ML20153D912
| ML20153D912 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/19/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#186-207 CH, NUDOCS 8602240295 | |
| Download: ML20153D912 (72) | |
Text
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OR GINA1.
O UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-289 (CH)
GENERi.L PUBLIC UTILITIES NUCLEAR (Three Mile Island Nuclear Station, Unit No. 1) g
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O LOCATION:
HARRISBURG, PENNSYLVANIA PAGES:
1-70 DATE:
WEDNESDAY, FEBRUARY 19, 1986
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. NUCLEAR REGULATORY COMMISSION BEFORE THE 3
A'iOMIC SAFETY AND LICENSING BOARD f
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In the Matter of:
Docket' Number GENERAL PUBLIC UTILITIES NULCEAR 7
50-289 (CH)
(Three Mile Island Nulcear.
8 Station, Unit No. 1) 9
- _ _ _._ _ _ _ _ _ _ _ _ _ _ _ _ _x 10 Commonwealth Court Courtroom Number 2 11 Fifth Floor-South Office Building 12 Harrisburg, Pennsylvania 17120 13 Wednesday,. February 19, 1986 14 i
15 j The above-entitled matter came on for hearing.at 5
- 10:15 a.m.
16 !l l
it.
17 Il BEFORE:
b 18 JUDGE-MORTON B. MARGULIES, Chairman 39 Atomic Safety and. Licensing Board-U.
S.
Nuclear Regulatory Commission Washington, D. C.
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APPEARANCES:
2 On behalf of Charles Ilusted:
11ICHAEL W.11AUPIN, ESQ.
3 11 ARIA CIIRISTINA IIENSLEY, ESO.
Ilunton & Williams 4
707 East liain Street P.O.
Box 1535 5
Richmond, Virginia 23212 6
On behalf of General Public Utilities Nuclear:
DEBORAII B.
BAUSER, ESQ.
7 ERNEST BLAKE, ESQ.
Shaw, Pittman, Potts & Trowbridge 8
1800 11 Street, N.W.
Washington, D.C.
20036 9
On behalf of Three liile Island Alert:-
10 LOUISE BRADFORD 11 l 1011 Green Street IIarrisburg, Pennsylvania 17120 i
12 x
On behalf of the Nuclear Regulatory Commission:
13 j GEORGE E. JOIINSON, ESQ.
li Office of the Executive Legal Director 14 !!
Washington, D.C.
20555 15 -
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EXHIBITS 3
I 4
NUMBER,
IDENTIFIED RECEIVED 5
Charles Husted Exhibit 1.
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JUDGE MARGULIES:
Good morning.
I'm 3
Administrative Law Judge Martin B.
Margulies, who has been 4
assigned to hear this proceeding which has been docketed by 5
the Nuclear Regulatory Commission as Number 50-289 CH, in the 6
matter of General Public Utilities Nuclear, Three Mile Island 7
Nuclear Station Unit Number 1.
8 We are getting started 45 minutes late this 9
morning due to the late arrival of the reporter.
10 Speaking very broadly, this proceeding is 11 concerned with events going back to 1981, when the Nuclear 12 Regulatory Commission ordered reactor operator examinations
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13 at the facility.
Without reciting the documents as to what 14 transpired, in 1984 the Atomic Safety and Licensing Appeal 15 Board ordered that charles Husted, a licensed operator 16 training instructor should have no supervisory 17 responsibilities insofar as the training of nonlicensed 18 personnel.
Mr. Husted was not a party to that proceeding.
19 The Commission, by notice of hearing issued 20 September 5, 1985, instituted this proceeding to determine, 21 one, whether the appeal board's conditions should be vacated, 22 and, two, whether he is barred by concerns about his attitude 23 and integrity as an NRC-licensed operator or licensed 24 operator instructor or training supervisor.
25 As to two, the Commonwealth of Pennsylvania and
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1 the licensee entered'into a s'tipula' tion wherein it was agreed
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2 that thel licensee would not1use/him in those capacities.
3 In instituting this proceeding, the. Commission 4
directed that~the Nuclear Regulatory-Commission. Staff ~
5 participate as a full party.
6 Provision was-made for interested parties to 7
intervene, f
8 Three Mi.le Island Ale'rt; Inc.,.and General:Public.
f 9
Utilities Nuclear Corporation filed petitions to intervene.
10 In my order of December 6,c1985, it was found th't a
11 both petitioners satisfied standing and-interest requirements i
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12 to participate as parties.
Except as to the need for filing l
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-13 litigable contentions as provided>for in 10 CFR,'2.71-4-B,-
l 14 both petitioners have filed proposed contentions which-we.
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15 will~ consider during this prehearingl conference.
16 Before we do so,1I would'like to take oral-17 appearances.
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18 Who appears for the Staff?-
19 MR. JOHNSON:
JL' ige, good-morning, I'm George'E.
20 Johnson, counsel for the NRC Staff.
1 21 JUDGE MARGULIES:
Mr. Johnson, could you tell us
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a 22-whether:or not you are admitted to-the'bar?
I make-the same 23 request of allithe otherm representatives.
1 24 MR. JOHNSON:
I am admitted.to-the bar of:the 25 states of New York and Maryland.
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. JUDGE MARGULIES:
Who appears for TMIA?-
2 MS. BRADFORD:. Good morning,. Judge,-Louise 3
Bradford.
'I will.represen't TMI Alert.
I am not an 4'
attorney.
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. ho appears for GPU Nuclear?
5 JUDGE MARGULIES:
j 6
'MS.
BAUSER:
Good. morning,-Judge,.my name'is p
7
~ Deborah Bauser, with:me-is Ernest Blake', from the firm;of 1:
j-8 Shaw, Pittman, Potts & Trowbridge.
'I'm a member of the bar 9
of the District of Columbia and so is'Mr. Blake.
10 MR. JOHNSON:
If-I mayLadd, your Honor, I am also 11 a member of the District of Columbia bar.
I 1
.12 JUDGE MARGULIES:
It will be'so noted.
13' Who appears for.Mr.;Husted?
14 MR. MAUPIN: -My name is' Michael W.'Maupin,._and i
15 with me this morning is Maria Christina Hensley. -We are with-16 the law firm of Hunton & Williams.
We have both been
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admitted'to'pract' ice-before the-bar of-the Suprerr.e Court-of
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18 Virginia.
i 19 JUDGE MARGULIES:
Thank you.
20 This proceeding does'not follow'a usual format,'so 21 there are matters to be discussed that go beyond those
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i-22 normally considered at an initial prehearing conference.
23 The matters to be considered were outlined in the j
-24
' December 1985 order.
I also encouraged.the(parties to meet-25
--in advance of this prehearing conference to attempt to-narrow
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'and simplify"the~ issues.
2' I received a letter yesterday afternoon from 3
Mr. Maupin,.in which he' outlined.the matters that were 4
. considered by the participants.
5 The-efforts are evidently very considerable.
The' 6
issues were treated by the parties.in a very orderly fash' ion 7
and in a comprehensive' manner, and:I agree-with the
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8 conclusion-that a= good deal of progress was made and it will-9 ease the decision-making process.
10 I believe it would assist the record if we include.
.11 the letter in the record, in that we will be. making.
12 references to it throughout the conference this. morning.
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13' One of the things that I do wish to clarify is the 14 last statement in the letter, the last paragraph,.which says,
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15 "As you can~see, while we have not relieved you entirely of 16 the responsibility to make decisions, we did make-a good: deal 17 of progress."
18 I just want to state, clarifying the record, that 19 although the parties may agree as to what-the issues are and 20 as to what procedure 1to follow, the ultimate decisionfon 21 those matters is mine as the administrative law judge and 22 with that comes'the final ~ responsibility on those decisions.
23 It's just a matter-of clarification,--not a matter;of.
24 admonition.
25 Is there any objecti~on to including.this in the O
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I record?
2 MR. JOHNSON:
No, sir.
3 JUDGE MARGULIES:
Are there any changes to it that 4
you wish to make at this time?
5 MR. MAUPIN:
Judge, perhaps I ought to say that I 6
have sent copies of this letter to each of the other parties 7
and I have now determined that each of the parties agrees --
8 I believe it's fair to say -- that the letter is accurate as 9
far as it goes, though one or more parties may wish to 10 supplement the views stated in this letter on one or more of 11 the issues dealt with in the letter during the course of ti.is 12 prehearing conference.
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13 JUDGE MARGULIES:
We will mark the letter as w
14 Exhibit Number 1, and have it appended to the record.
15 Mr. Maupin, would you have an additional copy?
I 16 have the original which I will put into the record and I 17 would appreciate it if you would supply one more copy to the 18 reporter.
19 MR. JOHNSON:
Would you like to attribute it to a 20 particular party?
I assume that later on we will have 21 applicants --
not applicants, but Staff exhibits and 22 different parties' exhibits.
23 JUDGE MARGULIES:
Well, if Mr. Maupin has no 24 objection we will designate it as -- how are you going to 25 designate your exhibits, Mr. Maupin?
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1 MR. MAUPIN:
Well, I suppose as Husted Exhibits, 2
CH --
3 JUDGE MARGULIES:
CH-1 would be fine.
4 (CH Exhibit 1 identified.)
5 JUDGE MARGULIES:
The first matter we will take up 6
is the litigability of the proposed contentions.
Does the 7
letter supersede the prior filings?
8 MR. MAUPIN:
That's probably directed in 9
particular towards me because I suggested sone rephrasing of 10 the contentions filed by TMIA.
I think it's fair that my 11 present position is that I hold by what was said in CH-1, 12 under heading one, namely, that the contentions stated by the 13 parties -- the two contentions by TMIA, one contention by GPU u,
14 Nuclear -- are litigable as far as I'm concerned and I 15 reserved, until we get to heading two, the question of 16 exactly how we articulate the factual issues and legal issues 17 that are implicit in those contentions.
18 JUDGE MARGULIES:
Do you have somethirg you wish l
19 to add, Ms. Bradford?
l 20 MS. BRADFORD:
On the first point, I am in l
21 agreement that the contentions are litigable.
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22 JUDGE MARGULIES:
I find a problem with the 23 contentions in that it may be an oversight, but the 24 contentions do not deal with Mr. Husted acting as a licensed 25 operator instructor or training supervisor.
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1 intention to cover those activities?
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MS. BRADFORD:
Yes, it was.
I'm sorry, I should 3
have looked more closely.
I thought this was a restatement 4
of the contentions as I had phrased them.
5 JUDGE MARGULIES:
Do the parties have anything 6
further to offer on that?
As I read them, they don't cover 7
the activities of a licensed operator instructor or training 8
supervisor.
9 Yes?
10 MS. BAUSER:
Judge Margulies, I think one could 11 interpret our contention as excluding the issue of training 12 of non-licensed personnel who were not operators, and I think
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13 the intention, both by TMIA and by us, if I can suggest this, V
14 is to track the language in the original Commission order 15 which, under issue 1, raised the question of Mr. Husted's 16 responsibilities towards nonlicensed-related duties.
