of behavior.
1.d.
This standard has also been utilized by Bankruptcy and Tax courts to determine intent.
The Bankruptcy court in In re Griffith, stated:
"The court may use various kinds of I
l circumstantial evidence to infer fraudulent intent since direct evidence of such an intent rarely exists.
In re Griffith at 733.
This standard also has widespread use in Tax courts.
See Alexander Shokai. Inc.
v.
C.I.R.S.,
34 F.3d 1480, 1487 (9th Cir.
1994); Edelson v.
C.I.R.,
829 F.2d 828, 832 (9th Cir. 1987).
The case law demonstrates that circumstantial evidence is not only as probative as direct evidence, but is often necessary to prove the element of intent.
Intervenor will provide both direct and circumstantial evidence of Licensee's willfulness by i
i l
6 i
r~.
f showing its reckless disregard by failing to comply with NRC regulations.
C.
Burdens of Proof i.
NRC Carries the Burden of Proof in Enforcement Actions The NRC Staff, as the proponent of an Order Imposing Civil Penalties, has the burden of proof.
10 C.F.R.
S 2.732.
The Staff must support its burden by the preponderance of the reliable, probative, and substantial evidence.
Hurlev Medical 1
Center (One Hurley Plaza, Flint, Michigan), ALJ-87-2, 25 NRC 219, 224. (1987) (citing the Administrative Procedure Act, 5 U.S.C.
S556(d).)
In reaching its finding and issuing the modified NOV the Staff had the burden to produce evidence to prove the violations by a preponderance of the evidence.
ii.
Licensee Has the Ultimate Burden of Proof for License Amendments The ultimate burden of proof on the question of whether the l
license should be amended is on the Licensee.
Consumers Power l
Comoanv(Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1976); 10 C.F.R.
S 2.732.
When a party contends that a license amendment should be denied, that party has the burden of going forward with evidence to buttress that contention.
Id.; Egg Also Curators of the University of Missouri, LBP-90-45,-32 NRC 449, 454-455 (1990).
Once the party has introduced sufficient evidence merely to establish a prima facie case, the burden then shifts to the applicant.
Consumers Power Comoany at 345.
The Licensee must then show that its position on each of the factual 7
issues in dispute is supported by a preponderance of the evidence.
Florida Power & Licht Comoany (St. Lucie Nuclear Power Plant, Unit 1), LBP-89-12, 29 NRC 441, 443 (1989).
Therefore, it is Licensee who must meet its burden of proof and demonstrate that it should be granted the license amendment.
In addition, the Licensee bears the ultimate burden of proof, assuming that the Intervenor can set forth a prima facie case, on all of the factual disputes related to the admitted contentions.
i I
8
III. CONCLUSION As demonstrated by the foregoing discussion, it is proper for Intervenor to show Licensee's willfulness by the use of circumstantial as well as direct evidence.
In addition, Licensee must first demonstrate, by a preponderance of the evidence, that its application should be granted and ultimately bears the burden of proof on factual disputes related to the admitted contentions.
Respectfully submitted, i
l bll LAh MichaelpD.
Stephep
. Ko'hh Kohn Mary Jane Wilmoth KOHN, KOHN AND COLAPINTO, P.C.
l 517 Florida Ave., N.W.
Washington, D.C. 20001 (202) 234-4663 Attorneys for Intervenor
=======================
l CERTIFICATE OF SERVICE I hereby certify that the above document was served by hand delivery, upon the persons in the attached service list this 17th day of April 1995.
(Mau Anwinbur],
MaryJfnpWiltfo~th 301\\ WILLFUL i
9
l l
l UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING BOARD
)
95 APR 17 P2 57 l
In the Matter of
)
i
)
Docket Nos. 50-424-OLA-3 P',I 50-425-OLREbiCf Of f.QiU[IC GEORGIA POWER COMPANY
)
eg, L,
)
DOCKE TJNu. 'yt'
)
Re: License Amendment O'
h (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 i
l SERVICE LIST j
l Administrative Judge Administrative Judge l
Peter B.
Bloch, Chair James H. Carpenter l
Atomic Safety and Licensing Board 933 Green Point Dri're I
U.S. Nuclear Regulatory Commission Oyster Point l
l Pashington, D.C.
20555 Sunset Beach, NC 28468 Administrative Judge Charler A.
Barth, Esq.
Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S. N.R.C U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Ernest L.
Blake, Jr.
David R.
Lewis SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 office of the Secretary Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Office of Commission Appellate Adjudication U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 C:\\ FILES \\301\\ CERT.LIS