ML20155J448
| ML20155J448 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/20/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-320 CH, NUDOCS 8605230262 | |
| Download: ML20155J448 (43) | |
Text
,
OR G NAL O
UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-289 (CH)
GENERAL PUBLIC UTILITIES NUCLEAR (Three Mile Island Nuclear Station, Unit Number 1) p)
b y
LOCATION:
HARRISBURG, PENNSYLVANIA PAGES:
83 - 123 DATE:
TUESDAY, MAY 20, 1986 0
I i
ACE-FEDERAL REPORTERS, INC.
O Official Retorte:s 444 North Capitol Street Washington, D.C. 20001 t
8605230262 060520 PDR ADOCK 05000289 (202) 347-3700 T
PDR NATICNWIDE COVERACE L
CR26901.0 CLK/ojg 83 I
UNITED STATES OF AMERICA O' / -
'~
2 BEFORE THE 3
ATOMIC SAFETY AND LICENSING BOARD 4
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 5
In the Matter of:
Docket No. 50-289 (CH) 6 GENERAL PUBLIC UTILITIES NUCLEAR (Three Mile Island Nuclear PREHEARING CONFERENCE 7
Station, Unit Number 1)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x Commonwealth Court 9
Courtroom 2, Fifth Floor South Building 10 Commonwealth Avenue Harrisburg, Pennsylvania 11 Tuesday, May 20, 1986 12 The prehearing conference in the above-entitled matter 13 convened at 9:30 a.m.
14 BEFORE:
l 15 l
JUDGE MORTON B. MARGULIES 16 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 17 Washington, D.
C.
18 10 l
20 l
21 i
22 23 g
24 w.FMm amortees, ine.
25
-- continued --
84 I
APPEARANCES:
2 On behalf of GPU Nuclear:
3 MICHAEL W.
MAUPIN, ESQ.
4 CHRISTINA HENSLEY, ESQ.
Hunton & Williams 707 East Main Street 5
Richmond, Virginia 23212 6
On behalf of Mr. Charles Husted:
7 ERNEST L.
BLAKE, ESQ.
SCOTT E.
BARAT, ESQ.
8 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
9 Washington, D.
C.
20036 10 On behalf of the Nuclear Regulatory 11 Commission Staff:
12 GEORGE E.
JOHNSON, ESQ.
Office of the Executive Legal Director
'~'
U.
S. Nuclear Regulatory Commission 13 Washington, D.
C %
e 14 On behalf of TMIA:
15 MS. LOUISE BRADFORD 16 1011 Green Street Harrisburg, Pennsylvania 17102 j
f 17 18 l
i
!O l
l 20 i
21 22 23 24 As-F_ j Regurters, Inc.
25 l
85 1
1 2EDCEED1EGS:
2 JUDGE MARGUILES:
Please come to order.
Good 3
morning, ladies and gentlemen.
We have scheduled for today 4
the final prehearing conference in the proceeding docketed by 5
the Nuclear Regulator Commission as number 50-289 (CH) in the 6
matter of General Public Utilities Nuclear, Three Mile Island 7
Nuclear Station Unit Number 1.
The object of the proceeding 8
as set forth in the Notice of Hearing of September 5th, 1985, 9
is to determine whether the condition imposed on the Charles 10 Hunted, an employee of the utility, by the Appeal Board in 11 ALAB 772, disallowing him f rom having supervisory 12 responsibility for training unlicensed personnel should be b)lh 13 vacated and whether concerns about his attitude and integrity 14 should prevent him f rom future employment as a licensed 15 operator, licensed operator instructor or training 16 supervisor.
17 The purpose of this final prehearing conference 18 is to do in advance what is possible to permit a fair and 19 orderly disposition of the proceeding.
To that end the 20 parties have already met on May 12, 1986, and they have come 21 to come agreements, some of which they are certain of, some 22 of which are tentative, which have been incorporated in a 23 letter dated May 19, 1986.
It was prepared by Mr. Maupin,
({jlg 24 and he sets forth what he believes to be the meeting of the 25 minds of the parties.
ACE FEDERAL REPORTERS, INC.
Washington, D.C.
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A copy was delivered to me at 9:30 last night.
2 I have reviewed it, and we will go into it right after we 3
take appearances.
4 Who appears for staff?
5 MR. JOHNSON:
I am George E. Johnson, and I am 6
counsel for the NRC staff in this proceeding.
7 JUDGE MARGUILES:
Who appears for Mr. Husted?
8 MR. MAUPIN:
Michael W. Maupin, and M. Christina 9
Hensley.
10 JUDGE MARGUILES:
Who appears for General Public 11 Utilities Nuclear?
12 MR. BLAKE:
Ernest Blake, of Shaw, Pittman, k)lhI 13 Potts & Trowbridge, of Washington, I am pinch hitting fcr Ms.
14 Bauser, who is ill today..
With me is Mr. Scott Barat.
15 JUDGE MARGUILES:
Thank you.
16 Who appears for TMIA?
17 MS. BRADFORD :
Louise Bradford.
18 JUDGE MARGUILES:
Have the parties seen the 19 letter?
20 MS. BRADFORD:
Yes, sir.
21 MR. JOHNSON:
Yes, sir.
22 hR. BLAKE:
Yes, sir.
23 JUDGE MARGUILES:
Good.
Does it substantially
,{]lll 24 set forth the agreement between the parties, without going 25 into specifics?
I assume there may be different nuances and ACE FEDERAL REPORTERS, INC.
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different emphases that you may wish to put on things or 2
change things.
But, basically, does it comport to your 3
understanding?
4 MS. BRADFORD:
I believe this is an accurate 5
representation of what took place at our meeting on the 12th.
6 MR. JOHNSON:
I would agree.
It's a faithful 7
representation.
8 MR. BLAKE:
We agree.
9 JUDGE MARGUILES:
I think it would simplify 10 things if we bound a copy into the record, and we would have 11 it there to refer to and there won't be any question about 12 i t.,
()h 13 Do you have any additional copies, if the 14 reporter needs additional copies?
15 MS. HENSL EY:
Yes, sir.
16 JUDGE MARGUILES:
Thank you.
17 MR. MAUPIN:
Perhaps I ought to say for the 18 record, Mr. Blake has pointed out to me that on page 4 of the 19 letter under item 6, the reference to a letter of February 20 12, 1986, should have been to a letter of February 17, 1986.
21 JUDGE MARGUILES:
The change will be made.
A 22 copy of the letter dated may 19, 1986, from Mr. Maupin to me, 23 will be bound into the record.
,{jll 24 (The document follows.)
25 I
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ACE FEDERAL REPORTERS, INC.
Washington, D.C.
(202) 347-3700
Q HuwroN & WILLIAMS 707 East MasN Stacar P.o. Box 1535 V
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f aiaram. vinoimia amoso ve6sewoms eis est 4sie v 6armonsvozasaaaoo 38084 os..c,osa6 me..,. 2 s.. 8372 Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of General Public Utilities Nuclear.
(Three Mile Island Nuclear Station, Unit No. 1)
Docket No. 50-28 9 (CH)
Dear Judge Margulies:
Representatives of TMIA, GPU Nuclear, the NRC Staff and Charles Husted met in Harrisburg, Pennsylvania on May 12, 1986, and discussed the forthcoming prehearing conference.