And the 17 second issue raised the matter that Mr. Husted himself 18 raised, the broader issue beyond the original ALAB-772, and 19 encompassed the licensed operator-related duties.
20 Between the two, that was intended to encompass 21 the whole universe.
I think if you look closely, it appears 22 that they possibly may not, but I think that's the 23 intention.
24 JUDGE MARGULIES:
Well, I think we should rephrase 25
] both contentions, then, to incorporate all job categories.
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I think-theCTMIA. contention.would read, "Husfed-2-
should be~ barred from serving as an NRC-licensed operator.or 3
'lleensed' operator. instructor.orftraining supervisor by reason
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4 of.his. demonstrated-bad attitude and lackfof integrity."
5 Is that satisfactory to the parties?
6 MR. MAUPIN:
Yes.
7 JUDGE MARGULIES:
I also have a problem with 8
proposed contention 1 -- an'd it may be form rather than 9
substance, but it doesn't really contain a rationale"-- as to.
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i 10 why the appeal board'sJcondition should not be vacatId'and i
11.
probably the addition of the language."by reason of his-4 12 demonstrated bad attitude and lack of integrity" :would.
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13 complete that contention.
14-Is there any objection to adding that to the.
15 contention to give it a rationale?
16 MR. MAUPIN:
I have1n'o' objection.-.It's of course 17 not my contention.
j I have:no objection.
j 18 MS. BRADFORD:
19 JUDGE MARGULIES:
There being no-objections, the 20-two contentions will be rephrased.in the~ manner-indicate'd.
21 Ms. Bauser, do you wish to rephrase'your 22 contention?
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23 MS. BAUSER:
'I think.thatilf' the'phraseL"an 24 instructor of licensed or.nonlicensed operators"-was changed 25 to "nonlicensed personnel" thattthat' would' accomplish.the ACE-FEDERAL REPORTERS, INC.
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clarification that I was referring to.
I JUDGE MARGULIES:
"An instructor of licensed or 1
nonlicensed personnel"?
It's a matter of adding the word j
4 personnel?
5 MS. BAUSER:
Yes.
6 JUDGE MARGULIES:
Is there any objection to that?
7 MR. MAUPIN:
No.
8 MR. JOHNSON:
No.
9 JUDGE MARGULIES:
The modification will be made.
10 As to the contention of GPU Nuclear, I have a 11 problem with it in terms as to whether there is a time limit 12 as to the evidence you would wish to present, as to
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13 Mr. Husted's history with the licensee.
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14 In other words, does this proceeding -- was it the 15 intention of the Commission, in instituting this proceeding, 16 to freeze the time as to all events that occurred prior to 17 the appeal board coming out with their decision and not to 18 hear any evidence that goes beyond that period?
The way your 19 contention is phrased, it is open-ended.
20 MS. BAUSER:
Yes, sir.
21 MR. MAUPIN:
Let me make sure I understand that.
22 It is limited, I take it -- no, it's not, sorry.
I withdraw 23 that.
24 MR. JOHNSON:
This was a subject, your Honor, that 25 we discussed at some length at the meeting.
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Correct me if I'm wrong -- concerning the issues, 2
the factual issues in controversy, and we all agreed in 3
conjunction with the statement of the factual issues on page 4
3 of CH-1, that it would not only encompass the four factual 5
questions that are contained in the Commission's notice of 6
hearing of September 5th but, in addition, the question of 7
Mr. Husted's performance of his responsibilities, and that 8
fifth matter would encompass the sort of time frame that 9
Ms. Bauser was referring to.
It is not frozen to the time 10 frame of the four questions that were denominated in the 11 order of the Commission.
12 If I'm wrong, I would like it to be supplemented.
(")T 13 MS. BAUSER:
Judge Margulies, the contention as 14 proposed is intended to include information pertinent to the 15 issues of his -- of Mr. Husted's conduct and attitude which 16 might in fact postdate the issuance of the ALAB, and I think 17 that that is reasonably within the scope of issue -- subissue 18 B in your memorandum and order of December 6th.
19 JUDGE MARGULIES:
How do you square that with the 20 four concerns that the Commission asked us to focus on, all 21 of which relate to matters that predated the appeal board's 22 decision?
23 MS. BAUSER:
I think that it goes more to the 24 remedy, if I might say, to those issues.
That is, once one 25 discovers the answers to those issues, it's not clear what
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the~ outcome should be and I think1part of the evaluation of-2 the outcome should be other facts' pertinent'to Mr.EHusted's..
3 conduct which, in my; view,1 include subsequent performance.
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'Also concurrent' performance.
5 MS. BRADFORD:. Judge Margulies?
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JUDGE MARGULIES:
Yes?
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MS. BRADFORD:
I think the initia'lLquestion;of..the i
8 Commission was a very narrowly. stated question,.thatlis, 9
whether the appeal board condition should be vacated..And on i
l 10 that question one would have-to -look only at the -issues that -
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11 led to that. condition and not to the events after'that:
12 condition was imposed.
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13 MR. MAUPIN:
May I step up?
14 JUDGE MARGULIES:
Certainly.
15 MR. MAUPIN:
I think the lead-off toe.the statement.
16 of the four issues that are to be focused'on --land:I'm L
17 referring, now, to the notice of hearing; I think it's l
18 repeated in your memorandum and order --
19 JUDGE MARGULIES:
Yes.
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'MR.
MAUPIN:
It says either haaring'would focus ~cn h
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'whether any of the four following concerns regarding 22 Mr. Husted are'true and, if so, they require thatshe not.be l
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23' employed in the. jobs in question.
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24 TSo I suppose my. approach to this has been!- 1I'm i
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25 not sure.I parsed it.quite as'closelyias;your questioni
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'l requiredlme-to, now,I buti ray view is that.we' address these1
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four: focus. issues.-
If-any.of.those-is: determined adversely,
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'3 to Husted',lthka we move onto'the mSre general' quest' ion = stated 4
in the ~~secondiclause of the introduction to >those: four
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5 issues, namely, whether thosh' findings require that.he not be.
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6 employed.
7 I? guess, as'a practicaljmatter, what~I'had-8 anticipated coming in in this case, perhaps producing --
9 would be evidence, really, beginnind.with the' time in which 10 he began to-serve, certainly in a~tradning role and 11 continuing through the present, since;my view has been'that 12' the question is, based on what we know today about.his j-13 attitude and-integrity:
What remedy, if.any, is-required in 14 this case?
15 JUDGE MARGULIES:
Dokou:wishtobeheard, 16 Mr. Johnson?
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17 MR. JOHNSON:
Yes.
'I have':been contemplating your 18.
question and I don't think it was' considered at-our meeting 19 in the way in which you popd it, and the question of whether S
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.the appeal board's order ought;to be. vacated,or not-cdepending
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21 on the record on which 'it is relying seemt: to raise the
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22 question whether we.can. uphold--or not uphold'.theuappea1' 23 board's order, based' on evidence that goes 'beyond theitime of.
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24 the appeal board-order because we, obviously,:can'tthold;the-25
-appeal board tocsubsequent"timefframe information.
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But-that also goes'to the question of.the~ scope:of' i^
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the proceeding.that the Commission has-contemplated and I.
3 don't believe that-there is an express:bar in the. commission 4
J order that would-prevent us < or: prevent you :from' considering 5
information going.beyond the date of the appeal board's 6
order, although the question, as framed: 'Should the appeal 7
board's order be vacated ' cur not?
-- it doesn't' expressly say:
8 you can't consider events beyond-the date of the order in:
9 deciding on the entirety of the record that you assemble that 10 it is proper or improper to have-that order stand.
11 MS. BAUSER:
Judge Margulies, if I could add 12 something, I think that the first issue as :to whether the
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13 appeal board's order should be vacated is both a legal 14 question and a factual' question and it's my understanding 15 that the Commission decided not to-resolve-.the legal question 16 but to move on and have this hearing in order to resolverthe 17 underlying factual matters.
The-factual matters specific:to.-
18 ALAB-772 is whether Mr. Husted is qualified to serve:in 19 nonlicensed operator instructor. positions -- in that 20 position.
And.I think that the -- at least my reading 1of;the 4
21 orders that have been issued is, looking'at'the matter-.today 22 with-theJevidence that the appeal board,:in' fact,_had, and 23.
any other evidence,? including more current.' evidence ~and-4 24 possibl,y-other evidence from the past.- >How should'that 25 factual-question be answered?
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MS. BRADFORD:
Judge Margulies, may I just state 2
TMIA's position on that issue?
It is our position that the 3
Commission originally raised this issue in the framework of 4
whether the appeal board had the legal authority to impose 5
such condition.
In order to answer the question of whether 6
that condition may be vacated, I believe they must answer the 7
quest.)n as to the appeal board's legal authority and the 8
Commission has not answered that question.
Until that 9
question is answered, it appears that the appeal board's 10 condition stands.
It has not been overturned and so the very 11 narrow question that the Commission posed in its February 25, 12 1985 order, as to whether the conditions should be vacated,
)
13 really can't be answered until the question of the appeal 14 board's authority is.
15 Further, I think by expanding the hearing to 16 encompass factual issues, the Commission has exceeded its 17 authority or its jurisdiction.
Those issues have been 18 decided and are res judicata, at least the three issues that 19 are outlined here on page ~
C CH Exhibit 1,
that is issues 20 2,
3, and 4.
Those irs e
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/e been decided and Husted did 21 have an opportunity to participate and to confront those 22 issues at the time that the hearing was being held under 23 189 (a) of the Atomic Energy Act, Husted did have the 24 opportunity to confront those issues but he chose not to.
It 25 doesn't alter the fact that he had the opportunity.
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JUDGE MARGULIES:
I do want to come back.
2 Mr. Johnson, is there anything you can point to in the notice 3
of hearing and in the Commission's prior holding, in which 4
they gave Mr. Husted the opportunity to request the hearing 5
that would indicate they intended to go beyond what was 6
available to the appeal board?
7 MR. JOHNSON:
If I may have just a moment?
8 JUDGE MARGULIES:
Certainly.
And I extend the 9
same invitation to the other participants.
10 MR. JOHNSON:
If I may, your Honor, there are in a 11 way contrary indications in the notice, I mean on both sides 12 of the question.
/"')
13 At two points the Commission, in deciding whether V
14 to allow Mr. Husted to expand the scope of the proceeding, 15 determined that it shouldn't involve or require additional 16 agency resources to treat the questions that he asked to be 17 put into consideration because it would involve, as it says 18 on page 2 of the order, the same factual issues as the 19 proffered hearing.
Then it goes on to say either hearing 20 would focus on whether the following four concerns regarding 21 Mr. Husted are true, and, if so, whether they require that he 22 not be employed in the jobs in question.
And then you have 23 the four factual matters.
24 But, at the same time, on page 3 the Commission 25 also states in the middle paragraph there, in the middle of ACE-FEDERAL REPORTERS, INC.
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it:
"This will provide Mr. Husted with an opportunity to 2
demonstrate his fitness for the positions at issue."
