ML20195B608
| ML20195B608 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/27/1986 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-313 85-514-02-OT, 85-514-2-OT, 85-514-20-OT, CH, NUDOCS 8605290443 | |
| Download: ML20195B608 (10) | |
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't UNITED STATES OF AMERICA
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Nuclear Regulatory Comission
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g Before Administrative Law Judge Z
Morton B. Margulies gggjp g
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In the Matter of
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Docket No. 50-289(CH)
General Public Utilities Nuclear
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(ASLBP No. 85-514-02-0T)
(Three Mile Island Nuclear
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Station, Unit No. 1)
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May 27, 1986 2
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SERVED gygg REPORT AND ORDER On Final Prehearing Conference Pursuant to the Order of May 6,1986, a final prehearing conference was held in the captioned proceeding on May 20, 1986, at Harrisburg, Pennsylvania. The purpose of the conference was to consider such matters as might aid in the orderly disposition of the proceeding, as set forth in 10 CFR 2.752, and to discuss those matters that were not resolved at the initial prehearing conference held on February 19, 1986.
The unresolved issues were the order in which the parties will present their cases on hearing, the manner in which they will participate, and the use to be'made in this proceeding of the prior record. ~
Representatives of the parties appeared and participated in the final prehearing conference. Prior to the meeting, they met on May 12, 1986, at Harrisburg, Pennsylvania to resolve their positions on the 8605290443 860027 PDR ADOCK 05000289
2 prehearing conference issues. Their accomplishments were summarized in a letter to me dated May 19, 1986. The contents of the letter became the topic of the final prehearing conference. This Report and Order details the matters considered at the conference and sets forth the decisions reached.
1.
Identification of witnesses.
The named parties expect to call the witnesses listed:
(a) Mr. Husted: Charles Husted, Mr. P, Paul Christman, Nelson Brown, Sam Newton and Robert Long; (b) NRC Staff: Keith Christopher, Peter Baci, Donald Haverkamp, William Ward and Richard Matakas (Raymond Smith is ill and cannot testif His status will be confirmed by a physician's note.) y.
(c) GPU Nuclear: No witness planned to be-called at this time; and (d) TMIA:
If the witnesses under (a) except Newton and Long, and (b) appear to testify, TMIA will not call any other witness and would limit its role to cross-examination of those witnesses. Should evaluations of Mr. Husted, authored by other utility witnesses, be sought to be intro-duced. TMIA would seek to cross-examine the principal authors.
I find the identification of the witnesses that are expected to be called to be satisfactory and acceptable. The issue of introducing evaluation reports by authors other than the' named witnesses and having the principal' authors available at the hearing for cross-examination is something that can be taken up at the hearing if the matter is presented.
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2.
Confidentiality.
A witness who is to be called by Charles Husted wants to be identified only as Mr. P during the course of the hearing and does not want to be photographed while on the stand. He had used the designation Mr. P during testimony in a prior proceeding although later his name had been disclosed publicly. He prefers to follow the requested procedure to lower his profile and to pennit a sense of greater ease in testi fying. TMIA is the only party objecting to following the proposed procedure.
The Commission follows a policy of openness to the public in conducting adjudicatory hearings.
It extends to permitting the photographing and recording of the proceedings. Withholding from the public the release of the identities of witnesses is not authorized absent the involvement of individuals coming forward with information about safety concerns or perceived wrongdoing which could lead to reprisal against those individuals, including physical harm, economic duress, black listing or ostracism.
No case has been mcde out to grant the witness confidentiality under the Commission's policy. Furthermore, the procedure sought to be followed would not do much to cloak the witness's identity. To again use the desig, nation Mr. P after his identify had already been revealed would not prov~e very useful. To only withhold his being photographed when testifying leaves numerous other opportunities to have his picture taken for dissemination.
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The request to alter the Commission's policy on open hearings is denied. To accommodate the witness's desire to be placed at ease in testifying, I will apprise the media, should it be in attendance, of the witness's preference of not being photographed during the course of his testimony.
3.
Order of Proof.
The parties have recommended that each of the issues be heard separately. An effect could be to require Mr. Husted to take the stand several times. The procedure is recommended in an attempt to assure a relatively orderly record. The order of witnesses on the issues would be as follows:
Issue Order and Witnesses Solicitation of exam answer.
Baci and Ward (panel)
P Husted Attitude, forthrightness and (Possible stipulation of fact cooperation.
as to Husted's attitutde.)
Christopher Christman Matakas Husted Husted's performance.
Haverkamp Brown Newton Long Husted The foregoing appears to be a reasonable mechanism to make for an orderly record and will be permitted to be followed at the hearing.
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4 The parties further agreed that the prefiled testimony is required to be filed by June 9, 1986; each party shall serve on the Judge and on the other parties a relatively simple Trial Plan, which should consist of a list of the party's affirmative case witnesses, whether the case is to be made on direct or cross-examination, and the subjects on which each will testify.
For those parties whose case will be made on direct examination, the subject matter each witness will testify to will be set forth. For those parties whose case will be made on cross-examination, the subject matter on which each witness will be cross-examined will be set forth.
The plan outlined is comprehensive and should apprise all concerned as to what each party will cover at the hearing.
It will constitute a useful tool in conducting the proceeding and is accepted for use in the proceeding.
4.
Order of cross-examination.
