ML20214C503
| ML20214C503 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/17/1986 |
| From: | Maupin M HUNTON & WILLIAMS |
| To: | Margulies M Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-125 CH, NUDOCS 8602210158 | |
| Download: ML20214C503 (7) | |
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8372 The Honorable Morton B. Margulies Administrative Law Judge c/o Holiday Inn 23 South 2nd Street Harrisburg, PA 17101 In the f'atter of General Public I:tilities Nuclear (Three Mile Island Nuclear Station, Unit No. 1)
Docket No. 50-289 (CH)
Dear Judge Margulies:
Representatives of TMIA, GPU Nuclear, the NRC Staff and Charles Husted met in Harrisburg, Pennsylvania on February 10, 1986, and discussed the issues identified at pages 5 and 6 of your December 6, 1985 Memorandum and Order (the Memorandum and Order).
Ms. Bauser (GPUN), Ms. Bradford (TMIA), Mr. Johnson (the Sta f f), and Ms. Hensley and I (Husted) were present.
The partici-pants agreed that I should report to you on the results of our meeting, and that is the purpose of this letter.
Each of the other participants has seen one earlier draft of this letter and had an opportunity to comment on it.
I have tried faithfully to incorporate all such comments.
You should be aware, however, that the other participants will not see this version until you have seen it; thus, it may transpire that I have inadvertently misstated one or more views.
If that is the case, the matter can be clarified at the pre-hearing conference on February 19.
1.
Litigability of the proposed contentions.
The contentions proposed by TMIA are:
I.
The Appeal Board's condition barring Charles Husted from supervisory responsibilities insofar as the 8602210159 860217 ~
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r H uxTox Sc WI LLI AM s The Honorable Morton B.
Margulies February 12, 1986 Page 2 training of non-licensed personnel is concerned, should not be vacated.
II.
Huated should be barred from serving as an NRC licensed operator by reason of his demonstrated bad attitude and lack of integrity.
The contention proposed by GPUN is:
The conduct and attitude of Charles Husted with which CPU is familiar indicates that the MRC should not disqualify Mr. Husted from serving as an NPC-licensed operator, an instructor of licensed or non-licensed operators, or a supervisor of operator training per-sonnel.
Construing the word "litigability" to mean " admissibility,"
as that term is customarily used in deternining who shall be parties to NRC proceedings, all the participants agree that the three proposed contentions set out above are " litigable."
2.
Identification of the key factual and legal questions.
(a)
Legal issues TMIA believes that two fundamental legal questions are posed at the outset.
They are:
I.
Did the Appeal Board in ALAB-772 have authority to inpose the order barring Husted from supervising the training of non-licensed personnel?
II.
Are issues (2), (3) and (4), set out on page 2 of the Memorandum and Order, litigable in this proceeding?
TMIA believes that the answer to question I is "yes" and that this is the only issue you need decide in this proceeding.
GPUN, the Staf f and Husted believe that since Mr. Husted has been given notice, will be represented by counsel, and will have the opportunity to present his own case and cross-examine witnesses, the question of Appeal Board authority is rendered moot.
TMIA believes that the answer to question II is "no",
even if you hold against TMIA on legal question I,
and that the deci-sion of the Appeal Board in ALAB-772 on issues (2), (3) and (4) is final agency action binding on you in this proceeding.
- GPUN, the Staf f and Husted believe that the answer to question II is
i H UNTON & WILLI AM S The Honorable Morton B. Margulies February 12, 1986 Page 3 "yes" and that, indeed, litigating these issues anew is a princi-pal purpose of this proceeding.
i Beyond these two issues, the participante believe that the legal issues in the proceeding involve questions of remedy, and they are addressed below in this letter.
(b)
Factual issues GPUN, the Staff and Husted believe that the following factual questions should be identified as factual issues in this proceeding.
TMIA agrees that, if you reject its position on legal' questions I and II, you should then address the following factual questions.
(i)
Did Husted solicit an answer to an exam question from P during the April 1981 NRC examination?
4 (ii)
Did Fusted's testimony before the Special Master lack forthrightness?
t (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?
i (vii)
If remedial action is required, what is it?
No participant is presently prepared to conclude that the i
foregoing list of factual questions is complete.
3.
Determining the parties to the proceeding.
All of the participants agree that TMIA, GPUN, the NRC Staff and Husted should be parties to this proceeding.
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i H UNTON & WI LLI A M S The Honorable Morton B.
Margulies February 12, 1986
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Page 4 4.
Defining the nature of the proceeding and the relief that can be granted.
-(a)
Nature of the proceeding TMIA believes that this proceeding is in the nature of an appellate review and that this review is untimely.
This posi-tion, of course, is consistent with TMIA's view that issues (2),
(3) and (4), set out in your Memorandum and Order, cannot be relitigated in this proceeding.
GPUN, the Staff and Husted believe that this proceeding is in the nature of an enforcement proceeding.
The Staff, however, points out this distinction:
in a typical enforcement proceeding the Staff is the proponent of the enforcement order, takes a j
position in favor of enforcement and bears the burden of going forward with a prima facie case.
In this proceeding, on the other hand, the Staff is not the proponent of the order in ques-tion but rather believes its role is "to insure that the record j
is :ully developed."
Notice of Hearing at 4 (September 6, 1985).
i (b)
Relief that can be granted i
As a matter of background, you should be aware that Husted does not presently hold any NRC license.
