ML20140E619

Ruling on NRC Objections to 860219 Prehearing Conference Order,Directing NRC to Be Proponent of Aslab Action & to Assume Usual Burdens Accompanying Role.Served on 860326

ML20140E619
Person / Time
Site:	Three Mile Island
Issue date:	03/26/1986
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
CON-#186-571 85-514-02-0T, 85-514-2-T, CH, NUDOCS 8603280069
Download: ML20140E619 (7)

Text

b ERVED NAR n m g UNITED STATES OF AMERICA 00CMETED Nuclear Regulatory Commission USNRC Before Administrative Law Judge

. Morton B. Margulies 86 MAR 26 P4 :11 GFFICE C ' :'

00ChE 7: ,a ,

5Ma.q 4

)

In the Matter of )

) Docket No. 50-289(CH)

General Public Utilities Nuclear )

) (ASLBP No. 85-514-02-0T)

(Three Mile Island Nuclear )

Station, Unit No. 1) ) March 26,1986

)

Ruling On Staff Objections To Prehearing Conference Order This proceeding was instituted to provide Mr. Charles Husted, an employee of GPU Nuclear, with a hearing to determine whether the condition imposed by the Appeal Board in ALAB-772 disallowing him from having supervisory responsibility for training nonlicensed personnel should be vacated, and whether concerns about Mr. Husted's attitude and integrity should prevent him from future employment as a licensed operator, a licensed operator instructor or a training supervisor. See Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,-19 NRC 1193, 1221-1224 (1984); Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 317 (1985).

An initial prehearing conference was held in Harrisburg, Pennsylvania on February 19, 1986. to discuss nine procedural and e603280069Og[0 89 PDR ADOCK 0 PDR G .

'l)So 2

i 2

substantive matters as set forth in the December 6, 1986 Order.

Memorandum' and Order, December 6,1985, at 5-6, unpublished. To facilitate an efficient- and productive prehearing ' conference, the parties submitted, in advance of the conference, a joint letter pre-pared by counsel for Mr. Husted explaining the parties' views and narrowing the issues for hearing. Letter, Michael W. Maupin to Judge Morton B. Margulies, February 17 1986. .

I issued an Order on February 27, 1986. ruling on the matters discussed at the prehearing conference. Report and Order on Initial Prehearing Conference, February 27, 1986, unpublished. (hereinafter

" February 27 Order"). On March 14, 1986, Staff submitted timely filed -

objections to several of the rulings contained in the February 27 Order.

NRC Staff Objections to Report and Order on Initial Prehearing Con-ference, March 14, 1986. (hereinafter " Staff Objections"). Staff

' requests modification, or where appropriate, clarification of several rulings bearing on the nature- of Staff's participation in the proceeding.

More specifically, although the Staff agrees that it may properly be given the burden of going forward with the evidence against Mr. Husted and of establishing a record on which the Appeal Board's condition may be judged, it objects to the ruling that.the Staff is. ,

the proponent of the Appeal Board's action and assume the burdens that accompany that role. February 27 Order, at 12. Staff argues that the l Commission's Notice of Hearing simply directed Staff to " ensure that the f

-- - - - , p - - - , , ~ - ~ , . - - - * -m

l n  ;

l s .

1 3 1 record is fully. developed," and did not suggest that the Staff espouse any particu lar position on.the ultimate issues in the case. Staff ,

Objections, at 7.

Staff also contends that Mr. Husted earlier was provided with notice adequate to satisfy due process requirements and the provisions' of the Administrative Procedure Act (APA), and that the February 27 Order should be modified to delete any duty imposed upon Staff to provide further fomal notice pursuant to the APA. 5 U.S.C. 554(b).

Staff argues that the Appeal Board's initial decision limiting Husted's employment, the Commission's decision granting Husted the opportunity to request a hearing, the Notice'of Hearing published in the Federal Register and the Presiding Officer's. December 6, 1985 Memorandum and Order, separately or in combination, supply the information necessary for Mr. Husted to understand the charges or allegations pending against him and to understand the law and f. acts on'which tne Appeal Board's condition was imposed. As to Mr. Husted's being informed of the legal-authority and jurisdiction under which the hearing is held, Staff points to the. fact that the Atomic Energy Act and 10 CFR Part 2 were mentioned in the Notice of Hearing.

During the prehearing conference Staff, Husted and GPU agreed, and I ruled, that the Husted case is in the nature of an enforcement proceeding to consider the imposition of an agency sanction. In the February 27 Order, I interpreted the Commission's intention' in the Notice of Hearing to mean that the Staff is to be considered the proponent of the Appeal Board's action and that it assume the usual

i 4

burdens that accompany such a role. February 27 Order, at 8. The reasons for the conclusion reached are spelled out in detail in the Order.

