ML20235S029
| ML20235S029 | |
| Person / Time | |
|---|---|
| Issue date: | 02/22/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#189-8286, REF-QA-99990004-890222 89-582-01-SC, 89-582-1-SC, NUDOCS 8903060029 | |
| Download: ML20235S029 (78) | |
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{{#Wiki_filter:. _ _ . - . . .. . _ . . J R G \ A._ , i UNITED STATES 9 NUCLEAR REGULATORY COMMISSION
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In the Matter of: WRANGLER LABORATORIES,
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l LARSEN LABORATORIES, ) Docket No.: 9999004 ORION CliEMI C AL COMPANY, ) j AND J0 lib P. LARSEN ) ASLBP No.: 89-582-01-SC l l l = l 1 0 l Pages: 1 through 76 Place: Pravo, Utah Date: February 22, 1989
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l 0\ HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005 (202) 628-4888 89030600a9 09002n NMSS GA999 EX1 WRANG 9999004 PNU
UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD 3 Before Administrative Judges: 4 Charles Bechhoeter, Chairman Dr. Jerry R. Kline ! 5 Frederick J. Shon ! I 6 In the Matter of ) 7
) Docket No. 9999004 O
WRANGLER LABORATORIES, ) (General License LARSEN LABORATORIES, ) Authority of 10 ORION CHEMICAL COMPANY, ) C.F.R. Section 9 I AND JOHN P. LARSEN ) 40.22 10 ASLBP No. j 89-582-01-SC 11 l i Brigham Young University 12 J. Reuben Clark Law School Room 306 13 Provo, Utah 84602 i (sy) s 14
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1 The above matter can on for pre-hearing conterence 16 l l pursuant to notice at 9:15 a.m. ; 7 18 APPEA RANCES : g On behalf of the Nuclear Regulatory Commission: 0 ANN P. HO DGDON , ESO. 21 I D. BLAIR SPITZBERG l H. BROOKS GRIFFIN l On behalt of John P. Larsen: l JOHN P. LARSEN, In pro se 24 i SALLY LARSEN, In pro se l 25 n qq V l
f 2 1 PROC E E DI NGS 2 (9:15 a.m.) 3 JUDGE BECHHOEFER: I should have said on the 4 record before. Well, I introduced the Board and mentioned 5 that Boards are used by the Nuclear Regulatory Commission {
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l 6 pursuant to Section 191(A) of the Atomic Energy Act, 42 USC 1 7 2241(A) and Regulation 10 CFR, Section 2.721. l l 8 Prior to the start of the proceeding, 1 proved ) 9 Mr. Larsen with Parts 2 and 40 of 10 CFR. Those are the 10 applicable regulations for the proceeding. Part 2 are the 11 Rules of Practice and Part 40 is this -- are the 12 regulations dealing with source material. And this 13 particular proceeding arises under 10 CFR 40.22 which is (~) ( p~s. 14 the section which allows -- or provides a general license i i ss 15 tor persons engaged in certain activities to use source 16 material. 17 We are going to spend some time talking about 18 Appendix C to Part 2. Appendix C defines the types of 19 enforcement actions which are appropriate in various types 20 or proceedings. And, one ot our -- this proceeding l 21 involves a proposed license revocation, proposed by the NRC 22 statt. That revocation has -- was made immediately 23 effective last August. Mr. Larsen has a right to a hearing 24 to challenge the correctness of that order. And he has 25 elected to do so. O
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1 l l l 3 ll g 1 Now, Appendix C to Part 2 sets forth categories 2 of Penalties or actions which are appropriate in light of 3 difterent categories of violations. And we view one of our a responsibilities as determining whether the correct -- even l it violations have occurred, determining whether the l 5 6 correct penalty has been imposed and license revocation 7 being probably the most severe of the penalties for the 8 type of actions involved. 9 I guess for the record, I ought to have the to parties introduce themselves. Ms. Hodgdon. 11 MS. HODGDON: I am Ann P. Hodgdon, counsel for 12 the Nuclear Regulatory Commission staff and with me is 13 Blair Spitzberg, who is a member of the staff and Brooks
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(-f, g 34 Griffin, also a member of the staff. ('/ 15 JUDGE BECHHOEFER: Mr. Larsen, could you identify l l 16 yourself? 17 MR. LARSEN: I'm John Larsen. This is my wife, 18 8 11Y* 39 JUDGE BECHHOEFER: The first matter that we would l 20 like to bring up is the matter of where the burden of proof 1 l 21 and burden of persuasion lie. It's out initial thought 1 pp that both lie on the NRC staff in this proceeding. I would 23 like to inquire whether the staff has any disagreement as 24 to that. 25 MS. HODGDON: Yes, I think that's generally true. [) m
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1 1 4 > g i JUDGE BECHHOEFER: All right. That in terms of 2 the presentation of evidence at the hearing itself, I might 3 say this is purely a pre-hearing conference and we're going 4 to try to ascertain what matters are at issue and what 5 evidence will be forthcoming by the parties at the hearing. l c Our interpretation would be that the staff would present 7 its case tirst. Then the licensee or Mr. Larsen would 8 follow anc then the staff would have an opportunity to 9 present rebuttal testimony if they should choose to do so. 10 Is there any disagreement as to that? l l 1 l l 11 MS. HODGDON: No. j 12 JUDGE BECHHOEFER: In most NRC proceedings, ! 13 direct testimony is presented beforehand in writing and l r~s 4 i u l3' 14 then the person who's presenting -- the person or panel 1 [ j 15 that is presenting the direct testimony is subject to cross ; i 16 examination by the other party and examination by the ! i 17 Board. We do not read the direct testimony normally. We ja include it in the record as if read and we ask the person i e 19 to swear or affirm that what he is presenting is the truth. 20 The -- I would like to inquire from Mr. Larsen 21 whether he would have -- or would envision having any ! pp testimony to present and in that respect, the responses l 23 that you have filed thus far with -- both to the suspension 24 order and later to the revocation order were not under oath i 25 and I would propose at the hearing to have you present (~') m o
