ML20235J707
| ML20235J707 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/30/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CIV-PEN, EA-84-137, NUDOCS 8710020062 | |
| Download: ML20235J707 (119) | |
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. O TRANSCRIPT OF PROCEEDINGS UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL In the Matter of:
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PREHEARING CONFERENCE
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GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION
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(Three Mile Island, Unit No. 2)
Docket No. 50-320 License No. DPR-73 EA 84-137 (Civil Penalty)
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NE Pages:
225 through)4(
Place:
- Bethesda, Maryland Date:
September 30, 1987 O
neritage Reporting corporation Official Reporters 1220 L Street, N.W.
Washington, D.C. 20005 (202) 628-4888 8710020062 870930 P DR ADOCK 050 0
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225 NUCLEAR REGULATORY COMMISSION
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GENERAL PUBLIC UTILITIES
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NUCLEAR CORPORATION
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Docket Number 50-320 (THREE MILE ISLAND, UNIT NO. 2) )
License No. DPR-73-EA84-137
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East-West Towers East-West Highway
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Bethesda, Maryland I
Wednesday, September 30, 1987 The above-entitled matter came on for pre-hearing conference, pursuant to adjournment, at 10:15 a.m.
BEFORE:
HONORADLE IVAN W.
SMITH
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Administrative Law Judge APPEARANCES:
On behalf of the Nuclear Regulatory Commission:
CHARLES A.
BARTH, ESQ.
GREGORY ALAN BERRY, ESQ.
GEORGE E.
JOHNSON, ESQ.
Office of the General Counsel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 On behalf of General Public Utilities Corporation:
PHILIP R.
PLACIER, ESQ.
Thelen, Marrin, Johnson and Bridges Two Embarcadero Center San Francisco, California 94111
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J.
PATRICK HICKEY, ESQ.
DAVID R.
LEWIS, ESQ.
Shaw, Pittman, Potts and Trowbridge 2300 N Street, NW Washington, D.C.
20037 Heritage Reporting Corporation (202) 628-4888
226 b
1 PROCEEDINGS
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2 JUDGE SMITH:
Good morning, gentlemen.
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Are we ready to proceed?
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MR. JOHNSON:
Yes,uir.
j 5
, JUDGE SMITH:
The first thing we'll take up is the 6
agenda items as stated there.
The first item remaining in 7
dispute between the parties is the staff's motion to rescind 8
the protective order.
9 I have a question.
Now that GPUN has answered the 10 motion with the affidavit of Mr. Hoffman, is the staff still 11 pursuing the motion?
/-i 12 MR. JOHNSON:
Your Honor, Mr. Berry will address the
.d-13 staff's position on this.
14 JUDGE SMITH:
Okay.
15 MR. BERRY:
Good morning, Mr. Chairman.
With me 10 today is Mr. Johnson and Mr. Barth of the Office of General 17 Counsel.
18 The staff having reviewed the response filed by GPUN 19 still maintains and adhere to our previous position expressed 20 in our motion to rescind that this protective order should be 21 rescinded.
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22 We have reviewed GPUN's motion as well as the 23 attached affidavit, and we see nothing in those papers that 24 warrant the continuation in effect of this protective order.
i 25 I would just start off, Your Honor, by quoting from j
I Heritage Reporting Corporation (202) 628-4868
E'.
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1 Section 2.740 of SubPart G of the Commission's regulation that l
2 states that a protective order upon motion by a party or the 3
person from whom. discovery is sought and for good cause shown, j
4 the presiding officer may make any order which justice requires 5
to protect _the party or person from annoyance, embarrassment, 6
depression, or undue burden or expense.
l 7
Now, here in this case, justice does not require that i
1 L
8 this protective order continue in effect.
You'll recall, Your 9
Honor, --
l 10 JUDGE SMITH:
Well, I guess I didn't intend for you l
l l
11 to amend your motion, which seems to be what you're doing here, i
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12-unless you feel that it is necessary.
But if the answer raises L
I 13 new questions or new problems, --
l 14 MR. BERRY:
The staff is not amending our motion. We 15 believe that the response does not address the basis for the i
16 motion.
17 JUDGE SMITH:
Okay.
That's fine.
I saw nothing in i
18 the response that would require you to go back to your motion i
19 and reargue it, so on.
You had the opportunity.
That was not 4
20 what I had in mind.
3 21 MR. BERRY:
Okay. Well, I would, in this connection,
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22 I would like to point out two problems that the staff sees with 23 the response and the affidavit.
24 Number -- well, the first one and by far the most 25 important is when we reviewed the af fidavi t attached by, Heritage Reporting Corporation (202) 628-4888
228
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1 submitted by Mr. Hoffman, particularly paragraph 3, it states 2
that, "However, Exhibit 24 does accurately set forth many of 3
the confidential techniques and methods which I and former 4
internal audit investigators frequently used in the conduct of 5
past special investigations.
I currently use these same 6.
techniques and methods and I intend to continue using them on a 7
regular basis in the conduct of future special investigations."
8 Now, of course, what we have here, Your Honor, is an 9
effort on the part of GPUN and Bechtel to create the impression 10 t ' tat this document, although it's not official, has never been 11 adopted by the company, it does not represent the company or 12 the department's views, that somehow these rambling notes of a
.O 13 low-level functionary who no longer works for this company 14 contain techniques used by current members of the department.
15 Now, no where in there in Mr. Hoffman's affidavit 16 does he identify a single technique that's supposedly so 17 confidential,.so important, so sensitive, that it'll prejudice 18 future investigations of the department.
19 Now, the document itself was submitted to the 20 presiding officer in camera.
You'J1 recall from -- if you 21 review that document, that it's twelve pages long, that it 22 contains no less than a hundred discreet entries and steps that
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23 should be taken in the course of a special investigation.
24 We have no way from reviewing Mr. Hoffman's affidavit 25 which of those steps he uses, has used, will use, that Heritage Reporting Corporation (202) 628-4888
229
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I represent the techniques of the department. We don't know, for 2
example, if the technique that Mr. Hoffman uses is he asked the 3
person his name or some other technique.
4 JUDGE SMITH:
Mr. Berry, I think I want to have 5
second thoughts on this.
I have read the document.
6 MR. BERRY:
Your Honor, at a minimum, the staff is 7
entitled, I mean, the staff is entitled to an identification, a I
8 specific identification from Mr. Hoffman or some other 9
competent official in Bechtel as to which particular 10 confidential techniques and methods are used by the department.
11 JUDGE SMITH:
Well, let's say that he did do that and 12 he crosses out some of them, what do we do with the document?
13 MR. BERRY:
Well, then, the part of the document that 14 this Board finds that are confidential and sensitive, those 15 would continue to be subject to the confidential treatment.
16 All other parts of it --
17 JUDGE SMITH:
Well, I don't think that's practical.
18 If you're going that far, I mean, you're happy. If the fact is 19 that the internal audit or Mr. Hoffman does, in fact, use that 20 document or portions of it, the portions that he used should be 21 given confidential treatment.
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22 MR. BERRY:
Well, if the Board so finds.
Now, the 23 staff's position is we don't believe that any of these steps 24 are confidential.
We don't believe that this document contains 25 any confidential or special or unique techniques or Heritage Reporting Corporation (202) 628-4888
230
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1 investigatory methods.
2 So, if the Board were to find that contrary to 3
staff's position that, in fact, these are confidential, 4
special, unique. techniques, then the staff would certainly 5
agree that those portions of those particular techniques so s
6 identified should be protected from public disclosure.
7 The remainder of the document that does not implicate 8
any confidential technique or any technique that's not been 9
adopted, used by Mr. Hoffman or anyone else jn the internal 10 audit department that is not the policy of that department, but
~lf 11 only Mr. Cole's notes and perceptions, we see no reason, no 12 reason that I am aware of why that -- why those perceptions 13 should be entitled to confidential treatment by law, and we 14 would object to protecting the same.
15 JUDGE SMITH:
Mr. Hickey or Mr. Lewis?
16 MR. HICKEY:
I don't think I have a lot to add, Your 17 Honor, unless there's specific questions that you have about 18 our response.
19 It seems to me that for reasons I don't understand, 20 there's some concern that the Court has only a limited stock of 21 protected orders, and if it issues one that isn't mandatory,
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22 then that's one less that you won't be able to issue in the 23 future when you need it, which isn't the case.
24 The whole point of having the protective order was to 25 avoid a dispute about the need for confidentiality.
That's why Heritage Reporting Corporation (202) 628-4888
f, 231 b()
1 we sought it.
That's why it was agreed to. There's no burden 2-on the staff in the existence of the protective order.
I don't i
3 see any reason why we're even really discussing it, frankly.
4 MR. BERRY:
Well, I would like to briefly respond to i
5 that, Your Honor.
l 6
A party is not entitled, he is not entitled to have 7
the document or information or any other matter protected. I j
O mean, you know, the regulations clearly provide those instances 9
when protective treatment should be extended.
10 Now, in this case, the only reason, the only reason 11 that the staff agreed to Bechtel and GPUN's request for 12 protected treatment was this representation, this 13 representation that this was -- this document would disclose i
14-the internal techniques o'f the Bechtel internal audit 15 department.
16 The staff was'not interested in Mr. Cole's 17 perceptions or anybody else's perceptions.
You'll recall the 18 reason that this information was requested and it arose out of 19 a conference between yourself, myself, and Mr.
Hickey, was 20 because the staff was about to depose Mr. Hoffman and the 21 reason Mr. Hoffman could be deposed was to assess the adequacy 22 of his performance in conducting that investigation.
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23 In order to do that, Mr. Presiding Officer, the l
24 staff, the staff wanted and sought discovery of the standards j
l 25 used by that office so we could judge Mr. Hoffman's performance l
Heritage Reporting Corporation (202) 628-4888
232
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1 against concrete and specific standards of his department, and 2
it was in that connection that these documents were made 3
available to us.
4 Now we have the cla,im that, oh, this is not --
9 JUDGE SMITH:
Mr. Berry, you started --
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MR. BERRY:
-- the policy of the company.
7 JUDGE SMITH:
-- to talk again on the basis that you i
8
. ere going to respond to Mr. Hickey's statements, and what w
'l 19' you're really doing is you're rearguing for the' third time now i
10 your motion and that's not necessary.
11 MR. BERRY:
Well, my response to Mr. Hickey's 12 question was that just because the protective order has already O
13 been issued, that it should-not be rescinded.
I find that
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i 14 absurd and that the protective order was issued for a specific 15 purpose.
16 When that purpose no longer exists, there is no basis
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l 17 for continuing in effect that order, and that is the situation 1
l 18 we have here, and that is my response to Mr. Hickey's 19 suggestion that just because your order has already been 20 issued, you shouldn't do anything else about it.
21 JUDGE Sf!ITH:
Well, I have one concern about the
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22 staff's position.
It's not important because I'm going to rule 23 against you on the merits, but it seems that unless -- if a 24 document was revealed to you under the -- in good faith under 25 the anticipation there would be a protective order, then you Heritage Regecting Corporation (20t) 628-4888
l 233
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1 decide that the protective order should not apply, should be 2
rescinded, can the document be returned to its original 3-position; that is, unrevealed, back in the unrevealed i
4 possession of Bechtel?
5 MR. BERRY:
Certainly not, Your Honor.
What would 6
happen in that case, if we had the facts now known to us and 7
known to us at the time, we would have never agreed to the 8
protective order.
9 JUDGE SMITH:
Well, that's true.
10 MR. BERRY:
We would have sought relief.
11 JUDGE SMITH:
But they agreed, they agreed.
There 12 was a bi-lateral agreement.
You may have felt there was 13 misrepresentation, but they revealed the document based upon 14 that agreement, that now for perhaps valid reasons you don't 15 want to abide by the agreement.
16 Should they not be restored to a position of where 17 they were before the agreement?
If that's the case, then they 18 could raise anew whether the document should be protected.
19 MR. BERRY:
Well, if you're asking whether the staff 20 would be willing to return the document to GPUN and Bechtel, 21 the answer is yes, but as --
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22 JUDGE SMITH:
Disregarding it entirely as if you had 23 never received it?
24 MR. BERRY:
Certainly not, Your Honor, and the reason 25 for that is that this document is relevant.
There's no I
HeritageRe$ortingCorporation (20 ) 628-4888
234 1
question that this --
2 JUDGE SMITH:
I know, but you've got it under an 3
agreement and now you wish to be released of the agreement.
4 MR. BERRY:
But my point, your Honor, is that the 5
basis for the agreement, you know, the agreement is what you're 6
talking about, there was some meeting of the minds, and we are 7
agreeing on the same thing for the same purpose, and that 8
certainly is not the case.
9 So, now, that agreement should be abrogated.
10 JUDGE SMITH:
All right.
The agreement is abrogated 11 and the least then, I think, unless you can show bad-faith, 12 which I don't think that you have, then if the agreement under O-13 which the document was released to you no longer exists, it 14 seems to me fairness says that the position chould -- the 15 parties should be restored to their position before the 16 document was released.
17 MR. BERRY:
And the only thing -- yes.
l 18 JUDGE SMITH:
You might argue well, there was a 19 privilege and even though the privilege is accidentally 20 released, it no longer exists, but this isn't what we had.
We I
21 are disciplined lawyers and we can call back the release of the l
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22 document if it puts the parties in that situation.
23 So, I think we're going to give you -- I'm going to 24 unfray the rule and I'll --
25 MR. BERRY:
Well, Your Honor, I would just like to Heritage Reporting Corporation (202) 628-4888
235
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1 respond to that.
I think as a practical matter and it's my 2
point here that the document is relevant.
The staff --
3 JUDGE SMITH:
I know, but you didn't get it through 4
normal discovery channels; you got it through an agreement.
5 MR. BERRY:
What I'm saying --
6 JUDGE SMITH:
And they could have if they had elected 7
.to, they could have refused to turn it over under claim of 8
privilege, submitted it to me for protective order, and maybe 9
they would have prevailed and maybe they wouldn't have.
10 So, I'm saying that I don't think it's quite fair to 11 enter into an agreement and then say leave us out but you get 12 all the benefits.
That's what you're really arguing here.
13 you're arguing here that you want all of the fruits of that 14 protective order agreement, but you don't want the protective 15 order, and you can't have that unless you can establish bad 16 faith on the part of Bechtel's lawyers, and I don't think 17 you've done that.
18 So, I think we're faced with this -- and that's my 19 ruling, and I think we're faced with this situation, that 20 should the document be protected in the instance, if you're 21 willing to submit it to me on that basis, I'll rule. If not,
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22 give it back to them and they can keep it and you'd be directed
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23 to forget that it ever existed because I find no bad faith in f
I 24 that agreement.
25 MR. BERRY:
Well, Your Honor, --
Heritage Reporting Corporation (202) 628-4888
236 1
JUDGE SMITH:
If you need the document in your
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litigation, we'll go to see whether it should be protected.
3 MR. BERRY:
Well, Your Honor,-I appreciate your 4
ruling, Your Honor.
I understand your ruling.
Still it leaves 5
the staff somewhat hanging in the balance with legard to our --
6 to the second point that I raised, and that is that this --
7 that the affidavit does not explain for us what techniques are 8
confidential, what techniques have been used in this document 9
that are used by the company.
10 JUDGE SMITH:
Okay.
Let's go on.
Don't reargue l
11 that.
12 MR. BERRY:
I'm not, but that is --
13 JUDGE SMITH:
You've made this point now.
14 MR. BERRY:
Well, that is my point, Your Honor.
15 JUDGE SMITH:
I'm asking you not to restate that 16 argument.
I've listened very carefully and I don't think I 17 will overlook them.
18 MR. BERRY:
WeII, can we have a ruling on that?
I 19 mean, our point is that we need --
20 JUDGE SMITH:
Yes. I'm going to rule, but I want to 21 establish the basis.
I have now ruled that if, in the event i (}
22 that the agreement, you do not wish to abide by the agreement, i
23 you're the beneficiary of the agreement, you want the document 24 in your litigation, absent bad faith, which I cannot find, if
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25 the agreement is not honored, then Bechtel shou 3d be restored Heritage Reporting Corporation (202) 628-4888
1 237 I'T 1
to the position where they were before the agreement.
U i
2 That's basic fairness.
They took an act based upon 3
consideration of the protective order and if the protective 4
order is not upheld, absent bad faith or other reasons, then 5
they should be restored to their reasonable position.
6 However, there's no reason extending this longer than 7
it has to be, and you want the document for your litigation?
8 MR. BERRY:
Certainly.
9 JUDGE SMITH:
You want it.
You need it.
All right.
10 Then, I will go, if it's all right with the parties, as to 11 whether the document should be otherwise protected unilaterally 12 on their part. They can come to me and say here's the document 13 that we don't want to produce in discovery, should it be 14 protected.
Having found no bad faith of the parties, now I can 15 go to that issue, should the document be protected, and are the 16 parties prepared to submit it to me on that basis?
17 MR. HICKEY:
We are, Your Honor.
18 JUDGE SMITH:
Well, I'm prepared to rule on that 19 because I think that the document should be protected, but I'm 20 not really comfortable in my reasons, and I'll review.
21.
I read Mr. Hoffman's original deposition and it is
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22 true, as you quoted in your pleadings, that he did not exactly I
23 come forward and embrace that document and the procedures 24 outlined in that document at the outset of his deposition.
25 He struck me as being a deponent and a witness that j
Heritage Reporting Corporation (202) 628-4888 Y
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1 you frequently see and that is one that is very wary and he was 2
not willing to embrace the procedures in that document.
3 However, as the deposition went along and he was specifically 4
pointed to aspects of it, that worriness evaporated and it 5
became clear to me that the deposition as a whole did not I
6 constitute a renunciation of the procedures as you would have 7
me find.
8 Then, when Mr. Hoffman's affidavit was submitted, he 9
does state that the procedures there are used and will be used 10 by him.
I found that to be not inconsistent with his 11 deposition and credible.
Furthermore, I read the procedures 12 outlined there carefully, and I do believe that, number one, 7V 13 any company, such as Bechtel, has to have some type of internal 14 investigation procedures; two, that the procedures outlined 15 there are rather familiar to me.
I have been practicing law 16 for a long time, and they are no surprise, but they are 17 familiar and they strike me as logically being procedures that 18 he might very well use, maybe not all of them all of the time, 19 maybe none of them sometimes, but as regular rather familiar 20 procedures on how you might go into a place and conduct an 21 investigation.
They struck me as familiar.
22 I do believe that revealing the procedures would be
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23 detrimental to future investigations conducted by Mr. Hoffman.
l' 24 I think they might even be detrimental.
Yes, I think I won't t
25 go beyond that.
Well, I think they might -- they may cause Heritage Reporting Corporation (202) 628-4888
239
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1 difficulties.not beyond the document itself if they became well 2
known throughout the company, but I'll just go so far as saying 3
that if they get into the hands of people who would be subject 4
to investigations, the investigation would be frustrated.
5 So, I believe that it is the type of document that 6
the company genuinely would not wish to have revealed to the 7
objects of its investigations.
8-Now, the question is, that's not any kind of a 9
privilege that I've ever heard of before.
That's one that I 10 think that there should be, but I think it probably. falls 11 pretty much within the spirit of the trade secrets and 12 financial information type of privilege which is traditional 13 and is one of the exemptions to the Freedom of Information Act, 14 which we have circumbodied as one of the discovery procedures.
15 The difference between this document and the trade 16 secrets and financial information is that the latter two 17 categories are intended to protect the companies from external 18 problems as compared to the document we have here, which is one 19 that could cause internal problems.
20 So, my ruling is if no such privilege does not exist j
21 before along that line for the reasons I've stated, I'm i
22 creating one here.
This document is of the nature that would
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23 normally be protected by the company and is entitled to 24 protection.
The fact that perhaps not all of it is entitled to 25 protection is a housekeeping detail. It's just not practical to l
Heritage Reporting Corporation (202) 628-4888
240
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I try to break it out.
2 So, that's my ruling.
Therefore, I impose the 3
protective order again unilaterally as a matter of agreement l
4 again.