Those 3
are the words that I'm particularly focusing on.
And that 4
was relating to the matters underlying the stipulation.
5 I think that on the one hand, additional agency 6
resources seemed to be involved if one goes beyond the scope 7
of those four questions to looking to his, Mr. Husted's 8
conduct on the job for a lengthy period of time; additional 9
evidence, additional pretrial work, et cetera; on the other 10 hand, Mr. Husted's being offered an opportunity to 11 demonstrate his fitness for the positione at issue, and it 12 seems to me that kind of evidence with regard to his
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13 performance on the job is pertinent to the question that -~
14 one of the questions, in any event, that the appeal board 15 raised in its decision, which was that it drew an inference 16 from his conduct at the hearing concerning his effect on 17 those he would be supervising.
18 It seems to me that it was an inference that is 19 open to challenge in this proceeding, since it formed the 20 basis for the appeal board's order.
21 I'm not saying that this order directly addresses 22 that question, because it doesn't.
But it seems to me one 23 might interpret the Commission's order to allow it.
24 JUDGE MARGULIES:
Do any of the other participants 25 have comments?
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MR. MAUPIN:
I suppose I have to say -- as.I say, 2
it hadn't occurred to me until I walked into this room that 3
one might take that view, namely that no evidence could be 4
put on with respect to his job performance after, let's just' 5
say arbitrarily the date on which the appeal board order was j
6 issued.
It strikes me, first of all, that Ms. Bauser, first 7
of all, has made a valid point.
The second of the two issues 8
here, that dealing with the licensed positions, really has 1
9 nothing to do with the effective date of the appeal board 10-order.
f 11 Number 2, if Mr. Husted is permitted to assume one 12 of the positions, any one of the positions described in the f~j')
13 notice of hearing at some future date, it seems to me just 14 necessarily to contemplate that his taking that job would 15 have depended in part on his performance up until the time 16 that that decision is made, or so much of it as we can 17 identify and introduce evidence about.
18 In addition, it seems to me just as a practical 19 matter, suppose we finish the evidentiary hearing on the four 20 principal focus issues and you decide that Mr. Husted's 21 attitude in the course of the hearing was not a desirable 22 attitude.
It seems to me'it is very difficult -- it would be 23 very difficult, if that were the sole unfavorable finding, it 24 might be very difficult to decide that in 1986 he is not 25 entitled, on account of that event, to serve in one of these
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positions, regardless of what might be said about his
-2 attitude and his integrity since'the date of that -- of the 3
original hearing.
4 It seems to me it would be a fairly severe and 5
uncalled-for limitation not to permit, certainly, evidence of 6
his job performance during the period 'since the appeal board 7
order was made.
8 JUDGE MARGULIES:
Is there any further comment on-9 that aspect?
10 MS. BRADFORD:
I just want to reiterate my 11 position the question raised by the Commission was whether 12 the appeal board's conditions should be vacated.
I don't f')
13 think that issue can be decided on what has transpired since N./
14 the appeal board made its decision.
15 JUDGE MARGULIES:
I think we have pretty well 16 exhausted the subject at this point.
I will get back to the 17 litigability of the proposed contentions.
In regard to 18 TMIA's proposed contentions, I find that they are admissible, 19 and as a result of their being admissible, TMTA is admitted 20 as a party.
21 In regard to the proposed contention by GPU 22 Nuclear, there is enough in the contention to make it 23 litigable-in terms of its dealing with what happened up until 24 the appeal board's decision.
That's a matter that you would 25 develop.
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1 As to whether the record should be opened as to 2
what occurred subsequently, I will reserve decision on that 3
and come out with my decision in the order summarizing what 4
transpired at this proceeding.
So, GPU Nuclear is also 5
admitted as a party to this' proceeding.
6 MS. HENSLEY:
Your Honor?
7 JUDGE MARGULIES:
Yes?
8 MS. HENSLEY:
May I point out, in the licensing 9
board's decision, they were obviously concerned with 10 Mr. Husted's subsequent job performance because they directed 11 that "GPUN's training program include the establishment of 12 criteria for qualifications of training instructors and the
(~J) 13 auditing of training at the point of delivery.
We recommend L
14 that the qualifications and delivery performance of 15 Mr. Husted receive particular attention during the 16 forthcoming review of the TMI training program."
17 So they were obviously interested in how 18 Mr. Husted performed his subsequent job duties.
19 JUDGE MARGULIES:
Could you give us a citation to 20 that so we can look it up and consider it?
21 MS. HENSLEY:
16 NRC 281, at page 320.
That's 22 Licensing Board Manual 82-56.
23 MS. BRADFORD:
Judge Margulies, I would just like 24 to note, of course, the Licensing Board decision was 25 superseded by both the stipulated agreement and the appeal
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board's ruling.
2 JUDGE MARGULIES:
I think the appeal board makes 3
reference to-that comment by the licensing board in their 4
decision.
The point you make, though, Mrs. Bradford, is 5
noted.
6 We next move on to area 2, identification of the 7
key factual and legal questions.
8 I think the who'le purpose of the notice of-hearing 9
is to litigate those two categories.
That's the purpose of 10 the proceeding.
If it wasn't the purpose of the proceeding, 11 to litigate those two categories, there would be no notice of 12 hearing.
Could the parties expound further on what they 13 consider questions of remedy to be?
14 MR. MAUPIN:
Are you referring to the last 15 paragraph on page 3 -- well, the first full paragraph on page 16 3?
17 JUDGE MARGULIES:
Yes.
18 MR. MAUPIN:
I can do that.
19 There are certain questions of remedy that are
~20 identified later in the letter.
I think this point, though, 21 is the first point at which I might supplement the positions 22 I have set out in the letter.
23 It seems to me there is a legal issue not 24 adequately addressed in the letter that has to do with 25 remedy.
It basically comes down to this:
What standards
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should be applied in determining whether Husted should be 2
barred from any of the positions named in th'e hearing?
My 3
own position at this juncture is that the standard that would 4
have.to be applied is whether, in light of the facts that 5
have been developed in the record, his serving in.any one of 6
the designated positions would endanger the public health and 7
safety.
Beyond that, Mr. Husted's view's-on remedy, I think, 8
are set out in the letter.
9 JUDGE MARGULIES:
Would you get into the question 10 as to whether it would be appropriate to be barred for a 11 particular period of time?
Or you are faced with a permanent 12 disbarment?
Or you haven't given any thought to those areas f')'
13 as yet?
l s-14 l
In other words, does it have to be all or 15 nothing?
16 MR. MAUPIN:
No, I have given some thought to 17 that.
I don't think it has to be all or nothing.
I don't 18 think anything in the letter suggests that it has to be all 19 or nothing.
It seems to.me that there could be, in theory, a 20 range of remedies.
21 JUDGE MARGULIES:
Do the other parties wish to be 22 heard on that?
23 MS. BRADFORD:
Of course we are not considering, 24 or Mr. Maupin is not considering the stipulation, which I 25 think we all agreed cannot be affected by any NRC tx-)
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proceeding.
And that has no time limitations.
It is 2
strictly a bar to certain activities on the part of 3
Mr. Husted.
So, I mean, that is certainly going to affect 4
what remedy is sought and what remedy can be provided by any 5
proceeding -- by this proceeding, rather.
6 JUDGE MARGULIES:
Mr. Johnson?
7 MR. JOHNSON:
Well, I agree, I think, with both 8
points:
That the stipulation is something that the 9
Commission determined in its notice of hearing that it didn't 10 anticipate directly affecting; that the stipulation was, in a 11 sense, a contract between the parties; and that the evidence 12 adduced in this proceeding could be used by Mr. Husted in
(~)
13 dealing with those two parties.
'x_/
14 With respect to the range of remedies, I agree 15 that a range of remedies is possible.
However, there are 16 certain things, also, again, that would be beyond your 17 authority.
For example, I don't believe you would be able to 18 award a monetary judgment.
But, in terms of whether you 19 could determine or recommend that he be permanently barred, 20 temporarily barred for a specific period of time, that he be 21 put on a probationary status with respect to one or more 22 positions -- I think those are all within your authority to 23 do; and I would just cite as an example the type of condition 24
.I think it was a condition -- that Mr. Husted's counsel 25 referred to, imposed by the licensing board, which was to N,'
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monitor his activities, which was something less than
~'
2 probation.
So I think there is a range that you can choose a 3
remedy from.
4 JUDGE MARGULIES:
There is nothing in that 5
category that needs an immediate determination, so we will 6
move on to the factual issues.
Under paragraph - (b), as to 1, 7
2, 3 -- and those just repeat the items the Commission asked 8
us to focus upon.
9 5 contains the element which we discussed earlier, 10 and which I will reserve decision on; and we have discussed 11 remedial action very briefly.
Does anyone want to expound 12 any further on remedial action?
( ')
13 Moving on to 3,
" determining the parties to the 14 proceeding."
All the participants are parties to the 15 proceeding.
16 MS. BRADFORD:
Judge.Margulies, if we could go 17 back just one moment, I'm sorry, to the factual issues?
18 Mr. Maupin has said that TMIA agrees that if you reject its 19 position on the legal question you should then address the 20 following factual ques tions.
And I think that might be a 21 slight misstatement of my position, and so I would like to 22 clarify it.
23 JUDGE MARGULIES:
Please do.
24 MS, BRADFORD:
It seems to me that the notice of 25 hearing, the commission's notice of hearing allows these 7
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issues to be addressed but not necessarily to be relitigated, 2
that.in fact they should be taken into consideration but not 3
relitigated.
I believe the facts are fully developed on the 4
record and do not need to be relitigated.
And, again, I 5
would state my position that Mr. Husted did have the 6
opportunity, at the time of the hearing, to litigate these 7
issues.
8 JUDGE MARGULIES:
The Commission has made the 9
determination that the fact that Mr. Husted did not 10 participate and was not a party to the proceeding, the way I 11 read the notice of hearing, gives him the right to relitigate 12 both categorles set forth in the notice of hearing.
)
13 MS. BRADFORD:
But as a matter of fact, Mr. Husted 14 did have the opportunity under 199 (a), and in fact was given 15 actual notice after the special master's report.
16 JUDGE MARGULIES:
I appreciate that.
But 17 evidently the Commission did not feel that it was 18 satisfactory in dealing with the mandate of the Commission.
19 It isn't our purpose or intent to go beyond the Commission's 20 reason for doing what it did.
We are accepting the mandate 21 of the Commission and proceeding from there.
22 MR. M AUPIll:
May I add one thing at this point?
I 23 must confess it is not entirely clear to me how we have 24 disposed of, or whether you nave disposed of both of the 25 Roman numbered issues under 2 (a), on page 2.
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understood, it was the Commission's purpose to relitigate
)
1 I
2 both categories.
And I'm not sure I know what that means.
l 3
JUDGE MARGULIES:
How about as to Roman numeral l
1 4
I?
5 MR. MAUPIN:
As to Roman numeral 1,
as you will 6
see, Ms. Bradford has restated the position she rtates here, l
7 and I think her position is adequately stated.