l l 5 ll g 3 either or both as testimony. But you wouldn't be limited 2 to that, and then have you swear or atfirm that everything l l 3 in it is true and correct. You are -- you would be 4 permitted to make any corrections if certain statements in 5 there become inaccurate or are inaccurate for any reason. 6 And normally the staff would do the same with its 7 testimony. It would file testimony in advance and when g it's introduced into the record, the staff would then make c 9 any corrections. Usually those amount to typographical l 10 things, but that's our normal practice. I would -- 11 MR. LARSEN: I would have some to add. I have 12 something written up from Kevin Noack who worked for me and 13 would probably be the most direct first-hand information as /~) (,4 s to what kind of an operation it was. And I'd also like 34 (- 15 to -- 16 JUDGE BECHHOEFER: Would you be bringing him on 37 as a witness? 18 MR. LARSEN: I would if he can get away from 19 work. I'll have to pay his wages or whatever but, I would 20 like him to testify as to what, you know -- 21 JUDGE BECHHOEFER: Well, we could set up a 22 hearing date, perhaps which could accommodate that 23 because -- 24 MR. LARSEN: I'm sure that he -- 25 JUDGE BECHHOEFER: -- we're not bound right now A us s
6 l l g 1 to any particular date. We have some flexibility, so -- 2 MR. LARSEN: I'm sure that he will be glad to 3 testify. And also I would like to add that there is some 4 research that is coming out in the next two months in l 5 regards to toxic levels in human bodies, not animals, but l I 6 in human bodies that are permissible without any ' 7 pathological evidence showing up. In other words, this is i 8 research that is done by a Doctor Singh from the University 9 of Utah. 10 JUDGE BECHHOEFER: I see. Would he be appearing 1 11 as a witness? 12 MR. LARSEN: Well, yes, but, of course, he would i 13 want expenses, too. The fact of the matter is, Judge, that { 1 (') (-y- 14 we are just about broke. We have been destroyed by this. I ( u 15 And so this is why we are -- one of the reasons why we are 16 taking a strong issue on this. 17 JUDGE BECHHOEFER: Well, when we put various . l 18 testimony into the record, we -- and I think it's l 19 sufficient for you to bring one copy for the Reporter. In 20 addition, all the Board members and the other party will 21 have had to have received copies. But in connection with 22 your prior statements, we already have. So, for the 1 23 earlier statements, to put those into the record, you would 24 just have to bring one copy and then you could make 25 corrections on the record if there are differences. C's ( j~N j
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7 ll g 1 MR. LARSEN: One copy of Kevin's testimony, you 2 mean? 3 JUDGE BECHHOEFER: No, that's different. One 4 copy of the statements you have already sent in. 5 MR. LARSEN Oh, yes. 6 JUDGE BECHHOEFER: Because we have already 7 received copies of that and the -- both we and the staft l l 8 have already got copies. So for that, you would just need 9 to bring one and make sure it's the same as the ones we've 10 previously received. And then you could swear that they're l 11 true and correct and make any corrections, and that would I i 12 be that. 13 MR. LARSEN: I don't have it with me, but I do [) Q N f 1 14 have --
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16 hearing. This would be -- 17 MR. LARSEN: Okay, yes. ja JUDGE BECHHOEFER: -- at the hearing. I'm just 19 trying to describe how the hearing procedure would work. 20 For Mr. Noack's testimony, it would be desirable to have it 21 written out first and supplied -- a copy to each of us and 22 to the staff and then one additional copy would have to be 23 given to the Reporter to put into the record. Again, he 24 could make any corrections, last minute corrections. That 25 procedure usually saves quite a bit of time, because they l
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8 l g 1 don't have to spend the time reading the words into the 2 record. They get bound into the transcript. j 3 MR. LARSEN: I have Kevin's words right now, but 4 1 don't have copies of them. 5 JUDGE BECHHOEFER: No, well you would -- probably 6 it would be a good idea to serve those on both us and the 7 staff. And we were going set a date later on for supplying 8 testimony and it could be some time from now, depending on 9 matters such as whether you would wish discovery and 10 whether the statt wishes turther discovery. You do have 11 the right to have discovery of certain types of materials 12 anyway. You may have been given most information. I don't 13 know. I will inquire later on. O (yx 14 JUDGE SHON: Mr. Larsen, I'd like to point out V) ( 15 that at this pre-hearing conference today, we intend, as a 16 Board to try to establish exactly what are the differences 17 between what you see as the facts in the case and what the 18 staff sees. Now, later on we're going to try to prove 19 those facts, one way or another, with testimony. So, it's 20 quite possible that you will find that you will want to ask 21 Mr. Noack other questions, think of more things to say ; 1 22 yourself between now and the time of the hearing. l l
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23 It may well be that what we do today will greatly I 24 influence what you will want to present later. Do you see 25 what I mean?
