ML20210L371
| ML20210L371 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 04/25/1986 |
| From: | Kezelis E COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20210L357 | List: |
| References | |
| OL, NUDOCS 8604290311 | |
| Download: ML20210L371 (13) | |
Text
.
9 April 25, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In-the Matter of
)
)
COMMONWEALTH EDISON COMPANY
)
Docket No. 50-456
)
50-457 (BRAIDWOOD STATION,
)
)
UNITS 1 AND 2)
)
)
MOTION IN LIMINE -
PUCKETT SETTLEMENT AGREEMENT Applicant Commonwealth Edison Company (" Edison" or
" Applicant"), by its attorneys, moves the Atomic Safety and Licensing Board ("the Board") of the Nuclear Regulatory Commission ("NRC") to enter an order barring all parties, their counsel and their witnesses from making any reference to, or submitting any evidence of, a settlement agreement entered into between Mr. Worley O. Puckett and Comstock Engineering, specifically, the document marked "Puckett Deposition Exhibit #33 for Identification".
Applicant moves to exclude such evidence from this proceeding on the basis that it is not relevant to the allegations of the existence of harassment and intimidation of Comstock Quality Control ("QC") inspectors at the Braidwood 3604290311 860425 PDR. ADOCK 05000456 9
site.
In addition, the strong public policy in favor of facilitating settlements would be undermined by permitting the Intervenors to introduce the settlement agreement into evidence in this proceeding.
INTRODUCTION Mr. Worley O.
Puckett, a witness for the Inter-venors, was hired in May, 1984, by L. K. Comstock Engineering Company, the electrical contractor at Braidwood, as a Level III QC Welding Inspector.
He was told that his responsibil-ities would be to identify additional problems in Comstock's welding program; to solve them as well as those already known; te develop corrective action as required; and to resolve difficult inspection interpretations identified by Level II inspectors.
Contention 2.C. Testimony of Irving DeWald at 42.
Puckett worked for Comstock approximately 90 days before he was fired because.of his inability to analyze, understand and resolve welding issues with the degree of competence expected of Level III welding inspectors.
Id. at 45.
Puckett then filed a complaint with the Department of Labor (" DOL") under the Energy Reorganization Act on Septem-ber 11, 1984.
Prior to the completion of a full administrative hearing on his charges, Puckett and Comstock entered into a settlement agreement.
The agreement specifically stated that the terms of the settlement would be kept confidential.
r-The agreement also specifically stated that the settlement in no way constituted an admission of Puckett's allegations and that Comstock explicitly denied all of the allegations.
Intervenors' attorney, Robert Guild, obtained a copy-1/ of the settlement agreement and may attempt to introduce it into evidence in this proceeding as proof of the contentions of intimidation and harassment of QC inspectors at the Braidwood site.
A.
THE SETTLEMENT AGREEMENT BETWEEN WORLEY O. PUCKETT AND COMSTOCK ENGINEERING IS NOT RELEVANT TO SHOW THE 4
VALIDITY OF THE INTERVENOR'S CLAIM Section 2.743 of the Nuclear Regulatory Commis-sion's Rules provides that only relevant, material and reliable evidence which is not unduly repetitious shall be admissible in its administrative proceedings.
10 C.F.R.
S 2.743(c) (1986).
Although the Federal Rules of Evidence are not strictly applied in NRC administrative proceedings, NRC ajudicatory boards often look to those rules for guid-ance.
See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346 (1983) (Federal Rule of Evidence standards for authentica-tion of document followed in licensing proceedings); Duke Power Co.,
(William B. McGuire Nuclear Station, Units 1 and I
~1/
Guild obtained the document, despite the argeoment of confidentiality, from the office of Judge Parlan L.
McKenna, an administrative law judge for the DOL.
See Puckett Deposition, February 6, 1986, pp. 360-361.