The other 8
parties, as you will see, believe that that issue is rendered 9
moot by the fact that the Commission has provided this 10 hearing in an ef fort to cure the perceived defects in the 11 earlier proceeding.
12 JUDGE MARGULIES:
I should have been more g
13 specific.
When I said "relitigate," it was my purpose to 14 treat this matter de novo rather than -- well -- that's, to 15 me, the mandate of the Commission, to treat the matter de 16 novo.
It gives Husted the opportunity to have the matter 17 treated de novo.
18 MS. BAUSER:
Judge Margulies, I may be beating a l
l 19 dead horse here, but if I could, I think the Roman numeral I l
I 20 statement under 2 is a rephrasing of what you referred to as l
l l
21 category 1,
focusing only on the legal examination of the l
l 22 appeal board's decision and not the examination of the l
l 23 underlying factual issues looked at by the appeal board.
l l
24 If I understand you correctly, when you say "both l
25 categories," you are talking about including the factual O
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issue underlying ALAB-772 and then the other issues, namely 2
2, 3, and 4?
Is that it?
3 JUDGE MARGULIES:
That is correct.
4 MS. BAUSER:
Okay.
5 JUDGE MARGULIES:
Does that satisfy you?
6 MS. BAUSER:
Yes, sir.
7 MR. JOHNSON:
I must say now I'm a little 8
confused.
Could you state that again for my benefit?
9 MS. BAUSER:
The issue of Roman I, under 2 on page 10 2 on Husted Exhibit 1,
states the first of the two issues 11 identified by the Commission more narrowly.
That is, it 12 doesn't say whether the ALAB order by Husted should be
(
)
13 vacated.
It says that they have the authority, which is 14 purely the legal part of that question, not the question of 15 whether the facts support suspencion or barring of Mr. Husted 16 from supervision.
And it's that factual issue which is also 17 included in this proceeding de novo.
18 MR. JOHNSON:
But with respect to the other 19 category, you are not intending to exclude the first issue, 20 are you?
21 MS. BAUSER:
No.
22 MR. JOHNSON:
Okay.
Because what you said was 2, 23 3, and 4, but you mean 1, 2,
3 and 4?
24 MS. BAUSER:
Yes.
25 JUDGE MARGULIES:
Let me back up, and maybe in
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1
. backing up I should jump forward.
I view the appeal board's 2
action as having imposed a sanction, and I look upon this 3
proceeding to be an enforcement proceeding.
And, in terms of 4
looking strictly to the appeal board's legal authority to do 5
what they did, I don't know if it has -- it matters much in 6
this proceeding.
They did what they did and whether they had 7
the legal authority to do it is, to me, academic.
And I 8
think because this is'an enforcement' type proceeding in which 9
a sanction had been imposed previously, in which Husted did 10 not participate and he was the subject of the sanction, he 11 has the authority to relitigate the factual question all over
{
12 again, de novo.
/~h 13 Does that clarify the picture?
C,/
14 MR. MAUPIN:
Yes, sir.
15 MR. JOHNSON:
Thank you.
16 JUDGE MARGULIES:
Moving on to 4, defining the 17 nature of the proceeding and the relief that can be granted.
18 In a sense you can say that we are reviewing what the appeal 19 board did, but the real nature of proceeding is one of an 20 enforcement proceeding.
That is to be handled on the record 21 made before us and not to go back to the record that the 22 appeal board acted upon.
It's a matter of due process, in 23 that Mr. Husted was not a party to the proceeding.
24 I recognize your feeling in that you feel, because 25 he was given the opportunity to do so that he was -- he g3 L>
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I waived, in effect, his right to participate and would be 2
bound by what happened.
But I believe the Commission 3
intended something differently and we will follow the 4
procedure that I outlined, that there will be a de novo 5
record.
When I say a de novo record, that doesn't mean the
{
6 parties can't work into the de novo record parts of the old 7
record if it suits their purposes.
l 6
Looking at 4 (b), subparagraphs (1) and (2), I i
9 agree with (1); I agree with (2); and the notice of hearing l
10 states that Mr. Husted has the option of taking the findings 11 if they are favorable to him and bringing them to the 12 attention of the commonwealth of Pennsylvania, but that's his
('T 13 option and does not play a part in this proceeding.
v; 14 I think it would be appropriate to take a 15 15 minute recess at this point.
16 (Recess.)
l 17 JUDGE MARGULIES:
Back on the record.
l l
18 What do the parties have to say about 5?
Let me 19 start out.
Mr. Johnson, do you envision a time when you
)
l 20 would take an affirmative position in this proceeding?
{
21 MR. JOHNSON:
Yes, with respect to at least one of 22 the issues, as we have agreed in paragraph 2, we intend to 23 conduct an inspection with regard to the performance of 24 Mr. Husted, and on tne basis of that, address that issue, 25 number 5, there under -- with affirmative evidence.
So that
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on the specific question that-is indicated there, based on 2
that inspection we will have a witness,-Staff witness who 3
will testify as to-the conclusions that he reached based on 4
that inspection.
5 With respect to the other factual questions, I 6
couldn't say at this time whether we will or will not have a 7
position.
8 JUDGE MARGULIES:
Will you know before we go to 9
hearing?
10 MR. JOHNSON:
I doubt it.
If I may just add the 11 reason why, and that is that assuming we have witnesses and 12 there is cross-examination and rebuttal witnesses on the
(")
13 factual questions, that those will influence the result and
%j 14 the outcome, and our position will -- assuming that we 15 ultimately take a position on_some of those questions, it 16 will probably be after the hearing rather than before it.
17 JUDGE MARGULIES:
Well, in terms of the order of 18 presentation, is there any problem right off in having Staff 19 go first and Mr. Husted last?
That would seem logical.
Do 20 the parties have any problem with that?
21 MR. JOHNSON:
If I may respond to that?
What the 22 Staff had in mind with respect to the order was that the 23 Staff would offer the record for itself, without requesting 24 that it be accepted for the truth of the matter stated 25 therein, but as the record, and that that would constitute a
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,o r
1
-- or might serve as a prima facie case in support of the 2
order, so to speak.
3 The Staff is not the proponent of the order, may I 4
reiterate.
To the extent that there's any proponent to the 5
order in this proceeding, at this point it would be those 6
parties, particularly TMIA, which is, in fact, a proponent of 7
the order of sanction.
I don't believe any of the other 8
parties before you are a proponent of that order.
The 9
sanction was imposed by the appeal board, but the mandate of 10 the Staff is not to make the case for the order of the appeal 11 board, but only to ensure that the record is fully developed 12 as per the Commission notice of hearing.
And we don't (v~]
13 interpret that as requiring us to take a position in favor of 14 the sanction or against the sanction.
15 JUDGE MARGULIES:
In terms of developing the 16 record, it would certainly have to be a record that is 17 legally admissible and to present matters that are not being 18 offered for their truth, I don't see what they are 19 accomplishing.
20 MR. JOHNSON:
The thought here was that the record 21 as it exists is subject to some procedural or due process 22 deficiencies.
There was no notice to Mr. Husted, no 23 opportunity to be heard, no cross-examination, opportunity to 24 present rebuttal witnesses -- these are the defects in the 25 record and why I believe that we are having this proceeding.
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If those deficiencies weren't present, or aren't 2
challenged in this proceeding, hypothetically, there isn't 3
anything inherent in the record which would prevent its being 4
used as credible evidence, based on the weight and probative 5
value that you would assign.
Certainly some of the evidence 6
may be more weighty, because of its nature, than other of the 7
evidence.
But it is our position that you could admit 8
provisionally the record, subject to establishing the truth 9
of the matters asserted therein upon offering Mr. Husted and 10 others the opportunity to call witnesses, to cross-examine 11 those witnesses whose testimony is in the record, and so on.
12 And then once that is accomplished, then if the
[^)
13 deficiencies are removed, that is, he has notice, he has the s._/
14 opportunity to rebut any evidence that is in there, to 15 cross-examine those persons whose testimony is in the record, 16 I'm not sure why that -- certain of that evidence couldn't be 17 admitted for the truth of the matters stated therein.
18 JUDGE MARGULIES:
I'm certainly not speaking for 19 Mr. Husted, but what if he decides not to do anything?
How 20 have you developed the record?
21 MR. JOHNSON:
I'm not sure I understood "not to do 22 anything."
l 23 JUDGE MARGULIES:
He just sits back and does 24 nothing.
25 MR. JOHNSON:
Oh, he decides to sit back and do r,
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nothing?
2 JUDGE MARGULIES:
Yes.
3 MR. JOHNSON:
I.think it would be upon the' Staff 4
in that circumstance, and perhaps other parties.
As the 5
regulations say, the burden is on the proponent or as the 6
presiding officer may otherwise allocate, and it would be up 7
to you to allocate the burden.
But if you could, among those 8
allocations and consistent with the Commission's order that 9
we, the Staff fully develop -- make sure that the record is 10 fully developed, call on the Staff to call those witnesses 11 that are necessary to remove the deficiencies.
12 JUDGE MARGULIES:
Don't you already have that
(~}
13 responsibility by the notice of the hearing?
v 14 MR. JOHNSON:
I don't interpret it to be 15 necessarily that we call the witnesses.
But, if necessary, 16 yes.
If you are saying that no one else calls the witnesses, 17 then I would agree.
Then, if we didn't -- well, let me 18 backtrack a second.
Maybe I don't agree with that.
19 The question of whether there is a deficiency or 20 taint on the record might be affected by the fact that 21 Mr. Husted didn't come forward at all, if that were to be the 22 case.
And then we are in the position of the situation 23 before he requested the opportunity for a hearing.
At that 24 point the Commission had said:
We are going to offer him an 25 opportunity for a hearing.
We will stay the effect of the (s_-)
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I sanction order and proceed with the hearing and it will be 2
stayed during that time.
But, if we may suppose that 3
Mr. Husted did not ask for a hearing, I don't see any bar, 4
then, for the order to have been effectuated.
So that in 5
that sense, if you would say that Mr. Husted, then, waived 6
his opportunity to remove the deficiencies in the record, 7
then perhaps the record does stand -- could be used to stand 8
for the propositions that the appeal board relied upon in 9
making its sanction order.
10 JUDGE MARGULIES:
Did you wish to be heard, 11 Mr. Maupin?
12 MR. MAUPIN:
Well, we covered a lot of the f'}
13 issues.
It might be appropriate to begin by saying that it x_/
14 seems to me there are two fundamentally different ways one 15 can approach this proceeding conceptually.
The first is to 16 view it in the way that Mr. Johnson just suggested it might 17 be viewed, that is the case in which Mr. Husted is given an 18 opportunity -- one would characterize it as a case in which 19 Mr. Husted is given an opportunity to come forth and show why 20 incorrect conclusions were reached in the previous 21 proceeding.