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9 ll g 1 MR. LARSEN: Okay. l 2 JUDGE SHON: I just wanted you to be sure to know j 3 that that's we're here to do today, to outline exactly what l I 4 must be proven and what must be examined. l l 5 Do you -- are you tamiliar with the term 6 discovery as attorneys use it? 7 MR. LARSEN: Not really. I'm a chemist. I'm not 8 a lawyer. l 9 JUDGE SHON: Well, it's a little ditferent for l 10 chemists and for attorneys. I think I'll let our attorney I I 11 explain discovery. l l 12 JUDGE BECHHOEFER: Well, there is a number of 13 forms of discovery. You would have the opportunity to (_ , s 14 uncover any -- I won't say any, but many relevant documents I (-) that the staff may have. Now, the staff may have given -- 15 l l 16 turned over or put in the public document rule, already all ! 17 ot the relevant documents. That I don't know. But, many ' 18 ot them have been sent to both us and you. If that's all i , 19 there is, so be it. But, you would have the opportunity to 1 20 obtain discovery of whatever documents are in the staff's 21 possession. 22 The staff has a few recognized privileges for 23 certain documents which would not have to be turned over, 24 but for the most part, you would have access to those i 25 documents. You would also be free to ask what lawyers call r^T
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10 l g 1 interrogatories, which are really questions. And they ) 2 would tiave to be pertinent to the subject matter of the 3 proceeding and have a bearing on the staff action which is 4 the subject of this hearing. 1 5 But you would have the opportunity. You would j 6 also have the opportunity to take certain depositions. 7 That you probably would not want to do. You would probably 8 need a lawyer to do that, although -- just as a practical 9 matter. But these opportunities under the NRC rules, are { 10 available to you, to any party, really. So, they appear at l l 11 Part 2, I think it's -- let me check. I i 12 MS. HODGDON: 2740. 13 JUDGE BECHHOEFER: 2740, right. 14 MS. HODGDON: Following. (1) i 15 JUDGE SHON: Fundamentally, Mr. Larsen, from a l 16 layman's standpoint, to prepare your case, you are allowed 17 to ask the staff questions concerning statements they have 18 made and you could, if you wished, take depositions of 19 staff members, although as Judge Bechhoefer said, since 20 you're not represented by an attorney, that might be very 21 complicated. But you do have access to whatever 22 information the statt may have. You can have access to it 23 by asking proper questions to prepare your own case, 24 provided, of course, that it is something that is pertinent 25 to the case. rm vf'%
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R i I i i 11 l 1 JUDGE BECHHOEFER: Now, in looking through the 2 record, the Board has -- to attempt to ascertain what 3 matters are actually at issue in this proceeding, we've 4 looked through the statement of allegations or charges in 5 the revocation order and we have subdivided it into really 6 eleven different categories or items. Some of those items 7 may overlap a little bit, but we thought we would go l 8 through each of them and then, of course, inquire whether 9 there are other things in dispute that we haven't seen. j l 10 We are reasonably familiar with the record thus l 11 far, and we have seen no more than you've seen. Maybe 12 less. But we have got -- the staff has sent us copies of 13 all the documents that are referred to and I believe O(-f S 14 they've sent you the same documents. Some of them you may (.) 15 have received earlier. They sont us copies of your , l 16 response to their suspension order last February or March. 17 But, well, to go into these items, number one, we 18 believe you've -- it's alleged at least, that you exceeded 19 the titteen pound transfer limit from a facility in Wyoming 20 and two separate shipments are listed, one on June 1, '87, 21 and another on December 20th, 1987. Now, you've denied 22 that as far as we can track the responses to the 23 llegation. You've denied it stating that no more than 24 fitteen pounds were shipped from the Wyoming facility on 25 each occasion, and that -- if we understand it, now we may so
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12 l g 1 not -- that crystals or waste were added separately at -- 2 here at Provo. 3 Now, that's -- if our understanding of your 4 response is correct, the shipment started out in Wyoming. 5 Then more was added to it in Utah. 6 MR. LARSEN: Right. 7 JUDGE BECHHOEFER: So this is the first 8 difterence at opinion we perceive in the record thus far. 9 And, you apparently called the staff to confirm that the to fifteen pound limit applied separately to different 11 location. Now, the staff cites certain records that you 12 provided in your March response and those records appear to 13 us, to be a little bit difficult to interpret in light of (~) (-p 3 14 your other answers. So, one of the things that the hearing (/ 15 record will have to do will be to make clear exactly what 16 happened. And we would want that to be clear on the 17 record, exactly what -- how much was shipped from what 18 location and when, 1 guess. 19 We also have a question. There are a number of j 20 references in the statt order to so-called possession 21 limits, and particularly in this -- there was a statement 22 that the material -- certain material was shipped from Utah 23 to Wyoming and that counted against any possession limits. 24 Well, the Board is not aware of any possession limits and 25 we would like, during the course of the proceeding -- we t'-~T Q] 'w/
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l 13 ll g 1 aren't aware that Part 40, Section 40.22 establishes any 2 possession limits at all. And this we would want the 1 3 statt, assuming that that's part of its case -- we would 4 want the staff to explain that as part of its direct case. 5 And it not only applies to this item but to one 6 or two other statements that are in the record. As we 7 understand it, there is an annual receipt limit and -- l l 8 JUDGE SHON: I might read the pertinent section 9 ot the regulations. 40.22(A) says, "A general license is 1 10 hereby issued to", and it lists a number of ditferent 11 organizations, Federal, State and local agencies and 12 research and industrial firme, "a general license to us and 13 transfer not more than fifteen pounds of source material at G(-y 14 any one time and a person authorized to use or transfer i 15 source material pursuant to this general license, may not 16 receive more than a total of a hundred and fifty pounds of 1 17 source material in any one calendar year." So, it's use { 18 and transfer not more than fifteen pounds and receive not l i 19 more than a hundred and fifty pounds per year. But it 20 doesn't say possess. : 21 And indeed, the very next paragraph, Paragraph B i i 22 of Section 40.22 mentions persons who receive, possess, use ! or transfer source material pursuant to the general 23 24 license. So, it must have been contemplated by the framers
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l 25 of the regulation that one could possess it, and that u--------------------------------------------._________-___ _ _ _ _ _ _ -- - - - - _ _ _ _ _ _ _ - - - - - _ _
14 l 1 possessing it was something other than using it and 2 transferring it, or so it would seem at first blush. We'd 3 like the staft to give us its opinion of how this is 4 interpreted. Does a person who has a hundred pounds of 5 source material sitting somewhere as waste, is that person 6 using and transferring the material, or does he just l 7 possess it and what are the limits? 8 JUDGE BECHHOEFER: We're not asking for you l 9 opinion now -- 10 JUDGE SHON: Not, now, no. 11 JUDGE BECHHOEFER: -- but in the presentation of 12 your direct case. In addition, we see a possible 13 difterence of opinion as to exactly what the content of the (b x-$ 3 14 phone call was to NRC inquiring about whether you can ship ( l 15 it from different locations or possession at different 16 locations. We would want the record to be clear eventually 17 on that point. And -- so anyway that would be the scope of 18 really the first matter at issue, although it extended 19 somewhat to cover some or these general matters. 20 Now, the second matter at issue, as we read it at i 21 least, was an allegation that there had been a transfer of 22 depleted uranium from -- 1 don't know whether it's a Utah i l 23 tacility or several Utah facilities on five occasions after l l 24 the suspension of the Utah specific license which was 25 apparently ettective November 3rd, '86. And there were l