5 MR. BERRY:
Our staff would just object for the 6
record, Your Honor.
7 JUDGE SMITH:
It's not necessary.
Under our rules, l
8 your objections are automatically noted.
9 MR. BERRY:
I understand your ruling, Your Honor.
10 Now, another point and it's related to this matter is that in 11 light of Mr. Hoffman's affidavit we received from --
12 JUDGE SMITH:
Are you going to argue this --
13 MR. BERRY:
No.
I'm not.
14 JUDGE SMITH:
-- matter again?
IS MR. BERRY:
I'm arguing another point.
16 JUDGE SMITH:
Okay.
17 MR. BERRY:
In light of the affidavit received from 18 Mr. Hoffman, the staff finds it necessary to question Mr.
19 Hoffman further, and we would ask leave of the Presiding 20 Officer for the opportunity to do that.
21 JUDGE SMITH:
You mean you conducted your deposition
.(])
22 with Mr. Hoffman anticipating that I would grant your request 23 to rescind the protective order?
24 MR. BERRY:
I'm sorry.
I didn't hear you.
1 25 JUDGE SMITH:
Why is it necessary for you to -- you Heritage Reporting Corporation (202) 628-4088
241
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1 want to redepose Mr. Hoffman?
2.
MR. BERRY:
No, we don't want to redepose him, but we 3
would like to follow-up on and question him based on l
4 information contained in'this affidavit, particularly, you l
5 know, where he. states that he uses -- " Exhibit 24 does 6
accurately set forth many of the confidential techniques and 7
methods which I frequently use in the conduct of past special 8
investigations and I currently use and I' intend to use".
I 9
JUDGE SMITH:
I thought you. examined him rather 10 thoroughly on that on the portion of the deposition that I 11 looked at, but I won't rule on that. That's a request that --
12 let me hear from counsel for the licensee.
7-V 13 MR. HICKEY:
We would have to oppose that request, 14 Your Honor.
I think that your recollection of the transcript 15 is accurate and is supported by the rest of the transcript as 16 well.
17 Mr. Hoffman offered to assist Mr. Berry in his 18 understanding of the details of the exhibit that we're talking 19 about during the course of the deposition and said, in 20 substance, to Mr. Berry, if you want to go through it line by 21 line, I will address each one line by line and tell you whether
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22 that's something I use or don't use, under what circumstances, 23 all the time, some of the time, and so on.
l 24 Mr. Berry said no, he wasn't really interested in 25 that.
I think that that was his opportunity that he chose for l
Heritage Reporting Corporation I
(202) 628-4888 1
242 1
whatever reasons not to avail himself of.
I think it's a
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2 burden on Mr. Hoffman and on counsel to be brought back to 3
another deposition that we thought was over.
4 MR. BERRY:
May I respond to that?
5 JUDGE' SMITH:
Of course, the request which you're 6
asking for is -- I'm not real sure that you really had to seek 7
permission to depose him because we haven't really deposed Mr.
8 Hoffman because we have ended up with a rather vague discovery 9
cut-off, but I'm not inclined to continue this matter for that 10 purpose at all.
11 I think to grant more discovery time for that purpose 12 is gone.
Do you really represent that it is necessary to 13 redepose Mr. Hoffman on that?
l l
14 MR. BERRY:
- Well, 1
15 JUDGE SMITH:
On cross examination -- Mr. Hoffman is 16 going to testify.
I would think cross examination might -- put 17 a little bit of risk into the litigation.
You don't have to 18 have all your questions answered by discovery.
19 MR. BERRY:
Yes.
I don't think the staff should have 20 to bear all the risk, Your Honor.
I would agree that a 21 deposition -- there may be other methods other than deposition,
("T 22 perhaps follow-up admissions, stipulations or further
%)
23 interrogatories on this, but I do think the information is 24 important, very important to the staff's case.
25 I do believe that the staff should be entitled to Heritage Reporting Corporation (202) 628-4888
243
/~T 1
follow this up.
As Mr. Hickey pointed out, certainly we didn't LJ,
2 go into detail page by page, paragraph by paragraph of that i
l 3
documen'. The reason for that is that Mr. Hoffman's counsel had j
t l
L 4
intimated that he and Mr.
Hoffman would only remain till 7 l
5-p.m.
that evening and would not show up the next day, and it 1
6 was approaching that hour there and if you had read any of that j
7 transcript, you'd see that there was not time to do that and 8
the staff counsel made a determination, particularly in light 9
of the previous information received from Mr. Hsffman, that 10 this document here was nothing more than the perception of Mr.
11 Cole who no longer worked there.
It wasn't a company policy, practice or procedure, and that is the reason why, in that 12 13 light, if Mr. Hoffman was testifying truthfully, this document 14 really bore no relation to our purpose in deposing him.
15 Now, in light of this affidavit, we have a 16 significant change in the testimony, and here now Mr. Hoffman 17 is saying yes, this document does reflect procedures of the 18 company, it does reflect techniques of the company, of the 19 department, but it doesn't identify what they are.
20 I believe the staff is entitled to an identification 21 of a specific listing of those portions of that document that
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22 he contends now reflect his practice, the practice of the 23 company, in conducting special investigations.
At this point, 24 the staff is left to guess which ones are Mr. Cole's 25 perceptions and which ones are the policies and practices of Heritage Reporting Corporation (202) 628-4888
l 244
~Y 1
the internal audit group, and the staff should not be forced to (J
2 go into a hearing to continue without that information..
3 We believe we're entitled to it. We believe the 4
easiest way to get it is from Mr. Hoffman by questioning him, 5
but we believe that Mr. Hoffman can submit a further affidavit i
6 Identifying the same.
We could submit admissions to GPUN along
]
7 these lines or reach a stipulation on it, but we should not --
8 the staff should not be forced to remain in the position where 9
we are in now, where we have a vague assertion that some --
10 that the document contains some confidential techniques and 11 others that are just the perception of Mr. Cole.
12 JUDGE SMITH:
Well, now, wait a minute.
You're 13 comparing confidential techniques against Mr. Cole's 14 perceptions.
Don't you mean techniques used by Mr. Hoffman as 15 compared to techniques used by Mr. Cole?
16 MR. BERRY:
Yes.
Mr. --
17 JUDGE SMITH:
You're talking about techniques that 18 were, in fact, used?
19 MR. BERRY:
Well, --
20 JUDGE SMITH:
Am I missing something here?
Is the 21 point here that you think that this document is just something
}
22 that was created for the purpose of investigating Mr. Parks?
(
23 MR. BERRY:
I'll explain.
I'll explain my position 24 on this, my belief on this.
25 My belief is that this is an official company Heritage Reporting Corporation (202) 628-4888
i 245
{}
1 document, that this does represent, you know, the practice, 2
procedures of the Bechtel Corporation.
Mr. Hoffman -- well,-he 3
doesn't agree with that.
He disavows that.
4 But,.you know, be that as it may, and we'll confront 5
that on cross examination, but the point is, is that Mr.
6 Hoffman's investigation of QuillTec. violated, you know, almost L
7 wholesale, you know, the procedures set forth in that document.
8 When confronted with that, when faced with that, that's from 9
Mr. Hoffman's claim now that this is not a company document, 10 it's not binding, it's not mandatory, it's inflexible.
11 So, now, what we're entitled to know is, well, now, 12 he's changed his story and that some of this is the techniques 7
13 of the company.
That's the crucial point, Your Honor, we base 14 to keep in mind.
15 We're not much interested in the techniques or the 16 perceptions, the feelings, the beliefs, the description of 17 anybody. What's important here in assessing the adequacy and 18 the quality of Mr. Hoffman's investigation is measuring that 19 against the applicable standard.
20 Now, if there is no standard, well, that's one thing, 21 and we'll just have to live with that, if there is no standard,
/'%
22 but if there are standards, the staff is entitled to know what V
23 they are in order to judge Mr. Hoffman's performance and what 24 we have here now is the deposition that there were no 1
25 standards.
Heritage Reporting Corporation (202) 628-4888
246 f'}
1 Now with this affidavit, apparently there are some v
2 standards.
There are some procedures.
There are some methods 3
and techniques that are used by Bechtel,-and we are entitled to 4
know what they are --
5 JUDGE SMITH:
Where does it take you?
Now, you want l
1 6
to show that the investigation into the QuillTec' matter was not 7
in accordance with those standards; therefore, it was a 8
retaliatory or a punitjve investigation?
9 MR. BERRY:
We believe we can show that, Your Honor, 10 and I prefer at this time not to have to go into too much 11 detail as to what our theory de on this. We do believe that 12 this information that we are requesting is an essential and 13 important element in the chain of our proof that GPUN launched 14 this so-called investigation of QuillTec against Mr. Parks to 15 intimidate him and retaliate and punish him for raising 16 significant safety concerns regarding the clean-up program at j
l 17 Three Mile Island.
i 18 JUDGE SMITH:
Is -- Mr. Berry, -- does anyone dispute 19 Mr. Berry's position that his deposition of Mr. Hoffman was 20 artificially curtailed because Mr. Hoffman simply did not want 21 to make himself available?
(}
22 I'm aware that Mr. Hoffman was a hard person to nail 23 down, and that his counsel seemed to put this as a rather low 24 category, low priority, in his activities, i
25 MR. HICKEY:
Well, I don't think that's what the Heritage Reporting Corporation (202) 628-4888
247
(}
1 record shows, Judge, and it wasn't my impression as it was 2
happening.
3 What happened was that Mr. Hoffman was, on the first 4
date he was set for deposition, was sent out of the country on 5.
business of an emergency and confidential nature, and he 6
apologized for that.
His counsel apologized for it.
It was 7
not a decision that counsel really participated in, and to that 8.
extent, it probably would have been better had Mr. Hoffman 9
taken the time to make sure that all counsel were contacted.
10 I assume if we would have called and had advanced 11 notice that we would have been able to agree on another date.
12 So, it got postponed once.
We then proceeded with the p(>
'13 deposition.
It did not get finished in the day that we thought 14 it would. That may be because we spent several hours on Mr.
15 Hoffman's background, but all the parties agreed to reconvene 16 at a date suggested by the staff, and we did, and we went that 17 night till, as I recall, nearly 8 o' clock, from a 9 or 9:30 18 beginning in the morning.
19 So, I think Mr. Hoffman --
20 JUDGE SMITH:
Well, how about the next point?
Did 21 counsel say, well, do it today because he's not going to be l
l
(];
22 around tomorrow?
\\s 23 MR. HICKEY:
Counsel said that Mr. Hoffman had a 24 personal. family obligation the next day that would make it very 25 difficult for him to attend.
That's right.
Heritage Reporting Corporation (202) 628-4888
l 248
(~T-
.1 JUDGE SMITH:
I see.
I'm not really -- you're
\\_)
2 winning now, be quiet.
I'm not really excited about the need 3
to go into a standard for investigation compared to the
{
4 actuality anymore than I would expect OGC to have a standard i
5 for cross examination against which you would be measured.
l I
6 Nevertheless, I'll take your representation that it 7
is important to your case and your representation that you did 8
not have a full opportunity to depose Mr. Hoffman, ar.d that the 9
change, the change that I myself have noted from the beginning 10 of the deposition disavowing the pro,cedures and now one of 11 embracing it gives you an opportunity to depose him again or, 12 if you can, I think it would be better to interrogatory or 13 whatever in a more sufficient way.
14 So, we will grant you that.
15 Is there anything further on this?
In the mean time, 16 the protective order is in effect and will be in effect.
]
17 MR. HICKEY:
And I assume from your comments that 38 whatever forum this increased discovery takes, interrogatories, 19 proposed stipulations, renewed depositions, will be limited to 20 the subject matter that Mr. Berry has identified?
21 JUDGE SMITH:
Certainly.
(~}
22 MR. BERRY:
Obviously, Your Honor.
v 23 JUDGE SMITH:
Yes.
Right.
That's Mr. Berry's 24 representation.
That's alJ I had in mind.
25 MR. HICKEY:
Okay.
We'll make Mr. Hoffman available Heritage Reporting Corporation (202) 628-4888 L
l 249
( )
1 or I would prefer, since it's less burden on him and on 2
counsel, I would prefer that Mr. Berry submit something in 3
writing.in the form of interrogatories or proposed i
4 stipulations, at least to see if that isn't an adequate 5
substitute.
6 MR. BERRY:
It may be acceptable if Mr. Hoffman were 7
to supplement his affidavit to answer the questions we posed.
8 Now, it is something, counsel, that we can discuss.
9 JUDGE SMITH:
Well, you certainly have a basis for 10 agreement there.
So, that's fine.
All right.
So, that's the 11
-- nothing further on the protective order.
12 All right.
Now, we want to take up the matter of the f
13 request for admissions.
I have had no way to prepare for this.
14 I don't know.
I went over the requests and some of the 15 responses. Most of them.
So, you'll have to bring me up to 16 speed on it, Mr. Johnson.
17 MR. JOHNSON:
Your Honor, again, we'have reviewed the 18 responses of the GPU Nuclear to our request for admissions and 19 are not going to burden you at this time with a detailed 20 account of all of the responses which we feel are deficient, 21 but Mr. Berry will address one or two examples, and we intend 22 to file a request for relief within about two weeks which GPUN
(}
23 can respond to and perhaps you can rule to, that you would rule 24 on.
25 I would like Mr. Berry to address some of the Heritage Reporting Corporation (202) 628-4888
250
(~T 1
specifics.
He will do that briefly.
^i
%)
2 JUDGE SMITH:
You're hoping that your predicted 1
3 request could be resolved today perhaps?
4-MR. JOHNSON:
No.
No, sir.
We're not proposing 1
5 because of the lack of adequate notice to yourself and to GPU 6
Nuclear as to what specific deficiencies we found.
I don't 7
think it's practical to do it today, but we wanted to alert you i
8 to the problem and point to one or two examples, and I will ask 9
Mr. Berry to do that and we don't want to take too much of your 10 time today.
11 JUDGE SMITH:
Certainly.
12 MR. HICKEY:
Judge, can I 5nterject just one minute, 13 please?
14 When we submitted our responses, I subsequently had a 15 meeting with Mr. Berry and Mr. Johnson to cover a variety of 16 pending issues in July, at which time Mr. Berry indicated some 17 general dissatisfaction with our responses.
18 I invited him to tell me what the specifics of the 19 dissatisfaction was so that I could attempt to address them.
20 He hasn't done that. I have no idea what he's about to address 21 today in terms of the extent of his dissatisfaction or the 22 examples of it.
23 But if the point is that he intends to file a motion 24 to compel, then it seems to me that there isn't much more to 25 discuss.
He'll file the motion and we'll file a response.
Heritage Reporting Corporation (202) 628-4888
F~l.
s l
L i
l' 251 i
l
(~)
~1 I would'just as soon not get engaged in a discussion
. gr 2
of something that I have no preparation for.
3 JUDGE SMITH:
Well, it is a pending discovery 4
dispute.
5 MR. HICKEY:
Pending because we were told last night 6
that they were going to file a motion, yes.
7 JUDGE SMITH:
Does this relate to supplemental 8
response or the original response?
The timeliness of your 9
action will be affected.
10 MR. JOHNSON:
It is both, Your Honor, but la particularly some of the problems we were going to address are 12 from the response that we just recently received.
13 JUDGE SMITH:
Well, I certainly think we should hear 14 from Mr. Berry on this.
15 MR. BERRY:
Thank you, Your Honor.
16 As Mr. Johnson said, you know, we do plan to state in 17 writing our position on these and identify in particularity the 18 responses we find incomplete, evasive, non-responsive or 19 otherwise inadequate.
20 I would just like at this time just to give you an 21 example of what, you know, what we have in mind.
I'll be very
/~T 22 brief.
V 23 For example, we had Request Number -- Admission 24 Request Number 39, and it stated and it's very brief that prior 25 to February 19th, 1983, Mr. Citler had no prior knowledge that Heritage Reporting Corporation (202) 628-4888 u_ __ - _ _
252
( }
1 Mr. King would appoint Mr. Parks to be primary site operations i
2 representative to the TWG.
That's very clear.
3 MR. HICKEY:
Can I ask which response we're in? Are 4
we in the September 18th one or the June one?
S' MR. BERRY:
Your response is, yes, the June one I'm 6
looking at.
It's Number 39, page 20.
7 MR. HICKEY:
Thank you.
8 MR. BERRY:
But the point of this, Your Honor, is 9
it's very clear what the admission is requesting, that prior to i
10 that date, Mr. Citler had no prior knowledge, and GPU states 11 they denied that Mr. Citler stated he anticipated that King 12 would appoint Mr. Parks.
7-V 13 I mean, that is answering a question that was not 14 answered.
I mean, either Mr. Citler had knowledge or he 15 didn't, and GPUN is certainly in a position to say yes he did 16 or no he didn't, and -- but they don't do that.
17 Another one, Your Honor, this is to their September 18 one --
19 JUDGE SMITH:
Are you sure that you can be heard to 20 complain about receiving information you didn't request?
I 21 mean, if you didn't request it, you'd ignore it, but -- unless 22 you believe that the information you didn't request modifies
(}
23 the denial and weakens the denial.
Is that your concern?
24 MR. BERRY:
That's our concern.
That's a point 25 exactly.
Heritage Reporting Corporation (202) 628-4888
l 253 l
[')
1 JUDGE SMITH:
It's a hedge.
You're saying it's a
-2 hedge.
3' MR. BERRY:
Yes, and there are a number of hedges.
4 On -- just to give you one more, that Request Number 5
36, and this is in the September 18th filing, we asked GPUN to 6
adm.it that the alternative start-up and test supervisor is by 7
virtue of his position as the alternate start-up and test 8
supervisor a member of'the TWG.
Then, the response is that --
9 JUDGE SMITH:
Which one is this one again?
10-MR. BERRY:
36.
11 JUDGE SMITH:
36.
12 MR. BERRY:
It's in the September 18th response.
13 The response to that is that insofar as this request 14 asks for an admission that the operative procedure, AP-1047, 15 expressly designated the alternate start-up and test supervisor 16 as a member of TWG, GPUN denies this request.
37 Well, it's clear from the admission that that's not 18 what was being asked at all. The question -- the admission was 19 simple by the fact that Mr. Parks or anyone who was the 20 alternate start-up and test supervisor is by virtue of holding 23 that position, is he a member of the TWG, and the question is
(}
22 either yes he is or no he's not.
We don't get a response on 23 that.
24 Now, I would cite Mr. Citler himself, who had been 25 deposed, who was the start-up and test supervisor, and when he Heritage Reporting Corporation (202) 628-4888
254
,/~
1 was deposed by Mr. Johnson, he was asked, "When you designated
-V}
2 him, being Mr. Parks, as your alternate supervisor, did you 3
also separately have to authorize him to be your alternate on 4
TWG or did that just go with the turf. Answer. That just went 5
with the position.
The start-up and test supervisors is the 6
chairman of TWG.
So, as my alternate, he",
meaning Mr. Parks, 7
"would also be the chairman of the TNG when I wasn't there."
8 Now, we believe -- and this deposition was taken well 9
in advance of the response that's stated here in Request Number 10 36, and we believe in light of that that certainly -- you know, l
11 that GPUN should have admitted that admission request.
There's l
l 12 no basis for denying it or stating that they're unable to admit i
13 or deny, and it's -- and this is illustrative of the types of
~
14 responses, inadequate responses, that we're faced with in these l
l 15 responses.
j 16 Now, we're not going to burden you and go through the 17 list, each one of them, where that is the problem, but Mr.
18 Johnson indicated that we will by October 15th file a motion to 19 compel seeking relief.
In general, the relief we think is 20 appropriate is that these admission requests be deemed 21 admitted, that the answers are either evasive, non-responsive 22 or otherwise inadequate, and we believe the appropriate remedy
{}
23 in that case, you know, one, to defer future conduct of this 24 sort, and, two, to -- you know, according to the rules is that l
25 we are entitled to an admission.
