ML20206J805
| ML20206J805 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/23/1986 |
| From: | Bauser D GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-717 CH, NUDOCS 8606270278 | |
| Download: ML20206J805 (12) | |
Text
..
)
MELAltD CONMtbrOq t\\\\
=
~
d2
[
D-Y M 3 yjt( 2 4 BM 23, 1986 er:ct i
/
/
.s UNITED STATES OF A RICA N7 NUCLEAR REGULATORY CO SSI'ONir\\
BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of
)
)
GENERAL PUBLIC UTILITIES
)
Docket No. 50-289 (CH)
NUCLEAR
)
)
(Three Mile Island Nuclear Station,
)
Unit No. 1)
)
LICENSEE'S RESPONSE TO TMIA'S APPLICATION FOR ISSUANCE OF SUBPOENA TO GARY L.
MILHOLLIN On June 5, 1986, TMIA applied to Administrative Law Judge Margulies for the issuance of a Subpoena to Gary L. Milhollin.
The purpose of the subpoena is to require Administrative Law Judge Milhollin to appear to testify in this proceeding as to findings and conclusions contained in his Report of the Special Master in the TMI-l restart proceeding, dated April 27, 1982.
TMIA Brief in Support of Application for Issuance of Subpoena
~
("TMIA Brief") at 3.
The subject on which.TMIA seeks Judge Milhollin's testimony is with respect to the attitude, demeanor and forthrightness of the testimony of Charles Husted during Mr. Husted's testimony before the Special Master on December 10, 1981.
Id. at 2-3.
GPU Nuclear Corporation opposes the applica-tion.
8606270278 860623 PDR ADOCK 05000289 G
o We address first the question of TMIA's failure to provide adequate notice of its intention to call Judge Milhollin.
We then argue that to have Mr. Milhollin testify would be an impermissible inquiry into the deliberative process by which he made his findings and conclusions concerning Mr. Husted.
1.
Failure to Provide Adequate Notice J
On May 12, 1986 the parties to this proceeding met to at-tempt to resolve procedural matters, at which time anticipated witnesses were identified.
At this meeting, NRC staff proposed that the parties agree to a stipulation that Mr. Husted appeared to be flippant during his December 10, 1981 testimony before Judge Milhollin.
The parties discussed at some length the ab-sence of a need for any witnesses concerning Mr. Husted's appar-ent attitude and demeanor during the testimony at issue.
TMIA's position at that time was that it anticipated being able to reach a stipulation concerning these matters and that no further evi-dence on this subject would be necessary.
TMIA's representative therefore tentatively agreed to the stipulation pending consulta-tion with TMIA.
Subsequently, at the May 20 prehearing conference, after in-formal discussion among the parties, TMIA again tentatively agreed to the stipulation.
However, on May 23, TMIA informed Mr. Husted's attorney that it refused to enter the stipulation.
Some two weeks later, on June 5, without prior notice to the -
4 parties in this proceeding, TMIA applied for issuance of a sub-poena to Judge Milhollin.
TMIA's application was not received by counsel for GPU Nuclear until June 9; NRC staff and Mr. Husted's counsel apparently did not receive it until June 10.
TMIA attempts to explain its failure to provide prompt no-tice of its intention to seek Judge Milhollin's testimony by as-serting that it first considered calling him only as a result of the discussion of the stipulation at the May 20 prehearing con-ference and was unable to reach Judge Milhollin until May 27.
TMIA's excuse rings hollow.
The prior discussion of the absence of a need for witnesses as to Mr. Husted's apparent attitude and demeanor and TMIA's tentative agreements to the proposed stipula-tion suggested that further evidence on this subject would be un-necessary.
At the very least, to avoid unfair surprise, TMIA could have notified the parties that it was considering calling Judge Milhollin during or shortly after the May 20 prehearing conference.
Even assuming for purposes of argument that such de-cision was not finalized until TMIA representatives spoke with Judge Milhollin on May 27, there is no excuse for the failure to notify the parties of its interest in this new witness :or an ad-ditional eight days.
It is manifest that parties to a proceeding must act in good faith in the preparation and accomplishment of a plan of discov-ery.
23 Am. Jur. 2d Ceposition and Discovery, 5 9 (1983).
The purpose of providing the names of witnesses to opposing counsel s
4 in NRC proceedings is to prevent unfair surprise, to provide suf-ficient opportunity for depositions if necessary, and to permit i
time to adequately prepare for cross-examination or rebuttal.
See generally, Hickman v.