Mrs. Bauser and Mr. Barat (GPUN), Ms. Bradford (TMIA), Mr. Johnson (the S ta f f), and Ms. Hensley and I (Husted) were present.
The participants agreed that I should report to you on the results of our meeting, and that is the purpose of this letter.
As was the case with our report of February 17, 1986, each of the other parties has seen only the first draft of this letter.
They will see this copy only when you see it.
If I have misstated any views, the matter can be dealt with at the prehearing conference.
1.
Identification of witnesses.
Each party will call or may call the witnesses listed below under its name.
(a)
Mr. Husted Charles Husted Mr. P Paul Christman D
Nelson Brown Sam Newton Robert Long
3 HUNTON & WILLIAxo
(]
Honorable Morton B. Margulies
\\
May 13, 1986 Page 2 (b)
NRC Staff Keith Christopher Raymond Smith (Mr. Smith is ill, and it may transpire that he wi?.1 be unable to attend)
Peter Baci Donald Haverkamp William Ward Richard Matakas (c)
GPU Nuclear No witnesses planned at this time (d)
TMIA If Messrs. Husted, P, Christman and Brown and all of the witnesses listed under (b) above appear at the hearing, TMIA will not seek the attendance of any other witness.
2.
Confidentiality.
. Mrs. Bauser reported at our meeting Mr. P's request that the parties agree to a mechaninm that will provide some protection to the identity of Mr. P when he testifies.
Mr. Husted does not oppose this wish.
The Staff and TMIA took the tentative position that they are opposed to any mechanism that would deny public access to any part of the hearing.
Ms. Bauser asked the Staff and TMIA to consider whether it would be acceptable to them if (a) the parties were to agree to continue to use the designation "P" during the hearing and (b) photographs were prohibited while Mr. P was on the stand.
The Staf f and TMIA responded that they would consider that proposal and be prepared to state their views on it at the prehearing conference.
3.
Order of Proof.
The parties agree that it would be most helpful to the Board and in the compilation of a relatively orderly record if the live testimony were to proceed roughly on an issue-by-issue basis.
Accordingly, the parties recommand the order for live testimony set out below.
The parties recognize that this approach will require Mr. Husted to take the stand three times.
The parties also reccgnize the possibility that duplicative cross-examination f3 could result, but the parties believe that the proposed Trial
(_)
Plan requirement, discussed below, will tend to avoid most such problems.
The parties propose that the pre-filed testimony of
?
I-Huwrow & WII.I.IAwo
(}
Honorable Morton B. Margulies k-May 13, 1986 Page 3 each witness be offered into evidence as a whole when he takes j
the stand.
l l
Issue Order of witnesses l
Solicitation of exam answer Baci and Ward (panel) l P
Husted l
Attitude, forthrightness and cooperation Stipulation of fact (see i
Item 8, below) l Christopher and Smith (panel) l Christman Matakas Husted Husted's performance Haverkamp Brown Newton p)s l
Long
(
Husted The parties further agree that on the date when pre-filed l
testimony is required to be filed, each party should serve on you and on the other parties a relatively simple Trial Plan, which should consist of a list of the party's affirmative case l
witnesses, whether the case is made on direct or on i
cross-examination, and the subjects on which each will testify.
For example, Mr. Husted would file a list of his witnesses and the subject matters on which each would testify, while TMIA would submit for each witness a list of the subject matters into which it would propose to inquire on cross-examination.
4.
Order of cross-examination The parties recommend that Mr. Husted's witnesses be cross-examined in the following ordert first by GPU Nuclear, then by the Staff, and finally by TMIA.
Staff witnesses should be cross-examined first by TMIA, then by GPU Nuclear and finally by Mr. Husted.
5.
Stipulation of documents.
l The parties exchanged or compiled lists of proposed l
l documents at the meeting on May 12.
Each has agreed to study the others' proposals and respond promptly.
Our self-imposed goal for agreeing on a stipulation with respect to the admission of
Huwrow & Wrz.I.xAwo O.
Honorable Morton B. Margulies May 13, 1986 Page 4 documents into evidence is May 23, 1986.
We can report that, with respect to the great majority of the documents proposed by the parties, we do not anticipate any disagreement about admission.
6.
Identificatien of issues.
^
The parties remain content with the statement of factual d
issues set out in my letter to you of February 12, 1986, under Item 2 (b).
7.
Pre-filed testimony.
The parties presently anticipate that each witness who plans to appear will serve written, pre-filed testimony on the other parties and on you.
8.
Stipulation of fact.
The parties are attempting to reach agreement on a 0
appeared to convey during his December 10, stipulation of fact with respect to the attit 1981 appearance before the Special Master.
The Staff presented a draft of such a stipulation at our May 12 meeting.
I provided the parties with a revised draft on May 13.'
The parties anticipate that we can reach a suitable agreement on this matter.
We will make every effort to do so by May 20, and if we miss that deadline we will 1
try to have it completed by May 23, when we also hope to have the stipulation with respect to documents completed.
9.
Prior testimony.
l The parties believe that the question of admissibility of prior testimony has now reduced itself to a matter of the prior testimony of three witnesses, namely Messrs. Ward, P and Husted.
(a)
Mr. Ward Mr. Husted's position is that Mr. Ward's testimony should not be admitted as a whole for any purpose.
The Staff will not of fer Mr. Ward's testimony unless Mr. Ward appears as a witness.
GPU Nuclear agrees with Mr. Husted's position.
TMIA's position is that Mr. Ward's prior testimony should be admitted as a whole for the purpose of O
establishing the truth of its contents regardless of whether Mr. Ward appears.
i HuwTON & WII.I.IAMD t
i I (V~Y Honorable Morton B. Margulies E
May 13, 1986 Page 5 l
4 (b)
Mr. Husted's position with respect to Mr. P's j
testimony is identical to his position with respect to Mr. Ward's testimony.
The Staff believes that Mr. P's testimony should not be admitted for the truth of the matters asserted therein unless he appears at the hearing.
GPU Nuclear's position is identical to that of Mr. Husted.
TMIA's position is identical to its position with respect to Mr. Ward's testimony.
(c)
Mr. Husted Mr. Husted's position is that his prior testimony is admissible for the purpose of establishing, in 4
connection with the forthrightness issue, what his prior testimony was.
The Staff agrees with Mr. Husted's position.
GPU Nuclear also agrees i
with this position but wishes to undertake an effort to identify more precisely those portions I
that should be admit,ted for this purpose and those l p/
that are irrelevant for this purpose.
TMIA's
~
position is identical to its position with respect s_
}
to the ' testimony of Messrs. Ward and P.
GPU i
Nuclear will attempt to identify the portions of l
Mr. Husted's testimony that should be adkitted for i
the purpose of establishing his prior testimony l
and report back to the parties promptly.
10.
Schedule.
The parties agreed to recommend to you that the date for j
filing pre-filed testimony be extended to June 9, 1986.
As I reported above, we will attempt to complete a stipulation as to 4
documents and a stipulation of fact on the question of attitude by May 23, 1986.
l Yours very,truly, t
(),) M " P f
- l Michael W. Maupin t
j 42/341 i
cc Secretary, USNRC, Attention:
Chief, Docketing j
and Service Section i
Deborah B.