22 The other is to view it in this way.
It starts 23 with the premise that the prior proceeding was fundamentally 24 flawed, insofar as it dealt with Mr. Husted, and it follows 25 from that that what is required from here is a de novo m
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proceeding designed, to the extent practicable, to avoid the 2
taint of the earlier proceeding and that, given that it is de 3
novo, if someone wants to establish that Mr. Husted has 4
committed this transgression or that transgression, it in 5
principally their burden to do so.
6 If one starts from that latter proposition -- and 7
I -- if we look at the questions of burden of proof and 8
burden of going forward, they are not as clear; the 9
principles are not as clearly defined in NRC case law as one 10 would like.
11 There are two cases I know of that I think all of 12 us here would characterize as enforcement proceedings, in
(^/')
13 which the burden of persuasion is put on the licensee, as w
14 opposed to the Staff.
I believe there's a rational argument 15 where those cases should not be controlling in this case.
16 I start with the principle that what is intended 17 here is a de novo proceeding and that leads me to a couple of 18 conclusions.
19 One is that it is the burden of others, whether it 20 be the Staff or TMIA, and I guess at today's juncture TMIA is 21 the only party that is prepared to say now that it would like i
22 to see adverse findings to Ilusted come cut of this 23 proceeding.
When I start with the idea that there ought to 24 be a de novo proceeding, though, I say that the burden is on 25 others to go forward and to satisfy you by a preponderance of p
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I the evidence that Husted has done one or more of the items 2
addressed in the first four issues.
3 It also, though, directs my thinking on the issue 4
of what should be done with the record of the prior 5
proceeding.
I think this is a difference of substance 6
between Mr. Johnson and myself.
I guess my approach would be 7
that we avoid any decision, that the record comes in en masse 8'
at the threshold, and that we, instead, develop our cases 9
through discovery and, in the typical ways lawyers do, let 10 each of us see what parts of the record we want to use to 11 support our cases and let each of us make those -- try to 12 have those portions of the record admitted, recognizing that
(~))
13 our arguments will have to pass muster under the rules of
\\~
14 evidence that will govern this proceeding.
15 MS. BRADFORD:
Well, as the nonlawyer here, I have 16 a few questions rather than a statement.
17 First of all, it seems to me that implicit in the 18 term " enforcement hearing," there is a charge that is about 19 to be enforced and, therefore, it would be Mr. Husted's 20 position to defend against that and that is what colored my 21 thinking, that he would have the burden of proof.
And, in 22 fact, those charges would be the earlier record and the 23 decisions that came out of that record.
And in that case, as 24 I said, it would seem that he would have the burden of 25 proving that those should be overturned.
(~)'
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If there is another subtle difference in 2
enforcement hearing that I am misinterpreting, perhaps -- and 3
perhaps someone could explain that to me.
4 JUDGE MARGULIES:
Well, it's the general rule when 5
someone wants to impose sanctions against a party, in our 6
form of government it isn't the so-called respondent or 7
defendant or whatever you want to call him, that he has the 8
burden of proof to establish his innocence.
It's generally a 9
matter of the one making the charges has to substantiate 10 them, and to place the burden of proof on Mr. Husted would be 11 depriving him of due process, in my opinion.
12 MR. JOHNSON:
Judge Margulies, this question is
(
13 also dealt with in the legislative history of the 14 Administrative Procedure Act which I believe is controlling 15 in this case because of the APA's importation into Section 16 181 of the Atomic Energy Act.
17 In the legislative history, on the burden of proof 18 section, Section 7 (c), which is codified as 556 (g), it not 19 only speaks to the burden of going forward but also the 20 question of sanctions that you just spoke to.
And I just 21 would like to quote from the Senate committee report on the 22 Administrative Procedure Act which deals with this:
23 "That the proponent of a rule or order has the 24 burden of proof means not only that the party initiating the 25 proceeding has the general burden of coming forward with a
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1 prima facie case but that other parties, who are proponents 2
of some different result, also for that purpose have a burden 3
to maintain."
4 Let me read the entire paragraph but it's the last 5
sentence which I would like to focus on:
6 "Eimilarly, the requirement that no sanction be 7
imposed or rule or order be issued upon evidence of the kind 8
specified meant that the proponents of a denial of relief
=
9 must sustain such denial by that kind of evidence.
For 10 example, credible and credited evidence submitted by the 11 applicant for a license may not be ignored except upon the 12 requisite kind and quality of contrary evidence.
No agency
(')
13 is authorized'to stand mute and arbitrarily disbelieve V
14 credible evidence.
Except as applicants for a license or 15 other privilege may be required to come forward with a prima 16 facic showing, no agency is entitled to presume that the 17 conduct of any person or status of any enterprise is unlawful 18 or improper."
19 I believe that language has been accepted by the 20 federal courts and should be controlling here.
21 JUDGE MARGULIES:
There is language in the notice 22 of hearing that speaks in terms of Mr. Husted being given the 23 opportunity to establish his fitness, but I really don't 24 think it means he has the burden of establishing that the 25 sanction shouldn't be made applicable to him.
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1 MR. JOHNSON:
We agree with that.
The Staff 2
would, however, take the position that in allocating the 3
burden of going forward, that the proponent of the order, 4
that is, the sanction or some party or person standing in 5
lieu of that proponent, would have the burden initially of 6
going forward with a prima facie case ': hat would support the 7
result of the sanction.
But once that is done, then the 8
burden shifts to Mr. Husted to present the same kind of 9
evidence and a similar, contrary burden.
10 The only difference -- well, not the only 11 difference, but a principal difference between the types of 12 cases Mr. Maupin referred to and this is that,
(J) 13 notwithstanding allocation of the burden in going forward, w
14 as, for example, in the Midland case decided by the appeal 15 board, the burden of persuasion was seen to lie, at least in 16 at all times prior to the issuance of an operating license, 17 upon the licensee or permitee.
18 And there are similar cases involving the 19 Environmental Protection Agency in mining appeals that also 20 distinguish between the burden of going forward and the 21 burden of persuasion in a regulatory climate.
We don't 22 believe that that distinction per se, in the burden of 23 persuasion and burden of gcing forward applies here, for the 24 reason Mr. Maupin suggested, that is, that Mr. Ilusted is not 25 a licensee.
So he does not, at least initially, have the
/~)
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burden of going forward and he does not, for legislative
~'
2 policy reasons, have a burden of persuasion independent of 3
that.
4 MS. HAUSER:
Judge Margulies, if I might add?
I 5
have some question which may be a difference of opinion 6
that's not clear to me -- with the Staff over the position 7
that they intend to take in the proceeding.
It is my 8
understanding that the Commission, in their notice of 9
hearing, intended the Staff to participate as a full party in 10 addition to ensuring that the record was complete.
I'm not 11 sure as a practical matter -- I don't believe, as a practical 12 matter, that means they have to put witnesses on the stand.
(~)
13 But I do have some question about their not formulating a x/
14 position at the same time that the other parties do.
And I 15 think that it would be unfortunate if Mr. Husted and GPU
' 16 Nuclear did not know what the Staff's position was until the 17 evidentiary hearing was over on some of these issues.
18 I would think, as a party, they would look at the 19 evidence that all of us are going to be looking at through 20 the discovery process and then formulate a position which, 21 indeed, could change if something came up that they had not 22 appreciated before.
They need not be an advocate before or 23 against Mr. Husted, but based on their evaluation of the 24 record they have a view on the issues, factual issues that 25 are the subject of the litigation.
I'm not sure, as I say, rT
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whether that's a substantive difference or not -- I think it 2
may well be ---- with the Staf f.
3 MR. JOHNSON:.3'd be glad to respond to that.
It I
\\
4 raises an intelysting point.
I would just want to 5
distinguish between having positions on questions that'are 6
propounded to us, and being the proponent of the sanction or-4 7
not -- opponent of the sanction.'
8 It may be that we can take positions on specific a
s 9
ques tions but not feel that we are able to take a position in 10 favor or against the sanction.
11 MS. BRADFORD:
Judge Margulies?
12 JUDGE MARGULIES:
Yes?
()
13 MS. BRADFORD:
I would just311ke to ask the Staff wh)t n-would have the burden of prd4f in their eyes if TMIA were 14 15 not a party to this proceeding?
Who then would have -- bear
.16 the burden of proof?
17 JUDGE MARGULIES:
Do you wish to respond?
18 MR. JOHNSON:
Okay.
In terms of burden of proof 19 meaning the burden of going forward with evidence, I would 20 say that whoever had a contention would have a burden of 21 going forward with the appropriate kind of evidence in 22 support of the contention.
If you weren't in the proceeding 23 then whoever else as an intervenor would have that burden of 24 going forward.
25 The burden of persuasion, still, I believe, would
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1 not be allocated to Mr. Husted, at least at the outset; and 2
if there were just the Staff and Mr. Husted, as I indicated 3
before, I think one ir left with the inevitable conclusion 4
that the Staff has the burden of going forward.
5 MS. BRADFORD:
In its earlier decision, CLR84-18, 6
the Commission specifically stated that it was not interested 7
in the underlying justification of the question, the legal 8
question that they pose.
They expanded the scope of the 9
hearing specifically at the request of Mr. Husted.
10 Therefore, those factual issues which he outlined in his 11 request appear, then -- an appeal of those earlier 12 decisions.
In its order, the Commission is stating that it
( })
13 doesn't question the factual issues, merely the appeal 14 board's legal authority to impose a condition in light of 15 those factual issues.
Then, as a discretionary matter, the 16 Commission expanded the scope of the hearing at Mr. Husted's 17 request.
And therefore, that is -- his request becomes an 18 appeal of those underlying factual issues and it is in that 19 sense that it appears to me that he has the burden of proof, 20 that those earlier issues, those factual issues, should be 21 overturned.
22 JUDGE MARGULIES:
You would split the proceeding 23 in terms of the appeal board's condition vis-a-vis the 24 matters that Mr. Husted raised?
25 MS. BRADFORD:
Yes.
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' JUDGE MARGULIES:
Aren' t 'the : matters 1thati
~
2
-Mr. Husted raised ~~reallyfin'the nature ~bf seeking'an advisory-3
' opinion from the administrative' law judge?.And isn't;it' sort 4
of implied that the evidence on one will' form the-basisoof 5
'the result of the other'?
Do you see'the point that I'm 6
making?.One will carry the other -
7 MR. MAUPIN:
Yes, sir.
I-thinkLthat's correct.
.8 I'd also point out that.the only reason Mr. Husted hasito be 9
concerned about his qualifications.for the licensed operators 10 positions arises from'the proceedings?in the cheating: hearing 11 which were, again, thw. tainted proceeding.
12 JUDGE MARGULIES:
I'mLtroub' led,jMr., Johnson,Lwith
-( )
13 the concept of just bringing in a lot-of'priorLrecord and 14 then starting to go through with det'ermining what-is 15 acceptable and what is not acceptable to Mr. Hustedras a-16 means of developing the record.
17 MR. JOHNSON:
When I eaid'bri,nging in the record, 7
18 I really.was only referring to the_ pertinent testimony and 19 exhibits.
I was not intending to includeftnetentiresrecord 20 of the proceeding.