Taylor, 329 U.S.
495 (1947); Boston (Pilgrim uclear Generating Station; Unit 2),
Edison Co.
N LLP-75-30, 1 N.R.C.
579 (1975).
TMIA's failure to promptly noti-fy the other parties of its intent to call Judge Milhollin sug-gests less than complete good faith.1!
TMIA argues that no party will be prejudiced by its untimely notice because all parties are familiar with the findings and conclusions concerning Mr. Husted contained in the Special Mas-ter's Report.
TMIA is incorrect.
t Had TMIA's request been timely noticed, GPU Nuclear in all likelihood would have taken the opportunity to depose Judge Milhollin in order to be adequately prepared for cross-examination.
See note 3 at page 6, infra. -This was particularly likely in view of the absence of prefiled direct testimony, which ordinarily is required in NRC proceedings.
10 C.F.R.
S 2.742(b).
In short, approval of TMIA's application will frustrate the pur-J poses for which the Commission's discovery procedures are 1/
TMIA was under a continuing duty to supplement answers to interrogatories served on it on April 9, 1986 seeking the-names of witnesses it anticipated calling at trial.
10 C.F.R. 5 2740(e); GPU Nuclear Interrogatories to TMIA dated i
April 9, 1985 at I, A.
Aside from the addition of a witness required as a result of newly discovered documents, the wit-i ness list has remained unchanged since May 1:2 with the nota-ble exception of TMIA's June 5 subpoena request. :
a
,_.___.-.s
1 intended -- to focus and expedite the hearing process and to pre-vent unfair surprise to opposing parties.
See generally, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-82-107, 16 N.R.C. 1667 (1982).
An appropriate sanction for failure in good faith to provide timely notification to opposing parties of the identity of wit-nesses intended to be called at trial is exclusion of such testi-mony.
See Murphy v. Magnolia Electric Power Ass'n, 639 F.2d 232, 234 (5th Cir. 1981).
TMIA's failure to comply in good faith with the notification requirement warrants denial of its application for issuance of a subpoena, particularly where, as here, the sub-ject matter at issue is the subject of other evidence.
Mr. Husted's prefiled testimony readily acknowledges Mr. Husted's apparent flippant demeanor when he testified before the Special Master.
Further testimony on this matter would be repetitive.
2.
The Bar Against Testimony Concerning the Deliberative Process TMIA seeks to question Judge Milhollin, the Special Master who presided over the 1981 reopened phase of the TMI-l restart proceeding, with respect to certain findings and conclusions he made about Mr. Husted.
Specifically, TMIA seeks Mr. Milhollin's testimony to "substant.. ate, amplify and explain" the basis for the findings and conclusions concerning Mr. Husted's attitude, demeanor and forthrightness stated in the Special Master's report.
TMIA Brief at 3.
-s-l
i TMIA ignores the well-established bar against probing the mental processes of judicial and quasi-judicial officers.E/
The courts have long recognized the sanctity of the judicial deliber-ative process.
United States v. Morgan, 313 U.S.
409 (1940);
Fayerweather v. Ritch, 195 U.S.
276, 306-07 (1904); United States
- v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977); see also Chicago B.
Q. Ry. Co. v. Babcock, 204 U.S.
585, 593 (1907).
Compulsory testimony must scrupulously be limited to relevant facts which do not compromise the mental processes involved in formulating deci-sions.
Even factually directed inquiry is improper and impermissible to seek to elicit the facts which were relied upon in reaching a decision.
United States v. Cross; 516 F.Supp. 700, 708 (M.D.Ga. 1981),
Standard Packaging Corp. v. Curwood, Inc.,
365 F.
Supp. 134, 135 (N.D. Ill. 1973).
Yet this is precisely what TMIA seeks to do here.
Specifically, TMIA seeks Judge Milhollin's " impressions as to the conduct and demeanor of Mr. Husted in support of his findings and conclusions" so that he can " substantiate, amplify and explain the basis for the facts stated in his report."
TMIA Brief at 3 (emphasis added).
Such testimony is impermissible under any circumstances.E!
i 2/
That the role of the modern administrative law judge is l
functionally comparable to that of a judge has been recog-nized by the U.S.
Supreme Court and lower federal courts.
i Butz v. Economou, 438 U.S.
478, 513 (1978); Nash v.
Califano, 613 F.2d 10, 15 (2d Cir. 1980).