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l l l 1 15 ; 1 ll g 1 tive dates listed, December 9th, '86, February 2nd, '87, 2 February 9th, '87, February 17th, 1987 and March 3rd, 1987. 3 We were not certain what these shipments 4 represented. For instance, are these the shipments of 5 waste crystals from Lindon, Utah or do they represent 6 materials which were processed in Utah? And also are they 7 be counted as a part of the excess receipts in Wyoming 8 which I get to as the third item later on? And a -- we 9 have a general question which is that, are shipments which 10 may be improper under Utah regulations be deemed a 11 violation of NRC regulations? And if so, under what 12 authority does that occur? 13 We would Want the record to establish that, rh U "3 14 because Utah is an agreement state and 1 was not aware that U we enforced obligations of agreement states, but it we do, 15 16 I'd like to be apprised of that, under what authority -- 17 under what authority. That's the second of the items that tg we deem to be at issue. 19 Now, the third item is that there was an excess l 20 -- more that a hundred and fifty pounds received at 21 Evanston, Wyoming in 1987. Now, Mr. Larsen, you've denied 22 that on the ground that there were ten fifteen pound 23 shipments purchased and delivered in 1987 and that certain 24 crystals had been purchased in 1985 and '86 and the excess 25 -- extra poundage was stored in Lindon, Utah. Now, the (~)m v i
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16 l 1 staff responds that the -- that your March response showed 2 a hundred and tifty-five point eight pounds of depleted 3 uranium received at the Wyoming facility during '87. 4 MR. LARSEN: Now, I said that, you say? 5 JUDGE BECHHOEFER: No, the staff said that. 6 MR. LARSEN: Yeah, okay. 7 JUDGE BECHHOEFER: And, but that was -- and I 8 sort of looked at that and it did seem to say that and we 9 would want a certain explanation, because there may be a i 10 difference of opinion between you and the staff as to what 11 exactly happened. But the -- one or the attachments to 12 your March letter did seem to say that a hundred and fifty-13 five Point eight pounds were received and we would like an
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(/f3 14 explanation on the record of what actually happened there. (' ') 1 l 15 MR. LARSEN: You don't want a -- do you want an l l l 16 answer now? i 17 JUDGE BECHHOEFER: Oh, no, no, no. These are all l l 18 -- I'm trying to spell out things that we would want at the ,
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19 hearing. 20 MR. LARSEN: But you're saying that I said -- or 21 it seems like I said that I was saying in my March letter 22 that there was a hundred and fifty-five pounds that we ! 23 shipped? , 1 , 24 JUDGE KLINE: You presented a table from two l I 25 different locations. ! I f\ (_g-s b I
1 17 l l 1 MR. LARSEN: Yes, yes. 2 JUDGE KLINE: And if we add up the numbers on the l l table, it gives that appearance. So, we need that j 3 4 explanation. 5 JUDGE BECHHOEFER: Well, there was even -- the 1 l 6 direct -- if I can find this document. 7 MR. LARSEN: Yeah, that's very easily understood. 8 See I wasn't claiming that I had more than a hundred and 9 tifty pounds. j 10 JUDGE BECHHOEFER: I'm trying to find this. l l 13 There was a table attached here. See, it says, " Records of l 12 materials received and shipped", and then there's a column 13 which says, " Shipments 1987 in Wyoming". And at the bottom r% (slcs ja of that column, there's a -- there are a number of lesser k_) 15 tigures in the column and they're added up as being one 16 titty-five point eight three four pounds. 17 MR. LARSEN: Is there an explanation into there 3g why it's over a hundred and fifty? 19 JUDGE BECHHOEFER: Well, it say that sixteen and 20 a half were from -- wete crystals from waste. But it 21 doesn't indicate that that wasn't part of the -- well, 22 receipt or shipment, whatever the allegation. One of the 23 questions we have is whether there's any shipment limit at 24 11 tor general licensees, because we read the rules again 25 s saying that there's a receipt limit. u)L) ('
18 l g 1 MR. LARSEN: Right. 2 JUDGE BECHHOEFER: And not a limit on -- well, 3 either purchases -- and we don't know whether you're 4 deducting the waste crystals from the total is appropriate 5 or not. This is one of the things -- another of the things 1 6 that we hope the record will establish at the hearing. { 1 7 JUDGE SHON: And that's another thing we would l 8 certainly like the staff to address. The regulation again l l 9 says, "A person authorized to use or transter source 1 10 material pursuant to this general license may not receive i l 11 more than a total of a hundred and fifty pounds of source 12 material in any one calendar year". It says nothing about 13 how many he may ship. And yet these often appear to be (D (. p s,, 14 used -- these numbers appear to be used as a limit on d 15 shipments. I 16 For example, it someone received a hundred and 17 tifty pounds last year and this year, could he ship that 18 three hundred pounds next year or would that be a 19 violation? We would want the staff to address that l 20 question. 21 JUDGE BECHHOEFER: Now, in addition, in reading 22 the OI report, the Office of Investigation's report, of 23 August 18th, 1988, at page 18, there's a listing of 1987 24 shipments from Wyoming which total two hundred and eleven 25 point thirty-four pounds. And we were wondering how em f u
19 l g 1 relevant that -- if shipments are relevant at all, would 2 that one -- would that be relevant? So, we would like the 3 statt to address that. Mr. Larsen, you can address that as 4 well. There's a number of ways one can read these figures. l 5 It you look at the tables -- and we have to make sure we're 6 doing it in the correct way. 7 MR. LARSEN: I think it will probably all be 8 answered the same. 9 JUDGE BECHHOEFER: Well, that will be fine, but 10 these are things that we think are unclear in the record, 11 at the moment at least. I l l 12 Then next item that we -- this is number 4, that I l 13 we view as an issue, is that contrary to item one of a p (_4 y 34 November 12th, '87 confirmation of action letter, CAL,
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15 there was a tailure to submit certain baseline urine 16 samples from two individuals. It was alleged that the 17 baseline levels were assumed to be zero and that -- and is your March response to the statf, I guess, stated that you 19 were quote, "Trying to keep expenses down". That's a quote 20 from your letter so -- 21 MR. LARSEN: Yeah. 22 JUDGE BECHHOEFER: For better or for worse, 23 that's -- you apparently have acknowledged your mistake -- 24 MR. LARSEN: Yes. 1 i 25 JUDGE BECHHOEFER: -- the mistake as such. And b) m
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1 l 20 l ll g 1 our only -- I guess our only question on this one, it 2 you've acknowledged the mistake is, what the reasons were 3 or what implication should be drawn from that mistake. l 4 MR. LARSEN: Well -- l 5 JUDGE BECHHOEFER: And, as I say, this will be q part of the case. 7 MR. LARSEN: Oh, okay. l l 8 JUDGE BECHHOEFER: We'd like the staff also to 9 address the question here. If one assumes a baseline of j 10 zero without a base sample, is that what I will call a 11 conservative assumption? That is does it make things look l 12 worse than they actually are or could it make them look l 13 better than they actually are? See? 1 (Q-4-) 14 Just from a layman, it would appear that a N.) 15 baseline of zero would make the other tests look worse than 16 they are, at least from a health and safety standpoint. 17 But we would like this to be explained on the record when 18 we get to the hearing. 19 MS. LARSEN: May I make a comment here? 20 JUDGE BECHHOEFER: Yes, make sure the Reporter l l 21 can here you though. l l 22 MS. LARSEN: I want to make it clear, is one of l 23 the urinalysis baselines established by our son, Mike 24 Larsen? 25 JUDGE BECHHOEFER: Well, I think that was the -- l l f k i (dm : ) V l
1 l t l 21 { i 1 MS. LARSEN: Noack or -- 2 JUDGE BECHHOEFER: It was Mr. Noack. The other 3 was a -- I think your son was one -- is one of the ones 4 that you were alleged to have failed to submitted one for. l
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5 MS. LARSEN: Okay, I just wanted to make that 6 clear so that John and I could understand that. Thank you. 7 JUDGE BECHHOEFER: Yeah. Well, this is -- all we 8 understand is what's in the revocation letter plus the 9 background reports that we've received. j 1 10 MS. LARSEN: Right, and we had such a small l
- i 11 limited group ot people, I mean, it would have -- you know, f l 12 it wouldn't have been hard to have them on all of them, but 13 we just didn't.