~,
21 JUDGE MARGULIES:
Yes, I understandSthat~. jI don't-
~
22 know how much it constitutes,-but'I'm sure'it is-23.
considerable, even in terms of that limited, area.
24 MR. JOHNSON: IWell, ry. understanding from the$
i 25 record that-I have read, it encompasses lpartsJof three: days
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-o'f proceedings.back iniDecember 1981 and it is, I would.'say 1
2-
-- a guess -- several hundred pages.- But it's not.500 pages, 3
for example.
4 JUDGE MARGULIES:: I wouldn't consider.500Lpages.
5 excessive, considering the time of records 'that we work.with
'6-'
in the Commission.
I thought it was a lot more than-that.
I.
7-don't know.
I didn't --
.8 MR. JOHNSON:
MyLrecollection is that the-evidence L9 f.sotestimony.of Staff-Investigator William Ward, Mr. Husted,
- 10-a man designated as P, who-took an exam with Mr. Husted on 11
'the same day, and I can't recall another witness that's 12 involved.
It's just basically Mr. Husted's testimony -- he
(}
13 testified, was asked about the cheating incident.
Of course, 14 his testimony and cross-examination were -- served as a basis 15 for the special master's conclusions concerning his 16 forthrightness and his attitude.
Testimony of Mr. P t
-17 concerned the: events of.the day -- I think.it_was April 1, 18 1981 -- in.which Mr. Husted and Mr. P.todk an exam together, 19
.And Mr.' Ward testified concerning.'his interview with Mr.:P.
' 2:0 -
Andfmay I add, also, Mr. Husted testified-concerning the R21 subjecteof two interviews between Mr.,Husted:and'the Staff 22 which related-to an incident that occurred in the hall.
That~
23-related..to the alleged possibility of1some cheating by 24 iothers.
It?really is a. discrete bit of,-evidence'that is
'251
. easily ~ identified.
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1 MS. BRADFORD:
I agree.
I think there are only 2
three days.
But in addition there are the Staff reports.
3 Those are part of the record.
4 MR. JOHNSON:
The two exhibits, yes.
Those are 5
reports of investigation which have a couple of pages of 6
relevant --
7 JUDGE MARGULIES:
Do you understand the record to 8
be of that size?
9 MS. BAUSER:
Yes.
I think there may be some other 10 pieces that as the parties here get into it they might find 11 pertinent.
I think those are the central ones.
12 I would also like to say that I suspect -- I am
(~')
13 quite optimistic that the parties can stipulate together and v
14 introduce certain evidence.
I think other evidence will 15 probably be raised by various parties when they are 16 questioning the very same witnesses who may testify now for 17 the second time on the same subject.
But I would agree with 18 Mr. Maupin, and what I understood you to suggest earlier, 19 that in order to look at this in the usual de novo way, one 20 should proceed with an affirmative case in this record and 21 use the other record either as a piece of that or for 22 impeachment purposes or for whatever purposes they might be 23 useful for, and not begin with the prior record and try to 24 work from there and look at what in that is right and what 25 isn't, and where pieces are missing.
(
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I just -- as a practical matter, I'm not sure how 2
much difference that is going to make in terms of what goes 3
in and what doesn't.
But it's not the orientation, at least, 4
that I have towards this proceeding.
s 5
MR. JOHNSON:
If I may just chime in, whether it's 6
the Staff that calls a particular person or it is Mr. Husted 7
that calls a particular person or some other party, it seems 8
to me that what would be contemplated -- whether my procedure 9
is followed or Mr. Maupin's procedure is followed, I think, 10 is that the person would be called whose testimony appeared 11 on the record and that person might be asked, did he testify 12 to that and he would say yes or no.
Then he would be asked f' ')
13 questions concerning that by the person who is putting on the n/
14 witness and then the cross-examination would proceed.
It may 15 be that, depending on who the person is, the burden of 16 putting on the person would -- should shift.
I'm not sure.
17 JUDGE MARGULIES:
Isn't that different from what 18 you initially proposed?
I can see no problem with that.
I 19 see no problem with calling someone who testified previously 20 and asking him if his testimony would be any different 21 today.
I have no problem with that.
22 MR. JOHNSON:
I suppose that what I was indicating 23 is that even without some person sponsoring, that is, the 24 author of the testimony sponsoring it, that that's what I 25 said, that that formality would be skipped and the record 7,
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would be there for the fact that it is the record, to stand 2
for the record of what was said in an earlier proceeding.
3 But then, the person -- to remove the deficiency 4
from the perspective of process -- you still would have to 5
have that person available to be cross-examined if Mr. Husted 6
so desires.
So the practical distinctions are very slight, 7
it seems to me, between the two positions.
8 MR. MAUPIN:
Let me ask a question, if I may?
9 Would you anticipate or would you expect to receive written 10 testimony in this proceeding?
11 JUDGE MARGULIES:
I really haven't given it any 12 thought.
That's the usual practice, f) 13 MR. MAUPIN:
That's right.
v 14 JUDGE MARGULIES:
And the usual reason for it is 15 it's so voluminous and it provides an opportunity for all 16 parties to examine it in advance of the hearing and it just 17 saves a lot of time on hearing and it makes for a much more 18 orderly procedure.
19 MR. MAUPIN:
Just as a general proposition it 20 seems -- well, off the top of my head, it strikes me that 21 most of the testimony that was given in the prior proceeding 22 by people who I might want to call in this proceeding was 23 given in the form of cross-examination and I think the 24 chances that I would want to put any witness on the stand and 25 say:
You read what you said three years age, is that okay n
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'2 I just thinkLit's.unlikely.that that's.the.way --
3.
that that would be the most: effective.way.-to put on a case.
4 If Mr. Johnson wanted to have-Mr ' Ward adopt his testimony l
}
5 given'in 1981-as his' testimony in:this proceeding,'then'that 6
would be one way of putting it in in writtenLform,.I.
7 suppose.
8 But let me back-in and come in on the eter of 9
the letter.
It seems to me that there are a couplefof' 1
i-10 respects in which I would concede that.a significant part of 1
~
~
2 11 the prior record will.be part of-this record.
I mentioned 1
12' one of those -- we mentioned one of those in the letter.
'We
(}
13 mentioned that to the extent that forthrightness in the prior 14 testimony is concerned,.we havelto know.what the prior:
4 15 testimony was.
And the best way:of determining _that;isfto!
16 look at the transcript.
Sc.it seems-to'me.the transcript of 17 certain portions of Nr. Husted's testimony'would become part.
18 of the record.
Not-for the purpose-_of showing the truth'of 19-what he said, but for the purpose of-showing what he said.
20 I'm a l'ittle more at a loss right now on~the-21 question of what would be required"on the question of 22 attitude at the hearing.
It may.lue.that! we would stipulate
- 23 that everything Husted'said ought to~go into.the record-~now 7 -
24-foriwhatever it might show ab'out his attitude,.if~.anything.
l
-25 My guess is we probably could. reach agreement on that-based-V
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2 1
upon the brief experience we have had talking with each other 2
thus far.
3 My present thinking about the inspection and 4
enforcement reports is that they were preexisting documents.
5 They were not shaped in any way by the way the hearing 6
proceeded or the way the questions were asked or whether 7
there was representation by counsel at the hearing.
And so I 8
could probably -- I'm sure we could work out some basis for 9
stipulating into the record the interviews.
But I don't see 10 any basis for going beyond that, really, or that we are 11 achieving anything material by way of speeding up the 12 proceeding or by way of ensuring more reliable testimony.
13 MR. JOHNSON:
If I may comment on that?
That
( ;
14 really leaves the two other factual questions -- of the four, l
15 to the extent we are limiting ourselves to those four factual 16 questions that were specifically raised -- the cheating 17 incident and testimony about cooperation.
It seems to me 18 that one could make an argument that the recollections of the 19 persons testifying concerning those events, the cheating 20 events and so -- the so-called cheating events and the 21 cooperation with the NRC investigators -- that the 22 recollections of the parties or the individuals who testified 23 in 1982 were fresher recollections, at least, than we will 24 have in 1986 and therefore, certainly are worthy of 25 presentation and consideration, subject to the opportunity to fs a
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I cross-examine and rebut.
2 JUDGE MARGULIES:
It is certainly not my 3
intention, Mr. Johnson, to tell you what your responsibility 4
is in terms of developing a record.
That's your 5
responsibility and, as any other counsel, you make-your own 6
case in terms of what you understand your responsibilities to 7
be.
The only thing that I'm pointing out is that I may have 8
difficulty in terms of admitting documents into the record 9
that are not being offered for their truth but only that 10 constitute the record, especially where the whole import of 11 the proceeding is that that prior record is tainted in some 12 respect or may be tainted by Mr. Husted not being a party to f )
13 its preparation.
%./
14 MR. JOHNSON:
That kind of judgment reflects, it 15 seems to me, directly on the question of who has the burden 16 to go forward and whether the record as I proposed could in 17 this provisional form, serve as the prima facie case since --
18 in support of the sanction.
19 JUDGE MARGULIES:
Well, if it isn't being offered 20 for its truth, I don't see how it can constitute a prima 21 facie case.
22 MR. JOHNSON:
Well, what I said earlier was that 23 at least initially it wouldn't be offered for that purpose.
24 But what I then said is if, hypothetically, no one sought to 25 rebut or cross-examine, other than the record, then it would ACE-FFD2RAL REPORTERS, INC.
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. Lin'~ fact be offered for'that-. purpose.
2 JUDGE MARGULIES:
Under'what' rule of. law?
I know 3
lof know rule of law thatowould_ permit-it to be1 offered-for 4
other than its truthland then-all of a sudden'because;no.one s
5 questions it,- :it becomes acceptable for its tru,th' -
?
'6 I can'see it-having_ historical significance; b'ut 7
if it's not-' offered for-its truth I_ don't1see how it goes to
^
8 the merits of the proceeding.
9 MR. JOHNSON:
If I may just think out' loud,_
10 because this is kind of a difficult question --
11 JUDGE'MARGULIES:. Sure.
12 MR. JOHNSON:
-- what'would-be_the practical:
(J 13 import of our offering matters for the -truth of'-the: matter; 14 stated therein, but with the proviso that~the testimon'y --
~
~
15 the opportunity to examine on that and rebut thatutestimony, 16 be afforded?
17 JUDGE ~MARGULIES:
The other-side?-
18 MR. MAUPIN:
I have no' problem with-that.
19 JUDGE MARGULIES:
I~see.
Because'whether it's 20 offered for the truth of the mattersLstated'therein.or n t, 21
.you still would have the opportunity.-to remove any procedural:
22 deficiency.
What that1doesn't ' answer for me is whether the 23 Staff would want to offer that -.all that1 evidence for;the, 24 truth of theJmatter stated ~t'herein.
I?. haven'.t considered'
~
25' that.
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But I don't see offering some of these interviews 2
for the truth necessarily having a bearing on the matter of 3
persuasion.