Bauser, Esq.
t i
George E. Johnson, Esq.
j Ms. Louise Bradford Atomic Safety and Licensing Board Panel j
Atomic Safety and Licensing Appeal Board i
O
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88 1
JUDGE MARGUILES:
We will proceed with' each of 2
the paragraphs.
If there are any differences or anything 3
that needs clarification, we will do so.
4 In paragraph 1, Ms. Bradford, you say if those 5
people appear at the hearing you wi_'I not seek the attendance 6
of any other witnesses.
7 Is it your intention to call any of these 8
individuals as witnesses, if you can tell us?
9 MS. BRADFORD:
TMIA had identified the first, 10 Mr. Husted, Mr. P and Mr. Brown as witnesses they intend to 11 call, in addition to the staff witnesses listed there.
That 12 was prior to having reviewed some of the documents that were
()lh 13 a part of the package that Mr. Husted was requesting a 14 stipulation on those documents.
2 15 If in fact -- I believe, and I don't want to 16 jump ahead, because there is a section ---but TMIA would want 17 to question additional witne'sses, were those documents 18 introduced.
19 JUDGE MARGUILES:
Let me back up a little.
You 20 say if they appear you will not seek their attendance, which 21 deals with their being present at the hearing.
My question 22 goes as to whether you intend to call them as witnesses, or 23 you will just cross-examine them.
[]jll 24 MS. BRADFORD:
I will just cross-examine them if 25 they appear as the witnesses of another party.
ACE FEDERAL REPORTERS, INC.
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JUDGE MARGUILES:
Is there anything else in 2
regard to paragraph 1 that the parties may wish to discuss?
3 MR. JOHNSON:
Yes, sir.
I have a few days ago 4
talked to Raymond Smith, and he informs me that his doctors 5
don't recommend his travel, and he believes that he is too 6
ill to testify.
He is very seriously ill.
7 And so I advised him, if possible, to supply us 8
with a written statement from the doctor.
And he said he 9
would attempt to do that, but it would take a few days.
And 10 so I hope to have that.
11 But the staff doesn't intend to produce Mr.
12 Smith, because he's very seriously ill.
k)lh '
13 JUDGE MARGUILES:
Thank you.
14 We next move to paragraph 2, Confidentiality.
15 Do the parties have anything f urther they wish to add to the 16 paragraph?
17 MR. JOHNSON:
Yes.
The staff has considered the 18 proposal, the alternative proposal made by counsel for GPU 19 Nuclear, and that is that no pictures be made of Mr. P while 20 he testifies and that his name not be used; the designation 21 Mr. P be used.
And we agree to that form of protection.
22 MS. BRADFORD:
Judge Marguiles, TMIA is not 23 prepared to agree to the proposals that were offered by GPU.
{]lll 24 MS. BAGGETT:
In 10 CPR 2.751 it requires a 25 public hearing.
Could you tell us, Mr. Blake, what your ACE FEDERAL REPORTERS, INC.
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authority ~is for seeking to proceed on that basis?
2 MR. BLAKE:
It wasn't our intention to make it 3
anything less than a public hearing in every respect, that 1
4 is, with his appearance and the public allowed to attend and l
5 f ully reported and transcribed and available to anyone 6
thereafter.
So I don't know that by using the designation or 7
by limiting the pictures we have really offended the policy l
l 8
in' favor of public proceedings.
9 On the othe~r hand, it is simply an attempt to 10 follow up on this fellow's request to us, here, not because 11 he is being questioned about his particular role or 12 integrity, but rather as a factual witness for us so that we k)h 13 can have a complete record.
14 He's just worried about his family'and the 15 prospects of having a higher profile than would be necessary 16 in this area.
And if we could accomplish it, I think frankly 17 we would wind up with a more comfortable witness and, 18 therefore, a more complete record.
19-In terms of legal foundation f or the request to 20 be made, I guess I see none, Judge Marguiles.
And to the 21 extent because of TMIA's objection to it we are unable to 22 proceed this way, and th,ere,is more notoriety that attaches 23 to this or a higher profile' attaches, I am disappointed.
And
(]ll) 24 T hope that it doesn't lead to his discomfort by whatever 25 comf' ort he gets out of thise vehicle resulting in a less ACE FEDERAL R PORTERS, INC.
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adequate record than we otherwise would all have available to 2
us.
3 JUDGE MARGUILES:
Has he ever appeared in a 4
proceeding without using the designation "P?"
5 MR. BLAKE:
Not to my knowledge.
He did appear 6
during the course of the restart proceeding and he appeared 7
using the designation P there.
Whether or not he was ever 8
deposed or appeared as a witness in any other litigation, I 9
don't know, Judge Marguiles.
I can't think of any at the 10 moment.
11 Now, it's not as though his confidentiality 12 still attaches even from that restart proceeding.
In a
(
13 subsequent phase of the restart proceeding that 14 confidentiality was removed f or v'irtually all of the 15 individuals, he included.
So Mr. P as a name and that it has 16 been disclosed publicly is known, and there is not a -- you 17 are not going to breach some prior confidentiality agreement.
18 It's simply a matter of the profile that would attach to his 19 appearance.
20 JUDGE MARGUILES:
You are not representing him 21 here today, Mr. Blake, are you?
22 MR. BLAKE:
No, I represent GPU Nuclear.
As an 23 employee, he came to us and made that request.
[jll 24 JUDGE MARGUILES:
I will reserve decision on 25 that.
ACE FEDERAL REPORTERS, INC.
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Is there anything else under paragraph 2?
(;, ]
\\'
2 MR. JOHNSON:
Your Honor, the staff initially 3
opposed the first suggestion of GPUN that the proceeding be 4
made in camera.
We felt that this was inconsistent with the 5
regulation which requires public hearings, except f or proper 6
showing.
So we initially opposed the request.
7 But af ter some discussion in our previous 8
meeting, this alternative was suggested, and we felt that it 9
preserves the public nature of the hearing while protecting 10 legitimate privacy interests of this particular individual.
11 So we determined that it would be appropriate to agree to the 12 stipulation of this limitation.
(hlh 13 JUDGE MARGUILES:
Wouldn't you say it's unusual, 14 Mr. Johnson, as a practice?
15 MR. JOHNSON:
It's unusual, yes.
We had a 16 similar situation in the Catawba proceeding in the Quality 17 Assurance issue, where there were some craf tsmen f rom the 18 Catawba plant who were willing to testify on the so-called l
19 Welder B issue.
But while they were willing to testify in l
20 public session, did not want any pictures taken of them, 1
l 21 presumably so that their fellow workers would not be able to 2
22 recognize them.
23 And so I wasn't completely surprised at such a
(]ll 24 proposal, because individuals seek to protect themselves and 25 their f amilies at the same time coming forward with evidence ACE FEDERAL REPORTERS, INC.
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in a proceeding.
So that particular case seemed like a close C
2 analogue to this one.
I 3
JUDGE MARGUILES:
Let's move on to 3, the Order 4
of Proof.
If this procedure best meets the position of the 5
parties, I have no obj ection to it.
6 In terms of the trial plans, does that extend to 7
exchanging information on cross-examination in terms of what 8
you plan to go into on cross-examination?
9 MS. BRADFORD:
Judge Marguiles, I think it was I 10 who brought up the trial plan at the meeting of the parties.
11 And what I recall when we used this method before was that 12 there would just be areas
- designated by each name.
Mr. Blake
()lh 13 can correct me if I am wrong.