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15 MS. LARSEN: And we wouldn't have necessarily 16 wanted to bring harm to anyone. 17 JUDGE BECHHOEFER: Well, that would be probably more appropriate for you to say at the hearing. 19 MS. LARSEN: Later, I know. 20 JUDGE BECHHOEFER: We're not really taking 21 evidence now. l l l 22 MS. LARSEN: This is so new for us, we're very -- l 23 JUDGE BECHHOEFER: We realize, yeah, right. 24 MS. LARS EN: Thanks. 25 JUDGE BECHHOEFER: Now, the next one, number 5, l l\ b- ] (/
l 22 l g 1 is that contrary to item 2 of the December 31, '87 CAL, you 2 failed to submit a background urine sample with the 3 workers' samples. And as I read it, you acknowledge that 4 omission and I think you said, due to inexperience on one 1 1 5 occasion and on two later occasions, January 10th and ! 1
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6 January 13th, '88, you did properly furnish background j i 7 samples. Again, that's one of the allegations. This one 8 may be one that -- we're going to suggest later on that 9 there's some facts you may wish to just stipulate with the 10 staff, just agree and they can be put in the record then -- 11 I'll explain that later. 12 But we are going to suggest that some of these 1 13 facts where there's no dispute at all, be stipulated. Now, (^) 14 the next one, number 6, is that contrary to item 3 of the \-5-] b 15 December 31, '87 CAL, you stopped collecting urine samples 16 from two individuals every three days. And I guess you 17 answered that the sample were collected but the glass jars 18 were suspected of contamination. Both on this one and on 19 the next one, the next item, we think that the -- all the 20 facts really should be made clear on the record because 21 you're tailure to submit both these and some later samples 22 we'll get to in a minute, could, perhaps effect your 23 credibility, because it looks like you might have been 24 trying to hide some high samples. 25 And -- well, these are some of the things that we /'N 6 4 '%)l
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23 l g 1 would want to make sure the record gets corrected by the 2 time we get to the hearing, because these could be, I would 3 say, some of the more serious charges against you. And it 4 will be very important to get a clear record on exactly 5 what happened and what the circumstances were. 6 Off the record. 7 (Whereupon, a short recess was taken.) 8 JUDGE BECHHOEFER: Okay, back on the record. I'm 9 not sure what the significance is, but we've lost all of 10 our audience. 11 MS. LARSEN: And it's so nice. 12 J UDGE BECHHOEFER: Okay, the next item which 13 we're down to would be 6 on our list, and that is contrary 14 to item 3 of the December 31, '87 CAL, you stopped 15 collecting urine samples from -- I'm sorry, I did that one. 16 Go on to number 7. I did number 6. Number 7 is contrary 17 to item 4 of the December 31, 1987 CAL, you failed to 18 submit certain -- I will refer to them as high level bio-19 assay results when you received them. And I understand 20 that -- Mr. Larsen, that you said that the results were 21 questionable because certain boxes arrived broken at the 22 testing laboratory. 23 And for their part, the staff emphasizes that you 24 were supposed to furnish the results of samples to Region 4 25 on receipt and that they were received by you, the O O
l i 24 1 licensee, between January 10th and 13th, '88 but were not 2 forwarded to Region 4 until after a follow-up inquiry by 3 Region 4 on February 4th, 1988. And beyond that, the 4 results which you received on January 8th were not 5 f orwa rded to Region 4 until February 9th following a 6 further staff inquiry. 7 Now, in terms of our later discussion which we'll 8 bring up later about what the proper penalties are, we 9 wonder whether this sequence of events doesn't amount to a 10 showing of almost willfulness in withholding information. 11 And following the February 4th inquiry from the staff, 12 shouldn't all of the sample results have been almost 13 automatically forwarded? But our question is, is what was 14 conveyed by the staff in its February 4th phone inquiry? 15 Did the staff ask for specific results of certain tests or 16 did they indicate that there was a general obligation to 17 turnish information on receipt to Region 4? The content of 18 that phone call may be a relevant matter on the record. 19 And we would want both the staff and you to deal 20 with that, the content of both the February 4th and the 21 February 9th follow-up inquiries, as we understand it, as 22 we read the records. And we think that is quite important. 23 So, those will be matters that we would wish the record to 24 clarify at least. And by specific, 1 mean when the staff 25 called you on February 4th, did they say, "Where are the 0 0
25 h 1 results of certain specific tests", or "Have you been 2 furnishing results to Region 4 as you receive them"? What { 1 3 we don't know is whether it was a general inquiry or l l 4 whether it was so specific that you could only have 5 interpreted it to mean the two samples, I think, or two l l 6 results that you furnished to Region 4. So, we would want i I 7 that to be established on the record. I 1 8 That would be the seventh item. Now, our eighth ; l 9 item, there's an allegation that there were inaccurate l 10 statements in your March response concerning the improved 11 worked environment at the Wyoming facility. NRC apparently l 12 found the Wyoming facility inadequate for the purpose for 1 13 which it was used and it was alleged that you failed to I (3 k-[^) 14 include many quote " prudent engineering controls", end l N.) 15 quote, such as were required by your specific license in 16 Utah. As we read -- pardon? l 17 MR. LARSEN: This is a March response on what 18 date? 19 JUDGE BECHHOEFER: It's your March 18 response to 20 the suspension order, to the February suspension order. 21 JUDGE KLINE: March 18th. 22 JUDGE BECHHOEFER: Now, apparently as we read 23 your response, Mr. Larsen, you acknowledge that you had 24 certain unanticipated problems in setting up the Wyoming 25 facility and you also set torth certain safety measures O U') O
26 l 1 l g 1 which you follow or tollowed, we're not sure, at the 1 2 Wyoming facility which were not specifically required of a l 3 general licensee. Now, we have a number of questions on 4 4 this matter, one ot which is your response seemed to say 5 that these measures were currently being followed and it's j l 6 our understanding, if we read the December 8th, '87 CAL, ( I 7 that facility was supposedly shut down. And there's a i l 8 statement that operations ceased at the facility on l I 9 November 13th, '87. { l 10 We think that the status of what was happening at l l l l 11 that Wyoming tacility on various pertinent dates ought to 12 be made clear on the record. We're not sure whether it is 13 or isn't shut down or -- even now. (~)
\- 14 MR. LARSEN: Okay.