You may just want to do so for developing a 4
record as to what transpired.
I don't see how it would 5
compromise -- necessarily comp omise your concern about 6
merely developing the record and not becoming an advocate for 7
one side or the other.
8 MR. JOHNSON:
Yes, I see.
That may by a way out, 9
a way to proceed.
10 (Discussion off the record.)
11 JUDGE MARGULIES:
Have we made any progress in 12 this area?
It appears that the parties can work out 13 something, but I'm just troubled with the idea, Mr. Johnson, I ;
14 in terms of making records available for purposes other than 15 their truth and expecting them to have any bearing on the 16 merits of the proceeding.
17 MR. JOHNSON:
Okay.
I agree that that is an 18 important point and accept it.
But I don't believe we are 19 going to reach agreement here, I don't believe.
I don't 20 know.
I don't think it is, as I would -- if I were standing 21 in Mr. Husted's shoes -- I don't think his counsel would want 22 to offer the record for the truth of the matter stated 23 therein.
24 Let him speak for himself.
But if I were to do 25 that, I don't think he would agree to it.
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MR. MAUPIN:
I don't know whether we can reach 2
agreement today on the record or not on this.
I certainly 3
agree with a couple of points that have been made.
In the 4
cosmic sense of NRC proceedings, we are talking about a 5
relatively small batch of paper.
Other than named numbers of 6
pages, I would say less than two inches.
We are talking 7
about three or four principal witnesses and I agree with 8
Ms. Bauser that there could be three or four others that 9
could emerge from a more careful look at the transcript.
And 10 we are off on a relatively cooperative footing, I think.
11 We are going to learn more about our cases in the 12 weeks ahead, I think, and our respective thoughts are going
(';
13 to begin to jell on just what type of cases we have.
We will v
14 talk to potential witnesses.
We may be assuming what they 15 remember now about those events or what they think about what 16 they said previously.
We may find they have very different 17 memories or whatever.
And I don't want to postpone decision 18 simply for the sake of postponing it, but I have a relatively 19 high degree of confidence that we could reach agreement on 20 this.
In any event, we have a more rational basis for trying 21 to.
22 JUDGE MARGULIES:
I just wanted to express the 23 problem I had with Staff's position and I have done so.
As I 24 said, it's not my intention to try anyone's case.
Each one 25 has their own responsibilities.
When the time comes for t/
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ry h' earings, 'someone gis( going [t'o have to ' step upL and lead 'of f-
'1 l-2
.and, in my-mind, basically.~in terms-.of leading off, lit would
~
3 be in the nature of' Staff and TMIA~. -AndLiniterms of-4
' responding,.it would be~GPU Nuclear.and'Husted.-.That1would-
- j 5
generally.be the order of procedure.that1I would~'
L 6
contemplate.
7..
-MR.
JOHNSON:
Jumping ahead just1a bit,.we are.
L 8
proposing in the joint exhibit -- a schedule.
It has-a f
l 9
prehearing conference schedul'ed for -- I think it's!Ma'y, l
l 10 12th.
It may be that we could postpone the crder'of p
l 11
, presentation issue until~that time.
12 JUDGE MARGULIES:
I don't;have any. problem with f~T 13 that.
It's just something;we all.ought to be-cognizant of, J
14 just-that when the day comes for:a hearing, someone iscgoing 15 to have to, step forward.
16 MR. JOHNSON:
Correct.
i.
l 17 JUDGE MARGULIES: -Would the parties'want_to break' 18 for-lunch now?
19 MR. JOHNSON:
That's' fine with'me..
20.
JUDGE,MARGULIES:
'Mrs. Bauser?
a 21-MS. BAUSER:
.I'munever-one who'would not be-22-
' interested in eating,'but it seems-to meHthat-we don't1have-i
-23'
-more;than 45-minutes more to go.
I: don't-know whac you-have:-
24' onjour' schedule'but!--
l
' 25, JUDGE 1MARGULIES:
'Let me just? read what.we h've<
t a
I j.
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before us on our agenda and see whether we can finish it up 2
and-adjourn.
3 I believe what we have we can finish up before 4
lunch.
It seems that many of the other items are really 5
intricately related to 5 and rhould be considered when item 5 6
is discussed.
7 For example, exte.nt of participation.
Certainly.
8 that bear:t on the order of procedure and who has the burden 9
of going forward and persuasion and things like that.
So 10 there is nothing to come up with on that item now, as I see 11 it, unless the parties feel otherwise.
Do you agree?
That 12 it really is connected with 5?
(^')
13 MR. MAUPIN:
I agree with that.
v 14 JUDGE MARGULIES:
Do the other parties agree?
15 MR. JOHNSON:
Yes.
16 JUDGE MARGULIES:
And we have pretty well gone 17 over 6 (b), and we are not going to come to an ultimate 18 conclusion on that today.
And once again, 7 relates to 5.
19 MS, BEADFORD:
Judge Margulies, with regard to 7, 20 I had talked this morning with Mr. Maupin about some 21 additional documents that TMIA would propose for the record.
22 JUD3E MARGULIES:
Yes?
23 MS. BRADFORD:
Those would be the special master's 24 report and the Licenring Board's decision and the stipulation 25 which was the basis for the appeal board's ruling.
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1 JUDGE MARGULIES:
And you will consider that,
~'
2 counsel?
I mean you are not going to make a decision on that 3
now, but it's something that you will evaluate?
4 MR. MAUPIN:
On those items?
Well, maybe I should 5
think about it more, but my instinctive reaction was that the 6
special master's report and the ASLB decision are NRC case 7
law at this stage and are there for whatever they say, but 8
would not be considered evidence in any conventional sense of 9
the word.
10 The stipulation, I'm less sure on that, but I 11 guess I don't understand for what purpose the stipulation --
12 I don't understand what probative value_the stipulation would
()
13 have on any issue in the case.
I guess I'm inclined to think t/
14 it does not belong in the record.
I think Ms. Bauser 15 mentioned to me this morning, after Ms. Bradford and I had 16 discussed this point, she thinks the stipulation may be 17 described in either the license
-- no -- in the appeal board 18 decision.
I simply haven't checked out on whether that is 19 true or not.
20 JUDGE MARGULIES:
Yea, it is.
It is set out 21 specifically.
Well, it isn't set out in its tatality, but in 22 terms of provisions 2 and 3, 2 reading "Now and at any time 23 in the future licensee will not utilize Mr. Husted, whose 24 attitude was criticized by the ASLBP to operate TMI 1 or to 25 train operators or" -- and it goes on in that vein.
It is in
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1 the ASLBP decision.
2 MR. MAUPIN:
That being so, I wouJd be certainly 3
open to hearing any suggestions as to why that is important 4
as a matter of evidence, but I'm skeptical right now that it 5
is.
6 JUDGE MARGULIES:
Do you wish to respond, 7
Ms. Bradford?
8 MS. BRADFORD:
With respect to the special 9
master's report, it's my recollection that his findings and 10 conclusions with regard to Mr. Husted were based in part on 11 demeanor observations and with regard to attitude; then that 12 would be important, as to the question of his attitude during f")
13 the hearing.
v 14 JUDGE MARGULIES:
I'm not going to rule on 15 anything like that at this time.
I have no familiarity with 16 the record per se.
It would have to be looked at in the 17 perspective of the record that's Defore me, so I couldn't 18 possibly rule on anything like tha t today, but there is no 19 reason that both parties cannot discuss it and give their 20 reasons for what they want to do with it.
And that doesn't 21 mean it cannot be raised at the hearing.
22 MS. BRADFORD:
I.sinjly raised it now so that we 23 could consider it.
24 JUDGE MARGULIES:
Yes.
25 The parties seek discovery.
I know of no reason 1_/
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not to have discovery.
So the answer in terms of 8 is yes.
2 In terms of the schedule, there should be minor 3
modification.
Number 1, with the hearing given on June 15, 4
which is on a Sunday and Father's Day, I don't think we'll b
aant to start on June 15th.
6 MR. MAUPIN:
When the going gets tough the tough 7
get going.
8 (Laughter.)
9 JUDGE MARGULIES:
I know everyone is anxious to 10 get going with the hearing, but it has to be within limits.
11 My calendar is such that I would like to start the following 12 Monday, that would be June 23rd.
But other than that, the
(;
13 dates look fine.
U 14 Are they agreeable to the other parties?
15 MS. BRADFORD:
I had one, because of the 16 uncertainty as to who has the burden of proof, et cetera, 17 when we discussed this when we met informally, I had said 18 that there might be a possibility that I would request f
l 19 further time and I think, perhaps, that's built in to this 20 schedule, that we wouldn't have to change any of the other 21 dates.
But perhaps someone has a different recollection?
I 22 think we talked about two months plus a possibility of an 23 extra two weeks in there.
24 MS. BAUSER:
Judge Margulies?
25 JUDGE MARGULIES:
Yes.
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MS..DAUSER:- ~ I.wouldLlike~tojrespond to?what 3:
I' 2
Ms. Bra'dford'said and also raiseLanother point.
'The.
3 discovery schedule, I'think everyone agreed, was going to 4
probably af fect licensee -- GPU Nuclear's --- resources ' more-5-
than others, since we. tend to have the documentssat' issue;
~
The intention ~of the. schedule.is to provide inJit the 6
here.
I -- the-intention.
7:
opportunity for'two rounds as we state.
8 was not to -- my understanding was the main one would not-
~
9 slide, absent some good cause.
Inxother words, something O
10 that comes up that couldn't have been presented earlier, for 11 example.
{
12 I~would like to point'out that this sche'dule was
(}
13 essentially modeled after a -- on the basis of a-two-week 14 response time to discovery request,.
which isfwhatnthe rules j'
15 provide for-interrogatories.
It did not account fori-t'he.
j 16 30-day time period provided-forlin the' rules for-document a
17 production.
l 18 GPU. Nuclear, and I'think the other partiesLagree 19 as well, to provide-production document's;within the two-week j
i' 20 time frame as well in; order to meet this schedule --Jand.of 21 course-if we-are unable'to'do.it, that would constitute good ~
22 cause, for' example,;why another. party;could-not?then file 23 their second roundcuntil after-they had the' opportunity to P
24 look at the-documents,.that-they.askedifor.
i; L25
- JUDGE MARGULIES
Is that agreeableito'the'other;
)
o ~
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parties or do we want to set a firmer schedule?
2 MR. MAUPIN:
That's agreeable to me.
Let me say 3
something, because if I understood what Ms. Bauser said, she 4
said she understood it was agreeable to the parties.
5 The four of us did not address this precise issue 6
-- the length of time for production of documents -- at our 7
meeting.
That came up after I produced the first draft of 8
this letter.
9 Ms. Bauser got back to me first with her client's 10 comments and I believe I told her -- I may have told her that 11 I wasn't going to address this issue in the letter, but that 12 I was going to tell Ms. Bradford that Ms. Bauser was going to
(
13 make this proposal, and I think I neglected to do that and I 14 apologize for that.
15 MS. BRADFORD:
You did.