14 JUDGE MARGUILES:
And that is satisfactory to 15 the parties?
16 MR. MAUPIN:
That is my understanding.
17 JUDGE MARGUILES:
It would involve exchanging 18 the information 'among all the parties, including the area of 19 cross-examination to the extent that you expect to develop 20 it?
21 MR. MAUPIN:
Yes.
22 JUDGE MARGUILES:
As long as that is understood 23 by everyone, I have no problem with it.
{]lll 24 MS. PRADFORD:
I had only one hesitation.
In 25 other proceedings uhere have been obj ections to TMIA asking ACE FEDERAL REPORTERS, INC.
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questions.
And I see that there is a comment in here 2
concerning duplicative cross-examination.
I just want to 3
make sure that if we use this method, TMIA will not be 4
foreclosed from duplicative cross-examination that comes 5
about as a result of using this method of presentation.
6 JUDGE MARGUILES:
What would be your purpose in 7
asking duplicative questions?
8 MS. BRADFORD:
Well, it might be that -- excuse 9
me.
I was incorrect in using the term "duplicative" 10 cross-examination.
11 It might be that a witness is appearing on one 12 issue, but that he might have in, formation or TMIA might
(!!h 13 believe that information could be developed on another issue.
14 That might be the only time that the witness would be 15 appearing, and so although he was appearing to testify on a 16 discrete issue, TMIA would reserve the right to question him 17 on another issues.
18 JUDGE MARGUILES:
What do the parties have to 19 say about that?
20 MR. MAUPIN:
My own memory of our meeting is 21 that that sort of questioning was permissible.
We groped 22 around for some process by which the cross-examiner would 23 give advance notice to other counsel in the case of their
[]pll 24 intent to ask a witness questions on subjects other than the 25 one on which that witness was principally prepared to ACE FEDERAL REPORTERS, INC.
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testify.
And we arrived at this trial plan idea precisely 2
with that thought in mind.
3 For example, I think I used the hypothetical 4
case in our meeting when we were discussing the potential 5
problem we foresaw, what if one, Mr. Johnson has designated 6
witnesses here that would testify on direct testimony on the 7
subject of solicitation of exam answers, what if Ms. Bradford 8
wanted to ask those witnesses whether they had any knowledge 9
of Mr. Husted's performance of his job assignments f rom 1980 10 to 1985, for example.
11 I think we agreed that that questioning would be 12 permissible, provided that Ms. Bradford would advise us in a
()lh 13 general way in the trial plan that she intended to ask the 14 staff witnesses on solicitation those questions on staff 15 performance.
16 MS. BRADFORD:
My only reservation, Judge 17 Marguiles, goes to the fact that information might be 4
18 developed during the proceeding, itself, which I had not been 19 able to anticipate in my trial plan.
And in that case I 20 would not want to be foreclosed from questioning a witness at 21 his only appearance.
22 But what I am saying is that information might 23 be developed that would require that TMIA ask questions on an
{]lg) 24 issue for which the witness was not appearing.
25 JUDGE MARGUILES:
What would preclude TMIA from ACE FEDERAL REPORTERS, INC.
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making the witness her own witness?
Is there anything in the 1
2 agreement that would preclude that, assuming that she didn't 3
describe it in her plan in terms of what she intended to 4
cross-examine the witness on totally?
5 MR. MAUPIN:
I guess my reaction is, why would 6
she do that under this arrangement?
It seems to me that the 1
7 arrangement we have here would enable each of us to elicit 8
the testimony that we wish to elicit or hope to elicit from 9
each of the witnesses.
10 JUDGE MARGUILES:
Well, if there are any 11 surprises, we will handle them as they come up.
The plan 12 seems to be sufficiently comprehensive.
klh 13 Moving on to paragraph 4, the Order of 14 Cross-Examination, have the parties contemplated how the GPU 15 or the TMIA witnesses would be cross-examined, if any were 16 produced, or is that too speculative at this point and we 17 need not go into it?
18 MR. MAUPIN:
I have in my mind that my notes, 19 which I do not have with me, will show that we did discuss 20 what we would do with respect to GPU Nuclear witnesses, 21 whether there would be any.
But I don't remember what we 22 agreed upon, and I don't think we discussed what we would do i
23 if TMIA were to produce --
{]ll) 24 MS. BRADFORD:
I think other than a general 25 statement that the party most adversary to the party ACE FEDERAL REPORTERS, INC.
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presenting the witness would cross-examine last, would be CO 2
last in order, I don't think we discussed specifics.
3 MR. JOHNSON:
That is my recollection, too, that 4
the one principle that came out was that which Ms. Bradford 5
mentioned.
6 MR. MAUPIN:
My hunch is that if either of those 7
parties was to produce a witness, we could agree using the 8
guideline Ms. Bradford just described fairly readily.
9 JUDGE MARGUILES:
Of course, we can't anticipate 10 every possibility and there is no reason to attempt to, and 11 the solution is adequate.
12 Moving on to paragraph 5, Stipulation of
(!h 13 Documents.
It appears that the barties will be able to get 14 together on that item.
Is there any comment?
15 MS. BRADFORD:
I am not as hopef ul as Mr. Maupin 16 appears to be in his last sentence.
At the time that we met
' 17 iwas the first opportunity, in fact, when Mr. Maupin 18 distributed the list of proposed documents that Mr. Busted 19 would be presenting.
20 And since that time I have had an opportunity to 21 examine those documents.
And it's TMIA's position that if 22 those documents were introduced, we would not be able to 23 stipulate to them, and would need to cross-examine the author
{]ll) 24 of the documents.
25 JUDGE MARGUILES:
Does that change things, Mr.
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Maupin?
2 MR. MAUPIN:
Well, I think what that may well i
3 change, that could very well change the list of witnesses 4
under item 1, it seems to me.
5 I suppose, well, I had hoped that the parties 6
could talk after this prehearing conference to some extent 7
about the documents we discussed at the last meeting.
It 8
would be important to me, for example, to know whether every 9
person, whether TMIA would insist on having every person who 10 has signed everyone of these documents.
11 A great number of them are evaluations that were 12 done over the years.
They are typically signed by an 13 immediate supervisor, who I think in most cases would have 14 filled the document out, then signed off on again by a 15 supervisor of that supervisor and then perhaps signed off on 16 by still a superior supervisor.
17 If what Ms. Bradford is saying is that in case 18 of' every document she would want every person produced who 19 signed those documents, that would f rankly seem unnecessary 20 to me.
21 If she is saying that the principal author of 22 the document ought to be produced, it may well be that when 23 we sit down and compare the documents against the witness 24 list already proposed, that we will find that witnesses will, 25 in the natural course of things, be available to sponsor and ACE FEDERAL REPORTERS, INC.
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answer questions about the lion's share of these documents.
D 2
MS. BRADFORD:
Judge Marguiles, I am most 3
interested in the principal author.
Since I -- and I might 4
be incorrect here, but I have made the assumption that the 5
5 reviewer of the document has discussed with the principal 6
author bef ore the -- the document bef ore they signed off on 7
it.
So that the person of interest would be the principal 8
author.
9 I looked through this list, and I see that some 10 of the principal authors of these documents are already 11 identified as witnesses.
And I see from the revised listing 12 that Mr. Newton is now a definite, definitely going to be
()h 13 produced as a witness.