15 JUDGE BECHHOEFER: And at what date any pertinent 10 events happened. 1 don't think that's very clear from 17 either what you've responded to or what the accompanies the 18 statf's. So, we think the record should indicate that. l 19 We also have a number of other questions. For l l 20 instance, basically, this would be for the staff but are 21 the general license requirements applicable at all -- or 22 which are applicable to the Wyoming facility the same as 23 specific requirements which are applicable to the Utah 24 facility? When there's an allegation that you didn't use 25 the -- when your laboratories didn't use the prudent g 1 \_,1,9 l i 1 l l
l 27 I i l g 1 engineering features required by your Utah license, our 2 question is, so what? Under the NRC general license, why 3 would one have to? We would just want this to be 4 established on the record; whether it's consistent with the 1 5 general license regulations to attempt to apply specific l 6 license standards to a general license and under what l 7 authority -- if that's what the staff is attempting to do, 8 under what authority is it being done? 9 So, we have those questions about the -- well, j 10 the Wyoming facility gave rise to those. Okay the ninth 11 matter -- and this is going to be fairly short -- there is l l 12 an allegation in several places that the personnel, the 13 bio-assay samples were unacceptably high. Our question is, r
/8 1
\ 'r~; 14 under what standard and where in 40.22 are there any
]
15 , s tandards? And I'll get to some legal questions, but if 16 it's from Part 20, why is Part 20 even applicable? I have 17 a few more specific questions. I'll get into that later. 18 JUDGE SHON: I would like the staff, too, to 19 address certain technical aspects of this point. The Reg j 20 Guide which was cited is, in fact, a Regulatory Guide for 1 21 the control ot yellow cake dust in uranium mills. Now, 22 chemically yellow cake and urneolacitate (phonetic) are 23 simply not the same sort of thing. I don't know whether 24 they behave the same biologically or not. In fact, high 25 tired yellow cake and low fired yellow cake don't behave (nJ L__ _
l l l l 28 1 the same and such, are ditterent -- procedures to protect 2 against them are different. 3 What justities using a Reg Guide designed for 4 yellow cake dust contrcl as the Reg Guide, if indeed it's 5 intended to be such, for the production of a compound such 1 6 as Mr. Larsen was making? That's fundamentally the 7 question. How do we Know that this is what it is? 8 The second one is -- has to do with the way bio-9 assay samples are treated. At several points in various l 10 things written by the statt it was mentioned that the fact 11 that Mr. Larsen failed to take a sample every three days 12 and measure it had an important influence on the evaluation I 13 ot those samples, presumably because it would be desirable (M k 14 to track the biological burden over a period of time. (
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)
%i 15 the Reg Guide cited shows graphs that suggest that if you i
10 had a very high assay today, and then a week later had 17 background, this couldn't possibly be a meaningful number i 18 because it suggested that the stutt takes weeks or more to l l 19 clear out or the system. It's not eliminated that fast. l 20 The Reg Guide -- the graphs in the Reg Guide suggest that I 21 that's correct. 22 So, what does one look tor and why was it so 23 important that Mr. Larsen submit regular samples and what 24 knowledge -- that is what particular knowledge of the 25 pathology or the physical well-being of the people involved l
,T l Lf y LJ
_ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ ~
29 lh 1 is now lost because samples weren't taken every three days, 2 okay? 3 JUDGE KLINE: I'd like to add something to that. 4 That is that the regulations governing these bio-assay 1 l 5 samples are vague to say the least. And it would be usetul 6 to have at least some public health or human health 7 significance of the -- ot the levels found in the standards j t 1 8 used. And I'm not even sure, tor example, if the thirty j i 9 micro gram per liter standard that you used is a l I 10 radiological control standard or a chemical standard. I l l 11 don't know the significance of that number. And if it's 12 relevant, it it's a radiological standard, is there a 13 substantial ditterence or any difference in radiological (^T k-f} (_/ 14 satety between depleted uranium and natural uranium? 15 In addressing that, Reg Guide 8.22 addresses the 16 degree ot secular equilibrium between the U-234 and U-238. 17 It it's -- it we're employing here a radiological standard, la it would be helpful to know if that secular equilibrium is l l 19 restored in depleted uranium by the time it's used in the 20 laboratory. 21 JUDGE BECHHOEFER: Now, the next item which we 22 have is number 10. There's apparentiv an allegation, 23 although this isn't under the list of charges, but there's 24 an allegation that there was five contaminated facilities 25 in Utah and Mr. Larsen, you've denied that. We would wish O u 1 a_-_________. _
30 l 1 1 the record to retlect tirst, whether this is one of the { 2 basis for the revocation order and if so, what the 3 tacilities are and some of the details. ( 4 And then the eleventh one, which may overlap, I 5 really overlaps the eighth one, is that the -- this is sort 6 of duplicative of the eighth one, but that the facility in j 7 Wyoming itself was inadequate. And again, we raised the j , ) 8 question betore, under what standards are they being judged i 9 by or whether it's the specific license or the general j l l 10 license. That may be the same allegation, but it appeared i 1 11 a couple of times. l 12 Now, those are the last of the factual matters, . 1 i 13 factual allegations that we perceive. We have a number of l ("3 ' k-h-) 14 legal questions we want to raise, but my question to the O 15 parties are, did we leave anything out in terms of factual 16 -- is there anything that the staft, in addition, is l l '7 relying on which don't fall into any of those l'd say ten 18 or eleven categories which we missed? 19 MS. HODGDON: Judge Bechhoeter, the extent to 20 which past history beginning with 1982 is relevant to the 21 issues in this case. 22 JUDGE BECHHOEFER: Okay, well, I was se of 23 treating that as background, but if that is part of the 24 statf's general case, we should make it clear and we will 25 do so. (M 3 N. 8
\.)