Heritage Reporting Corporation (202) 628-4888
l 255 I
(^)/
1 I would just point out, Your Honor, that the staff N.
2 filed these admissions in an effort to expedite this 3
proceeding, to narrow the issues, you know, as is desirable in 4
proceedings of this kind, and had we received admissions, you 5'
know, the staff would be in a position to determine where GPUN 6
stands on what are going to be important and basic issues in 7
this case.
8 In light of the admissions that we have received, the 9
staff finds it's not very helpful to us and that we would, in 10 turn, make known what we would have to prove, what is 11 controverted and what is not controverted.
J2 Everything -- too much and too many responses are 13 either equivocal or qualified or add-in language that modify j
14 the language and this really doesn't assist and contribute much 15 to the process of narrowing the issues, and that is the reason 16 we filed the motion for admissions, and that's the reason why 17 we're going to file a motion to compel that certain of these 18 admissions be deemed admitted.
19 We believe that will sort of narrow the issues to 20 expedite this proceeding and to give both GPUN and the staff an 21 idea of what certainly the staff's position is, the GPUN
(}
22 position is, and we believe that also would be helpful to the 23 Presiding Officer to know as well.
24 MR. HICKEY:
I won't try to respond to the merits of 25 the examples that were made, but I think it's only fair to say Heritage Reporting Corporation (202) 628-4888
l 256 1
that whatever problems the staff may have with these responses 2
to their requests for admissions, we spent hours and hours 3
preparing these responses in an attempt to put in as much 4
accurate factual information as we could.
5 Now, the staff may feel that that's not adequate or 6
doesn't meet the purposes that they sought to achieve, but I 7
think,we're entitled to at least-have an opportunity to respond 8-to what the specific items are.
9 I can't agree with the characterization that is 10 apparently being suggested that there's something -- some 11 attempt to avoid narrowing the issues.
12 JUDGE SMITH:
I might say as I read the requests and 13 the responses, reading them through without particular 14 analysis, I came away with the impression that, in many 15 instances, where a request for admission could have been 16 answered with a flat yes or no, they were recast in a way in 17 which a substantive answer could have been given.
18 I mean, they were sort of recast so that the 19 perceived intent of the request could be responded to, even 20 though a literal answer might have sufficed. That was just a 21 general impression.
22 Now, if that was all guile and technique, well,
}
t 23 that's another matter, but I truct that when you make your l
24 motion, that you will be very specific and not ask for a l
i l
25 generic ruling that the responses contain evasion and Heritage Reporting Corporation (202) 628-4888
257 l
/~Y 1
ambiguities, that you'll be very specific and point out exactly V
.j 2
why you tbink each admission should be deemed and made.
I i
3 MR. BERRY:
We certainly will, Your Honor.
Thank 4
you.
5 JUDGE SMITH:
So, with that, with the requests for 6. admissions and the deposition of Mr. Hoffman, all discovery is 7
comp 3eted.
8 MR. HICKEY:
Your Honor, there are some matters still 9
pending that we wanted to inform you of.
10 JUDGE. SMITH:
There are some matters still pending.
11 MR. HICKEY:
They're not items of dispute, but just 12 to tell you where we are.
d 13 We began the deposition of Mr. Devine on -- about a 14 week ago. The date has escaped me. And we're unab3e to complete 15 it.
He had to leave for a dental appointment and we agreed --
16 attempted' to reconvene it the next day, but he was unavailable.
17 I've since been in touch with his counsel twice trying to get 18 an agreed-on date to complete it. There's no real dispute about 19 continuing the deposition; it's just selecting a date when all 20 counsel are avai3able and Mr. Devine is available.
I expect 21 that will be in the next week to ten days, but I don't have a 22 firm.date on it yet.
{}
I 23 In addition, let's see, we31, we did Mr. Fineberg's 24 deposition on Monday of this week.
That's over.
25 There are -- the deposition of Mr. Beech is scheduled Heritage Reporting Corporation (202) 628-4888
258 1-for this coming Monday, the 5th, and we expect to complete that
(}
2 on that date.
3 There are two other depositions or potential
-4 depositions.
We have identified to the staff an expert witness 5
that we may call, a Harvard Business School person, who writes
]
6 in the area of whistle-blowers and their impact on i
7 organizations.
The staff at first expressed an interest in 1
8 deposing him, now have informed me that -- and we said fine, i
9 They'now have informed rae that they instead would like to first 10 have a statement from us of the substance of his testimony to 11 ' review and upon receipt of that, they would then decide whether 12 they wanted to depose him or not.
We agreed to do that. I told es 13 Mr. Johnson I thought I'd have that to him in the next ten l
14 days.
15 The staff also has informed us recently of an expert 16 witness that they anticipate calling, and we advised the staff 17 that we would like to depose him.
We don't have a date for 18 that.
I don't think it will be a lengthy deposition, and I 19 would expect it to happen in the next couple of weeks, two or 20 three weeks.
23 That is as far as I know, unless, George, correct me
()
22 if I've missed something, I think that's all pending in the 23 discovery, Your Honor.
24 MR. JOHNSON:
That's a correct summary, Your Honor.
i 1
1 25 The staff informed Mr. Hickey informa]3y some time l
Heritage Reporting Corporation (202) 628-4888 L
259
(}
l' ago that as a rebuttal witness in case certain evidence was 2
presented in their case, that we would seek to rebut some'of 3
the testimony that they might adduce with testimony by 4
Professor Carl Barris, formerly of Swarthmore College, to rebut 5
some of their testimony.
6 And, so, we may not offer his testimony at trial.
It 7
depends on what evidence Mr. Hickey offers for GPUN, and, 8
similarly, for Mr. Beech, we informed them that Mr. Beech's 9
testimony, if it were adduced, would be rebuttal testimony.
10 But on that basis, we decided to proceed with depositions and 11 we have had difficulty with scheduling the deposition of Mr.
12 Beech in the last few weeks because of his schedule and I think 13 that this can be completed expeditiously and that discovery, 14 except as designated, would be over.
15 MR. HICKEY:
Judge Smith, can I also alert you to one 16 problem which I hope won't arise but may?
17 You may recall that in late August, as we were 18 getting ready to reconvene the deposition of Mr. Parks to 19 complete it, we had obtained a subpoena seeking the production 20 of documents that had previously been withheld under a claim of 21 privilege.
They were basically notes taken by Mr. Devine, Mr.
()
22 Parks' lawyer, of his interviews of Mr. Parks, and we alleged
)
23 that there had been a waiver of any privilege because Mr. Parks 24 had asserted that his counsel had corroborated and verified I
25 allegations that he had made.
l Heritage Reporting Corporation (202) 628-4888
me-s eamm e
u I
260 i
That matter never got resolved because the parties g
2 agreed and Mr. Parks' private counsel agreed to produce the 3
documents, which they did in advance of Mr. Parks' deposition 4
and Mr. Parks was then interrogated about them.
They are Mr.
5 Devine's handwritten notes with abbreviations and comparable l
6 difficulty in reading what he said and that prompted our l
l 7
deposition of Mr. Devine.
j 8
In the course of deposing him, we talked about some l
j 9
of the documents which cover, if I can generalize about them, 10 many of the same subject matters as Mr. Parks' complaints and 11 allegations.
It talks about Mr. Parks' complaint that he was 12 harassed by Mr. Hoffman's interview, talks about his meeting 13 with Mr. Sanford, his meeting with Mr. Kanga, his concerns, 14 etc.
1 1
15 During the deposition, Mr. Devine indicated at one 16 point that he was not willing to address -- to respond to any 17 questions beyord the document that had been produced.
For 18 example, I showed him a letter from Congressman Udall to GPU 19 written the day after Mr. Parks and his lawyer, Mr. Devine, had 20 met with Congressman Udall's staff, that related to mystery-man 21 witnesses and my questdon to him was had he ever seen the 22 document bef~ ore.
He said he wouldn't answer that question.
He gg 23 said he thought it was privileged and I didn't pursue it 24 because I wanted to continue on with getting what we could done 25 that day.
Heritage Reporting Corporation (202) 628-4888
i 261 l
('/T
.1 Our position is that where there has been a is 2
disclosure by agreement of the parties, by court order or by l
i 3
whatever, of confidential communications, which otherwise would 4-have been privileged, the subject matter of those 5
communications is fair game for inquiry.
That's what the 6
waiver constitutes, j
7 I don't think there's any doubt that Mr. Parks with 8
the advice of counsel has waived whatever privilege existed in
]
9 those documents, and I intend to ask Mr. Devine questions about 10 the subject matter that is covered in those documents.
11 I had not had before the deposition any objection i
12 from Mr. Devine or his counsel suggesting that he viewed the l
13 deposition as limited in scope.
They did not file any motion 14 to quash either the notice of the deposition or the subpoena 15 duces tecum that was included with it.
l 16 But I have been unable to revisit the issue with Mr.
17 Devine's attorney since the deposition adjourned.
I intend to 18 do that and I hope to work out an agreement or an 19 accommodation.
If I'm unable to, depending on what happens at 20 the deposition, it may be necessary for me to return to you on l
21 the matter.
i 22 MR. JOHNSON:
Your Honor, I am just afraid that this
()
23 is going to unnecessarily and unduly prolong the discovery by 24 interjecting a dispute at the tail-end concerning privileges of 25 Mr. Devine and his work product based on waiver that -- there Heritage Reporting Corporation (202) 628-4888 i
262 1
was a stipulation or protective order that was signed by the 2
parties.
I don't have a copy of it..
J 3
Do you have a copy of that, Mr. Hickey?
4 MR. HICKEY:
No.
As a matter of fact, that's what 5
suggested there might be a problem.
The document was signed in 6
California prior to the start of Mr. Parks' deposition by Mr.
7 Parks' private attorney out there, who had the documents.
Mr.
8 Johnson and myself, it was represented to us that Mr. Devine 9
was in agreement with the terms of the order and there was a 10 blank for his signature. It was sent to him in Washington in 11 August with the document and the parties agreeing that until 12 all the signatures were entered, we'd abide by it without the 7-D 13 formal document being completed, so we could get on with the j
14 deposition.
1 15 That was sent to Mr. Devine in August.
It's not 16 reappeared since. I don't have -- I'm getting a copy of it 17 signed by Mr. Johnson, myself and Cox's -- I'm sorry.
And 18 Parks' lawyer.
Whether we'll get the one from Mr. Devine with 19 his signature on it or not, I don't know.
20 MR. JOHNSON:
My only point is that I would hope that 21 if Mr. Hickey is going to raise an objection, which I think
(}
22 should have been covered by the protective order, that it can 23 be disposed of quickly.
24 MR. HICKEY:
I would hope so.
l 25 JUDGE SMITH:
I would hope so, too.
I'm not sure l
Heritage Reporting Corporation (202) 628-4888 u___--_--_-----------------------
263
/~T 1
that I followed all of these nuances and your discovery
)
A_j j
2 problems, but the -- of course, one of the things we want to 3
cover today is what's going to happen after this and what our 4
schedules are.
5 Any other matters to be raised by the parties?
I 6
guess not.
7 MR. JOHNSON:
Your Honor, that's all we had.
8 JUDGE SMITH:
Okay. Now, there's been -- moving to 9
Item Number 3, final ratification of the issues, there's been 10 a --
11 MR. HICKEY:
Judge Smith, excuse me.
Maybe you plan 12 to address it later.
In our letter to you, we mentioned that f_s U
13 we intended to file a motion for summary disposition as to one 14 of the charges.
15 JUDGE SMITH:
Yes.
Right.
I'd hoped that that would 16 be brought up in Item Number 3 here.
17 MR. MICKEY:
Thank you.
18 JUDGE SMITH:
In this category.
There has been a lot 19 of discovery.
Is there any change in the parties' position on 20 the issues to be heard?
Is the staff still standing by each of 21 the charges that it initially made or does it wish to retreat 22 from some or, in fact, do you wish to amend or is that
{' }
23 possible?
I mean, had.
24 MR. JOHNSON:
We believe that the original notice of l
25 violation and proposed imposition of civil pencity counts as a Heritage Reporting Corporation (202) 628-4888
264
('T 1
state violations are sufficient to cover the evidence that we
.q) 2 feel is being adduced through the discovery and will be 3
presented at trial. We don't believe that a new count need be 4
added to encompass the evidence nor do we believe that what we 5
have learned from the discovery in any way would cause us to 6
retract any of the four counts.
7 In reading your order and the discussions with Mr.
8 Hickey about the intent of Number 3, we both wondered out loud 9
as to your intent and believe that perhaps what you are 10 interested in is there was our speculation, was somewhat more 11 definition to the statement of issues that was -- that were 12 addressed in connection with the first pre-hearing conference f-s 13 order.
14 In connection with that, I have given it some I
15 thought, and I have had printed up a restatement of the four 16 factual issues, the four counts with some greater degree of 17 precision, than was originally stated in the first pre-hearing 18 conference order and I would propose to circulate it.
19 I have already given a copy to Mr. Hickey.
I'd like 20 to give you a copy.
21 JUDGE SMITH:
Oh, yes, certainly.
That's exactly 22 what I'had in mind, except, of course, I was also inviting the
().
l 23 staff to abandon any counts they didn't want to pursue if that l
24 be the case.
25 Heritage Reporting Corporation (202) 628-4888
265-
-1 M R. ' JOHNSON:
I gave a copy to t'e reporter in case h
2
.you want it to be included in the record.
3 fJUDGE SMITH: :Yes, insert a copy of this document' -
4 entitled " Refinement of-Issues for Hearing proposal with NRC 5.
Staff" into the transcript at this point..
6 Mr. Hickey, are you prepared to respond to this?
7 MR. HICKEY:
I received it this morning and reviewed 8
'it quickly, Your-Honor.
And I do have some thoughts.on it.
l 9
JUDGE SMITH:
Would you like to defer it till after a 10-while?
I don't think we' re goinD to get done before lunch 11 today.
Or do you think there's a good chance we might?
~
12 MR. HICKEY:
I think we mayi it depends on Your 13.
Honor's preference.
14-JUDGE SMITH:
I think we can give it.a shot.
We may 15 be able to complete before lunch.
16 MR. HICKEY:
If Your-Honor would like our comments on 17.
the issues as they have been stated in Mr. Johnson's proposal, i
18 let me ask one question first, 19 The area that was uncertain in my mind, at least, and 20 I think Mr. Johnson's too was whether you contemplated us 21 presenting tc you our description or views about legal issues 22 that needed to be addressed and resolved in a more -- stated in i
23 a more abstract way.
24 For example, which side has the burden of proof with
]
25
-regard to the issue of.such and such.
And if we' re going to Heritage Reporting Corporation (202) 628-4888 i
4
o(f REFINEMENT OF ISSUES FOR HEARING PROPOSED BY NRC STAFF l
l
- 1. Whether the February 18, 1983 removal of Richard Parks as Alternate Startup and Test Supervisor, and, as a result, from membership on the Test Working Group, by Edward Kitler, at Mr. Kitler's own initiative or on direction or recommendation from Mr. Kitler's superiors, was to any i
extent motivated by the fact that Mr. Parks had raised concerns about l
compliance with administrative requirements for modification and testing of i
the polar crane at TMI-2, as stated in Mr. Parks' February 17, 1983 Comment Resolution form.
- 2. Whether the Bechtel investigation into Mr. Parks' activities relating to
- Quiltec, Inc.
In March 1983, including an interrogation by a San Francisco-based Bechtel internal auditor, Lee Hofmann, on March 14, 1983, but also meetings with Charles Saqdford, a Bechtel Vice-President, and other Bechtel officials on March 15, 1983 up until March 22,1983, in part or in whole were designed, or had the purpose or effect, to intimidate Mr.
Parks for (or to dissuade him from) pursuing his complaints (both internally and to the NRC) about failure of Bechtel and GPUN to follow administrative procedures for modification and testing of the TMI-2 polar crane.
3.
Whether Mr. Parks' removal as primary Site Opcrations Department c()
representative on the Test Working Group for the polar crane project on March 17, 1983 was involuntary and, if so, was it done in whole or in part,because Mr. Parks had, and still, maintained (both internally and to the NRC) that the polar crane load test procedure was not fully in compliance with governing administrative procedures.
- 4. Whether Mr. Parks was suspended on March 24, 1983 in whole or in part because on March 23, 1983 Mr. Parks had raised safety concerns in a r.omplaint and affidavit submitted to the Department of Labor and to the NRC, and made public that day.
I l O l
l
266 1.
address that later, then I don' t need to include my --
2
. JUDGE SMITH:
No, I see it that number 3 is not a 3
.Dood, example of precision or clarity here.
I had in mind,owas.
4 there any change in particularly the party with the burden --
5 staffs -- what I had, particularly in mind.
6 Do they still pursue each of the'four' counts with the i
7 same vigor and resolution that they started out with?
j
' -l
~
8 Sometimes a discovery will inform and educate adversaries that 9
maybe they were wrong.
10 On the other hand, does discovery-on the part of GPUN.
l i
11 bring about any possibility that a stipulation on a particular 12 charge, or an omission, or -- could be made.
1 t
13-I'm referring here to factual issues, and ~ I' m j
.:( )
14 referring to elements -- to elemental issues.
I should have 15 stated that better.
16 I.really had in mind the four charges for factual 17 allegations.
18 MR. JOHNSON:
The staff has already stated its 19 position that we believe that we will be able to establish at 20 trial each of the four counts.
I 21 JUDGE SMITH:
And you feel you were right to begin 22 with -- and af ter discovery, you' re still --
23 MR.. JOHNSON:
That's correct, sir.
24 JUDGE SMITH:
That's J ust what I wanted.
I have seen
()
25 litigations here at the NRC where matters will go, if witnesses i
Heritage Reporting Corporation (202) 628-4888
267 1
are given the witness stand, only to find that there really is O
2 no dispute anymore.
And I wish to avoid that.
3 MR. JOHNSON:
Okay.
Well, I think it's an 4
appropriate question to GPUN as well.
5 MR. HICKEY:
If the question that Mr. Johnson i
6 suggests is whether we continue to deny the accuracy and 7
validity of the allegations, the answer is yes.
8 JUDGE SMITH:
That 's fine.
The only thing I might 9
have asked of the parties is that they really give a 10 consideration that the litigation does not get on oral pilot 11 and people continue to litigate matters as to which they have 12 no bona fide conviction.
13 And I don' t see that there's any change in the g
14 forecast of broad issues.
I think that on staf f's refinement, 15 I see, articipate -- maybe I shouldn' t anticipated maybe some 16 of the factual assumptions mi Dht be challenged by Mr. Hickey.
17 MR. HICKEY:
Yes, I think there are also some legal 18 assumptions that are implied in these statement of facts that I 19 couldn' t agree with.
20 I'11 just point out one example.
Item 2 talks about 21 whether some meetings were designed or had the purpose or 22 effect to intimidate Mr. Parks.
23 That counds to me like a suggestion that an 24 unintentional meeting -- a meeting not intended to harass, 25 which is perceived by Mr.
Parks as intimidating -- t hat 's what Heritage Reporting Corporation (202) 628-4888
268 1:
I get from "effeet"'-
.'is the. violation-of some regulation.
O.'
2 I ' don' t think that's accurate as a istatement 'of the.
'3 law.-
There are.similar' legal implications in some of;the.other.
4
' statements of. issues.
15' For example, Item one asks whether a decision to 6-remove' Parks was, to any extent, motivated by such and.such a 7
fact.
8 There are differing. views, and it's something that I 9-think the parties need to. address as to what the causal 10 connection needs to be, and how the standard is appropriately
.11 stated between protected activity and actions in response to
. 12 it.
-13 And I' m not sure -- I ' don' t think'that the test is --
14 whether it'is to any extent motivated by such a fact.
- Just, J[
15 if I can address one factual portion of.it too, Judge Smith.
16 It was Item 3 in the Statement of Issues originally f
17 set'out at the first pre-hearing conference in this case 18 relating to the. interview of Mr. Parks in the Qui 11 tee 19 investigation.