14 There are. others, however, who are principal 15 authors of documents and at this point they are not 16 anticipated as witnesses.
I think that -- TMIA feels it is 17 extremely important that they be allowed to cross-examine 18 those principal authors of these documents.
We would not be 19 interested in the reviewers.
20 JUDGE MARGUILES:
From what time on would you be 21 interested in having the principal authors present?
22 I don' t know what timef rame you are speaking 23 about in terms of the documents, but if they go back bef ore
[]lll 24 the alleged incidents, would you need the principal authors 25 for something like that?
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MS. BRADFORD:
I believe so, because this is, 2
cgain, just a presumption on my part, but I assume that Mr.
3 Husted is seeking to make a case that he, prior to his '81 4
appearance and investigation was an adequate or better than 5
adequate worker as demonstrated by his evaluations.
6 And the listing here goes back to '7 8.
I think 7
that's the earliest date.
I am not sure.
And we would 8
expect or we would want to cross-examine the authors of 9
every -- of all of these documents that Mr. Husted intends to 10 introduce.
11 MR. BLAKE:
Judge Marguiles?
12 JUDGE MARGUILES:
Yes.
h 13 MR. BLAKE:
I believe that GPU Nuclear 14 supplemented some discovery responses as recently as last 15 week which took some of these evaluations back to the '74 16 timeframe.
I think there were just a handf ul of them, maybe 17 four.
18 MS, BRADFORD:
Right.
19 MR. BLAKE:
That's the timef rame.
Is it your 20 position you would want to go back to whenever?
21 MS. BRADFORD:
If, indeed, Mr. Husted intends to 22 introduce those documents --
23 MR. BLAKE, Theref ore, you would want to ll) 24 cross-examine all the way back?
l 25 MS. BRADFORD:
Exactly.
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MR. BLAKE:
Okay.
2 JUDGE MARGUILES:
Is there any point in 3
discussing it further at this time?
4 MR. MAUPIN:
I don't think so.
We might, if we 5
get a break at some point this morning, we might talk among 6
ourselves for a moment about how we might proceed.
Perh&ps 7
we could come up with some sort of suggestion to you before 8
we terminate this conference.
9 JUDGE MARGUILES:
That won't present any 10 problem.
11 Am I correct, Ms. Bradford, that your concern 12 only relates to the* evaluation reports?
I don't know what
()h 13 other documente jou intend to stipulate as to.
14 MS. BRADFORD:
I believe all of these documents 15 are evaluation reports of one type or another.
16 MR. MAUPIN:
I think that's true, with the 17 possible exception of some notes of an interview of one But I believe there ~would be an independent basis 18 witness.
19 for admitting those.
20 JUDGE MARGUILES:
Moving on to 6, Identification 21 of Issues.
That does not require any discussion that I can 22 see.
23 MR. JOHNSON:
The staff only had a comment.
We
(]ll 24 agreed to the order.
We propose grouping the issues in this 25 manner, because we felt that the crux of the question on ACE FEDERAL REPORTERS, INC.
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attitude, forthrightness and cooperation was whether Mr.
2 Husted withheld information during the first interview with 3
the NRC investigators, or the second interview with NRC 4
investigators, or at the hearing.
5 And, theref ore, since the overall question was 6
did he initially, and then did he continue, or at some later 7
point withhold pertinent information which he should have 8
presented, that these issues were all enter related in that 9
fashion and that it would be useful to look at these issues 10 in that light.
11 MS. BRADFORD:
Judge Marguiles, I don't have the 12 February 17th letter with me here today.
But inasmuch as,
()lh 13 and I am not quite sure, what I believe Mr. Johnson to be 14
'saying is that the attitude issue was not an issue here, is 15 that --
16 MR. JCHNSON:
I did not say that.
17 MS. BRADFORD:
Okay.
Then I will reserve my 18 comment until I have an opportunity to ' reread item 2 B.
19 JUDGE MARGUILES:
If you want to take a look at 20 the letter, you may do so.
21 MS. BRADFORD:
Thank you.
22 (Pause.)
23 JUDGE MARGUILES:
Do you have anyt'ing further
{- l}
24 on that, Ms. Bradford?
25 MS. BRADFORD:
No, no, I don.
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JUDGE MARGUILES:
Seven, the Prefiled Testimony.
CO 2
In regard to the prefiled testimony, do all the parties agree 3
to continue with the hearing date of June 23rd?
4 There has been no discussion to change that 5
date, has there?
6 6
MR. JOHNSON:
No, sir 7
MR. MAUPIN:
I want to raise in connection with 8
that this possible problem.
One of the witnesses, Mr.
9 Newton, had advised us that he might have to serve on active 10 reserve duty during the week of June 23rd.
He advised Ms.
11 Hensley, on Friday when I was over there at the office, that 12 that has now become a fact.
(]
13 Indeed, he is scheduled to serve on active duty 14 on the entire week of the 23rd, and I have not talked with 15 him since she received that message.
I therefore don't know 16 whether he would be able, for example, to peel off the last 17 day of his reserve duty, perhaps, and come here for a hearing 18 or on some earlier day.
19 One of the questions I wanted to raise this 20 morning just without knowing whether the answer would turn 21 out to be important, is whether the parties, well, it's 22 foreseeable to me that the hearing could be completed, say, 23 by the 26th without Mr. Newton's -- otherwise completed
(]ll) 24 without Mr. Newton's having appeared, and we want him to 25 appear.
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I wonder if it would be agreeable to the parties 2
and whether they have an available date during the week of 3
the 30th in which he might appear.
4 Let me be quick to say, to reemphasiz'e, I don't 5
know when he might be available during the week following his 6
return f rom active reserve duty.
I am simply asking whether 7
it would be acceptable to you, if necessary, to have an 8
additional appearance during that following week and, if so, 9
whether there is any day we ought to avoid in talking with 10 him.
11 JUDGE MARGUILES:
Well, I think it's important 12 that we go ahead with the June 23rd date.
Everything is
()lh 13 geared to that date.
And for one witness, we shouldn't delay 14 the hearing.
15 If need be, I don't see any problem in terms of 16 coming back the following week, if we can come up with a date 17 that is agreeable to the parties.
Certainly, if we could fix 18 a time f or him to come in and, if necessary, take him out of 19 turn, let's do so during the week of the 23 rd.
20 MR. MAUPIN:
I will make that my first priority.
21 If that can't be done, are there any dates that I should -- I 22 assume that you would pref er to get it done as quickly during-23 the week of the 30th as possible, if it's necessary to do it
{}ll 24 that week, at all.
25 JUDGE MARGUILES:
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to be on Monday.
But let's get it over with that week.
2 MR. MAUPIN:
All right.
3 MR. JOHNSON:
That is the 4th of July comes 4
during that week.
5 MR. MAUPIN:
It comes pretty late that week, 6
doesn't it?
7 MR. BLAKE:
Friday.
8 MR. JOHNSON:
It comes Friday.
9 JUDGE MARGUILES:
Is the witness' reserve duty 10 in this area, do you know?
11 MR. MAUPIN:
I think when we last talked he told 12 us that there were several possible duty stations.
I believe
()hh 13 he told us he thought tha'c he would end up in New England or 14 Norfolk.
15 MS. HENSLEY :
Norfolk, Virginia.
16 JUDGE MARGUILES:
I think it would be unlikely 17 that he would be able to make it in -- during the week of the-18 23rd.
