ML20198J453
| ML20198J453 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/30/1986 |
| From: | Bright G, Kelley J, Kline J Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#286-351 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8606030117 | |
| Download: ML20198J453 (9) | |
Text
I'f\\
l A@
i UNITED STATES OF AMERICA
- q..
NUCLEAR REGULATORY COMMISSION g7 hg(o#
'o e I
Before the Presiding Board:
L-Q
'Q~~ %',WI 9 ;'
-l /
James L. Kelley, Chaiman Glenn 0. Bright i
Jerry R. Kline
~
j
,,m s
j,; s
)
In the Matter of Docket No. LRP
)
ASLBP No. 86-519-02 SP INQUIRY INTO THREE MILE ISLAND UNIT 2
)
LEAK RATE DATA FALSIFICATION
)
May 30, 1986 i
)
SERED JUN d 1986 DECLARATORY ORDER AND CERTIFICATION OF QUESTION TO THE COMISSION (Concerning Authority to Pay
[
Expert Witness Fees)
Introduction In its Order and Notice of Hearing of December 18, 1985, the Commission set in motion a legislative hearing procedure to develop the facts surrounding leak rate data falsifications at TMI-2 prior to the 1979 accident.
This Board was subsequently appointed to preside, prehearing procedures have been largely completed, and the evidentiary hearing is scheduled to begin on September 3,1986.
Questions have arisen, however, about the extent of this Board's authority to direct payment of fees from Commission funds to experts for their services in reviewing and preparing documents and in testifying before the Board.
8606030117 860530 PDR ADOCK 05000320 0
- PDR,
8 1 These questions have arisen specifically with respect to prospective witnesses Edwin H. Stier and Winthrop A. Rockwell, both attorneys, and technical experts associated with studies they have supervised. Both Stier and Rockwell (the latter through his law firm, Faegre & Benson) were hired as consultants by GPU huclear, a party in this proceeding, to conduct technical studies of leak rate testing at TMI-2 and, in Stier's case, also to investigate the responsibility of
^
present employees at TMI for leak rate data falsifications.
The "Stier Report" and the "Faegre & Benson Report" (for which Rockwell was principally responsible) have been completed and neither Stier nor Rockwell are presently working for GPU Nuclear.
The Board believes that the Stier and Faegre & Benson Reports can contribute significantly to the inquiry and has included them in the initial documentary record, following comments by the parties.
Memorandum and Order of May 22, 1986, p. 15.
Our inclusion of those Reports, however, was based on the assumption that appropriate sponsoring witnesses would testify concerning them, including Stier and Rockwell and such technical experts as may be necessary to respond to particular lines of questioning. We commented in an earlier Order (April 3, 1986, p. 3) on the status of these prospective witnesses:
Messrs. Rockwell and Stier (and any of their associates) are in a rather unusual position.
They prepared their reports as paid consultants to GPUN and, if this were a conventional licensing case, they might be expected to appear as " witnesses for GPUN," with the counsel functions
e s normally associated with that designation.
However, they are independent professionals; their work on leak rates is completed and in the public domain as a major body of information on the subject.
Under these circumstances, and considering the need for public confidence in the openness of this inquiry, we think it appropriate that Messrs. Rockwell and Stier (and any of their associates) be paid exclusively by the NRC for their work associated directly with this hearing.
In addition to testifying about completed work, Counsel for GPU Nuclear, in a letter to the Board dated May 29, 1986, has expressed his intention to hire Mr. Stier to review and provide comments on the NRC Staff's Report, which includes analysis of Mr. Stier's earlier analysis of leak rate tests.
See Tr. 196-197.
GPU Nuclear also proposes to obtain Mr. Stier's comments on the OI Report.
The Board agrees that such reviews and comments by Mr. Stier should be obtained.
It seems to us, however, that if Mr. Stier is to be a " Board" witness for purposes of his completed Report in the interests of independence and objectivity, he should be a Board witness for all purposes in this proceeding, including the proposed reviews and comments.
If that principle is to be followed, the Board must be able to pay Mr. Stier, not only for answering questions as a witness about his completed Report, but also for necessary technical assistance and for his time in performing the analysis.
Legal Issues These facts give rise to the following legal issues:
v 1.
May this Board authorize payments to prospective witnesses and necessary assistants for time spent (a) in preparing to testify, and(b)inpresentingtestimony.
2.
If the answers to 1(a) and (b) are "yes," may the Board authorize payment of:
(a) statutory witness fees; (b) fees comparable to those paid to part-time Licensing Board Judges; or (c) prevailing market rates.
3.
In addition to fees, may the Board authorize payments for transportation, per diem (meals and lodging), and other necessary expenses.
Discussion This Board has no explicit authority to authorize payments to prospective witnesses, either for their time spent in preparing testimony or for testifying.
The subject is not mentioned in the December 18, 1985 Coninission Order which constitutes our charter.
Under 10 C.F.R. Part 2, Subpart G (5 2.720(g)), Licensing Boards are
4 b authorized to pay any witnesses they call "the fees and mileage paid to witnesses in the District Courts of the United States."
- However, the Commission's Order provides that "this hearing will not be conducted under 10 CFR Part 2, Subpart G," with certain exceptions not here relevant.
Nevertheless, there is nothing in the Order or the context of its issuance indicating any specific intent by the Commission to bar this Board from authorizing appropriate payments to witnesses.