16 MR. MAUPIN:
I apologize for that.
That just 17 dawned on me.
So she is obviously free in any event, but 18 she's certainly free in this case to agree or disagree 19 because this is, I think, the first she's heard of this 20 proposal.
21 MS. BRADFORD:
May I?
As you just heard, this is 22 the first time I'm hearing this proposition.
23 JUDGE MARGULIES:
You want a few minutes to think 24 about it?
25 MS. BRADFORD:
Yes.
?
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l' JUDGE MARGULIES:
Let's;justUtake a(five-minute, 2
recess - -or 10-minute recess.
-If there's1anything else that 3
the parties:want to bring up, we can do'so-at-thatl time,.
=.
4 too.
So-you think about.that.
We'll-.see(where we 90.1 5
(Recess.)
6.
JUDGE MARGULIES:
Back on the record.
7 MS. BRADFORD:
Ms. Bauser. explained-it'to-me and 8
as she' explained it to me,'it-is agreeable. 'Heriproposallis-9 agreeable.
10 JUDGE MARGULIES:
Do you wishLto state for the.
11 record what your understanding is?
I 12 MS. BRADFORD:
.That I would -- instead of'the
(}
13 30-day production'there would be a.15-daycproduction schedule 14 and those documents would then b'e hand-delivered to the 15 parties who had requested them.
Is-that'an accurate-16 restatement?
17 MS. BAUSER:
I failed _to' mention one' thing-which-18 is something that I raised with-Mr. Maupin during ourgreview 19 of this draft, was the possibility offmaking all deadlines 20 receipt days and that would mean delivery-by whatever.means 21 the-parties sought as long as they got itnthere on;that day.:
22 We have in the past worked out'an arrangement with; 23 TMIA where we-have had-hand delivery back and forth between:
24 us and I was proposing to her thatuwe continue with that. - So-25'
.that all of our~ deadlines,freceipt-of-interrogatories,ias-i A
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1 well as interrogatory responses, for example, would be 2
governed by this time period.
3 The other thing is I just can't remember whether 4
it's 14 days or 15 days -- I thought it was 14 in the rules 5
instead of 15, but whatever the interrogatory time period is, 6
that's the way we would treat -- we would treat any document 7
requests of us as if they were interrogatories.
8 JUDGE MARGULIES:
Okay?
9 MS. BRADFORD:
Yes.
10 JUDGE MARGULIES:
Fine.
11 Is there anything additional that the parties 12 would want to bring up at this time?
(a) 13 MR. JOHNSON:
I would just say that we are talking 14 about discovery among all the parties and not just between 15 GPU Nuclear and TMIA, and although I have no problem with the 16 14-day schedule for production of documents, I would not want 17 to be on record as saying that we wouldn't follow the rules 18 of procedure, particularly with respect to the burdens of the 19 Staff with respect to discovery.
We would have every 20 intention to follow the schedule, but there are certain 21 special provisions in the regulations which apply only to the 22 Staff and we reserve the right to assert those regulations as 23 may be appropriate.
24 MS. BAUSER:
If I understand what you are saying, 25 which I may not, are you talking about designating who 7,U ACE-FEDERAL REPORTERS, INC.
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1 f1 responds to discovery requests as opposed toftheitime-2 period?-
3 JUDGE MARGULIES:
Wh'y don ' t = you spell youtD wh'at 4
those-reservations.are?~
'S MR. JOHNSON:
There are'several; pertinent ones.,
6 One has to do with--the. designation of witnesses and.
7 respondents.
However,stheione that.I waszprincipa'lly I
alluding to was the fact that there is a1proi'ision.in'the 8
9-regulations-which specifies that discovery against.the Staff 10 is not -- has to be -- required'by.the~ presiding officer.
11 I'm a little rusty on the exact wording.
But what I intended
}
12 to say was that although.we are not waiving here the.
13 provisions -- those provisions of the regulations, we.would 14 intend to voluntarily. comply with. discovery requests.-
].
15 JUDGE MARGULIES:
This is generally,a'different 16 type proceeding than those proceedings-where the Staff.
17 usually invokes those: provisions;of the regu'lations; isn't:
18 that so, Mr. Johnson?
I mean, generally-in licensing 1-19 proceedings, the Staff.may or may not' invoke those E
20.
provisions. ~Although legally _you may invoke those~ provisions 21 in this proceeding as well,_itJgenerally isn't'the type of 1
22j proceeding that you would normally invoke those.
~
7 23 MR. JOHNSON:
I' agree-and.I: don't.think the Staff I
24-will,. in fact, ~have a dif ficulty. supplying documents -- that.
1 25
'would'be_just'_my-guess.-- and answering questions iflwe'~get-I
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- 1 Lquestions. :I.just wante'd..to beon the record as not' waiving
~
2
.the-provisionsoof the.. regulations.
1 3
I do have a couple of other matters that I would
-. 4 also like to just clarify, if I may?- One-was, I wasospeaking 5
'with.Ms.-Bauser during the intermission we had with regard to i
6
' the question -of. f reezing the; record.as.a 'certain date.
It f
7-isn't clear in my mind when it was thatfyou.were'considering
- 8 whether to freeze ~the record;.whether-it was the date, the.
9 end of the proceeding or the'date of the hearing below,;
l 10 preceding hr ring,.or the date on which the ' appeal board 11-order was issued, which is sometime in 1984, I-believe.
_I 12 think we would benefit from clarifying that point.
(
13 But in addition, we were discussing.the 14 advisability of. imposing such a freeze with respect to 15 whether the record'would be fully. developed'if it were cut-1 16 off.
I think there is.some thought on our:part and also on 17 GPU's part.that if we-were to; arbitrarily' cut off~the date we 18 might risk ^the possibility of exSluding some evidence-that, 19 if -- were this a new-proceeding,;wouldibe admissible-for.the 20 purposes of. showing the fitness t of ' Mr.' Husted or not.
' 21 Lastly, I wanted to ask whether you,irtend to rule 22 on the burden of going forward in your prehearing conference 23 order?
Because it seems: to me that that would be very 24
. pertinent -- aivery pertinent factor which-would influence-25 c r case preparation immediately.and,.therefore,.I would.like'
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- ~ we -
1 E tocsee some' kind of -- I'm not1sure whether you. anticipated
^ -ruling on'the allocation of-' burden.of going forward after?
13 this conference.
I would like to know whether you intended 4
to do that.
I hadn't intended:to,1but'if you-
~
i-5 JUDGE MARGULIES:
6-
-want'me to I will.
I thought.'maybe'the' parties' could-come to 7
. terms-with it.
8 MR. JOHNSON:
.I would like to hear what'the other 9
parties think.
1 10
~MR.
MAUPIN:
I suppose.I would-like to have you 11 decide that issue.- I.cannot candidly say.it makes a whole 12 lot of difference to the way I'm going to: prepare.
w
^( T 13 JUDGE MARGULIES:
--Okay.
_ThenJIlwill' decide that_
i us/
)I
~
14 issue.
In terms of the cutoff period,Lonce again I'm~_ totally 15 unfamiliar with the record below.
How about the date of'the i
i 16 closing of the record before.the licensing board?
It is 17 somewhat arbitrary,_but it-puts it in1 point _of time in 18
. proximity-to the testimony that was takenEin the. proceeding y
19
_and it resulted in thel record thatLwent before.the appeal I-i-
20 panel.
Yes?
21 MS'.
BAUSER:
I don't know, Judge /Margulies, l
~ whether you are still entertaining. argument'on that point'.
22 23.
JUDGE MARGULIES:
This is solely to set a date.
I i
24 don't want to hear any additional argument:as to'why we.
25 shouldn't set a-date.
But if you do want to make argument 's a
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to why that date is inappropriate I would certainly listen to 2
you.
3 MS. BAUSER:
Are you saying you are not deciding 4
the issue itself as to whether there will be a cutoff, but 5
what should the cutoff be if there is one?
6 JUDGE MARGULIES:
Right.
7 MS. BAUSER:
The evidentiary record in this case 8
was taken before the special master was appointed by the 9
licensing board.
That decision was April, I believe, of 10
'82.
The licensing board decision came out several months 11 later.
It included a number of additional pleadings by the 12 parties but did not include any more evidence.
So for
(~')
13 evidentiary purposes --
v 14 JUDGE MARGULIES:
I wanted to place it at the time 15 the evidentiary record is closed.
16 MS. BAUSER:
I think that would be shortly before 17 the special master's decision came out.
18 MR. BLAKE:
December of '81?
19 MS. BRADFORD:
I think in addition to that there 20 were comments that the licensing board requested, comments 21 from individuals.
And those comments were part -.
22 JUDGE MARGULIES:
Then it might be more 23 appropriate to put the date at the date of the licensing 24 board's initial decision, and then we wouldn't get into all 25 these various problems as to when additional evidence came in
-)
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1 and things of that sort.
2 MS. BAUSER:
I don't think there was any 3
additional evidence, but there were pleadings of various 4
sorts on the evidence that came in up to that time.
5 JUDGE MARGULIES:
Let's place it at the date the 6
licensing board issued its initial decision.
Is there any 7
problem with that?
It is a readily offerable date.
Is there 8
anything further?
9 MR. MAUPIN:
Is it your intent to resolve the 10 question of whether there should be a freeze date in your 11 prehearing conference order?
12 JUDGE MARGULIES:
Whether there should be a freeze f^)
13 date?
Yes.
v 14 Well, I want to thank the parties for the spirit 15 of cooperation they evidenced here today and I just hope it 16 continues.
17 One other thing, the place of hearing.
Do the 18
. pa r. tie s want to continue holding these proceedings at 19 Harrisburg?
20 MS. BRADFORD:
Certainly I do.
I have a 21 considerable problem with transportation, but in addition, I 22 think that the public who might be affected by a ruling are 23
-- should be able to come to the hearings.
24 JUDGE MARGULIES:
Well, without unanimous consult, 25 we will continue to hold the hearings here in Harrisburg,
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, '/
1 There being nothing further, the prehearing 2
conference is over, thank you very much.
3 (Whereupon, at 1:10 p.m.,
the prehearing 4
conference was concluded.)
5 6
7 8
9 10 11 12
('~'s 13
(.sl 14 15 16 17 18 19 20 21 22 23 24 25 (y
}/
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A 4-CERTIFICATE OF OFFICIAL REPORTER.
O I
This is to certify that the attached proceedings before the-UNITED STATES NUCLEAR REGULATORY -COMMISSION in the I
matter of:
.i-NAME OF PROCEEDING:
GENERAL PUBLIC UTILITIES NUCLEAR (Three Mile Island Nuclear Station,~ Unit No. 1).
DOCKET NO.:
50-289!(CH)
PLACE:
HARRISBURG, PENNSYLVANIA e
(
CATE:
WENDESDAY,'FE RUARY 19, 1986 i
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
r
)
x
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(siot)
(TYPE JO BREITNER 6
(
Official Reporter ACE-FEDERAL REPORTERS, INC.
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(
{
($)-
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