2), ALAB-699, 15 NRC 453, 475 (1982) (Federal Rules of Evidence standards for qualification of expert witnesses used in Board proceeding);
In re Florida Power and Light Co.,
(St. Lucie Plant No. 2) LBP-79-4, 9 N-RC 164, 183-4 (1979) (Policy of Rule 408 of the Federal Rules of Evidence taken into account in licensing proceeding in denial of request for discovery of settlement agreement).
Rule 408 of the Federal Rules of Evidence speci-c fically provides that evidence of settlement offers and statements made in the course of settlement negotiations are not admissible to prove liability for, or the amount of, a disputed claim.
Fed.
R. Evid. 408.~2/ Rule 408 extends to bar the admission into evidence of completed compromises as proof of liability when offered against a compromisor.
Fed.
R.
Evid. 408 advisory committee note.
Quad / Graphics, Inc.
- v. Fass, 724 F.2d 1230 (7th Cir. 1983) (evidence of plain-tiff's settlement with two co-defendants in contract Lction not admissible against plaintiff to prove invalidity of claim).
Rule 408 also prohibits a party to the settlement from using the agreement against a third party to prove the validity or amount of the claim.
McHann v. Firestone Tire &
Rubber Co.,
713 F.2d 161 (5th Cir. 1983) (covenant not to
-2/
Rule 408 does provide, however, that evidence of settlement negotiations, statements made in the course of settlement negotiations and settlement agreements are admissible for purposes other than demonstrating the validity or amount of a claim.
Fed.
R. Evid. 408.
r-l: ' t sue between tire owner and gas. station where tire was L
mounted not admissible against manufacturer in products l-f liability action to show validity of tire owner's claim).
1 Rule 408 codifies the two fundamental principals that settlement negotiations, agreements and statements made l
in the course of settlement negotiations are not relevant to f
prove the validity of the disputed claim and that the strong public policy of. encouraging settlements must br facilitated.
L Fed.
R.
Evid. 408, advisory committee note.
The settlement offer and agreement are said to be not relevant because such l
l-offer and settlement may be " motivated by a desire for peace I
rather than from any concession of weakness of position."
Id.
See also McInnis v.
A.M.F.,
Inc., 765 F.2d 240, 249
)
(1st Cir. 1985) (release to third party not relevant to show l
plaintiff's liability for motorcycle accident in products l
liability case); Quad / Graphics, Inc. v. Pass, 724 F.2d 1230, i
1234, 1235 (7th Cir. 1983) (settlement. agreement not rele-vant. to show invalidity of plaintif f's claim in a contract l
action).
"An innocent third party may settle, even for a l
large amount, merely to avoid the burdens of litigation."
McInnis v.
A.M.F.,
765 F.2d 240, 249.
l The settlement agreement between Worley O. Puckett l
and Comstock Engineering is not relevant to the Intervenors' l
l allegation of harassment and intimidation of Comstock QC Inspectors at the Braidwood site.
Comstock Engineering may have had any number of motives for ontaring into a settle-
ment agreement with Mr. Puckett, such as a desire to eliminate the expense of further litigation.
Under Rule 408, the fact that a settlement was entered into has no bearing on the issue of whether the underlying claim of harussment and intimidation is valid.
The settlement agreement, therefore, is not relevant to the issue of the existence of harassment and intimidation of Comstock QC Inspectors at Braidwood and should be excluded from evidence in this proceeding under 10 C.F.R. S 2.743 and Rule 408 of the Federal Rules of Evidence.
The Memorandum of Understanding, dated July 29, 1982, which exists between the NRC and the DOL does not alter the lack of relevance of Comstock's settlement with Mr. Puckett.
See 47 Fed. Reg. 54585 (1982).
The Memorandum provides for the exchange of information regarding complaints, filed with the DOL, which allege the harassment and discrimination of employees of nuclear power plant contractors or subcontrac-tors for participating in a proceeding challenging the safety of the plant.
Id.; Kansas Gas & Electric Co. v.