19 MR. MAUPIN:
I am af raid that may be the case.
20 Well, I haven't heard any date I should avoid 21 during the week of the 30th except the 4th, thus f ar.
22 MS. BRADFORD:
I would just like to comment that 23 as soon as possible, the earliest possible date, since I,
{}lg 24 personally, there is A board, or at least sitting on the 25 steam tube issue.
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how soon this hearing is completed.
2 And I had given them a date as to when I thought 3
this hearing would be completed, and I would be free to 4
participate on that date.
Should that schedule slip in any 5
way, I would need to notify that board.
So I would 6
appreciate as soon as possible some indication of when Mr.
7 Newton could appear.
8 MR. JOHNSON:
Could I just ask what were the 9
dates of his reserve duty?
10 MR. MAUPIN:
The week of the 16th and the week 11 of the 23rd.
12 MR. JOHNSON:
Thank you.
(
I 13 MR. MAUPIN:
All right, then, I will try f or the 14 week of the 23 rd.
And if that is impossible, I will try to 15 arrange for his appearance as early as we can during the week 16 of the 30th.
I will report to you all as soon as I have a 17 recommendation.
18 JUDGE MARGUILES:
Thank you.
The parties 19 understand that the prefiled testimony is due June lat.
20 MR. MAUPIN:
Well, we had a recommendation to 21 you in paragraph 10 of this letter that I call your attention 22 to.
23 JUDGE MARGUILES:
I don't have any problem with
{jg) 24 that June 9th date.
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of advising the parties and myself as to what position you 2
plan to take in the proceeding?
Will that affect you, any?
3 MR. JOHNSON:
Yes.
4 JUDGE MARGUILES:
My recollection was that you 5
were to notify us within seven days of the start of the 6
hearing.
7 MR. JOHNSON:
Right.
8 JUDGE MARGUILES:
Would that affect you, any?
9 MR. JOHNSON:
It would, but I think we can still 10 do that.
11 MS. BRADFORD:
I notice that the requirement of 12 filing of trial plans, which in the draft of his document was k)h 13 to be scheduled at the same time as the filing of prefiled 14 testimony, is no longer there.
And I am wondering if that 15 was just an omission, or if there was some reason why that 16 has been --
^
17 MR. MAUPIN:
I think it simply appears at a 18 different place, doesn't it?
It appears in the -- on page 3 19 it says, "The parties agree on the date when prefiled 20 testimony is required to be filed.
Each party should serve 21 on you and on other parties a trial plan."
22 MS. BRADFORD:
Excuse me.
I am sorry, Mr.
23 Maupin.
[]ll) 24 JUDGE MARGUILES:
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date.
We will not change the requirement that as the staff, D
2 in terms of notifying the parties and me as to your position 3
in this matter.
4 MR. JOHNSON:
Yes, sir.
5 JUDGE MARGUILES:
Do the parties wish to comment 6
as to 8, Stipulation of Fact?
7 MR. MAUPIN:
May I say one more thing on item 77 8
JUDGE MARGUILES:
Yes.
9 MR. MAUPIN:
This really may not be necessary.
10 I think item 7 was intended to say that for each witness 11 who's designated in this document, that is, the March 19th 12 document as a witness or potential witness we would file k]
13 prefiled testimony.
14 It may well be depending on the outcome of our 15 talks of documents and supporting witnesses for those 16 documents and given the time constraints that we would not 17 want to file prefiled testimony f or each of the witnesses 18 whose sole purpose is to be cross-examined about documents.
19 I suggest we discuss that among ourselves along 20 with the question of additional witnesses who might appear 21 for that purpose and then report back to you on whether we 22 think they should have prefiled testimony.
23 JUDGE MARGUILES:
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stipulation of fact?
2 MS. BRADFORD:
TMIA has a comment, Judge 3
Marguiles.
4 JUDGE MARGUILES:
Please make it.
5 MS. BRADFORD:
TMIA could not be a party to the 6
stipulation as it now exists.
It is TMIA's position that 7
this proposed stipulation tends to trivialize the issue of 8
attitude, which was a fundamental part of the appeal board's 9
decision to impose the condition.
And as such, I am somewhat 10 concerned that the issue would not be treated adequately in 11 this proceeding.
12 JUDGE MARGUILES:
How does the stipulation read,
]
13 as to what he testified to, question and answer?
14 MR. MAUPIN:
What the stipulation attempted to 15 do, I think the stipulation was born in the idea that the 16 appearance that one gave at some time in the past while 17 speaking in some particular place is a matter that is sort of 18 difficult of proof.
19 If we could agree among ourselves for the sake 20 of moving this proceeding along, that the appearance the 21 witness gave at that time in the past to a reasonable 22 obse rve r, if that could be agreed on, then we could move on 23 to the more substantive matter or perhaps more important
-((jll 24 matter of what prompted the witness to appear the way he did 25 and what stresses was he under, what pressures was he under.
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We are simply just trying to see if we can reach 2
some basis for getting the f act of how he would have been 3
perceived at that time by a reasonable person out of the way.
4 It does not jump out at one from a reading of the transcript.
5 I mean, just speaking hypothetically, one can read the 6
transcript and what was said in the past and sometimes miss 7
the flavor of what was being seen by the observers.
8 We were simply trying to reach agreement as a 9
factual matter for purposes of this record on what was being 10 seen f rom time to time by reasonable observers.
11 MR. JOHNSON:
Your Honor, I was the one that 12 initially proposed the stipulation.
And it was my feeling, I k]
13 agree with Mr. Maupin's comment.
But also, it appeared to me 14 f rom reviewing the record that the parties were in essential 15 agreement as to how Mr. Husted appeared at the former 16 proceeding.
17 And as a result of the agreement there didn't 8
18 seem to be much utility to get the observers of his testimony 19 to testify to what people were willing to stipulate.
And so 20 it would save time and resources and simplify the trial to 21 stipulate.
It's a standard type of thing one would seek to 22 stipulate to.
I would hope we could still do that.
23 I don't know what Ms. Bradford's problem is, but
({lg) 24 it was draf ted and Mr. Maupin redraf ted parts of it.
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so that the proof of those things as to which people may O
2 reasonably disagree could be adduced at the hearing, that was 3
what in fact was Mr. Husted's attitude and what were his 4
motivations and what bearing that may have on the ultimate 5
issues.. It seems to me that is a reasonable position, given 6
the circumstances.
7 JUDGE MARGUILES:
Is it something you feel you 8
still can negotiate, Ms.'Bradford?
9 MS. BRADFORD:
Well, I think it depends in part 10 on the next issue, issue 9, which deals with the introduction 11 of portions of the record.
12 But in addition to that, if this stipulation
()
13 does not take into account Mr. Husted's attitude at the time 14 of his investigation and the deposition, all of which were --
15 This is not an insignificant issue.
It was, as 16 I said before, one of the reasons that the decisionmakers in 17 the earlier proceeding arrived at the decisions that they 18 made.
And I would not want to stipulate away or to, as I 19 said before, trivialize that issue.
It is part of an overall 20 pattern.
21 And I think in large part it will depend on 22 whether those portions of the record, the previous record, 23 are made a part of this record, which the record, of course,
[-]ll 24 will speak for itself as to Mr. Husted's attitude at the 25 hearing.