20 Said the issue was whether Mr. Parks' interview by 21 Messers, Hoffman & Wheeler on March 14, 1983 constituted 22 retaliation.
23 This Item 2 on the submission of Mr. Johnson made 24-today broadens that substantially to include not only that 25 meeting but rubsequent meetings -- one specifically identified (J
Heritage Reporting Corpor at ion
}
(202) 628-4888 i
269
~1
'on-the 15th, and-others unidentified up until March 22.
~
oo-2-
I looked at the' notice of violation which'in some:
3' ways seems to incorporate'some other documents. ^ And it states 4
-- well, it doesn' t state in any precise terms what>the 5
violation is.
6 It's got an item'that says Parks was subjected to 7
improper and intimidating interrogation.
It's of some 8
significance, I. suppose, thouDh, because presumably the' notice 9
of violation represents a decision by the director of 10 enforcement that he has, with the assistance of his staff 11 reviewed these matters, and he feels that these charges are 12
' appropriately brought -- not only factually supportable but 13 appropriate in all the considerations that go to inform his
()
-14 discretion about whether a notice of violation should be 15 brought or not.
16 I. believe he's suppose to address not only whether it 17 should be brought but for what acts it should be brought.
And 18 I don' t think that it --
19 JUDGE SMITH:
For what?
20 MR. HICKEY:
For what acts it should be brought.
21 What are the accusations --
22 JUDGE SMITH:
Oh, yes.
23 MR. HICKEY:
As in a criminal case, the specific 24 charge must be voted by the Grand Jury.
I don' t think that the
()
25 staff is at liberty to expand beyond what the Director intended g
Heritage Reporting Corporation L
(202) 628-4888
270 1
other acts, toimake them'the subject'of_the notice of
~
-2 violation.
3 JUDGE SMITH:
Well, I.think there would be_ big 4
problems for them to do that.
Not'only is it a question of 5.
fair notice, but also, it's a question of Jurisdiction that I G
have because the notice of hearing incorporates the allegations 7
of the notice of violation and that's all I have to hear.-
B ButEthere are Judicial procedures to conform, please, 9
to the evidence.
And if it'were necessary, if new facts 10
~ brought into question the accuracy of the original charges, I 11 would think'that the Commission might want to be informed about; 12 it and the' notice of hearing amended, if that were necessary.
13 I just did not want to categorically exclude any
-( }
14 possibility of expanding the charge to-conform with what the 15 staff has' learned'during discovery.
16 Being very sensitive to the fact that I may not even 17 have the ' J urisdict ion to do that.
And second, it would-bring 18 big problems of notice.
And I just did not wish to 19 categorically exclude that possibility.
20 It's di f ficult for me to read, with any degree of 1
21 care, the staf f's refinement.
Before I make any comments on 22 it, or any ruling on it, certainly, I want to study it very 23 carefully.
24 But my general impression is that it is the
()
25 substantial narrowing of the comments as they appeared in the HeritaDe Reporting Corporation (202) 628-4888
l 271' 1
notice offviolation which is very broad, asyyou' ve j ust 2
observed from one of them.
31 And:I don' t _ see how you can be heard to complain'when
'4
.the staff. comes forward voluntarily and narrows -- youL don' t 5
have'to accept factual presumptions.
6 Of course, those will always be.ridiculable.
But 7
.just myrgeneral impression is that the staff has come forward 8
'and narrowed, commendably, based upon the -
whatever --
9 probably discovery to some extent -- the' nature of their 10
' charge.
< 11.
And I have not sr o any expansion.
- 12 MR. HICKEY:
My suggestion about-thefexpansion_is the 13 example I gave about the Hoffman interrogation.
14-JUDGE SMITH:
I guess I missed that.
15 MR. HICKEY:
Okay, let me try to state it more 16 clearly.
The notice of issues as they were stated at the first 17 pre-hearing conference before Your Honor on July 30, 1986 said
. 18 that one of.the issues on which the parties could take.
19 discovery, and the issues for the hearing were -- one of them 20 was whether Parks' interview by Messers, Hoffman Wheeler on 21 March 14, 1983 constituted retaliation against Parks, contrary 22 to 10 C.F.R.
Section 50.7.
L 23 That tells us, "You need to defend against whether 24 Mr. Hoffman and Mr. Wheeler, when they interviewed { parks on I
{}
25 that date, did it in a way that constituted retaliation.
Heritage Reporting Corporation (202) 628-4888
272 hj y if We' ve had some dif ficulty fpinning down what the U
22 speci fics Jof that charge include.
-Is it the manner.in which 3
the-interview was conducted?
Is it the~ fact that there was an
-4' interview at all?
5 Isgit the fact that it'was an interview by Mr.
6-Hoffnan'as opposed to'somebody else?
Be that as it may, what 7
this refinement of issues states is that we are being charged 8
. with. intimidating Mr. Parks, not only in that meeting, but in 9
other meetings with other personnel --
10 JUDGE SMITH:
All right.
11 MR. HICKEY:
-- including some that are not specified 12 ' but that occurred up until March 22, 1983.
13 JUDGE SMITH:
And you feel that the staff is bound to (f
14 the insue that was brought into the transcript there?
I didn' t 15 bring that with me, by the wayi I forgot it.
16 MR.-HICKEY:
I can' t. st ate it that strongly, Judge 17 Smith.
I can tell you only that it raises a question in my 18 mind.
I'm analogizing from other areas of the law.
19 And I assume that there is a requirement here that, 20 before a company, a licensee, can be asked to respond, the 21 rules provide for several screening mechanisms, one of which is 22 that tle Director of Enforcement has to decide that it ought to 23 go forward.
24 And I,
frankly, had forgotten whether there is 25 normally Commission review and approval of that or not.
But t-I I
Heritage Reporting Corporation (202) 628-4888 l
i T '.
V 273 li '
let's-assume there is.
'2 If the Commission said, it.is appropriate for the staff to proceed with a notice of violation accusing us of.
4 retal'iation based ortthe Hoffman i r.t e rvi ew, then I don' t think.
l 5,
Mr. Johnson has the authority to say, "Well, I don' t really l-6 care about the Hoffman interview, but I want'to accuse you of
~
7 retaliation based on some other interviews by some other people 8
_on some-other dates."
9 JUDGE SMITH:
Unless you wanted to show, 1
10 evidentiarily speaking,. a pattern of intimidation which 11 supports his main alleDation.
12
.I mean, I wouldn' t preclude it, as far as an 13 evidentiary consideration.
But as the element of the notice of
()<
.14 violation you' re talkingf about -- as the thing upon which the 15 Director issued his notice of violation and the Commission 16 approval for'a hearing.
17 MR. HICKEY:
Yes.
18 JUDGE SMITH:
I think you, indeed, would'be 19 identifying a problem there, as I stated.
20 MR. JOHNSON:
That's not our intent ion.
21 JUDGE SMITH:
To begin with, jurisdiction, to begin 22 with.
23 MR. JOHNSON:
That's not our intent, Your Honor.
Our 24 intent is elaboration, refinement, and to make explicit what t( )
25 the language in the n.o.v.
was designed to show with Heritage Reporting Corporation (202) 628-4888 1
1
274 L,,
l:;. h) 1-particularity.
1 2
The n.o.v.
is general in some respects -- many 3
respects.
In terms of notice, I would direct Your Honor's
~
attention'to the response'of the company-licensee here to the l
4' 5
notice of1 violation of October 21st, 1985 which addresses the EE count. with regard to improper and intimidating ~ interrogation of l
7 Mr. Parks -- the guard at Guilltec.
l 8.
And they cover not only that March 14th meeting.or l
9 interrogation of Mr. Parks, but.the next day's meet ing ' with Mr.
10 Sanford.
11 So,.there's no quest ion that they understand,- in 12 terms of notice, that this is a part of the process -- a part
~
13 of the problem,that we identified in ou'r count of.the (f
14 violation.
t 15 JUDGE SMITH:
As to the -- I don' t know if I' m still 16 following you -- but as to the issues, which I approve, for 17 discovery, at the outset, there were issues agreed upon by a
-18 party.
19' A survey were not intended to be the final issues 20 that went to hearing because that is the purpose of discovery.
21 But I think that you are quite correct.
22 Is the staff going into a direction not limited to 23 evidence, and going beyond what the director intended in the 24 notice of violation?
()
,25 Therefore, what the Commission authorized me to hear, Heritage Reporting Corporation (202) 628-4888
275 t,
sc 1
what,f.you have a-right to complain.
Have I captured it right?.
~
2' M R.. HICKEY:
Yes, and I' m not addressing t'he-3 evidentiary' admissibility of.other acts.
I' m saying, what is-l 4
the specific charge that.we have to defend against?
l l
5 I' ll give you a very specific example.
I intend to L
6 file.a motion for summary disposition on count 2.
Is the test I guess it's been numbered.both 3 7
on that particular count t
8 and 2 -- but the.one about Hoffman.
9 Is the' issue that Your Honor has to address in ruling 10' that motion, whether there-is no material issue of fact, and l
11 we' re. ent i t led t o j udgement as a matter of law about the L
12 Hoffman interview?-
l 13 Or is it whether we discriminated by the way the
.(f 14 Sanford interview was; conducted, or some other interview that
~
15 we haven' t been specifically told about yet?
l' 16 And what was it that the Director of Enforcement felt l
l 17 warranted a charge?
Not, what is all the evidence that he L
looked at?
Cause I don' t think that's the question.
D 18 l
l 19 But what did he say was sufficient to warrant a L
20 charge?
21 JUDGE SMITH:
Let's take an example.
Let's don' t use L
L 22 that because I' m not comfortable with paraphrasing it.
Let ' s l-23 say that in the notice of violation the Director thought that 24' Mr. parks was intimidated in an interview that happened on a
[ ()
25 certain date, March 14th?
Heritage Reporting Corporation (202) 628-4888 L_ _-
U 276 1,
'And it was Just. rotten, an interview -- just,-you
- O 2
know, run the guy all over the place.
But in' fact, that was 3
all a mistake.
I mean, the interview never happened.
4' That never happenedi it was a mistake, but they-5 learned during discovery that other interviews of that nature 6
happened.
7 Is it your point that without an amendment of the 8
notice of violation that that issue is not before me?
That 9
would be my impression too.
10
-However, assuming that they do persist on that one, 11 and they believe it happened -- the March 14th one,_then they 12 are free to bring in evidence of other interviews which show 13 the pattern or intent to prove, one, that is the essence of the 14 charge.
15 MR. HICKEY:
Yes.
I mean, they may have other 16 evidence that enlightens your interpretation of what happened 17 on March 14th.
18 And you can consider in accordance with normal rules 19 of evidence.
20 JUDGE SMITH:
I doubt if there's any disagreement 12 1 among the parties, or a problem there.
22 MR. JOHNSON:
I would just like to point -- I know 23 you feel a little uncomfortable about that particular count, 24 but it's the one that we' re discussing.
(~}
25 And I' d just like to address it.
Heritage Reporting Corporation (202) 628-4888 i
i
- 277, 1
.JUDEE SMITH:
Well,:Just let me say - ~ 'I' m-having' a
.O 2
little bit of visual disturbance. problems here.
I' m not able 3
' to read this, 'and take the time.to read'it carefully.
4 So, Ildon' t want to be making any statements which.
5 could be inferred to be a comment upon issue number 2, or any 6
issue here..
7 MR. JOHNSON:
Okay, I understand that.
8 JUDGE SMITH:
But I' m using hypothet ical examples 9
which comes close to the case before me as possible.
10 MR. JOHNSON:
Okay.
Well, I want to example then, 11 too -- using my example.
The notice of violation is in general 12 terms.
It does not specify a particular date.
13 The response of GPU Nuclear to the notice of
)
14 violation covers more than one interview with Mr. Parks.
So,'I 15 think that this is the first time that GPU has specified to us 16 that there's anything unclear or vague about their 17 understanding of the violation in terms of the jurisdictional 18 aspect of it.
19 In fact, when they understood -- addressed the 20 violation back in 1985, they appeared to have understood that 21 it encompassed more than one event.
22 In any event, we would agree in principle that if 23 there's a new violation, or an amendment that constitutes a new 24 violation, that that would require an amendment of the 25 pleadings.
Heritage Reporting Corporation (202) 628-4888
278-1 And I t'hink the case law permits, as'you suDgested,
~
..f.,g 1(_d 2
conforming the pleadingsLwith proof.
And I ' don' t - think that 3
What we' re. talking about here is of such a quantum leap --~a 4
qualitative leap,. maybe -- beyond the scope of'the notice of 5
violation that it effects your Jurisdiction.
6 JUDGE SMITH:
I really don' t believe that there's any.
7' dispute among the parties here.
You' re not stating today that 8
a particular refinement of the issue is, in fact, beyond.the 9
notice of hearing.
I l
10 You' re discussing this on the principle.
11 M R.
HICKEY:
No, I think what I' m saying is the "act 12 that I haven' t raised an issue about it before today because I 13 haven' t seen Mr. Johnson's paper before today.
~
(}
14 But I am saying that it appears to me that if Item 2 15 on Mr. Johnson's proposed refinement of issues Ts' one of the 16~
issue on which we are to go to hearing -- that that is beyond 1
17 what the notice of violation authorized and contemplated.
18 JUDGE SMITH:
You' re making that specific argument 19 today.
And you would be, specifically then, asking for, 20 really, that this not be an issue because it's beyond the 21 notice of violation and the notice of hearing.
22 MR. HICKEY:
Yes.
It's something I' d be prepared to 23 support with a little time to try to collect some authorities 24 on it.
J[
25 But I can tell you one off the top of my head.
The Heritage Reporting Corporation (202) 628-4888 J
279
'l
. notion.that1 pleadings may-be' freely' amended-.to reflect-the-2:
. evidence that's of fered 'is a typical notion in civil discovery.
3' It is quite the contrary when charges of a criminal 4
nature are being: brought.
Indeed, the requirement is.that a 5
variance between'the indictment-and the proof in a criminal 6
case is frequently -- not always -- but frequently effective, 7
and results in a dismissal of the indictment, and a setting 8
aside of any verdict found on.
9 It's got two points to it -- and I think we' re 10 talking-about two points here. One is notice -- is it fair 11 notice?
12 But there is another point.
That is -- in criminal 13 law, at least -- you may.be tried'only on an indictment
'()
14 returned by a Grand Jury.
15-If they don' t vote to charge it, then you don' t 'get 16 tried.
i 17 JUDGE SMITH:
That's exactly the analogy I was' making 18 here.
You' re ent it led, of course, as a matter of due process 19 and fairness, to notice of everything that's against you.
20-MR. HICKEY:
Yes.
21 JUDGE SMITH:
I have nothing to hear.
There is no 22 indictment, so to speak, until the Commission issued its notice 23 of hearing which incorporated notice of violation, j
24 MR. HICKEY:
Yes.
And I' m saying that I don' t (f
25 believe that the notice of violation includes things beyond Mr.
Heritage Reporting Corporation (202) 628-4888
.-- -__ -____ _ _ -____ _ _ _ D
280 I
i is
.Hof fman's March 14 interview,
<-b 2'
JUDGE SMITH:
Okay.
Look at that..
I just wonder 3'
'when is the appropriate time to raise it'though?
Today,.
4.
really?.
I 5'
MR.-HICKEY:
Well, I think it takes'some looking 6
.into.
I mean, I' m not prepared to address it with any --
7 JUDGE SMITH:
This might be an evidentiary l
l 8
consideration, actually, that you would ob ect to evidence J
9 that's being of fered.
10 MR. JOHNSON:
I just want.to interject that at no l
11'
. time up till.this point did GPU contest the scope of the notice l
12 here.
13 So, it seems to me that we' re prepared to-stand on i
()
14 the notice as it exists.
We' re not intending, at this point, 15 to expand.
16-The statement of the issues that exists here, we 17
. feel, is within the confines of the order.
It narrows and i
18 specifies it.
l 19 The specification in the notice of violation and l
i 20 proposed imposition of-civil penalty which was transmitted to 21 GPU Nuclear on August 12th, 1985 states, in part: "At least 1
22 partly due to these activities, Mr. Parks, during a period
)
23 between February 23rd, 1983 and March 24th, 1983 was 1) removed 24 as often and start-up as test supervisor, 2) subjected to 25 improper and intimidating interrogation."
i Heritage Reporting Corporation (202) 628-4888
281
- 1'
- That's"the, point that we' re talking about.
It.
5 2
doesn' t say 'on March'14th, 19831'it just.says " subjected to 3
improper and. intimidating interrogation."-
I 4-
'And my point"that I was addressing was,-in their 5
-response, they themselves bring up a meeting'of March 15th, 6
1983.
7-So, it seems to me that it's certainly within the 8
'pur. view of-the statement of violation to which they responded, 9
and to which they did not object to, based on vagueness, and to 10 which they,.in fact, referred to that very next day's meet ing.
11 It is encompassed within the scope of the violation 12
.as issued.
And.till today they have not objected.
13 JUDGE SMITH:
'In administrative agencies, we.use'
[-
'14 discovery as a substitute for what might be a motion to require 15 a refinement of keys, or whatever.
16 You' ve raised dif ficult problems.
I' m not in a 17 position to rulei I don' t think I' m being asked to.
I guess 18 Lwhat we need now i s, when and by what mechanism do we raise the 19 issue?
20 Do we wait until a piece of evidence is offered?
Or, 21 do we entertain a motion from you to categorically rule that 22-certain types of evidence will not be admitted because it's not 23 covered by a notice of violation -- whatever.
24 I need the help of the parties on that.
()
25 MR. HICKEY:
My suggestion, Judge Smith, about the Heritage Reporting Corporation (202) 628-4888 L
l
/'
282
-g:
1.
- way'to proceed is that if we simply' defer the issue and'say,.
'2 "Well, at the time of the hearing,~when particular evidence!is
~
y3
.of fered, you' re ' free. to - object to it.
And I, Judge Sr11th, will 4.
rule'.on whether it's admissible or not" -- that ' doesn' t really 5'
' resolve the problem because, first of.all, we' ve indicated an.
6 '-
interest in'f11ing a motion for summary' disposition.
~
7 You have to answer, "What's the charge that I' m being 8
asked to summarily dispose of?"
9 JUDGE SMITH:. Okay.
That would be picked up in that 10 motion.
11 MR. HICKEY:
I'm saying it needs to be resolved 12
-before you can rule on that motion.
And'I would think that the.
13 way'to do it.-- my suggestion is that the parties submit to you
.({
14
-- wel1, I' think we' re entitled to two things.
~
15 One of.them is that the staff has.to specify what the 16 charges are that they think they' re trying -- not all the 17 evidence they intend to offeri not whether they want to bring 18 in testimony about some other hearing.
19 But that we are charged with an active discrimination 20 in that on such-and-such a date, in such-and-such a wayi we did J
21 something.
22 They ought to specify what those charges are, not say 23
" inappropriate investigation," or "harassingi interrogation,"
24 in general.
l
(]f 25 We got to know what the charge is.
And then the test Heritage Reporting Corporation (202) 628-4888 i
283-1' i s, is that;the' charge that'was determined by the director of fg V
2 enforcement, approved by the Commission,'and what you' ve been -
3 charged to hear?:
4 Because.if it's not, then I'm going to argue 'that 5
that charge has got to be dismissedl it's not properly before 6
Your Honor.
7 JUDGE SMITH:
What would be the parallel mechani st.1 8
for that under the rules of civil procedure?
I would have 9
imagined that would have been way back up at the beginning, 10 when the. complaint was filed.
11 MR.' HICKEY:
There's no need ' for it. I mean, the 12 timing is much less significant in civil procedure because.you 13' can amend the pleadings up until the time of trial.
()
14 The procedure that I think is the more comparable one 15.
is that in effect there is --
16 JUDGE SMITH:
You' re asking, you' ll be asking for 17 thatLopportunity now as a separate motion or in connection with 18 a summary disposition or count?
i 19 M R.
HICKEY:
I think it ought-to really antedate the 20 summary.