3/
Should TMIA endeavor to seek information that arguably is within the very narrow range of permissible questioning, (Continued next page) )
Indeed, the bar against probing the mental processes of de-cisionmakers is so broad that it has been extended to include ex-ecutive branch administrative officers.
Thus, for example in United States v. Morgan, supra, the Supreme Court analogized a proceeding before the Secretary of Agriculture to one before a judge.
In declaring it error for the lower court to compel the Secretary to testify as to the basis for his decision, the Court stated "[j]ust as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally protected."
Morgan, 313 U.S.
at 422.
Later, in Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402 (1971), the Court indicated that such an examination of an administrative decision-maker would be permissible only upon a strong showing of bad faith or improper conduct.
A long line of cases have adhered to this doctrine, refusing to enforce subpoenas for the oral testi-mony of decisionmakers with respect to the deliberative processes employed in rendering opinions " absent extreme and extraordinary circumstances."
South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974); KFC National Management Corp. v. NLRB, 497 F.2d 298
)
(2d Cir. 1974); Montrose Chemical Corp. v. Train, 491 F.2d 63, 69 (D.C. Cir. 1974); United States v. Dowdy, supra.
TMIA has not (Continued) they would be going beyond the scope of testimony sought in their subpoena application.
In that case, GPU Nuclear would be completely without notice of the substance of such testi-mony. - _--
e i
S even attempted to argue that extreme and extraordinary circum-stances exist in this case.
In addition to the general prohibition against interrogation of judges with respect to their deliberations, the Commission's rules of practice provide an additional roadblock to TMIA's sub-poena request.
Section 2.720 of the rules states that the Execu-tive Director of Operations, not independent third parties, gen-erally determines which NRC staff members shall present testimony regarding relevant matters which are not privileged (which would include those that are not part of the decisional process).
An adjudicatory board is authorized to order specific NRC employees requested to testify by third parties only "upon a showing of ex-ceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations 10 C.F.R.
S 2.720(h)(2)(i).
Thus, in the absence of exceptional circumstances, the Commission rule by its terms severely limits the opportunity available to third parties to call specific NRC employees as witnesses.
TMIA has failed to satisfy the " exceptional circumstances" test of 10 C.F.R. 5 2.720(h)(2)(i).
TMIA has not even addressed the two factors to which Commission decisions censistently refer in departing from the general rule against subpoenaing particular NRC witnesses.
Those factors are that (1) the information sought is not reasonably available elsewhere; and (2) the information t
,.---...__._m_
,.-m
4 a
concerns a material scientific safety question.
See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),
ALAB-715, 17 N.R.C.
102 (1983) (exceptional circumstances found where there was gendine scientific disagreement on a central de-cisional issue -- the reliability of a key safety system);
Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-81-4, 13 N.R.C.
216 (1981) (exceptional circumstances found where desig-nated staff lacked knowledge of information essential to evalua-tion of soils settlement question); Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 N.R.C.
42 (1979) (exceptional circumstances found where consul-tants strongly criticized basic assumptions upon which seismic safety approval was granted).
Clearly, the testimony sought by TMIA in its request raises no safety issues of the magnitude addressed in the Commission's prior cases.
Moreover, here the information sought is available elsewhere:
Mr. Husted's prior testimony was transcribed, and Mr. Husted's prefiled testimony acknowledges Husted's apparent flippant demeanor at the time he testified.
No further probing i
l into the basis upon which the decisionmaker's findings and con-clusions were made is permissible where the administrative record l
is otherwise adequate.
Dowdy, 440 F.
Supp. at 896.. -.
i 6
l 4
CONCLUSION For all of the foregoing reasons, the application of TMIA for issuance of a subpoena to Gary L. Milhollin should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 By:
Shk /h Deborah B.
Bauser Counsel for GPU Nuclear Corporation I
June 23, 1986
- 1
4 s,&
L[fy 4
3 ',',/
,4 1986 x
June
}
v j
3 jdbg_
j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS ON
/
W)s ff BEFORE THE ADMINISTRATIVE LAW JU oi In the Matter of
)
)
GENERAL PUBLIC UTILITIES
)
Docket No. 50-289 (CH)
)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to TMIA's Application for Issuance of Subpoena to Gary L. Milhollin" were served on the following parties by deposit in the U.S. mail, first class, postage prepaid, with the exception of those parties indicated by an asterisk, who were hand served this 23rd day of June, 1986:
Morton B. Margulies, Esquire Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 George E. Johnson, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
4 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, Pennsylvania 17102 Michael Maupin, Esquire Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212
,A
~
Scott E.
Barat j
l
,