Staff's view of the role assigned to it by the Commission causes it to object to my designation of Staff as the 'roponent.

p NRC case law provides no authority that would support an order assigning Staff a specific position in the proceeding. New England' Power Co. (NEP,-Units 1 & 2) LRP-78-9, 7 NRC 271, 279-80 (1978). In view of Staff's objection to being placed in the position of being the proponent of the Appeal Board's condition, that requirement is hereby eliminated.

The Presiding Officer's duty is to conduct the hearing in a fair and impartial manner, in accordance with the law, taking appropriate action to avoid delay and maintaining order. See 10 CF.R 2.718. To accomplish those objectives, Staff will be required at the hearing to go forward with the presentation of a record on which the Appeal Board's condition may be judged. Mr. Husted, the other principal party to the proceeding, has no initial burden to go forward and no burden of per-suasion on the matters at issue in this enforcement type of proceeding.

Furthermore, to those ends, Staff will be required to take.a position on whether or not the Appeal Board's condition should be vacated and'make the position known. prior to the start of the hearing.

At the prehearing conference, Staff stated that it did not intend to take a position, at least initially, on whether the condition should be vacated or imposed. It considered taking a position after the hearing, Tr. at 32, but later Staff commented that it may take positions

s 5

on " specific questions but [it does] not feel . . . able to take a position in favor or against the sanction." Tr. at 43. Staff's approach would allow it unlimited freedom to change positions throughout the course of the proceeding. This cannot be sanctioned within the

-administrative process governing the conduct of an enforcement type of proceeding. Staff's not taking a position and declaring it in advance of the hearing would infringe upon Mr. Husted's ability to prepare his case, thereby denying a fair hearing. This is unlike a licensing proceeding where the applicant has the burden of proof and Staff counsel's development of the record without taking a position does not have the same consequences.

Allowing Staff to withhold making their position known on the sanction would tend to create confusion and undermine the hearing process. For example, Staff might want to have a witness it called declared a hostile witness so that it may proceed to cross-examine the person. It would be most difficult to decide the issue without knowl-edge of Staff's ultimate position on the issue. The Presiding Officer should be aware of each party's pos.ition in advance of the hearing to properly conduct the hearing in accordance with the requirements of the administrative process and ultimately to decide the issues correctly.

There is no justification for Staff to remain silent and not take a position as to whether it will support the continued imposition of the condition or request that it be vacated. Declaring a position does not appear to be a new role for Staff. Staff stated that in the previous

A t

i 6

proceeding it. opposed the Commonwealth of Pennsylvania's position, on appeal, that the Licensing Board should have imposed sanctiens on Mr. Husted on the basis of his attitude-and integrity. Staff.-

Objections, at 8.

Staff will have'all of the information to make the determination as to its position in advance of the commencement of the hearing. It would appear much of tie evidence to be used is already part of the record in -!

other proceedings. Staff is permitted to conduct discovery which is to be completed more then a month prior to hearing.- Testimony will be prefiled within three weeks of the hearing so that Staff will know, in advance, the evidence to be produced by the other parties. Staff cannot be heard to say it will have insufficient information to make a decision as to what its position should be prior to the hearing. Staff should convey to the parties and to me no later than seven days prior to the commencement of the. hearing its position as to whether or not the condition imposed in ALAB-772 should be vacated. Should new facts be developed during the course of the proceeding which would compel Staff to revise its position, Staff'should immediately make known the change..

The objection Staff asserts in response to.the February 27 Order that they provide notice pursuant to the APA is unpersuasive as it

. pertains to "the matters of fact and law asserted." 5 USC 554(b)(3).

Staff correctly maintains that the time, date and nature of the proceeding have been or will be clearly set forth. However, Staff confuses the information thus far provide'd about the legal authority

~

and jurisdiction under which the hearing is to be held, with the matters n , , ~ , , ,,, .:n n --- - - - - - - --

I i

s 7

of fact and law on which the Staff will rely to make their case at hearing. While the Atomic Energy Act and Part 2 of the Commission's regulations were cited in the Notice of Hearing, these do nothing to further Mr. Husted's knowledge and understanding of the specific law on which Staff w G i rely to take any action it proposes.

That the facts have not yet been stated is evidenced by Staff's intention to engage in discovery precisely to obtain more information about the factual matters and circumstances involving Mr. Husted. At the prehearing conference Staff was unclear about what would constitute its factual presentation. Thus, Staff cannot now be heard to argue that

~

it has already properly and fully apprised Mr. Husted of the bases for its case. There is no reason for Staff not to advise Mr. Husted of those specific facts and laws which underlie its litigation. This requirement protects Mr. Husted's due process rights and ensures that the findings contained in the decision are predicated upon matters that Mr. Husted was aware would be tried and had the opportunity to contest.

See Menzines, Stein, Gruff, Administrative Law, 33.02[2] (ed.1985).

IT IS SO ORDERED.

h. -

Morton B. Margulies ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 26th day of March 1986.