Brock, 780 F.2d 1505, 1509 (10th Cir. 1985) (Memorandum of Understanc'ing held to apply to retaliatory firing of em-I playee for filing an internal safety report).
The Memorandum also contemplates that the NRC may take enforcement action, when appropriate, against licensees following a determina-l l
I
. s t'
tion-3/
of discrimination by the DOL which was preceded by an investigation and hearing.
47 Fed. Reg. 54585 (1982).
Thecsettlement agreement entered into between Worley O.
Puckett and Comstock Engineering in the DOL proceeding is not a final determination of discrimination which followed an investigation and hearing by the Secretary of Labor.
Because the settlement agreement does not ccn-stitute such a final determination, the Memorandum of Understanding cannot be read to collaterally estop Edison from contesting the validity'of Worley O. Puckett's charges.
Had the mattcr not settled, the result of the DOL's in-vestigation and hearing could have been relevant in this proceeding under the Memorandum of Understanding.
- However, given tre inconclusive nature of the settlement, the agreement is not relevant even under the terms of the Memorandum of Understanding and should not be admitted into evidence in this proceeding.
B.
THE STRONG PUBLIC POLITY OF FACILITATING SETTLEMENTS WOULD BE CONTRAVENED BY ADMITTING THE AGREEMENT INTO EVIDENCE The purpose of Rule 408 of the Federal Rules of Evidence is to promote a strong public policy favoring l
-3/
The NRC, of course, may proceed with its own investiga-tion and enforcement action regarding charges of dis-crimination.
See In re Duke Power Company (Ca tav.ba l
Nuclear Station, Unfts 1 and 2), DD-85-9, 21 NRC 1759,
~
l 1766 (1985).
l
[
r peaceful dispute resolution by encouraging the conpromise and settlement of claims without later penalizing potential litigants for settling their claims out of court.
McInnis v.
A.M.F.,
Inc., 765 F.2d 240, 247 (1st Cir. 1985) (release of liability executed by plaintiff for third party inadmis-sible to show liability of plaintiff in products liability action).
The NRC has expressly adopted this policy of encouraging settlements.
10 C.F.R.
S 2.759.
Section 2.759 states that. "it is expected that the presiding officer and all of the parties to (those) prcceedings will take appro-priate steps" to foster the fair and reasonable settlement of contested issues in a licensing proceedine,."
Id.
The policy reflected in both S 2.759 and Rule 408 has guided the decisions of NRC and the Board in licensing proceedings.
In re Florida Power and Light Co.,
(St. Lucie Plant, Unit No.
- 2) LDP-79-4, 9 NRC 164, 183-4 (1979).
In Florida Power and Light, an intervenor in a licensing proceeding sought to discover settlement agree-monts pertaining to tre release of liability for alleged antitrust violations in that and a prior related proceeding.
Id. at 183.
In sustaining the petitioner's objection to the discovery request, the Atomic Safety and Licensing Board cited Rule 408, stating that offers of settlement and state-i ments made in settlement negotiations are not admissible to l
prove the validity of a claim.
Id.
The Board also stated that it was guided in its decision to deny the discovery
. O request by the policy codified in S 2.759 of encouraging the settlement of disputed issues in a licensing proceeding.
Id. at 184.
" Requiring a party to produce its settlement i
documents because they are settlement documents would be inconsistent with this policy."
Id.
It is therefore clear that it would be incon-sistent with the policies underlying S 2.759 and Rule 408 to allcw Intervenors.to submit into evidence the settlement agreement. between Worley O. Puckett and Comstock Engineering ss substantive evidence of the Intervenors' claim's of harassment and intimidation.
As noted above, the purpose of both 'S 2. 759' Ind Rule 408 is tc. facilitate the settlement of disputed claims.
This purpose would be undermined if the intervenors were permitted to introduce the settlement agreement into evide'nce in this proceeding.
In addition,
,7 th,e Board would set a precedent which would discourage, i
rather than facilitate, the settlement of disputed issues both beforc the Department of Labor and in licensing pro-ceedings.