31 l g 1 MS. HODGDON: Well, it's hard to -- 2 JUDGE BECHHOEFER: I might tell you, we are going 3 to issue a pre-hearing conference order which is -- 1 1 4 hopetully, will spell out these various matters. l 1 5 MS. HODG DON: The extent to which some of it is l 6 introduced, as the five sites for example, would seem to l l l l 7 suggest that all of it might be introduced as showing non-l l 8 compliance over time, or showing history of -- l 9 JUDGE BECHHOEFER: Right. 10 MS. LARSEN: May 1 make a statement here? 11 JUDGE BECHHOEFER: Yes. 12 MS. LARSEN: The five sites would have been 13 eliminated had we been able to build -- I mean, open our I (^'6
\-p~) 14 tacility in the building that we built. You know, the 1
%/
l 16 whole thing, you know, dating back to 1982 would have all 1 16 been eliminated and I think this whole hearing would have l 17 been eliminated, but, you know -- 18 JUDGE BECHHOEFER: Ot course, that again will 19 be -- 20 MS. LARSEN: That again is background information 21 which probably is -- 22 JUDGE BECHHOEFER: -- which could very well come 23 into the record when we have the hearing. What I'm saying 24 is right now -- 25 MS. LARSEN: For right now. l' (p)L ) -
32 ll g 1 JUDGE BECHHOEFER: -- we're just trying to 2 establish what the issues are. 3 MS. LARSEN: Right. 4 JUDGE BECHHOEFER: And, that, of course, would be 5 relevant, certainly to intent or willfulness and that kind 6 of thing. 7 MS. LARSEN: That's really the point that I want 8 to show is that, there's never been wi11 fulness. There 9 never has, but that seems to have been a key issue all the l l 10 way along here, you know, as far as my husband's integrity. i 11 JUDGE BECHHOEFER: Well, when we're going to go 12 through some of these legal questions, we're going to bring l 13 this out. The legal questions sort of overlay everything
~
14 else. x_, 15 MS. LARSEN: I appreciate that. 16 JUDGE BECHHOEFER: The - pardon? 17 MS. LARSEN: I say, I appreciate that. Thank 18 you. 19 JUDGE BECHHOEFER: Okay. The first legal 20 question that we were going to raise is ora that we've 21 really covered already pretty much, and that is the 22 applicability at all ot Part 20, the standards in Part 20 23 to Mr. Larsen as a general licensee. And we're -- several 24 sources -- first, is it based on the licensee's alleged 25 violation ot receipt or use limits? This is one question. O G' (
R l 1 33 l g 1 or is it premised on the licensee's possession of a 2 specitic license? 3 And if so, does the Utah license today qualify as l 4 quote, "a specific license issued pursuant to Part 40," as l 5 those words are used in 10 CFR 40.22(B). 40.22(B) seems to 6 say that general licensees aren't subject to Part 20 unless 7 several things happen. We wanted to make sure what theory 8 the statt was using to -- if it was trying to apply Part 20 l l 9 standards. And then the third part of that is that the l 10 CAL's are based on Reg Guide 8.22 and Judges Shon and Kline 1 l 11 have mentioned some of their -- some of the issues they see l l 12 in applying Reg Guide 8.22. l l 13 So, the first legal issue again, is under what { f3 l s \ 4 A-f'] %/ 14 authority is Part 20 being applied and also Reg Guide 8.22? { 15 l The second legal issue -- again we've raised some of these j 16 things before, but does Part 40 include any possession l l l 17 limits for general licensees under 10 CFR 40.22 or is it 18 limited to use, transter or receipt within a calendar year? 19 Under -- just under what authority is the staff charging 20 the licensee with violation ot possession limits? Those 21 words, at least, appear several places throughout the -- 22 either the revocation order or some of the inspection 23 reports or investigative reports, 1 guess. 24 The next legal question we have, the third, is l 25 the revocation order states that Mr. Larsen's, and I'll
<-)
1 w N 1 l
34 l g 1 quote, " Activities which have involved the chemical 2 processing of significant amounts of source material are of 3 such a nature that the radiation safety, chemical safety 4 and waste disposal aspects of the operation should not be S conducted under a general license". And I continue within 6 the quote. It says, "Moreover activities of this nature 7 were not anticipated by the AEC at the time 10 CFR -- at l 8 the time of the 10 CFR 40.22 rule taking". Our question l 9 is, what relevance is this? The regulations say what they to say and it they've -- it the words in them don't express j 11 what the Commission meant to say, AEC or NRC, as the case 12 may be, aren't we bound by the regulations as stated? 13 Can we attack a regulation, in effect? And isn't (')~;
\f 14 the statt bound by the regulations as they're written i'
O 15 rather than what the statt now believes should be in 16 etfect? And it Mr. Larsen meets the stated criteria ot 17 40.22, is that not sutticient to permit him to carry on his 18 activities under a general license? So, that's basically 19 our question that arises there. And it relates to that 20 eighth basis that we talked about earlier. l l 21 The next question which we have a legal question. l l 22 What is the time limit or time period under which the 23 general license remains revoked tor Mr. Larsen? Since a 24 person can't apply for a general license or doesn't apply 25 tor a general license, how would Mr. Larsen ever regain
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L __ ___
35 l l 1 authority to operate again under a general license, 2 assuming that the revocation should be upheld? This -- 3 does this amount to an indefinite blacklist in other words? 4 What happens? We would like the staff's case to establish 5 the exact limits of what it is trying to impose. 6 JUDGE SHON: I'd also like to have this staff 7 address the extent to which this revocation permeates the 8 rest ot Mr. Larsen's organization. The regulations say 9 everybody has a general license, you know. All God's 10 children got shoes. Engaged in certain business at any 11 rate. If Mr. Larsen and Wrangler Labs and Orion Labs don't 12 have a general license any more and are on a list 13 somewhere, what aDout Acme Screen Door and Laboratory
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- 1 14 Company also owned by Mr. Larsen or by his wife or by N/