Shouldn' t it logically be resolved before we file a 21 motion for summary disposition because otherwise we don' t know 22 whether to address, in this example, the March 14 meeting and 23 say, "Here's the f acts that are not in dispute and here's why l
l 24 we' re ent it led to Judgement?"
1 L
( )'
25 JUDGE SMITH:
Well, it strikes me that certainly in Heritage Reporting Corporation (202) 62L 4888
.ly[';
.I o
a:
~~j
.y,,.',n '
284'.
q1 O. -
prineiple"fdu'areentitled, _ you have been entitled from the
- 1 i
2:
very begi'nning to know with par.ticularity what the' nature'of x
3
'the. charge 1,s against you, the evidence and initially the N
4 charge.
5 Nobody can dispute that.:
It seems that,_however, 6
that you' re very late because that is one of the purposes of 7-discovery.'
8 r
MR. JOHNSON:
And in fact, Your Honor, we did fully 9
answer the basis in discovery, to which they did not _ object.
10 This wan back a year ago.
'11 JUDGE SMITH:
Well, the question will be when should 12 they have objected?
And it does seem to me that the prehearing 13 conference on the eve of hearing is rather late.
You know, it (f
14 could have saved a lot of discovery, actually, if such a motion 15 were thought necessary.
16 MR. JOHNSON:
I do not think so, Judge.
I mean, I 17 do not contend that the other interviews are irrelevant or not 18 within the scope of: discovery that can be taken. It is not a 19 question of what is within the scope of discovery.
But the 20 issue that was identified at the pre-hearing conference is the 21 one that I have read to you.
It related to the interview by 22 Hoffman and Weenan on March 14th.
23 MR. HICKEY:
As you said yourself, Your Honor, this 24 was not intended to be a definitive statement of the issues.
I 25 think that we are going back and forth.
Heritage Reporting Corporation (202) 628-4888
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285-1
.1 MR. JOHNSON:
The issues agreed upon'by the party 2-which I_ compared generally with the notice of violation, and I 3
thought that it created the appropriate framework.for
~
4-discovery.
The Commission proceedings, and-virtually every 5
administrative law proceeding, and court proceedings provides 6
for the final refinement and identification of. issues before 7-trial, fully appreciating your point that those issues cannot 8
be brought.beyond the initial notice without problems which we 9
discussed, and we'do not have to discuss now again, n.
10 MR. HICKEY:
Mr. Barth would like to address the 4
11 questions that were: raised Mr. Hickey, if we would refer to 7gm<
12 him..
'13 JUDGE SMITH:
Mr. Barth.
(}.
14-MR. BARTH:
Your Honor, just in two regards.
The 15 bill of particulars as we know no longer exists.
The proper 16 method for accomplishing the same thing in civil procedures is 1
17 a motion for a more particular certain for the complaint. _This 18 is not done, as we point out, on the eve of trial.
This is 19 done very shortly after the complaint has been filed.
20.
In this case, the complaint stands for the Commission 21 order for you to hold a hearing based upon the notice of 22 violation is several years old.
This is two years late, in any 23 kind of forum, with regard to administrative procedure or in a 24 civil court.
()
'25 The notion that this should come up today I think is Heritage Reporting Corporation (202) 628-4888
286' 1
improper from thel ate point.
.The way that.Mr. Rosenthal on l
' the Appeals Board'just.said to refine a' general contention in a 3
' licensing hearing has been through discovery.
'Now this is not-4
.a licensing hearing, I understand that, but the knowledge still 5
holds up.
6 These' people have had two yearn to take the notice of 7-violation simple statement which Mr. Johnson read to you and 8
refine it and ask which date are you talking:about if the'y 9
wanted to know.
This is no time, it is four minutes until 10 12:00 on-this date, to ask-this kind of a question.
Any 11 question in their mind as to what meeting, what transpired, 12 what was the aggression, and what the delay should have been 13.
done through. discovery, not today.
(}
14 And-I would like to again affirm, as Mr. Johnson has 15' previously stated to you, that this kind of question was asked 16 on discovery, and the staff has answered that question and 17 received no objection or no request that the answer is
'ncomplete or in any way not fully informative.
18 i
19 I think, Your Honor, in simple terms that this is 20 nothing but a delaying tactic.
It is now five minutes to 12:00 21 at the moment of hearing, to set this thing back again..
Thank 22 you.
23 JUDGE SMITH:
Is that really five minutes to 12:00 or
.24 five minutes or five minutes to the beginning of the hearing.
)
25 Well, I would ask that as the hearing progresses that we be l
1 i
Heritage Reporting Corporation
)
(202) 628-4888 l
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I 1
'287 1
very careful.
I have seen an escalation.of hardness-of 2
positions, and I.think that you should oe' careful about 3,
suggesting that it is a delaying,tactit,-Mr. Barth.
That would-4 just invite a similar response.
.I'think that.it is a legitimate concern,.'but I do not 5
i 6
know what to do about~it.
..As a' matter of fact, the NRC has.not g
7 had very many purely adversarial cases in the traditional' sense 8
of the word whare the staff goes out with a' burden of proof and 9
has to carry it, and the licensee resists it in the traditional 10 way.
perhaps there has never been a case like that at the NRC 11 of that nature.
12
- So we are going to have to figure out to provide 13 Justice to everybody.
I do think that notice is a problem.
If
()
14' discovery did not provide you notice unfairly, we will address 15 that.
'I think that about-the only thing that"you have left as 16 I sit here now is that no matter what happens I do not have any 17 jurisdiction that was not given me by the Commission.
18 And if the allegations and the proof goes beyond the 19 boundaries of the notice of violation which was incorporated in 20 the Commission's hearing, I do not have, I do not believe, any 21 authority to Do beyond that as a matter of substantive 22 allegations, substantive charge, as opposed to evidence.
23 However, as I stated, I think that this is pretty much a new 24 case, and I really do not know.
- ()
25 MR. HICKEY:
Would it appropriate, Your Honor, to Heritage Reporting Corporation (202) 628-4888 j
I
.288 e.
i suggest that the.part'ies file within some relatively short time.
2.
frame.something that' attempts to' collect whatever authority.
I 3
there is.
I share your expressed concern about the fact.
I l-
- 4
'have tried to find out about other enforcement proceedings and L'
5' how they have.been conducted, and the record is sparse and l
6 none, at,least'where they.have been contested.
7 But I think that.we'may be able to identify.from a l
's cerraf ul review of-the regulations 'both some legal support'on 9'
either side-of'the issue and some suggestions about how the 10 matter might'be resolved.
I just cannot'do it off the top of
'11 my head.
12 JUDGE SMITH: Lyes, I am aware of that, and I do not 13 know how easy it is going to be to do anything about the office 14' either.
I guess'that what I would need probably to resolve
( }-
15 these' issues is particular emphasis to what extent can the 16 Director of Special. Enforcement or his successor modify the 17 notice of violation given the fact that I am appointed to hear 18 that case or that action by the Commission, and I only have the 19 Jurisdiction that the Commission has given'me.
20 MR. JOHNSON:
Your Honor, I do not think that there 21-is any dispute here.
22 JUDGE SMITH:
But there may not be.
I mean your 23-argument is that everything is solemnly within the notice of 24' violation.
But if he wnnts to argue, he is allowed to do it.
([
25 MR. JOHNSON:
I think that he is allowed to argue l
Heritage Reporting Corporation (202) 628-4888
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~
289.
l 1
nhatever he wants,.that is correct.
But I just feel.that we H
2 may'be'Just.doing extra Work here..
I would hesitate.to agree 3
that we should'have separate briefing and take on. extra burdens 4
that'are not necessary.
We are all very busy people, and 5
where there is not a dispute.
We are not' contending.that'we-L l
6-are going ~beyond.the scope-of the violation, that.we are l;
7 particularizing.
1 I
6
. JUDGE-SMITH:
But he is contending that you are going l
9-beyond the scope of the violation, at.least he is anticipating-10 it.
l these l
11-MR. HICKEY:
The notice of violation says that I'
p 12
' acts of discrimination were described in a U.S.
Department of l'
53 Labor investigation in number such and such.
And the U.S.
}
14 Department-of Labor investigation says that the complaint 15 alleges and the findings are that-on March 14th he was 16 interrogated by a Bechtel executive-and an internal auditor as 17 part of an investigation into violations, et cetera.
l 18 If the notice incorporates what is described in the l
19 Department of Labor report, which my reading of it seems to' 20 say, what is described in the Department of Labor report is the 21 March 14th interview.
22 MR. JOHNSONr Well, it seems to me that an 23 appropriate way to oeal with this to be in conjunction with Mr.
l 24 Hickey's mot ion for a summary disposition which is on this
().
25-issue.
We can deal with it there.
I do not think that we are l
Heritage Reporting Corporation (202) 628-4888
290 i
so'far apart on this matter.
I think though that the purpose 2
of the refinement here is to specify the facts, the area of
^
3 facts that we intend to rely upon to prove the description that-4 is in the notice of violation which is that there was improper 5
intimidating interrogation.
And-I- think that it is unnecessary 6-to have a separate filing to deal with that.
7 JUDGE SMITH:
If the problem.is limited to the one 8
issue, the one charg'e, I agree that that would probably be a-9
' convenient time for you to make your arguments as to the reach 10 of the notice of violation.
It may not be purely a summary 11.
disposition matter where you are concerned about genuine issues 12
.of fact, but it would be a convenient and appropriate time 13 altogether, I would think.
()
14 MR. HICKEY:
Well, we are prepared to do that.
I
'15 think it means'that we will have to couch our motion for 16
. summary disposition to take account of the alternatives, that 17 is that you may conclude that the count or the charge is 18 broadly stated to include all interrogations or is narrowly 19 stated to include only one.
20 JUDGE SMITH:
That is what I would expect you to make 21 that argument.
22 MR. HICKEY:
We will do that.
23 MR. JOHNSON:
May I ask Your Honor to ask Mr. Hickey 24 whether he has other similar objections to the statement of the
()
25 issues.
I was not attempting to do something that was purely Heritage Reporting. Corporation (202) 628-4888 L________.__1____._______-________._______
291 1
one-sided here.
I thought that I attempted to make this o
2 statement as fairly as I could.
3 MR. HICKEY:
I missed the first part of what Mr.
4 Johnson said.
-I t is a question of whether'I had any other 5
comments on the refinement of issues?
6 M R.
JOHNSON:
Is Mr. Hickey prepared to respond 7
further is what I am asking really about the other matters?
8 MR. HICKEY:
I would be glad t o, Judge Smith.
I have 9
some other thoughts from looking at the refinement of issues, 10 if this would be the appropriate time.
11 wwdGE SMITH:
Well, do you want to break for lunch, 12 is it convenient.
I do not want to push you into, I know that 13 you will not be pushed into making comments on these issues 14 until you are ready to, but I want to make it convenient for
[
15' you.
16 MR. HICKEY:
It would be more convenient for me after 17 lunch, but I can do it now if you prefer.
18 JUDGE SMITH:
I think that probably it would take us 19 perhaps another hour and a half to finish the agenda items.
I 20 will leave it up to the parties.
21 Do you want to break or do you want to continue?
i 22 M R.
HICKEY:
I think given the situation that it 23 would be appropriate to break.
It is noon.
1 24 JUDGE SMITH:
That is my preference.
Let us break
(}
25 and return at 1:00.
L Heritage Reporting Corporation (202) 628-4888 l
l L____-________-_____
- q -
-P92-1 (Whereupon, at 12:00> noon, the hearing recessed, to' I
~
~2-reconvene:at 1 : 00 p. rn.,- thi_s sarne day. )
3
')
- l 4
5 6
7 8:
9-10 11 12 13
' 14 15 16 17 18 19 20 21-22 23 24 25 I
Heritage Reporting Corporation (202) 628-4888 l
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-A~F T E R N O O N SESSION LO 2
(1:00 p.m.)
3 JUDGE SMITH:- During the lunch break, I sat-down and 4
wcat over the issues-and reread the notice of violation, so 5
that might be in a little bit -better position to discuss them, 6
I will wait to' hear _-from you,. Mr. Hickey.
7 MR. HICKEY:
I was prepared to go through the
'8 refinement of' issues statement and make what comments.I had and 9
concerns about it, if.that is agreement.
10 JUDGE SMITH:
Okay.
11 MR. HICKEY:
Item one, the language-that starts-on 12 the second line, "-- as a result, from membership on the Test 13 Working Group - " seems to me to assume a fact that is in 14 dispute.
15 JUDGE SMITH:
In dispute.
I assumed'that from your 16 answers to some of the submissions, that that would not be
-17 conceded.
18 MR. HICKEY:
The notice of violation also charges 19 that the discriminatory act was removing him as alternate 20 startup and test supervisor.
21 JUDGE SMITH:
So would you be satisfied, for example, 22 i f 'i t said the removal as alternate startup and test supervisor 23 and whether as a result of that -- you know, I think that it is
)
24 a matter of language.
I mean you can go through and condition
()
25 all of these things and still come up with the issue, but that L
Heritage Reporting Corporation I
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is an issue,fa factual issue, and I do not hear Mr. Johnson
<O 2~
saying that it is not.
l 3
MR. HICKEY:
I understand, but I thought that what we
.4 were trying to accomplish this afternoon was to identify where.
5 the issues are in here'and'I agree.
6 JUDGE SMITH:
Yes, okay.
7 MR. HICKEY:
I do not say that it has to --
8 JUDGE SMITH:.You do not want at the same time to;go 9
'through and clean it up?
10 MR. HICKEY:
That would be fine with me, I would be 11-glad to.
12 JUDGE SMITH:
Oh, if we can, we might as well.
13 MR. HICKEY:
Yes.
It seems to me that you can strike 14 it from "and,-as a result" and siuply say whether the removal 15 of Parks-as alternate startup and test supervisor was 16 retaliatory.
Because if you find from the evidence, Judge 17 Smith, that that' position included, or was thought to include, 18 or might have included, or under some circumstances might 19 include membership on the Test Working Group, then you can 20 consider that evidence in deciding whether the removal was 21-discriminatory.
22 But I do not think that anyone suggests that there 23 was a separate act directed at the membership on the Test 24 Working' Group.
U( ).
- 25 '
MR. JOHNSON:
Let me correct that statement.
That is Heritage Reporting Corporation (202) 628-4888
295 1
-a misstatement.
Mr. H'ickey knows that we contest that.
.They yg U
~2' take the position which.is contrary to the evidence in our view 3
that it is not involved.
But that is beside the point, Your 4
Honor.
What this is is a statement of an issue.
.And I think 5
that your observation when it started was'a good one,' that this 6
states'the issue.
That it does not mean that he concedes the 7
fact by stating an issue.
And it is our position that stating 8
'it in this way correctly states the issue.
And we are not 9
going to agree to modification, because we think that would' 10 represent a-concession on our part.
11' MR. HICKEY:
Well, if the understanding is.that 12 stating-it.as an. issue does not -- my concern is that when you 13 state an issue that implies facts without stating that those
()
14 are contested, that suggests that there is an agreement to 15 those facts.
I do not agree to that.
16 JUDGE SMITH:
Well, I recognize that you are being 17 very careful, and I think that this is the time to be careful,
'18 and-to carefully describe the reach of any agreement as to what 19 the issue is.
And it does seem to be me as I listen to you 20 that I do not see a dispute as to what the issue is.
I can see
.21 why you are nervous, and that you would like to have some more 22 "whethers" sprinkled in there.
But I do not see you agreeing 23 to any other factual predicates of that issue.
24 MR. HICKEY:
I understand that and I appreciate that,
()
25 Your Honor.
I am just saying thab I do not think that it is r
Heritage Reporting Corporation (202) 628-4888
296 1
. desirable or fair when'we. focus on the issues for the hearing.
2.
to have them stated in a way that assumes facts that' assume'the 3
Government's view of the evidence.'
So I would suggest that
- 1..
4
.yes, either we put in "whether" or we'take it out or we do 5
something to reflect.
6-
' JUDGE SMITH:
As we go through.this,-you would not
-7 dispute that he was removed as alternate startup and test 8
supervisor?
9 MR. HICKEY:
Oh, no.
10 JUDGE SMITH:
So then we can make a sub-issue.as to 11 whether as a result of that removal he was removed from
.12' -
membership from the Test Working Group, you could do that, 13 could you not?
[ }_
14 MR. HICKEY:
Yes.
25 JUDGE SMITH:
Well, I do not know if-I am the. person 16 to be doing this, but it seems to me that now you have 17 expressed your concern in what you want that you and Mr.
18 Johnson can clean this up and put it in language that does not 19 require you to implicitedly endorse any facts or accept any 20-facts that think are in dispute.
21 MR. HICKEY:
That would be fine.
22 JUDGE SMITH:
I think that you could do it more 23 carefully at leisure than I can do it here.
24 MR. HICKEY:
Well, I am agreeable to trying to do
()
25 that, Your Honor.
Heritage Reporting Corporation (202) 628-4888
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JUDGE SMITH:
You should be able to do that, Mr.
c i:
. Johnson, do you:not:believe?
~
2
)
3' MR.-JOHNSON:
I am dubious, Your Honor.
4 JUDGE. SMITH:
Really?
5' MR. JOHNSON:
We have been unable to this point to
~
6' arrive'at stipulations.
We sent.GPU last October, I believe it 7
w a s,: and maybe it was November, nearly a year ago, requests for 1
l 8
stipulations to.which'they did not reply.
Our experience with j
9 the request for admissions, our negotiations on, stipulations in
~10 connection with~the Beach deposition, did not lead me to 11 believe or to be hopeful that we could arrive at a mutually
)
~
12 agreeable definition.
I.will certainly try, if that is what 13 you direct us to-do.
'14 JUDGE SMITH:
Well, I do not want to direct you.to'do i
([
15 lsomething if you do not do it cheerfully and with some feeling 1
16 that it is worthwhile.
But it seems that in this room when we 17 get together that we are able to achieve these things, as we 18 were almost able to do it right now.
And I am not so Solomon 3
19 like that I am giving insight that you.do not have yourself.
20 MR. JOHNSON:
Well, my point is --
21 JUDGE SMITH:
If you want to sit down right now and 22 work it out, let us do it.
It might be a good thing to do.
I 23 have not seen any difficulty in this room to Get together and 24 working out understandings, and stipulations, and agreements.
If) 25 I have seen the positions of the parties harden, and I-have l
Heritage Reporting Corporation (202) 628-4888
a 298 1
seen the attitudes and the professional relationships 2-
-deteriorate.
I think that you'are making the job'a:little bit 3
harder than it~should be than it is.
4 MR. JOHNSON:
I understand why you have'that i
.5 impression, but I really do not think that is the issue.
The 6
issue'is mot professional relationships-here.
The question:is
'7
. positions'of the parties and their ability to-negotiate.
And I 8
'would be glad to do it right here, and I think that it might i
9 bear fruit'here, but I do not think that it is going to bear 10 fruit outside of the room.
Simply because GPU's lawyers and 11
.the company through their lawyers are taking a position that 12 they. concede nothing.
13 JUDGE SMITH:
I do think that we do have this
]}
14 problem.
That the NRC staff, and the presiding officers, and
.15 everybody who is practicing in the NRC are not accustomed to a 16' hard-nosed case where the staff is going to put on its-proof, 17 and as you see from the proposal they will wait until your case 18 is put on before they are even required to proceed.
This is l
19 because we are not accustomed to enforcement work, but we are 20 accustomed to licensing work where they have the burden and 21 they are required to come in and be more cooperative.
22 I do not see their position as being out of the 23 ordinary if we'were in the United States District Court and 24 there were a civil complaint.
I would think it to be rather
()
25 ordinary, the aspects that I have seen of it.
Heritage Reporting Corporation l
(202) 628-4888
299
-1 MR. HICKEY:
May-I just add, Judge, that whatevyr Mr.
h 2
Johnson's view about.the. positions taken by GPU Lor its counsel,
~
II it'seems to me.that he ought to anticipate that the statement l
4 of issues is something different from concessions on facts.