The parties recomended that Mr. Husted's witnesses be cross-examined in the following order:
first by GPU Nuclear, then by Staff, and finally by TMIA.
Staff witnesses would be cross-examined first by THIA, then by GPU Nuclear, and finally by Mr. Husted. The parties furth,er agreed that, as a general rule, the party most adversary to the party presenting the witness would cross-examine last in order.
The procedure outlined should be useful and will be followed at the hearing.
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5.
Stipulation of documents.
The parties are in the process of attempting to stipulate with respect to the admission of documents into evidence. A self-imposed goal was to do so by May 23, 1986. Failure to stipulate could result in a revision of the witness list set forth in 1. above. The outcome of the negotiation will be awaited.
If no agreement is reached, the offers of documents into evidence will be ruled upon individually.
6.
Identification of the issues.
The parties agree that the factual issues remain the same as were previously determined. They are:
(i)
Did Husted solicit an answer to an exam question from P during the April 1981 NRC examination?
(ii)
Did Husted's testimony before the Special Master lack forthrightness?
(iii) Did Husted have a poor attitude toward the hearing on the cheating incidents?
(iv)
Did Husted fail to cooperate with NRC investigators?
(v)
What does Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity?
(vi)
In light of the answers to (i) through (v), is any remedial action required with respect to Husted?
(vii)
If remedial action is required, what is it?
The issubs remain the same as was found in the Report and Order On Initial Prehearing Conference, issued February 27, 1986, and each will be considered on hearing.
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7 7.
Pre-filed testimony.
The parties will serve written pre-filed testimony, for each of their witnesses, on each of the other parties and on the Judge on June 9, 1986. The parties will discuss and report back as to whether they believe it would be unnecessary to file pre-filed testimony for witnesses whose sole participation is to be cross-examined about documents.
8.
Stipulation of fact.
The parties are attempting to reach agreement on a stipulation of fact with respect to the attitude that Mr. Husted appeared to convey during his December 10, 1981 appearance before the Special Master. A goal was to enter into the stipulation by May 23, 1986.
The outcome will be awaited.
If unsuccessful, other means to develop the record may be employed.
9.
Prior testimony.
The parties attempted to resolve how the prior testimony, of two witnesses, Messrs. Ward and P, and the party, Husted, could be utilized I
in the subject proceeding. Their positions are not identical.
TMIA's position is that the prior testimony should be admitted as a whole for the purpose of establishing the truth of its contents regardless of whether Ward, P, or Husted appears. Mr. Husted's position is that the prior testimony of Ward and P should not be admitted as a whole for any purpose and that as to his own prior testimony, it is
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admissible for the purpose of establishing, in connection with the forthrightness issue, what his prior testimony was. GPU Nuclear agrees with the Husted position. Staff's position is that the prior testimony of Ward and P should not be offered for its truth unless the supporting witness appears at the hearing. As to the Husted prior testimony, Staff agrees with Husted that it is admissible for the purpose of establish-Ing, in connection with the forthrightness issue, what his prior testimony was.
This matter requires discussion in the abstract because the parties have not specifically discussed the prior testimony in whole, or part; their stated positions are not related to any specific testimony; and no authority was cited in support of their positions. With what we have at hand at this time, only a few general observations may be made. More specific formal rulings will have to await the submission of the particular prior testimony that may sought to be introduced, along with the arguments of the parties on the issue, supported by authority.
It has already been determined that this proceeding is to be heard de novo. See Report and Order on Initial Prehearing Conference, February 19, 1986, at p. 7.
As a new proceeding, the prior record is not the record of this proceeding. A new record must be established in accordance wi,th the rules of evidence.
It is only where the rules of evidence permit that the prior testimony can be utilized that it will be admitted.
In the subject proceeding, Messrs. Ward and P could adopt their prior testimony, to the extent it is admissible, and then they must
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stand cross-examination on it. Should they testify in the subject proceeding at variance with their prior testimony, the prior testimony j
can be used for impeachment purposes. Their prior testimony is not admissible in the subject proceeding without having them testify.
As to Mr. Husted's prior testimony, he also may adopt it and then must stand cross-examination on it. Should his testimony be at variance with his prior testimony, the latter could be used for impeachment.
purposes. At issue in the subject proceeding is Mr. Husted's forthrightness and attitude in his testimony before the Special Master.
That issue in this proceeding requires that his testimony be established so that a determination can be reached on the question.
For establish-ing the testimony, his prior testimony is admissible whether or not he testifies. Depending upon the content of Mr. Husted's prior testimony, conceivably, it may be argued that the prior testimony is admissible on the merits of the forthrightness and attitude issue, whether or not he testifies. This would be so to the extent his testimony amounts to or contains an admission against in_terest.
The foregoing discussion should serve as guidance to the parties.
- 10. Schedule.
Pre-file,d testimony is due June 9, 1986. The hearing will commence on June 23, 1986 at Harrisburg, Pennsylvania. A further notice of hearing, setting its location, will be issued.
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10 ORDER Based upon all of the foregoing, it is hereby ORDERED that:
This order, which incorporates all of the rulings stated above, shall control the subsequent course of the proceeding unless modified by further order.
Objections to this ORDER may be filed by a party within five (5) days after service of the Order, except that the Staff may file objections within ten (10) days after service.
MortonB.Margulies[dge Administrative Law Ju Dated at Bethesda, Maryland his 27th day of May 1986.
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