On the contrary, it is reasonable to infer that the Commission intended the Board to have whatever authority it needed to conduct a thorough inquiry.
The overall " purpose of this hearing is to develop the facts"... about TMI-2 leak rate falsifications... "in sufficient detail to determine the involvement of any individual who may now work, or in the future work, at a nuclear facility licensed by the Consission." Order at 4.
The specific issues we are charged to investigate include complex technical
- issues, such as whether corrective action was taken sufficient to ensure compliance with technical specifications.
To enable the Board to explore those issues, the Board and only the Board is authorized to call witnesses.
Therefore, in order to accomplish the purposes of this inquiry with the procedural tools we have been given, this Board must be deemed to possess some authority to pay witnesses for preparation and presentation of testimony.
Viewing the stated legal issues in this context, we answer them
-- with one exception, which we certify -- below:
t 1.
General Authority.
This Board may authorize payment of prospective witnesses and necessary assistants for time spent (a) in preparing to testify, including preparation of technical analyses, and (b) in presenting testimony.
Such authority is fairly inferable from, and necessary to the fulfillment of, the Commission's mandate to us.
2(a).
Statutory witness fees.
This Board is authorized to pay statutory witness fees on the theory that the Commission would not have intended to foreclose the narrow authority possessed by Licensing Boards to pay witnesses in ordinary cases. However, such authority is of little practical assistance to this Board, for two reasons. First, the statutory amount ($30 per day) is grossly disproportionate to amounts typically earned by expert witnesses.
Second, the statutory amount applies only to time spent actually testifying, not to time spent on preparing studies or testimony.
2(b).
Part-time members of Atomic Safety and Licensing Boards and persons appointed to specialized positions pursuant to 10 C.F.R. 9 2.722 are paid a standard per diem rate equivalent to the current Federal ceiling salary -- about $260 per day, plus expenses.
The experts the Board proposes to call as witnesses will possess levels of technical expertise comparable to the expertise of part-time Board members and other part-time specialized personnel.
We believe that, if the Commission had specifically focused on this issue, it would
t,
have specifically authorized us to pay expert Board witnesses at least this standard per diem rate, for preparation of studies and testimony, as well as for time spent on the stand. We hold that we possess that implied authority under the Commission's Order.
2(c).
It is less clear to us whether this Board possesses delegated authority to authorize payment at prevailing market rates for the work of experts in preparing or presenting testimony.
Such amounts are typically negotiated and may vary widely. Certain law and technical finns may seek compensation at hourly rates in excess of
$100.
Unlike the Staft, Licensing Boards have no experience in negotiating such expert witness contracts.
These ccnsiderations present a closely-balanced legal question.
On the one hand, authority to pay something approaching market rates may be necessary to conduct a thorough inquiry. A technical firm that worked on the Stier Report has already indicated that it expects to receive its usual rate (which it presumably received in the past from GPU Nuclear) for any further work. On the other hand, it is somewhat difficult to infer the delegation of relatively open-ended fee-payment The authority of a Licensing Board to call its own expert witnesses is constrained on the Appeal Board's decision in South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station),
ALAB-663, 14 NRC 1140 (1981).
1
o k authority to a Board that has no experience in such matters. We ar'e certifying this question to the Commission.
3.
Transportation and Per Diem. This Board has authority to pay for transportation, per diem (food and lodging) and other expenses.
This conclusion follows necessarily from our conclusion that we can pay witnesses as part-time Board members.
In summary, this Board concludes that it has the authority to pay prospective witnesses and persons working with them for their time spent in preparation of studies and testimony requested by the Board and for time spent testifying, at the current Federal ceiling salary rate.
In addition, we can compensate such witnesses for necessary expenses, including transportation and a fixed per diem (e.g., $75 in Bethesda), primarily for lodging and meals.
For the Commission's information, we anticipate that total payments in this proceeding, if limited to the ceiling salary rate, plus expenses, will be in the range of S7,000 to $10,000.
We intend to act on these conclusions without further guidance from the Commission, and to so advise prospective non-NRC witnesses, including Rockwell and Stier.
In that connection, we ask Counsel for GPU Nuclear to refrain from seeking the services of Mr. Stier, as outlined in his letter of May 29, until the Board has had an opportunity to seek Mr. Stier's services for the same purpose.
4 9-l l
Certified Question l
We hereby certify to the Comission the question whether this Board is authorized to pay negotiated fees to prospective witnesses based on prevailing market rates.
If so, are such negotiations to be carried out by the Board or should they be conducted by the Staff on the Board's behalf? It fees were to be paid on a negotiated basis, a rough estimate of amounts needed for this proceeding would be $20,000 to $30,000.
1 j
I The Board respectfully requests that the Commission respond to our certified question as soon as possible. Tha Commission's response may determine @nher and how certain work is to be done in the next 90 days and may thereby affect the thoroughness of this inquiry.
THE PRESIDING BOARD 0.....
e.//m
{pdies L. Kelley, Chainw6n ADMINISTRATIVE JUDGE
- 9, e.$_b e
Glenn 0. Bright ADMINISTRATIVE JUDGE h
trry R. KlinE -
t
/ )MINISTRATIVE JUDGE Nay 30, 1986, Bethesda, Maryland.