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JUDGE MARGUILES:
I think it would be 2
appropriate to take a 10-minute recess at this point.
This 3
is not the recess for you to conduct your negotiations on 4
those evaluation reports, but just an opportune time to take 5
a 10-minute recess.
6 (Recess.)
7 JUDGE MARGUILES:
Moving to 9 A, as to Mr.
8 Ward's testimony, are these three different pocitions by Mr.
9 Husted, TMIA and staff ?
10 What I am getting at, is Mr. Husted saying under 11 no circumstances should Mr. Ward's testimony be admitted in 12 its entirety?
hh 13 MR. MAUPIN:
Yes, sir, at least none that I can '
14 think of.
And I have not been very satisfied with this 15 statement, to tell you the truth.
I am sad to say I couldn't 16 improve on it much.
17 The reason I used the words "as a whole," I was 18 simply trying to distinguish between a wholesale admitting of 19 the testimony for the purpose of proving the truth of its 20 contents on the one hand, and on the other a use of it for, a 21 use of parts of it for particularized purposes contemplated 22 by the rules of evidence.
Impeachment, f or example, I 23 suppose being the most notable use one might anticipate.
(]ll 24 JUDGE MARGUILES:
Do you agree with that, Mr.
25 Johnson?
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MR. JOHN 5GN:
Well, we have a slightly diff erent CO 2
position, I believe.
We don't contemplate introducing all of 3
his testimony, wholesale.
4 Unfortunately, I haven't had an opportunity to 5
talk to Mr. Ward at this time, so I really do need to do that 6
before I determine what his testimony is going to look like.
7 But one of the possibilitys that we might pursue 8
is that he might wish to adopt certain portions of his 9
testimony, in which case his prefiled testimony might 10 incorporate that prior testimony, which would then, perhaps, 11 constitute part of his prefiled testimony in this proceeding.
12 And we would seek to introduce that as substantive evidence
()h 13 in this proceeding.
14 JUDGE MARGUILES:
You wouldn't be looking to do 15' that in terms of his testimony as a totality, that 16 everything --
17 MR. JOHNSON:
Probably not.
Apart from what --
18 In other words, we are treating this as you suggested, as a 19 de novo proceeding, in which the prior record doesn't have 20 any standing, apart from its getting into evidence in 'this 21 proceeding.
22 It seems to me that any document that Mr. Ward 23 prepared prior to this proceeding he could adopt as his
[]jll 24 prefiled testimony, and then be questioned on it.
I mean, 25 subject to its admissibility, and he may do that.
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JUDGE MARGUILES:
Then your position is closer 2
to Mr. Maupin's than to Ms. Bradford's?
3 MR. JOHNSON:
Yes, in that sense.
We would not 9
4 suggest that his testimony ought to be admitted as some kind 5
of independent evidentiary thing.
6 MS. BRADFORD:
Judge Marguiles, I might just 7
point out that Mr. Ward's testimony as a whole, I think, as 8
it is stated here, that TMIA, TMIA's position is that it 9
should be admitted as a whole, that's a little misleading.
10 Only as Mr. Ward testified with regard to issues surrounding i
11 Mr. Husted, not the whole of his testimony which had to do 12 with other issues in the prior hearing.
k) 13 JUDGE MARGUILES:
Well, I could only discuss 14 this very tentatively, because I haven't seen the testimony 15 and I don't know how it will be offered or for what purpose 16 it will be offered.
But it's clear to me that to put in any 17 portion of it, Mr. Ward will have to be there in terms of 18 testifying at the oral hearing.
That his prior testimony 19 could not be placed in the record f or the truth of it without 20 him appearing and standing cross-examination on his 21 testimony.
22 To the extent it would be admissible, it would 23 depend upon the circumstances as to whether it's subject to
[]ll) 24 any exclusionary rules or not.
We would have to look at it 25 in those terms.
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Do you require any further discussion of it, or 2
does that satisfy the parties?
3 MR. JOHNSON:
It satisfies me, Your Honor.
4 JUDGE MARGUILES:
Ms. Bradford?
5 MS. BRADFORD:
Well, I am a little disadvantaged 6
because I don' t know, you have just said it is subj ect to 7
exclusionary rules, and I expect I need to look at those 8
exclusionary rules, since I am not familiar.
9 JUDGE MARGUILES:
When I say exclusionary rules, 10 exclusionary rules of evidence, such as hearsay and relevancy 11 and things of that sort.
12 I would make the same ruling in regard to B, as
(
13 to Mr. P's testimony.
14 It would appear to me in regard to C, all the 15 parties are in agreement.
Is that correct?
The only 16 difference among the parties is zeroing in on the more 17 relevant testimony.
And I would agree with the position of 18 the parties.
19 MR. MAU PIN :
I am not sure we are as close 20 together as you might have inferred, Your Honor.
If I 21 understand --
22 Well, my position is that the prior testimony is 23 admissible f or the purpose of demonstrating what it was.
If
[-llj 24 we are going to confront, for example, an issue of 25 forthrightness, we have to ask, forthrightness of what?
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in order to determine what, we have to have the prior j
2 testimony before us.
3 I believe, though she can speak for herself, my 4
impression is that the position of Ms. Bradford on this issue 5
is that Mr. Husted's testimony, any of his prior testimony 6
that is in any way relevant to any of the issues in this 7
proceeding, ought to be admitted as a whole for the sake of 8
proving the truth of what he said.
9 And except where, my view is except where one 10 might want to use that prior testimony f or, f or example, 11 impeachment, since Mr. Husted is going to be here to testify 12 anew,'and to be cross-examined, I can't think of*any reason
()
13 why his prior testimony ought to be admitted as a whole for 14 the purpose of proving the truth of what is in it.
15 MS. BRADFORD:
Judge Marguiles, let me just-16 state that the problem I am having is that the further, we 17 are now five years beyond the time when that testimony was 18 given.
Clearly, all of the witness' recollection of events 19 was better at the time.
One's memory does not' improve, 20 moving f urther away f rom the event.
21 And at the time all of these witnesses who are 22 anticipated here and listed under item 9 were cross-examined, 23 they were under oath.
And each party, although I recognize
{]ll 24 Mr. Husted did not have representation, did not have an 25 opportunity to cross-examine, but I would submit that GPU's ACE FEDERAL REPORTERS, INC.
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position at the time was almost identical to that of Mr.
2 Husted.
3 And these witnesses were cross-examined and I
4 their testimony at that time was better just by the fact that l
)
5 they had a better recollection or were closer to the event, 6
itself.
7 JUDGE MARGUILES:
Well, I have ruled before and 8
will continue to rule in regard to Mr. Ward and Mr. P's 9
testimony, that it's something we are hearing de novo.
Mr.
10 Husted was not represented at the proceeding.
There is i
11 nothing to indicate that he designated GPU to represent him.
12 And without Mr. P and Mr. Ward appearing to be k)h 13 cross-examined, their prior testimony would not be 14 admissible.
15 Do you wish to be heard, Mr. Johnson, on Mr.
16 Husted's prior testimony?
17 MR. JOHNSON:
- Yes, It's a comewhat complicated 18 matter.
But I think the question of Mr. Husted's 19 forthrightness at the prior proceeding cannot be litigated t
20 without admitting the testimony to show what his testimony
)
I l
21 was.