5 And what-you said earlier was that if we.put in.some 6J "whethers"..For example, the specific example that you just 7
made, if we say whether.as a result.he was removed from B
membership on the Working Group.
My response to that was. fine, 9
I think'that ' takes care of it.
10 MR, JOHNSON - Is that the only objection that he has?
11 MR. HICKEY:
No, that is not the only objection-that 12 I have.
13-JUDGE SMITH:
But that type of cleaning up.
L/'\\_
14 MR. HICKEY:
But I quote it to suggest that there V
15 ought to be some greater room to state issues in agreement that 16 they are issues than there may be to agree on facts.
It is 17 true that we have not agreed with and do not agree with.the 18 characterization of the evidence that the staff asked to sign 9
19 up for through requests for admissions, so we denied them.
20 If that is viewed as uncooperative, so be it.
But that is a 21 different issue than what we are doing here.
-22 MR. JOHNSON:
That would be fine.
You know, I do not 23 want to get into an argument about that.
If they would deny 24 something unequivocally, fine.
We were looking for admissions
()
25 or denials.
The problem is not with that.
Let's get on with Heritage Reporting Corporation (202) 628-4888
'300' 1
this.
OL 2
I do not see any problem with what'you Just proposed,
_3 what~Mr.LHickey~ proposed.
I am not prepared to say that they 4'
have to agree to the supposition which tme feel is 5
uncontrovertible, but we do not have to get their 6'
concession / admission here today-to state this issue.
We.
7
.believe that the evidence will show that as a' consequence of
~
8
. removing Mr. parks as alternate startup and test supervisor 9
that that was tantamount to removal as a member-of the TWG, but 10 we can state this as a "whether".
I do not have any objection 11 to that.
12 JUDGE SMITH:
You see, you think he added every issue 13 as a "whether".
And I would be comfortable from by perspective 14 to accepting that, and assuming that every factual predicate, 15 you are always on your prsof, and accepting this as an issue 16 does not admit any other factual bases of the issue.
So you 17 can put the "whether" at the'beginning which to me applies to 18 every clause all.the way through, the factual clause, or you 19 can sprinkle some more "whethers" in as you see fit.
I do not 20 think that it makes any difference.
21 I think that Mr. Hickey has made it clear that to'the 22 extent that he is willing to aDree upon issues does not in any 23' way waive his right to have the facts established.
The purpose 24 of this refinement and this exercise now is not to stipulate
-25
'f act s.
That will be another exercise.
It is to stipulate
}
Heritage Reporting Corporation (202) 628-4888
-301 1
. issues without any agreement that the. factual predicates a;*e as 2
stated.
3 With that understanding, can you accept the issues?
4 MR. HICKEY:
I have to add a couple of additional 5
concerns about the issues, Judge, even with that understanding.
6, First' of all, as it is phrased, it'says whether this removal 7.
was to any extent motivated by ' the f act that Parks had raised-8-
concerns, et cetera.
I think that implies that the test that 9
you wil'1 be asked to evaluate the evidence it, light of is
.10
.whether there was to any extent any retaliatory interest or 11 i nt e nt ~.
I do not think that is an accurate statement of the 12 ~
legal standard.
13 And I do not think that it is desirable or fair to jf 14 have us start off the hearing and say, well, here are the 15
-issues and let me then later argue that it really should not be 16-whether it is to any extent when we have Just spent the last
- 17' period of time assuming that the issue was whether it was q
q 18 motivated to any extent.
19 So I think that it has maybe only implicit, but I 20 think it can have an effect.
That is why people, especially 21 lawyers, like to have some role in stating the questions as 22 well as the answers to the questions.
23 JUDGE SMITH:
Well, how would you modify that phrase?
24' MR. HICKEY:
I think that the appropriate legal test
.()
25 is whether this removal was substantially motivated by, or to e
Heritage Reporting Corporation (202) 628-4888 L
a
.l 302 1:
turn'it around whether'the compliance.with these' things was a 2
substantial factor in the decision to remove.
3 JUDGE SMITHi Or to any substantial extent.
~
4 MR. HICKEY:
But'it is different than to any extent.
5 JUDGE SMITH:
Yes.
6 MR.. JOHNSON:
We are not going to resolve this, and 7
we are not going to agree to restatement in that way. 'And by 8
the same token, they do not agree to our statement.
But it 9
seems to me that this is not necessarily the last statement of 10
'the. issues.
As part of the schedule' that we are going to get
.1 1 -
t o,. I was going to propose that we address these legal issues 12 prior to trial..And once'you decide those issues, hopefully 13 prior to trial, we can redefine if necessary.
l()
14 JUDGE SMITH:
When I decide the issues.
15 MR. JOHNSON:
Yes.
In other words, there is a legal 16 question.
I do not disagree that there is a legal question.
17 We believe that the case law for this kind of case is quite 18 clear.
I do not know where Mr. Hickey's argument is coming 19 from, but I assume that he would propose a basis for it.
20 Assuming he does and we substantiate our test which 21 we have already presented in outline to you at the first 22 prehearing conference that you will decide, and that this issue
' 23' can be restated.
It may be that this is not productive.
I was 24 trying to be helpful here to narrow the issues, to redefine
()
25 them, to help the presiding officer in the way that I thought l
!j:
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ll
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.1 the presiding. officer wished to go.
O 2
If it is not productive, we are prepared to stand on 3
the general statement at this time, and leave this. redefinition to a.later time.
4
-5 JUDGE SMITH:
I am not complaining about what you 6
did.
.I recognize it also as being helpful, and if anything a.
7.
narrowing or I thought that it was a narrowing.
I am not so.
8 sure any.more.
9 MR. HICKEY:
Judge Smith, maybe that is a fruit ful 10 suggestion.
Let me Just say that I do not know what use you
~
~
-11 intended to make.now of any narrowing of the issues.
But iffas 12 Mr. Johnson is going to propose and as we are in agreement with 13 there should be a presentation to you of legal arguments on the
-14 issues, like what is the burden of proof and what kind of
(
15 causal connection must be shown between retaliation and so on,
.16 maybe the more fruitful way to approach it is we will file 17 these legal' briefs, and.you will rule that the standard that 18 you are going to apply is X in this case and Y in that case.
19 And then guided by that, we will state the issues 20 with that established as kind of the law of the case, I guess 21 is what I am saying.
22 JUDGE SMITH:
Well, I guess that is all right.
On 23 September 3rd when I issued that call for this conference, I 24 was sort of hoping that is what we would do today.
And that
}
25.
this would be the last conference before we go to hearing.
And Heritage Reporting Corporation (202) 628-4888
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1 i.,
304 1.
that the issues would be refined and that they would be heard 2-on thn. basis of that refinement.
3-
'Since I have issued this, I.have problems myself that 4
I will take up with the' parties about my time and my schedule, 5
and it may be that a further stage or. a further refinement of 6
issues.
7-JUDGE SMITH:
Specifically, what do you propose?
8 Make a concrete proposal, Mr. Johnson.
Do you propose a brief 1
9 on what you believe the issues should be now, after discovery?
10-
. MR. ~ JOHNSON:
No, that's not exactly what I had in 11 mind.
I had 'in mind aidiscussion of the legal questions that I 12 presented today as-a result-of over a. year-of discovery among
-13 the parties here.
14 I think the parties know what the respective q
'15 positions to each other are and, based on the type of discovery 16 that was taken. what kinds of legal positions they wish to 17 take.
18 Not a legal basis necessarily, therefore, but the
~
19 kind of proof that they-seek to adduce implies a legal 20 standard, and legal positions like defense of some issues and 21 sub-issues.
22 And specifica]Iy, the applicability of the Mount 23 Healthy,- Board of Education versus Doile casei and one of 24 D. O. L.
cases, dual motive cases, to this proceeding.
. ( )-
25 The allocation of the burdens of proof as it's Heritage Reporting Corporation (202) 628-4888
305 1-discussed there and to the extent to which it applies to our l
=
'2 proceeding and '.if.it's extinguishable' at all from an 3:
enforcement case of this sort, for example -- that's one issue.
4 There are issues dealing with what I perceive, based 5
on discovery, to be the defenses ' chat GPU'is going to put.up.
6 with regard.-- they focus on Mr. Parks.
7 As they have, in the course of-discovery, sought to 8
shift the focus of this litigation from their own motivation to 9
Mr. Parks' motivation.
10 And I would like before trial to know your position 11 on the admissibility of evidence going to his motivations.
12 Specifically, to what extent his motives are relevanti to what 13 extent whether'he was correct or incorrect in his allegations
[}
14 of safety complaints is relevanti and that kind of testimony.
15 Is that kind of testimony relevant?
And at what 16 point, if any, is the characterizations that he may make in his 17
. complaint -- in his allegations -- relevant information?
18 And does it ever go to the question of whether this 19 activity that he was engaged in -- this protective activity --
20-I think we should address those in legal argument before the-21 trial so then we know, when we put up our evidence, we know 22 what's relevant.
23 That's what I had in mind.
24
_ JUDGE SMITH:
Okay.
If you' re not prepared to 25 address it'today, t h at ' s fine.
I didn' t quite appreciate that L
/}
i i
Heritage Reporting Corporation (202) 628-4888 r:
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the issues were that. difficult to identify.
%)
2 MR. JOHNSON:
Well, we can identify them.
But I 3
think'in order for you to decide the issue in a way you 4
probably would like to do iti you would like to have citations 5
and that kind of thing.
6 JUDGE SMITH:
Yes, I want to do it carefully.
Yes.
'7 '
I Just -- say, I' m a little bit disappointed.
I Just' thought 8
we were ready.to go to trial today.
9 But if you think it's necessary, why don' t we have a 10 briefing opportunity on it?
Certainly, the more you have to 11 state about your legal theory on it, the better off Gpu is --
12 the better notice that they have.
13 Except, -you' re talking now about the validity of
()
14 their defense.
You want rulings in aJvance on their defense.
15 MR. JOHNSON:
That's correct, sir.
I think that the 16 law is fairly straight-forward on the question of what kind.of 17 proof goes to these cases, but there's disagreement about it.
18 JUDGE SMITH:
Okay.
What do you wish we do, then, 19 have a briefing schedule?
20 MR. JOHNSON:
Yes, I would propose that we establish 21 a date for filing of positions on legal questions that should 122 be decided prior to trial with regard to the allocation of 23 burden of proof and nature of defenses,
'24 JUDGE SMITH:
Now that you've arrived at that p
j
)'
25 position and principle, and I don' t hear you objectingi I don' t Heritage Reporting Corporation (202) 628-4888
(
.307 1
.think you could,-really.
,G 12 MR. HICKEY:' No.
If it would be helpful, I thinkJ 3
-there are a few other legal issues that also ought to bei bepreparedt$ identify, 4-addressed, that I at least, in our 5
Judgement as-warranting --
6 JUDGE SMITH:
Be identified today,-and'brief them.
7:
later you mean?
8 MR. HICKEY:
Yes, along with burden of proof and 9
these defenses.
Maybe this-is.all implicit in -- Mr. Johnson 20' was speaking in kind of shorthand terms.
11 But the burden of proof issue, as I sometimes 12.
characterize it myself, includes a couple of items.
One of.
13 them i s, which party has the burden of going forward, and as.to
()
14 which issues?
15 And which party has the burden of ultimate 16 persuasion?
It's not necessarily the same on every issue in 17 the case.
18 I may have it on somei he may have it on others.
And 19 it may change during the course of the proceeding.
That's what 20 I mean when I talk about burden of proof issues.
21 I think there is an issue about the standard of proof 22'
-- that i s, what quantum of evidence, whoever has the burden of 23 producing it, what's the quant um that you have to find in order 24 to make a finding?
()
25 Is it a simple preponderance standard?
Is it clear i
Heritage Reporting Corporation
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and convincing evidence because of the nature of the charges?
i
~
2 Isam aware of at least one~other'NRC case where it has'been i
3' indicated that clear and convincing evidence is the appropriate 4
'{
5-JUDGE SMITH:.
In the enforcement?
6 MR. HICKEY:
There's no enforcement case that I.can l
7
' find.
This'is in the TMI Leakrate proceeding which described -
8
- this goes on enforcement,'but --
9 JUDGE SMITH:
- Okay, i
10 MR. HICKEY:
-- And there is other case law outside i
11 the NRC'as well.
12 JUDGE SMITH:
I think that -- all right,.that's' fine.
l l
13 I do want to hear your briefing.
I think that' you' ll find:in
)
14 the civil penalty cases that the Peer Board has said'that-the-15 Regular Administrative Procedure Act standard, preponderance of 1
16 the reliable appropriate amendment, with substantial evidence, l
l 17 would be adequate in a civil penalty case.
I 18 And I' m not sure about the. citation.
It could be l
19 radiation technology.
.20 MR. HICKEY:
Yes.
That case does say that in a l
21 review by the District Court of the civil penalty order of an
-l 22 agency, that that's what they will apply.
l i
23 JUDGE SMITH:
And this test to be applied by the 24 agency internally too. 'But why, I ' only asked -- that's the way
- f 25 I'would proceed unless you convinced me otherwise.
4 I
Heritage Reporting Corporation (202) 628-4888
309.
1 MR. HICKEY:
I' understand..
But I was Just saying I 2
thought it was an issue that ought to be addressed.
3
' JUDGE' SMITH:
Yes.
i.
4 MR. HICKEY:
This issue has been suggested by some 5
discussions Mr. Johnson and I have had as well.
That is, what 6
constitutes protected activity?
7 And I1think there are a_ couple of legal issues 8-relate'd to that.-
9 JUDGE SMITH:
All right.
Now, I might. invite some 10 guidance'along that line because I have some questions of my 11
.own that I have.been troubled by.
.12 First' place, if there's a dif ference between an 13 action at the Department.of Labor in which the beneficiary of-()
14 that action,, conceivably, is the protected employee, or an
~
15 employee Who.needs to be protected, and the NRC where it's the.
16 public Health and Safety regulation which is the objective --
17 should there be'a difference?
18 And-that might give rise to an argument that a 19 different standard of protected activity might exist in two 20 different agencies.
-21 Here we might find that even a corrupt purpose --
22 racial discrimination, or whatever, was the motivation behind 23 adverse actions against an employee, so long as there's not 24 protected activity under the Energy Reorganization Act, that's
'( )
25-none of our concern.
Heritage Reporting Corporation (202) 628-4888'
310 11
. Department of Labor might:not accept that type of a l
)
2 defense.
I don' t know.
But if there's a difference, I' d like 3
to know it.
Go ahead.
4 MR. HICKEY:
One issue that has been' addressed by the 5
Courts, and may have come down on both sides is.the extent to 6-which internal complaints, or internal activity not involving 7'
reports to the NRC is covered by the act.
8 There are decisions of the United States Court of 9
' Appeals on both sides of the issue.
Some say the act is 10-intended to apply, to protect reports to the Nuclear Regulatory
'11 Commission.
12 Only other cases say noi that if you are making the 13 report as part of internal reporting procedures, that's
()
14 protected as well.
But that's an issue.
15 JUDGE SMITH:
Would that be in the same flow of 16 pleading to the NRC, or Just for the only -- let's say that you 17 could address it, but this is one of the things I would want to 18 focus in.
19 Let's say that an employee is required to report to 20 his supervisor safety concerns for dual or ultimate purposes.
21 One i s, what everybody makes of them, and others is to comply 22 with NRC regulations, as compared to a requirement to report 23 without regard to NRC regulations.
24 MR. HICKEY:
I' m sorry, Judge Smith, I' m not 25 following the point you' re making, o
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.1-JUDGE' SMITH: lWell, a company can have'its own
.O 2l requirements of reporting' safety concerns which_ exceeds the 3'
. requirements'of the regulations.
4 MR. HICKEY:
Yes.
5' JUDGE' SMITH:
That would be the distinction L I' d want 6
you to focus on.
If we' re talking about expressing complaints 7
. internally.
8 MR. HICKEY:
One other sub-issue about internal 9
complaints, I think, is characterized fairly as relating to the 10L manner in which the complaints are presented in terms of the 11 degree of formality.
12 Take, for example, a quality cont rol. inspector who 13 spends his working day, everyday, involved in quality
(
14 activitiesi that's what he does 'as part of his. Job.
15-Even assuming you would find that when he files a 16 non-conformance report, or some kind of other proceduralized 17 document to identify a problem -- even assuming you would find 18 that was protected activity, would you have the same rule about 19
'a conversation he has in the hallway with his coworker when he 20 makes a comment about something not being right, or.some j
21 deficiency in the quality?
g
'22 Is there some reasonable requirement of formality 23 before internal comments can be treated as protected activity, j
l 24 or should there be?
(
25.
Mr. Johnson has suggested, already, the issue about Heritage Reporting Corporation (202) 628-4888 L____________________-._____________-____
b
'312-1
. the extent to.which 'the employee's state of mind is relevanti 2
his motives, his' knowledge of the accuracy of the complaints.
3 I think, he may eventually, include this.in it, but 4
there is clearly another issue iHat 'the cases have recognized u.
5 of the extent t o which : -- I' m sorry.
They recognised the 6
' relev%nce' of the manner and method in which the employee '
<a
,t j
'?-
presents the complaint..
8 So that.for example, if an employee has a complaint 9
about'some safety related activity, and chooses to present..it 10 by assaulting his foreman, cases hold.that that'is'not 11 protected activity -- not because the subject matter isn' t '
12 worthy of protection, but because the manner of advancing'the 1
13 complaint was inappropriate.
14 And lastly on that regard, there are cases that 15 reflect that some management responses that are appropriate to 16 the problem created are acceptable even if they were related-to 17 protected activity.
18 And one case l'am aware of< involves an employee who 19 filed a civil lawsuit against his foreman, claiming that the 20 foreman was harassing him and, for safety reasons, treating him 21' unfairly, and so on.
I 1
22 And the employer transferred the employee.
It was 23 obviously because of -- conceded to be because of -- the fact
{
24..
that the employee had filed a civil case against his foreman.
25 But the motivation,; c.1though it was caused by the Heritage Reporting Corporation (202) 628-4888 i
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~
313 g
i F.
1 activity, was thouDht to be :a reasonable response to deal with I
k B i. e< g.it. I think you may have suggested something-similar, Judge 3
Smith, when you raised the issue about the health and safety 1
4 factor being, perhaps, a consideration at the NRC level, that 5-it wouldn' t be at the Labor Department level.
(
S:
So,. those. issues seem to me to be the ones that are 7
'on.the table.-
I already mentioned earlier the causal 8
relationship: what degree ofLeausation do you have to find 9
between.the protected activity and the discriminatory.act?
'10 Because the: case, i think, say that i f, for example, 11 the employer shows'that it would have happened anyway then it.
~
12 may not matter that it was motivated improperly.
13 The example is the case where someone decides to fire
(}l 14-someone. improperly for retaliatory motives, and in the course 15 of implementing that decision,' discovers that the employee has 16 falsified his. resume, an offense for which every employee who 17 has ever been detected has been fired consistently over the 18 last three. years.
.19 So, they fire this employee too.
Even assuming the 1
20 motive is improper, some of the cases suggest that because it j
21
-would have happened anyway, for a.non-retaliatory reason, then 22-there's no discriminatory act.
23 So, those are the legal issues that I have been able 24 to identify and that I put out in the hope that it will help us J
25 all address them.
Heritage Reporting Corporation (202) 628-4888
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1-JUDGE SMITH:
Yes, certainly being briefed on those l
i 2
issues will be very. helpful to try the case.
So, we' ve agreed 1
~
3 then, I'believe, to. provide for the briefing then?
4 MR. JOHNSDN:
Just in a brief response to what Mr.
5 Hickey was saying, we do feel there are distinctions to be made 6-between employee remedy cases and enforcement cases.
7 And the suggestion in one of the'last citations or i
i 8
positions that Mr. Hickey stated had something to do, I believe 9
- ~ I was ' thinking the same case he's thinking of -- with the H
10 context in which the complaint was raised.
l' 11 I know there's one case that deals with the FBI o
L
.12 internal to the FBI.