With respect to the issue of whether the Appeal Board order 5
in ALAB-772 should be vacated, the participants agree that the relief that can be granted is simply a determination whether the i
Appeal Board order should be vacated or not.
i With respect to the contention that Husted should be barred from serving as a licensed operator, thc. parties agree on these two propositions:
(1) you lack authority to dissolve or other-wise affect directly the Stipulation between GPUN and the common-wealth of Pennsylvania that forbids GPUN to use Husted as a licensed operator, and (2) you are free to resolve any factual i
issues about Husted's attitude and integrity -- and whether he should be barred, based on such considerations, from serving as a licensed operator or instructor of licensed operators -- without regard to the existence of the Stipulation.
5.
Establishing who has the burdens of proof and of going forward.
It is easier to state our disagreements than to state our agreements on this subject.
II U NT O N Oc WI L LI A M S The Honorable Morton B.
Margulies February 12, 1986 Page 5 The Staf f takes the position that it bears no burden of per-suasion; rather, at least initially, it is participating solely for the purpose of insuring the development of a full record.
TMIA believes that Husted has the burden of persuasion, regardless of whether this is viewed as a matter in the nature of an appeal or as a matter in the nature of an enforcement proceed-ing.
GPUN, the Staff and Husted agree that Husted should not bear the burden of persuasion.
It might be helpful te state what these three participants believe the Board must find with respect to a particular factual issue after the evidentiary record has been closed.
Using as an example issue (1) in your Memorandum and Order, in order to conclude that Husted solicited an answer to an exam question from another operator, you would have to find, based on a preponderance of the evidence, that he had done so.
If there were no evidence for the proposition, or if the evidence were in equipoise, you would have to find for Husted.
With respect to the burden of going forward, the positions of the parties had best be left for presentation at the pre-hearing conference.
6.
Establishing the extent of participation of each of the parties and the remedies sought.
(a)
Extent of participation All of the participants presently plan to " participate" in the hearing, in the broadest sense, on each issue of fact or law that is identified.
Beyond that, TMIA is not prepared to say precisely how it will participate, that is to say whether it will put on a direct case or rely on cross-examination alone.
GPUN is also unable to elaborate at this point, largely because its direct case, if any, may well depend on the nature and extent of Husted's direct case.
The Sta f f and Husted plan to put on direct cases on one or more of the factual issues identified above in Section 2.
(b)
Remedies sought TMIA wants you to find against Husted on both of TMIA's proposed contentions.
GPUN and Husted want you to find in Husted's favor on both of TMIA's contentions.
The Staff does not initially seek any particular outcome.
H UNTON & WI LLI A M S The Honorable Morton B.
Margulies February 12, 1986 Page 6 7.
Determininc what the record shall consist of.
The participants treated this issue as though it were:
"what use should be made in this proceeding of the record of prior proceedings on the subject?"
TMIA, of course, believes that the entire evidentiary record with respect to Husted, conpiled before the Special Master, should be admitted in this proceeding for the purpose of showing the truth of its contents.
GPUN has not yet reached a firm position on this question and did not state a tentative position at our meeting.
The Staf f and Husted have not yet reached firm positions, but they did state tentative positions at our meeting. Those tentative positions were as follows.
The Staf f suggests that the transcripts of all relevant testimony before the Special Master, and the two Reports of the Office of Inspection and Enforcement (8/11/81 and 10/13/81), be made a part of the record in this pro-ceeding.
None of this material, however, would be admitted for the truth of what is said in it unless the witness whose testi-mony or statement it is is available to support and be questioned on the material at the hearing in this proceeding Husted's ten-tative position is that none of the prior testimony should be admitted at the threshold for the purpose of proving the truth of its contents, although parts of it might be admitted at the hear-ing when permitted by the rules of evidence.
Husted would, how-ever, agree to the admission of the r&E Reports, provided the appropriate investigators are made available for examination at the hearing.
GPUN, the Staff and Husted agree that Husted's tectimony before the Special Master on the subjects of (i) his solicitation of an exam answer and (ii) his NRC interviews should be admitted for the purpose of showing what he in fact said at the hearing, that being a necessary element in determining whether his testi-mony was " for thrigh t" and his " attitude" toward the hearing acceptable.
8.
Determining whether discovery is necessary.
All of the participants agree that an opportunity for dis-covery should be provided.
The participants also agree that two rounds of interrogatories and document requests should be pro-vided for, with the understanding that all discovery would be completed within two months after it begins.
This agreement is
e.
H UNTON & WI L L I A M S The Honorable Morton B. Margulies February 12, 1986 Page 7 subject to the understanding that any participant may seek an i
extension of this time period for good cause shown.
This agree-ment is reflected in the proposed schedule described in the next section.
9.
Establishing a schedule.
The participants have agreed to recommend to you the schedule set out below.
The schedule anticipates that you will enter an order, following the pre-hearing conference scheduled for February 19, on or be fore March 1, 1986.
Discovery begins March 1, 1986 Discovery,is completed (responses and production due)
May 1, 1986 Final pre-hearing conference is held May 12, 1986 Testimony is filed June 1, 1986 Hearing begins June 15, 1986 As you can see, while we have not relieved you entirely of
- he responsibility to make decisions, we did make a good deal of progress.
Sincerely, hlsWWYM '
y Michael N. Maupin 42/341 Enclosure cc:
Secretary, U.S.
Nuclear Regulatory Commission George E. Johnson, Esq.
Deborah E.
Bauser, Esq.
Ms. Louise Bradford Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Board
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