The questions that were raised in people's minds, in 22 the adjudicators' minds had to do with his inconsistent 23 testimony and his credibility based on what he said.
That is
({jl) 24 a factual issue in this proceeding.
25 It's our position that we can't adjudicate that ACE FEDERAL REPORTERS, INC.
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question without having the record admitted f or that purpose, 2
to have it in evidence to show what he said.
3 Cur problem with admitting it for all purposes, j
4 that is, to show the truth of the matters asserted, is that 5
it's a conundrum, in fact, that that's the very question that 6
is raised.
That is, is it truthful testimony?
So that if we W
~
7 were to say it should be admitted f or the truth of the 8
matters asserted, we go around in a circle and we get 9
nowhere, because if one assumes that it is inconsistent, then
-10 what is the significance?
11 You could argue, I guess, that if we admit it 12 for the truth of the matters asserted, we would assume that
()lh 13 each inconsistent answcr was truthf ul and, therefore, it's 14 inconsistent if they were indeed inconsistent, and we don't 15 really gain anything by saying let's admit it for the truth 16 of the matters asserted.
17 So our position was, let's get it in there so 18 that we can talh about it and determine whether it was 19 forthright or not.
20 JUDGE MARGUILES:
How about to the extent the 21 statements are admissions against interest, if that may be 22 the case?
Would you not admit those for the truth of the 23 matter?
{]ll) 24 RR. JOHNSON:
I'd say that was a possible 25 theory, to avoid hearsay.
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JUDGE MARGUILES:
The answer may very well be CO 2
that we can't decide the matter for all purposes.
We could 3
look to admitting it at this stage in terms of establishing 4
what his prior testimony was.
5 It may develop in looking at it that it goes 6
beyond that, that for some reasons it can be admitted for the 7
truth under established rules of evidence.
And to the extent 8
that it cannot, it will not.
9 So I don't think we could make a blanket 10 decision with the information that we have before us, other 11 than going up to the point of saying that it is admissible to 12 establish what his testimony was and f rom which the
()
13 allegations have come out.
14 MR. JOHNSON:
Yes, sir.
15 JUDGE MARGUILES:
Mr. Blake, I haven't been 16 calling upon you, but I know that if you wish to be heard, 17 you would make yourself heard.
18 Now, with those rulings, Ms. Bradford, does that 19 help you any with paragraph 8, Stipulation of Fact?
20 MS. BRADFORD:
Yes.
My only concern was that 21 the issue of his attitude at the hearing not become divorced 22 from his attitude over the entire proceeding, that is, from 23 the time of the investigation.
(]lh 24 And it just seemed to me that some of the 25 language here -- but, in any case, that would be cured by ACE FEDERAL REPORTERS, INC.
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having the testimony of Mr. Husted accepted into this record.
2 JUDGE MARGUILES:
Well, at this point we are 3
just speaking about accepting it for limited purposes, 4
purpose of it establishing what he testified to.
And not for 5
the truth of it f or all purposes, depending upon what he 6
testified to and as to whether those areas are admissible 7
under the rules of evidence.
8 MS. BRADFORD:
Rut it seems to me that his 9
attitude would be apparent and it would be a factual thing 10 from reading the prior record, that portion of the prior 11 record in which he testified.
And under those circumstances 12 I would be in agreement to signing this stipulation.
()!
13 Stipulate that in fact it does -- the prior record does show 14 that he appeared to have a poor attitude when he testified in 15 a prior hearing.
16 JUDGE MARGUILES:
Well, I can't suggest whether 17 or not you sign that stipulation, Ms. Bradf ord.
I explained 18 what my ruling is or what the ruling I expect to make is, and 19 I can't really go beyond that.
20 MS. BRADFORD:
I understand.
Perhaps I should 21 confer with someone else and prior to signing the 22 stipulation, or discussing it f urther with the other parties.
23 JUDGE MARGUILES:
Is there anything further in
{ll) 24 that area in terms of 9?
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that we would attempt to. reach the stipulation by the end of 2
this week.
And I would assume that if we don't, we would 3
inf orm you.
Or if we do we will inform you.
4 JUDGE MARGUILES:
We have discussed 10, the 5
schedule.
With that, we have covered all the elements in the 6
letter.
(1 7
I think it would probably be appropriate at this 8
time to take a 20-minute recess, or longer if you need it, 9
and discuss whatever you want that you think needs going over 10 before we adjourn for the day, including the matter of the 11 production of witnesses on those evaluation reports.
12 Will 20 minutes do it for you?
Do you want half 13 an hour?
14 MR. BLAKE:
Will you be in this room where we 15 can report to you?
16 JUDGE MARGUILES:
Yes.
17 (Recess.)
18 JUDGE MARGUILES:
Do you wish to report back on 19 your conference?
20 MR. MAUPIN :
Well, first of all, Judge, with 21 respect to the stipulation of the fact as to attitude, we are 22 not going to reach an agreement on that today.
23 But we have an understanding whereby Ms.
q"lhj 24 Bradford will get back in touch with the other parties 25 through me, Friday.
And if we end up with a stipulation, we ACE FEDERAL REPORTERS, INC.
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will of course file it with you.
2 With respect to the documents that we might wish 3
to have made a part of the record and any additional 4
witnesses that might be necessary to sponsor them, I think I 5
can report that I am tentatively of the view, and I doubt 6
this will change, that we can make an adequate case on the 7
issue of Mr. Husted's job performance through the witnesses 8
that we have already designated in the letter that we 9
delivered to you last night.
10 I think the parties believe that the most useful 11 thing to attempt to do, the most useful thing to do would be 12 to forego our efforts to agree on a stipulation as to
(]
13 admissibility and, instead, to include in what we once 14 described as our simple little trial plan, an additional 15 item.
16 And that would be a designation of the documents 17 each of us will attempt to have admitted into evidence at the 18 hearing and include with the designation of those documents 19 the name of the witness through which we would hope to have 20 admitted each of those documents.
21 JUDGE MARGUILES:
Well, it may not solve the 22 ultimate question, but it certainly eliminates the element of 23 surprise.
{~ )
24 Is that the sum and substance of it?
25 MR. MAUPIN:
We labored mightily and produced a ACE FEDERAL REPORTERS, INC.
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peanut.
O 2 -
JUDGE MARGUILES:
Is there anything further?
3 MR. JOHNSON:
No, sir.
4 JUDGE MARGUILES:
I do wan't to express my 5
appreciation for the efforts that you have put forth, and it 6
shows.
It may not be a hundred percent, but it's pretty 7
close.
Thank you, very much.
8 We will recess until the hearing on June 23rd.
1 9
If there are any changes in your position, please notify me 10 as soon as you possibly can.
Thank you, very much.
11 (Whereupon, the hearing was recessed at 11:35 12 a.m.)
13 14 15 16 17 18 19 20 21 22 23
{]lh 24 25
[
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' CERTIFICATE OF OFFICIAL REPORTER
'O V
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
GENERAL PUBLIC UTILITIES NUCLEAR (Three Mile Island Nuclear Station, Unit Number 1)
DOCKET NO.:
50-289 (CH)
PLACE:
HARRISBURG, PENNSYLVANIA r'
DATE:
TUESDAY, MAY 20, 1986 were held as herein - appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
,7'T',s?'f l[_ (
(sigt) h D A ' 4/% %#
(TYPED) /
Official Reporter Reporter's Affiliation O