I don' t know if that's what he was l
l 13 referring to.
()
14 And the case looked at free speech situations to the 15 context of the government agency and its work, and public 16 purpose to be served by the agency -- the agency's work versus l
l 17 the.right to speak out.
18 That doesn' t necessarily apply in this case.
That's 19 the kind of thing that could usually get explored in this kind i
I 20 of discussion.
4 i
21 MR. HICKEY:
I agree.
i 22 JUDGE SMITH:
We' re going to need another prehearing
]
23 conference.
All the people that are here, it's relatively easy 24 to accomplish it.
j()
after the briefing, to
'25 Might be better to have it Heritage Reporting Corporation (202) 628-4888
315
-1 take up-the other matt ers, stipulations.
Are you prepared for l
' O 2
evident iary stipulat i ons yat ? -
F 3
MR. HICKEY:
We' ve exchanged drafts and responses.
4 If your question asks whether we have a written one today, we
~
5' do not.
6_
JUDGE SMITH:
And I guess we' re not ready to talk 7
about yet the date,' place, and expected length of evidentiary i
8 hearing.
/t 9
But it would_be very helpful to me if you could get 10 me a nonbinding rough idea of what_you expect, how long you 11 expect the case to be if it goes as planned now.
12 MR. JOHNSON:
Your Honor, I think perhaps another 13 prehearing' conference Just before the heering might be useful
()
14 just to set up the nitty-gritty of the way we go forward.
15 But to expect, realistically, that there will be 16 substantial stipulations of material facts that go to the key 17 elements of proof in this -- again, I said this before but I 18 think it's dubious.
19 Mr. Hickey and I discussed at some length what you 20 intended by number four, evidentiary stipulations -- a cast of 21 characters.
22 I think we both agreed that we could agree on a list 23 of the people who were involvedi what their roles are, 24 positions arei what the relevant time frame is -- neutral
()
25 things that we can agree upon.
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' JUDGE SMITH:
'You can also agree on neutral things,
' O' 2'
andEthen.you could have sub-stipulations -- according to you, i
.3 this guy was automatically a part of the test-working group.
4' To Mr. Hickey he was not -- that type of thing, i
1 5
Don' t do what you can' t. do.
But stipulate what you 6
can because there's a lot of characters.
And of course I' m 1
7-becoming familiar with them now.
8 But I want to see this case in a situation where it I
9 can be turned over to another presiding officer, pretty much 10 rapped up and ready for hearing if that should be necessary.
.11 And that would be very helpful because you' ve talked 12 about a lot of people,-I knowi these facts are confusing.
13 MR. HICKEY:
Am I correct, or.is Mr. Johnson correct
()
I share his impression -- that what you really contemplated
.14 -
15 with regard to Item 4 is something that before Mr. Kibler, for 16-
. example, takes the witness stand to testify, you would have had 17 in hand, and could read that Mr. Kitler held such-and-such a 18 position, and he had been involved in the hiring of Mr. parks, 19 and he had been at a meeting on X date, and issued a 20 memorandum, and so on?
21 JUDGE SMITH:
That's right.
Yes.
It's not only for 22 guidance, when it comes time for him to testify, but it makes 23 the writing of the decision much easier too, for everybody.
24 You know, here's what Kitler has to say, and right p ()
25 away we know from one citation who Kitler is and what he's Heritage Reporting Corporation
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'done, and without'looking'through the' transcript for-it.
"c p
L "7
2 It 's hel pf ul.'
It's helpful to somebody who,. as I 3
say, has to take over the case -- we always have to account for 4
.thisi I' 1'l get to that ' '-- provide for this, i f somebody takes 5
over the case fresh.
6 MR. JOHNSON:
Your Honor, to the extent it involves-7 characterization of role in the violation, I don' t think we' re 8
going to be able -- I' m j ust.trying to --
9
-JUDGE SMITH:
I see that.
I see that you' re not 10 Doing to be able to do it.
11 MR. JOHNSON:
To the extent that it involves 12.
identification of statements, maybe we could<do that.
In other
.13 words, all I had talked about with Mr. Hick was -- Mr..Kitler,
()
14 he was the start-up and test supervisor from this state to-this 15
'statel Mr. Parks worked for him or reported to him.
16 Beyond that, I' m not sure -- oh, or he spoke to Mr.
17 parks'on a-certain dayi he removed Mr. Parks on another day.
18' That, perhaps, we can agree upon.
19 Beyond that I' m not sure.
Mr. Kitler also testified.
20 JUDGE SMITH:
Well, don' t try too hard on that.
I 21 mean, you' l l be wasting your time if you try too hard.
22 MR. JOHNSON:
That's what I' m concerned about, Your 23-Honor, because this type of negotiation is very time consuming.
24 JUDGE SMITH:
Well, I don' t intend that.
I just j
).
25 intend a shorthand guide to who's who -- who are these guys?
I Heritage Reporting Corporation (202) 628-4888
318 1
What were their Jobs?
10
~
2 And I became much more aware of how difficult that 3
would be when I read the responses to the request for 4
admissions, you know, that Mr. Hick is very careful in what_he 5
concedes to.
6-And he's worried about characterizations that will 7
come back to haunt him.
And I understand that.
I' m not a
criticizing that.
but you can at least agree 9
So, if you can' t do it 10 as to what their nominal titles were.
Yes, you can do that.
11 And then you'see, furthermore, I' m going to be asking for trial 12 briefsi and to the extent that you can' t stipulate who people 13 were, you can set out in your trial brief who you think they
()-
14 were without having to get anybody's agreement on that.
15 That's always your fallbackl it's our fallback here.
16 If we can' t get agreement as to issues, okay.
We' ve all made a 17 good effort in trying to bring it about.
18 Now you can state the issues your own way in your 19 trial briefs.
20 MR. JOHNSON:
Your Honor, the schedule that I -- if I 21 could Just tell you the way in which I envisaged this thing 22 unfolding, and maybe that would be a starting point.
23 And I understand Mr. Hickey's recent letter of Monday 1
24 that he' s got various ideas about which the way in which this
()
25 will unfold at trial which we don' t necessarily agree with.
Heritage Reporting Corporation (202) 628-4888
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But what we anticipated would be to schedule --
2-something like this legal' brief that we' re talking about would 3
'be filed on November 15, or on or about that time.
4 And our responses would be due 10 days.later, taking 5
into account Thanksgiving, however it falls, so.that each party-l 6
has the ability to respond to the arguments of the other.
7 Allow two weeks for a decisioni if longer is in the Jud e's discret ion.
The 8
required, then of course it's D
9 testimony would be filed shortly after your decision, to the 10 extent that pretrial testimony was to be filed.
11 Or, in place of, if it were determined '-- and we feel 12 that there are certain circumstances in which pretrial 13 testimony is not appropriate,
(}'
14-The trial plan, with the statement-of generally what 15 the case is, what theJwitnesses are being called for -- subject 16 areas of their testimony, and how the case unfolds.
' 1 '7 I think your trial brief, in lieu of pretrial 18 testimony at that point.
That pretrial testimony would be 19 filed simultaneously.
20 And that pretrial testimony would be filed by parties 21 for witnesses under their control, only.
For example, the 22 staff wouldh't be required or expected to submit pretrial 23 testimony for a witness who is adverse to it, or which is 24 unable to participate in writing testimony.
()
25 And prior to trial, we would have whatever pretrial Heritage Reporting Corporation (202) 628-4888
320' i
testimony there would be.
And that we would start the trial.
'o 2
'somewhere, certainly after the beginning of the year.
3 JUDGE SMITH:
That's exactly where we were a year ago1 j
4 about this time, 7.believe.
No, we were, really, SprinD-We 5
set the year within a year.
i 6
MR. JOHNSON:. I think we underestimated, perhaps, how 7-complex this case was going to be.-
8.
JUDGE SMITH:
.Yes, indeed.
9 MR. JOHNSON:
But given where we are now, and I don' t 10 have to remind you that we' ve had several dozens of 11 depositions.
12 And there may be an extended number of witnesses in 13 this proceeding., The staff, as.part of this, proposed 14 yesterday I think it was -- the GPU -- that we set at date 15 certain for final identification of witnesses.
16 And that would be approximately -- I forget what we l
17 agreed upon.
The date was October 19th, I believe, that the 18 staff would designate its witnesses, which i s, essentially an 19 update of our discovery obligations, but a finalization of it -
j 20
- the fixed matter of parameter of who or witnesses are going j
21 to be, and what the substance of the testimony is, and that 22 they would respond.
23 GpU, after seeing ours, they would respond 10 days
'24 later on the 29th with their final witness list.
At the same l
25 time, we will have the motions from us on the admissions from Heritage Reporting Corporation (202) 628-4888
321 1
lthem, apparently,. on the q'uestion of-summary disposition on the 2
second' count -- the Quilltec count.
3 And then the legal briefs would followi once that 4
decision is inade, the pretrial testimony, of in lieu of their 5
pretrial brief explaining the. proof, and then trial.
6 JUDGE SMITH:
Okay.
You' re going to have -to go 7
backwards.
8 M R.
JOHNSON:
And one further point -- and one-more 9
point, which'is -- it was our estimation that although it's 10 impossible to say with any great' degree of precision about the 11 length of the hearing, we would feel that.a day of witness 12 would tend to approximate the length of the area.
13 JUDGE SMITH:
So, what are we talking about?
]}
14 MR. JOHNSON:
We' re t alking about -- the st af f '
15 deposed approximately 2 dozen witnesses, and we would'probably' 16 be calling all of them, plus a few more we haven' t called as 17 deponents, but we will identifyi-in addition to witnesses that 18 GPU is identifying.
19 So, we believe we have several dozen witnessesi 20 perhaps approximately 30 witnesses in all -- maybe a little bit 21 more.
22 JUDGE SMITH:
Thirty day hearing.
23 MR. JOHNSON:
Yes, sir.
24 JUDGE SMITH:
That's a 30 day hearing.
And we' ve
()
25 licensed some of the most largest, most complex licensing cases i
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in lessDtime than that.
I 2
You can' t help it, I know.
The facts dictate what 3
you have'to do with them.
And that's a big hearing -- that's a 4
very' big hearing.
5 MR. JOHNSON:
Well, we think it's an important 6-matter,.Your Honor..
7
. JUDGE SMITH:
I know it's an important matter.
But 8
maybe it's time for another look at this.
This i s, in fact, a 9
564,000 civil penalty case.
10 And I have been very sensitive all along, and I' m 11 still-sensitive about how important this is to Gpu, and how 12' they want their reputations and acts -- whatever it is you 13 want.
{
14 I' m afraid to paraphrase it because I' m sure I won' t 15 do it correctly.
But I' m very sympathetic to what you want.
16 But is it really worth all of this?
17 This is a big expense to everybody.
You say it's la very'important.
Now what is it -- how is it important to you?
19 If they paid it, would you be happy?
20 MR. JOHNSON:
Certainly.
But it's GPU that requested 21 the hearing, Your Honor, not us.
They can still pay.
22 JUDGE SMITH:
A 30 day hearing for this is out of 23 proportion.
24-MR. JOHNSON:
Your honor, we have the burden of proof
[
25.
here.
And you can see the way this has unfolded we have Heritage Reporting Corporation (202) 628-4888
l' 1=
323-f 1
at t empt ed -- and you haven' t, maybe, reviewed them with any
]
'2 care.
3 Maybe it _ wasn' t your requirement-'to do so.
But we 4
have attempted early on to try to stipulate a lot of things 5
that would-serve to narrow this proceeding to narrow points 1'
6-because initially, back in the first months of discovery,.we 7
believed that_due to the extensive' nature of the record that.
8 preceded the bringing of this first prehearing conference,-for
,9 example, or even the notice of violation -- there are many-10 depositions, in fact, on the record, that we believe form a 11 sufficient basis for the violation.
12 We aren' t able now, in this litigation, to get GPUN 13 to stipulate simply to a fact which their employees' told to
()
14 their investigator in 1983, and we' ve alluded to that.
15 If 'there's any expense. that's involved here that's 16 unnecessary, it's because of the conduct of this litigation, 17 the way it's unfolded.
-18 And we are very sympathetic that it's a great 19 expense.
But we feel that it is not the fault of the staff 20 that it's become this expensive.
21 JUDGE SMITH:
Why is this so important, as you saw it 22 to be, Mr. Blake filed the answer.
23 MR. HICKEY:
I think that it is f air to say that the 24 question has to most properly be answered by the client, Judge
~()
25 Smith, but I think that I can give you my understanding of what Heritage Reporting Corporation (202) 628-4888
Y s
324 l
1' their views ofiit are,-because-I know that they were expressed 2
to the Staff,. before the proceeding was filed.
3 That,was, thatithere had.been very serious l
4
' allegations made by a. number of people at'Three Mile Island 5'
that suggested that'the company was engaged in acts that were 6
nefarious and improper, and the allegations were thought to be 7'
unfounded.
The company commissioned an investigation, wh'ich~
8' found.that they were unfounded.
o 9
And the Department of Labor found, with regard to Mr.
10-King and Mr. Gishel.that the allegations were unfounded.
11.
Unfortunately the company's investigation did not look-into Mr.
- 12 Parks' allegations,-or we would have had an investigation that 13 covered that subject matter as well,.but we did not.
l
/
14 Notwithstanding that and notwithstanding the it resolution between Bechtel and Mr. Parks, of his Department of.
16 Labor complaint, where it was resolved to the satisfaction of 17
.the parties and dismissed without a finding.
And 18 notwithstanding the reports of the staff, in Supplement V, to 19 NUREG 0680, which addressed the significance of all of this to 20 the ongoing operations at GPUN.
The decision was made by 21 someone to accuse GPUN and its contractor, of having 22.
deliberately tried to intimidate an employee for raising safety 23 concerns.
And, at the outset, it was made clear to.the Staff 24 that an accusation of that nature had to be responded to and j}
25 could not be ignored as a simple matter, where simply the Heritage Reporting Corporation (202) 628-4888
325 1
1
-payment of a[ fine could;just. allow the company to wal'k'away
-0 2-from it.
3 It is not surprising to me, at all.
4 JUDGE SMITH:
I'am.not surprised that GPU filed an 5
l answer to it..
And declined to pay the penalty.
I recognize
'6~
from the outset that the penalty was minor and that theLissues 7
and the principles and excul'pation was important but now we
.8 have exchanged.an ocean of information.
And everybody knows 9
exactly now what the facts are and they will never know better.
10 There may be a few little facts dribblinD in, but you will 11 never know better.
12 Instead of coming closer together, you are farther 13 apart.
I feel:that somehow I could have done a better Job of
(
14 keeping this from happening.
15 Is spending this time, this money, a huge amount of 16 money for everybody involved, in trying to put it through one l
17 human-being who has no better insight into these things than 18 anybody else.
1 19 And we may have this big hearing, 30 days would 20 really be all winter, you know, the way that things work.
And 21 I might come to the point, as I have, in predecessor cases for 22 Three Mile Island, that the facts are such, that I don' t know.
23 I simply cannot decide.
And you have a dual motive and I 24 cannot decide, which was the brutal motivating motive.
And
()
25 therefore, on a technical basis, st af f has the burden of proof, Heritage Reporting Corporation (202) 628-4888 p
L__
______u______________
326 i' '
and I mitigate the penalty or through it out.
2 Nobody is redeemed, nobody is-exculpated, your.
3;
' principles ~are not established, whatever it i s, it is wasted.
4' And that isia real possibility.
5 MR. HICKEY:
I don' t agree with one thing that you 6
said and that is that'it seems to me that if you are' ruling at 7
the conclusion of a hearing, is that the staff has not deduced 8
enough evidence to persuade you by whatever the. test is, a
'9-preponderance, or'whatever, 10' JUDGE SMITH:
That is a victory.
11 MR. HICKEY:
-- it would sugDest that someone, before 12 initiating the prosecution, or at least as to the discovery was 13 completed should have looked more carefully at it.
(}
14 JUDGE SMITH:
All right, however, you know, the 15 people who made that decision may not even work here any more.
16 If you want to have our conduct reformed, it may not 17 even accomplish that.
'18 MR. HICKEY:
No, I mean, the company's interest was, 19 I think at the outset clear, that they thought that the matter 20 should not have been brought, but once it was brought, saw no 21 alternative but to respond to it.
22 JUDGE SMITH:
Right.
l 23 MR. HICKEY:
At substantial expense, I agree.
24 JUDGE SMITH:
That is right.
However, that is an l
~
L
'25 entirely different matter from settlement.
Cases are settled Heritage Reporting Corporation (202) 628-4888 L
3 327
~
a11'along.
- I mean,. very, very.important cases are settled,
}Q.psg:-
1.
2 without'anycagreement or acquiescence to guilt.
I mean, this 3'
is the fundamental basis for almost all settlements.
'4 As'I'have somewhat monitored discovery.here,-I do not 5
see and I am not prejudging, I am telling you I will start the 6
case with-a total' fresh attitude -.I have the discipline to do 7
.that.
i
'l 8
But I do not see this case' coming out with an 9
overwhelming' victory for either side.
And you seem to be 10 wanting a symbol here, more than the avoidance or a Judgment.
11
'You seem to be wanting a symbol, a symbolic result.
And you 12 are entitled to.it.
I am not taking that away from you, you 13 are entitled to it.
.()
14 But I am wondering if this litigation has not taken l
15 on a' life of its own, gathering heat from the litigation, 16 itself, and the importance of it, to the perspective, the 17 perspective has been lost some place along the line.
l 18 But I am astounded'that the parties are even thinking l
19-about 30 hearing days for this case, when we relicensed Three l
I 20 Mile Island One, you know, we had all of those parties, we l'
-21 relicensed that in about 100 days, or 120 days.
And if this l
l 22 issue had been folded into that one, we would have given it 23 about four days, at most, at max, and we would have had to do 24 with it.
()
25 And I think that what has happened here, the parties l
Heritage Reporting Corporation (202) 628-4888 I
i
'328' 1
are.LindulgingLin a luxury, perhaps, of plenty of time.
But-
~
~
2.
.this. case would,have been folded-in there,' automatically and 3L Justice would have been done.
4 I am pessimistic, but I think that ittis within my 5
prerogative to direct the counsel to sit down and try to settle 6'
this case out.
7 MR. JOHNSON:
Your Honor --
8 JUDGE SMITH:
I want you to listen a bit now.
9 MR. JOHNSON:
I am listening, go right ahead.
'10 JUDGE SMITH:
The Agency has problems, the utility 11 has problems, we all knew about these.
I mean, money is not 12 endless.
And maybe the complaint -- maybe it is not my 13 position to look at money, but I think that it is.
I mean, it
!(}-
14 is inherent in the Judge's responsibility to be efficient and-15 that subsumes a concern about taxpayer money, and I am also 16 cognizant of the utility money.
17 I think that I have the right and the responsibility 18 to direct you to try to settle for money, on a basis -- I don' t 19 think that you have tried it -- on a basis that will satisfy 20 everybody.
I 21 Thirty days, you really have got my attention there.
I 22 MR. JOHNSON:
I am glad that I did that, because I l
1 23 agree with the sentiments that you have raised and Just as Mr.
24
_ Hickey, has said that he feels that there is something at stake f()
25 here, the staff believes so as well.
This is a question of I
Heritage Reporting Corporation (202) 628-4888 l.
C
.329 g-e 1
intimidation, of nuclear employees at nuclear power plants,
\\
2 particularly at Three Mile Island, and it is of great 3
significance, if it'is.in fact, substantiated.
4 The Commission
-- this was not something that the 5
' attorney sitting at this table brought - - the Commission voted 6
to bring this' violation.
Five members who govern this Agency 7
had determined to do that.
And we are pursuing their 8
direction in a sense.
9 JUDGE SMITH:. Well, the Commission did not tell you 10 to walk the plank on this case, or to go"to the grave with it.
11 They did.not repeal the regulation which directs the parties to 12 try to arrive at negotiations, in the policy statement'which 13 directs parties to try to settle matters, and the standing
()
'14 admonition to the presiding officers, to encourage settlements.