Therefore, in light of the strong public policy encouraging settlements, the Board should refuse to allow the settlemen), agreement into evidence in this proceeding and should bar,any reference to it in the course of the evidentiary presentation.
CONCLUSION WHEREFORE, Edison prays, for the above reasons,
x that the Board enter an order barring all parties, their counsel and their witnesses from making any reference to, or submitting any evidence of, a settlement agreement
'between Worley O.
Puckett and Comstock Engineering, specifically, the document marked "Puckett Deposition Exhibit #33 for Identification", during the course of this licensing proceeding.
Respectfully Submitted, COMMONWEALTH EDISON COMPANY By
& g[,I ;
Michael I. Miller Elena Z.
Kezelis ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 Dated: April 25, 1986 E
s UNITED-STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC. SAFETY AND LICENSING BOARD In the Matter of
)
)
- COMMONWEALTH EDISON COMPANY
)
Docket No. 50-456
).
50-457 (BRAIEWOOD STATION,
)
)
UNITS 1 AND 2)
)
)
CERTIFICATE OF SERVICE I,
Elena Z. Kezelis, one of the attorneys for Commonwealth Edison Company, certify that copies of the attached MOTION IN LIMINE -- PUCKETT SETTLEMENT AGREEMENT.
have been served in the above-captioned matter on those persons listed on'the attached Service List by United States mail, postage prepaid, this 25th day of April, 1986, except
~
as otherwise indicated.
M/I h Elena Z.
Kez is
/
Michael I. Miller
'Elena Z.
Kezelis
.ISHAM, LINCOLN & BEALE Three First. National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 Dated:- April 25, 1986 l
-+w s
e-+-
7-9r-p M-e m
y e-
=w-
+r,-wr--y 7
e-
-w7 y-y
--r-m
{
4
- lier.'xtrt Grossman, "sq.
Gairman ato:.ic Safety and Licansina Irpeal Panc Administrative Law Judge United Ctates Duclear Pegulatory Ccmaissica Atanic Safety and Licensing Board Mshington, DC 20555 United States Nuclear Peculatory Ccmnission mslungton, DC 20555 Dr. Richard P. Cole Mr. William L. Clements Administrative Iaw Judge
' Atomic Safety and Licensing Board Gief, Docketing and Services United States Nuclear Pegulatory United States IA2 clear Regulatory Ccxmaission Ccmission Washington, DC 20555 Office of the Secretary Washington, DC 205S5 Dr. A. Dixon Callihan Ms. Bridget Little Rorem Administrative Inw Judge 117 :; orth Linden Street 102 Oak Iane P.O. Box 208 Oak Ridge, TN 37830 Casex, IL 60935
- Stuart Treby, Esq.
- Pobert Guild Elaine I. Chan, Esq.
D3uglass W. Cassel, Jr.
Office of the Executive Ingal Director Ti:mthy W. Wright, III United States Nuclear Pagulatory BPI Cm mission 109 !! orth Dearborn Street Mshington, DC 20555 Suite 1300 Chicago, IL 60602 Atomic Safety and Licensing Board Panel G arles Jones, Director United States Nuclear Pegulatory Illinois Emergency 'ervices and S
Conmission Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL 62705
- By Messenger Delivery
- By Federal Express Delivery
F::
e' W
William Little, Director Braid d Project
' Region III United States Nuclear' Regulatory Camtission -
.799 Roosevelt Road Glen Ellyp, Illinois: 60137 9
Janiceh.sStevens.
thited States Nuclear Regulatory
' Ocunission 7920 Norfolk Avenue
~Phillips Building Bethesda, MD 20014 FOR ADDRESSEE ONLY George L.: Edgar, Esq.
'1hanas A. Sch: utz, Esq.
Newan & Holtzinger, P.C.
1615 L Street, N.W.
Suite 1000 Washington, D.C.
20036