15 That is still very much there.
16 MR. JOHNSON:
We agree, Your Honor, and we would say 17 that we have been ready to talk to GPU at any time.
We did 18 have an initial meeting, prior to the pre-hearing conference, 19 and I don' t know that it is worthwhile to go into what happened 20 at that meeting.
I don' t want to do that.
21 But if they want to come in and talk to us, it is --
22 we represent a client.
We are --
23 JUDGE SMITH:
Yes, I know.
I am sympathetic to that, l
24 but never before, have you had the problem where you have been
()
25 actually ordered and this is what I am talking about -- an i
Heritage Reporting Corporation (202) 628-4888
1 330 1
absolut'e direction to sit down in good' faith at the settlement O
2 table,.the negotiation table, and try to settle the case out.
3 It has not happened before, but this is where you are i
4 now.
This is a direction.
5~
MR. JOHNSON:
My only concern, I have no problem in I
6 principle'with it, but you said that you were going to direct 7
the attorneys to sit down, and I think that it is important
-l 8
that this go to the parties, involved in this case.
9 In other words, Mr. Hickey and I,
is one thing.
To 10 have the Director-of'the Office of Enforcement and a principle-i 11-from the GPU Nuclear Company come in, that is another thing.
12 JUDGE SMITH:
I will tell you how important I think 13 that this is, let's don' t talk about GPUN.
I have been
}'
presiding over these cases for a long, lonc time, and I don' t 14 15 even know what Mr. Coon looks like.
And maybe it is time for 16
.him to come in here.
And see if we have the authority.
I am 17 really talking serious now.
I mean this is Just too much for 18 this case.
Exculpation can be cheaper than that.
19 MR. BERRY:
Your_ Honor, and I think probably what has 20-brought this on was the statement by Mr. Johnson that we 21 estimated a rough estimate, a rule of thumb, would be about a 1
22 day per witness.
And that was based in part, that estimate was 23 based in part, upon my own recent experience in the Braidwood L
24 proceedinD, which was -- although not a civil penalty 25 proceeding --
was a case remarkably similar to the one that we
(
Heritage Reporting Corporation (202) 628-4888
331 1
have.here.--
A.
.\\ f 2
~ JUDGE SMITH:
It was a massive quality assurance 3
hearing which permeated every aspect of engineering, design, 4
was a really.very extremely important case, about.public health 5
and safety -- not somebody's ego.
6' MR. BERRY:
If I could just finish, Mr. Presiding 7
Officer, 'it'was not the quality --
-8' JUDGE SMITH:
I am sorry, I did interrupt'you.
.9 MR. BERRY:
-- it was not the quality assurance part, 10 you know, that contention had been rejected and been dismissed 11 by the Commission and we went to hearing on the limited 12 contention regarding intimidation and harassment of quality 13 assurance inspectors.
()
14 LBut my point in making'that in the analogy was, that 15 there you had a case where it was important to determine who
'16 said what, when, with what purpose, why, who was there and that 17 sort of' thing, i
18 And credibility was paramount.
And in that case, it
'19 Just, you.know, the hearing on that case lasted over 100 days.
20.
We had roughly 50 or 60 witnesses.
So, in trying to estimate 21 how long it would take to present a similar case, with the same 22 number of witnesses, to prove the same kinds of points --
23-recollection, to prove or establish credibility, to motive and 24 intent -- it would seem useful to use that as a bench-mark upon
()
25 which to estimate the length of this particular proceeding.
We Heritage Reporting Corporation I
(202) 628-4888 l
332 1
don' t know --
D..
?"'I 2
JUDGE SMITH:
I am not quarreling about that.
I t
l 3
don' t think that you fully appreciated what I was saying.
I am l
4 not'saying-that Mr. Johnson's prediction that it is going to 5
take him 12 to 15 days to present his case, is not a realistic 6
prediction. That is not my point.
7.
It is beginning to sound very realistic, and as a 8
matter'of fact, conservative.
I mean, not conservative, 9=
optimistic.
Because a day a witness is not thirty days.
That 10 would run out -- you know, we don' t hear all day, every day --
11 it would run out for a season.
We are talking about a season
- 12 of. hearings, and all of the support that is required for that.
13 I am. talking about the benefit to the public and the 14 benefit to the utility for such a hearing.
Certainly we have 15 the interest and the experience and the skills to resolve this 16
. dispute in a more efficient way, and the incentive.
17 And I have not seen that effort.
And nor have I 18 required it.
And I am not criticizing.
I think that I am at 19 fault, too, for not having required it.
20 But the incentive is there. The benefit to everyone 21 concerned, the rate payers, the taxpayers, everybody and these, 22 I think, really are appropriate considerations for me, at this 23 stage.
j 26 There has to be some relationship to value and cost,
/
25 benefit and cost, and I Just don' t see it here.
I mean, it is Heritage Reporting Corporation (202) 628-4888 i
i j
.1
'333 1
stretched out of proportion.
_O 2
.In. the.first1 place, let's resolve this.
That was-
'3 hyperbole about bringing Mr. Coon to the hearing, however, I do 4'
expect, counsel, appearing here, to have full authority to SL
. settle the case, and if they don' t, get it and bring the people 1
6' to the hearings that have'that authority.
7 MR.. HICKEY:
I understand, Your Honor.
B' JUDGE SMITH:
There should not be any question about 9
that'.
.10 I think that we had better carve.out another pieceLof
.11
- time, here,.. directed toward settlement negotiations.'
And I 12 will.tell.you what you might be facing in case the case is not 13 settled.
.You may be facing an arbitrary. time limitation on how 14 much and how many witnesses you can present, how much time you.
'15 can take to do it.
16.
And I will flirt with the idea and I don' t know how 17 far I will get, but I will flirt with the idea that after'I 18 have a realistic estimate of an extravagant amount of time like 19 this, of mitiDating the civil penalty without exculpation of 20 anybody.
Just walking away from it, in the public interest.
21 And that will be a new matter for you to brief.
But 22 I am flirting with that idea.
l H23 MR. BERRY:
I am not quite sure if the staff follows j
24 your last remark, Your Honor.
i l
j)
I 25 JUDGE SMITH:
I say, don' t pay the civil penalty, the Heritage Reporting Corporation (202) 628-4888
]
)
I i
)
f
'334 l
l
-1
' case'is closed,-it is not worth'it.
It is, you.know, go some 1
j 4
2 place else for anLexculpation, it isftoo' expensive.
+-
3 I-am flirting.
.I don' t, know if I have the authority 4
forLthat..
I somewhat doubt it, but I am flirting with-that-
'I
' idea.
'Ilam just outlining this to give you some of_the 6:
considerations that you'should bring to the negotiating table.
7 Okay,.f so let's ' put in a period of time, suitable for, 8
acceptable to each of you, beginning now, before we resuma a 9
briefing schedule, -- now, finish your discovery.
But we are.
10
' practically _at the end of discovery in which you do-sit-down 11' and: talk settlement.
12; MR.EJOHNSON:
Your Honor, I don' t see any reason to 13 wait.
14 JUDGE SMITH:
Start now, but I am talking about when
}
15 that will come to tha end, and when that is --'I am suspending 16 the' case,- for settlement negotiations except for negotiations, 17 except for discovery.
18 I think that probably takes care of the agenda as 19 such.
But I told you in the informal pre-hearing conference 20 that I was assigned to another case, which is very demanding, 21 the Seabrook case, and I underestimated the --
I did not have 22 a full appreciation of what that schedule was.
And I would 23 like it if we could hear this case, and then during December, I 24 could be hearing your case, and then everything would fall in 25 quite well, but it does not look like it is going to work out
}
Heritage Reporting Corporation (202) 628-4888 b
335
+
- g g.
1 that way.
V 2
So there may be some possibility that this matter l
3' would have to be assigned'to another presiding officer.
And I 4
.think.that I have a special responsibility to make sure that it 5
is.in a'loDical form to turn over if that happens.
6 And that is issues finally refined and legal-7-
principles laid.out, and whatever, but that is a problem that 8
is coming up.
9 However, the delay that has come up today, has 10 removed -- I don' t have to worry about that right now.
I will 11 Just worry about that -- I suppose that I really don' t have any 12 worries until December, along that line.
13 Does anybody have any comments on my comments?
()
14.
MR. HICKEY:
I think that I understand what you have 15 said, Judge Smith, and I assure you that I will take the 16 message and the guidance that you have given to my client.
I 17 am sure that they will consider it carefully.
We are prepared 18 to do whatever can be done, realistically,.to try to resolve 19 t he Inatter.
l 20 JUDGE SMITH:
What time period should we have now?
21 Do you need any further guidance along that line?
22 MR. JOHNSON:
Well, I think that it is probably a 23 good idea for you to give us a date to report back to you.
24 JUDGE SMITH:
Okay.
j) 25 MR. JOHNSON:
Yes, I would assume, Your Honor, that Heritage Reporting Corporation (202) 628-4888
L-336 1
you would issue an order after this' written order, which:would:
)~
2-embody your statements.
l l
-3 JUDGE SMITH:
About negotiations?.
L 4
MR. JOHNSON:
Yes, sir.
5
' JUDGE SMITH:
Yes.
6 But you can freely quote me from the transcript.
I j
l 7
'really have a squeeze for time.
We begin.the Seabrook hearing 8
Monday, up in New Hampshire and I should get the transcript 1 l
t'y to get an order out tomorrow on this.
9 tomorrow._
I will r
10 MR. JOHNSON:
.Thank-you.
11 JUDGE SMITH:
And I'would say, have a report back'by la October 15th, is that reasonable?
13 MR. JOHNSON:
Your Honor,- if you are talkirig about an 14 oral presentation, on the 15th, I ' won' t be available'that 15
'particular day.
If it is written, perhaps we can do it.
I 16 will be out of the office on that day and the next day.
But 17 that does not mean that I don' t agree to do it on the 14th.
18 MR. HICKEY:
You are saying a report on the-status on l
1 I
19 what happened with the efforts to negotiate?
20 JUDGE SMITH:
Yes.
I i
21 MR. HICKEY:
In light of Mr. Johnson's absence, it
]
)
22 might be desirable to set it the Monday, following, but that is 23 just a suggestion.
l 24' JUDGE SMITH:
That is fine.
[ }-
25' MR. HICKEY:
Oh, wait a minute, I am not going to be j
Heritage Reporting Corporation (202) 628-4888
337 1
here the Monday following.
I am sorry, I am out of town.
O 2
JUDGE SMITH:
Well, I think that a written report is 3
all right.
As a matter of fact, let's don' t decide.
Let ' s 4
leave it right now, for a written report, but if you decide 5
that an oral report and further discussion is necessary, then 6
you can request it.
7 Otherwise, we will have a written report by October 8
16th?
I 9
MR. JOHNSON:
Your Honor, if you could Just enlighten 10 us as to your schedule.
11 JUDGE SMITH:
All right, I begin Seabrook on the 5th 12 of October, and then I will be up there, every other week, and 13 that would be beginning the 19th, and the 2nd of November, the
()
14 16th of November, and perhaps the 30th of November, on the 15 issues presently being litigated and then there is another 16 batch coming down the road, it Just has not been scheduled yet.
17 So, it is every other week.
18 MR. JOHNSON:
Well, that is helpful, thank you.
19 JUDGE SMITH:
Yes.
20 If there is nothing further, I appreciate your coming 21 and - is there anything further?
22 Do you want some time, we can take a break.
23 MR. JOHNSON:
I understand that all of the other, we 24 are to continue with the discovery, but all of the other legal O
es me**ere re m"
1e?
Heritage Reporting Corporation (202) 628-4888
t.
L 338 y
1 JUDGE SMITH:
Yes, I envision assuming that we don' t j,3
- ('/
2 succeed in settlement, that we just have a two week slip on l
3 everything else, discussed, which I have not specifically 4
approved, and did not even' write-down carefully, but seemed to 5l make sense, the timing.
6 MR. JOHNSON:
In other words, okay, I understand 7
-that, sir.
I 13 JUDGE SMITH:
I think that you should be free to 9
devote'all of your time and all your resources to settlement 10 negotiations.
11 MR. JOHNSON:
I understand that.
- 12 There are some questions that you did not address and 13-perhaps you would like to defer those.
I propose certain 14 things --
15 JUDGE SMITH:
Today that you thought --
16 MR. JOHNSON:
Yes.
17 JUDGE SMITH:
All right.
18 MR. JOHNSON:
In the course of my presentation, I 19 mentioned a number of things and at the end I suggested a I
l 20 length of hearing after you asked me and then we had this last 1
21 discussion, with your determination to issue an order.
22 But, among the questions that I addressed was the 23 question presented by Mr. Hickey, in his September 28th letter, 24 stating that among other things that the pre-filed testimony
()
25 was required in this kind of case.
Heritage Reporting Corporation (202) 628-4888 l
1
339
~
1-Now, there'is an issue there, and perhaps you would g
2
'like to defer discussing that until 'later.
But I Just wanted 3
to bring your attention to the fact,.that Mr. Hickey'did not L
4 have a chance to address what I said, and I had.not t
[
5 specifically addressed his proposal.
l 6
~ JUDGE SMITH:
I was aware that he'said that, and I 7
did'not mean to cut'you off and there is no reason why we.
8 cannot take that.up, in anticipation of going to hearing.
9 MR.' JOHNSON:
It may be worth' our t irne.
10 JUDGE SMITH:
All right.
11 ~
I miDht tell you what my impression was, that it may.
~
.12 be that he.has merit in his argument that because of the nature 13.
of this case, that you go first'and then they go ahead.
But I
(
14:
am not'-- but the use of written testimony, in whatever 15 sequence, is very helpful'and I would want the written 16 testimony anyway.
But I believe that there is merit in his 17 argument that in an enforcement-case,'that they could decide 18 af ter-the Staf f's case-in-chief, how they want to fashion their 19
. defense, or submit their defense.
20 That is if I understand you. correctly, decide whether 21 you have made your case at all and move for a directed 22 decision, I guess.
23 Is that what you had in mind?
.24 MR. HICKEY:
Yes, I think that our initial suggestion 25 was somewhat broader than that, that the pre-filed. testimony Heritage Reporting Corporation (202) 628-4888
-]
qh
'340
.9
'l
.should :.not be r'equired at all, ' but 'certainly ~ --
l 2
JUDGE SMITH:
But I like pre-filed; testimony.
4 i
3 t' R. HICKEY-I: understand that and.I agree that if it 4
is to.be required, that we would think it appropriate to come 5
from the licensee only af ter the completion of the Staf f's.
6 Case.
7 JUDGE SMITH:
Yes, and my impression is that thatj 3
8 makes sense.
I think that he in right that civil penalty'Ca11s.
9 sort of in the order of enforcement cases, we have never done 10
.it.this way before, but this is approach does not offend me, it 11 is logical.
-12 MR. JOHNSON:
AnW it was the Staff's position that
~
'13 there have been'other' enforcement cases, which are not I'T 14.
distinguishable in peiner.ple'from this one, in which pre-filed V
15 testimony was filed simultaneously. The Husted case, I know 16 that'was the case.
17 Your Honor, were you the presiding officer in the
- /
18 Hurley medical case?
19 JUDGE SMITH:
Yes.
20 MR. JOHNSON:
So,tpat you are more farciTrar with that Therewaspefiriledtestimonyinthat case, I 21 than I am.
22 believe.
c' 23 JUDGE SMITH:
.I agree that normally, usually and 24 perhaps always, in the past, that enforcement cases have not
)
25 made the' distinction and that they have filed a pre-filed i
l Heritage Reporting Corporation (202) 628-4888
we l
341 l
~
1 testimony. simultaneously before the bearing began.
L
~
j But I am not aware of anybody ever having requested 2
3 it before.
'4
' M R.
JOHNSDN Yes, sir.
5
-[
JUDDE SMITH:
I don' t think that it is really all 6
that important, actually, but I think that it does tend to.be a.
- I 7
typical adversarial case, in which you are strictly on your 8
. proof and if you don' t make it, they don' t have to put on any l
i 9
case.
l 10 MR. JOHNSDN:
Yes, I would just draw your attention ro
.)
11 to $ile structure of the proceeding as it has unfolded,'and'that f.i 12' is what we have had is you said, -- we have had rather complete l
l 13 d it,covery.
And so it is not really much parallel --
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JUDGE SMITH:
That is right.
That is why I agree, it
'14 15 is not particularly important.
Their rights would not be, j
.16 especially abused if they are required to submit their f
17 testimony the same time with'you, as you do.
I 18 MR. JOHNSDN Yes, sir.
1 1
19 JUDGE SMITH:
But it is a different type of case, in j
20 that, they are holding you strictly to your proof, and they l
21 reserve their option not to put on any case at all, if you 22 don' t make your case.
23 And I think that this is an appropriate case for that 24 position.
)
25 MR. JOHNSON:
Could I have one minute, Your Honor?
i Heritage Reporting Corporation l
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342 j
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1 JUDGE SMITH:: Sure.
Off the R
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2 record.
.3 (Discussion off the record.)
j 4
MR. JOHNSON:
Your Honor, should that come to pass, j
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5 we have every expectation that GPU will be required to put on l
6
. testimony or elected to put on. testimony once we complete our-l t
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presentation of the case, that the preparation and filing of t
8 pre-filed testimony might unless, you were to direct otherwise, l
9 entail'some further delay?
l 10 JUDGE SMITH:
Yes.
11 MR. JOHNSON:
I think that is part of that process l
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12 that we have time, that the Staff will have time to review l
13 that.
()
14 JUDGE SMITH:
Right, certainly.
Yes, certainly. It 15 would have to be an opportunity to review these pre-filed 16 testimony.
17 MR. JOHNSON:
Yes, sir, thank you.
1 18 JUDGE SMITH:
That is the disadvantage of the 19 recommendation, it does require a review right in the middle of j
i 20 the hearing, that is a reason not to do it.
21 But I think that if ever a case has been made, given 22 the post ure of the parties, for your case and theirs, I think 23 that.they have made it.
But your concerns will be addressed.
24 MR. JOHNSON:
We did raise the question about
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25 requirements of the Staff to file pre-filed testimony, and it Heritage Reporting Corporation (202) 628-4888
343-1 1
is our -- I-would Just reiterate that' we are going to prove O.
2 most'of our case, should.we'go to trial, out of the mouths of 3
adverse witnesses, and we, I don' t. think, can.txt reasonably It 4
expected to file pre-filed testimony.for those individuals.
5 JUDGE SMITH:
That is right, only the-witnesses that
.6 you coritrol.
And, of course, I assume.that they have deposed 7
all 1 their witnesses and they are prepared for that.
8 MR. JOHNSON:
With certain exceptions, we like to not 9
depose people, yes.
10
' JUDGE SMITH:
Well, has everybody identified their 11 witnesses, you have made arrangements to identify your 12 witnesses?
13 MR. JOHNSON:
That is correct, Your Honor.
' ( [.
14 JUDGE SMITH:
Anything further?
15 MR. HICKEY:
Nothing Judge, thank you.
16 MR. JOHNSON:
Thank you.
17-JUDGE SMITH:
Okay, thank you gentlemen.
18 (Whereupon, the hearing was adjourned at C 17 p.m.)
19 20 21' 22 23.
24 j
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1
3 y/
1 CERTIFICATE LOL 2
,3-This is__to certify that the' attached proceedings before the 4
. United' States Nuclear Regulatory Commission in the matter of:
5
' Names GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION 6
7
' Docket Numbers 50-320 License No. DPR-73-EA84-137-8 Place: Bethesda, Maryland 9'
Date:
September 30, 1987 j
10:
were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter_ reduced to typewriting by me or under the direction 14- 'of_the court reporting company, and that the transcript is a true and accurate record f the foregoing proceedings.
15_
16
/S/
k/
T(Ae e-
/
A 17 (Signature typed):
PERRY JACKSON
/
18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 23-24 O
Heritage Reporting Corporation (202) 628-4888
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