15 somebody else? Does that organization have a general l 16 license or has that been revoked also? Is it anything 1 17 that's connected with Mr. Larsen -- with Mr. Larsen or any I 18 of his -- member of his family, with Mr. Larsen or any of j i 19 his employees? How far does the revocation of a general i l l 20 license go as to propagates out into the general public, { l 21 his next door neighbor, down the street? j 22 We have not been able to determine from our own l 1 23 research as just where this boundary stops. ' 24 JUDGE BECHHOEFER: Or what Mr. Larsen would have 1 25 to do. Assuming it revocation were upheld, what he would
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36 ll l 1 have to do to get back the authority to operate under a 2 general license, or is there any way? Since one doesn't 3 apply for one, how do you get one it you've had one 4 revoked? 5 Anyway those are questions that we have. The 6 next series of -- do you have anything more before we get I l 7 into -- l 8 JUDGE KLINE: No. 9 JUDGE BECHHOEFER: The next series of questions ! 10 we have all deal with the propriety of revocation as a 11 remedy for asserted license violations. And we would like 12 to see a relationship to specific criteria intents of our 13 Part 2, Appendix C. Appendix C generally covers the types (~)
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() 14 15 of penalties which apply to enforcement action. And, there are some series of Appendix C which set forth civil l l 16 penalties. There are other portions of the Appendix which ! 17 deal with staff orders, such as the one here involved. And i 18 we're trying to relate what the staff is attempting to do l t 19 here with the proper criteria in Appendix C. 20 First question would be, into what severity l 21 category which are set forth in Appendix C, Supplement VI, 22 this is or V-1, Supplement VI, Roman VI, into what severity i 23 category do each ot the asserted violations fall? And are I 24 there circumstances -- or does this case involve 25 circumstances within the meaning of Appendix C, Section ) {~-:~b i
/
1 i
1 l l 37 g 1 111, Roman III, which would warrant an increase of the 2 severity level of the individual violations? 3 And as another reference I point out to Appendix l 4 C, Section Roman V, another Section, C3, regular 3 with the l 5 5 and the 3 in parens. I'm not sure how these various 1 6 categories of Appendix C are designated, but -- and our l l 7 next question is, may the actions of Mr. Larsen be deemed l l 8 to be willful within the meaning of Appendix C, Section Roman V, E, capital E? That would relate back partitalarly 10 to the allegations concerning the urine samples, whether j 11 that would bring it into the willfulness category. 1 12 Now, our next question is -- and this relates to 13 the history that the statt has mentioned trequently -- to
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Ag/~] 14 what extent, if any, is the staff relying on past , \/ 15 violations for which a penalty has already been assessed to l ) 1 16 support the revocation order? And we note that there was a l 17 -- the show cause order and the Utah suspension, i 18 particularly the failure to meet the final two terms of the ! 19 Utah suspension order and the basis for the various CAL's? l l 20 To what extent is the staff relying on this and to what 21 extent is it authorized to do assuming certain penalties 22 have already been assessed, and apparently they have been? 23 So, that's our question there. The next -- the 24 titth legal matter, and 1 believe Judge Kline mentioned l 25 this earlier, what are the public health and safety N-l<m l (-) l l
l i l 38 l g 1 implications of each of the alleged violations, and are all 2 the alleged violations considered collectively? Are the 3 alleged violations each considered to be equally serious 4 for purposes of ascertaining an appropriate sanction? Is a 5 tive pound excess transfer as serious as a sixty-one pound G excess for purposes of imposing sanctions? I'm just 7 picking out some tigures which did appear at various places 8 in the record. 9 So, we would like to see how the staff puts l 10 together all of the alleged violations in order to come up 11 with the sanction which they are seeking and that's the 12 final question is, we wish the staff to develop for the i 13 record, its rationale for seeking revocation which is the 14 most severe penalty as a sanction. r-]/ And did the staff give t 15 any considerations to other sanctions, such as operations 16 subject to specified conditions, license conditions or any 17 other type of sanction which -- we can think of enumerable 18 types of sanctions less severe than revocation. Whether or 19 not they would achieve the purposes that the staf' views as 20 necessary, we don't know. And we would like the staff to 21 discuss that to some extent. Basically, your rationale for 22 going tor the most serious penalty, what we regard as the 23 most serious penalty set forth in Appendix C. 24 Those are all the substantive matters that we 25 have envisioned. We would -- do the parties -- do either O Vm l NY l
l 1 39 h 1 of the parties believe that we've left something out, l 2 because -- that should be covered at the hearing, because 3 those are the basic matters that we -- 4 MR. LARSEN: May I ack -- 5 JUDGE BECHHOEFER: Certainly. 6 MR. LARSEN: -- how -- well, for one thing that l 7 I'm going to be bringing up is, the -- what's the right 8 word -- the non-subject -- non-objectivity of the 9 investigation. In other words, it was not handled, I don't 10 think, as an objective search for the truth, but rather as 11 a gotcha fault-tinding, "How can we get him" type of 12 investigation. Now, can this be brought out in answer to 13 the questions that are going to be discussed in the 14 hearing, or do you have to have a separate question asked kj'] v 15 that should be addressed? Do you understand what I'm 10 saying? 17 JUDGE BECHHOEFER: What you're saying -- first of 4 18 all, there have in some sense been two investigations. I 19 They all look like the same organization to you, but there 20 have been a couple ot separate divisions, it you want, a 21 couple of separate portions of the NRC who have looked at 22 your operations, one is the Region 4 office and the l
)
23 inspection and the enforcement people from there and the i 24 other is, I think, called the Office of Investigations, ' 25 which -- and in some ways, we've been unable to reconcile A U m. U 1 l l
l i l i 40 l 1 some of the numbers even that these two investigations have 2 produced. 3 And as I understand it, what you are saying is 4 you teel that there was a lack of objectivity on the part 5 of one or more of the investigators and that the 6 investigations were of the nature of trying to turn up 7 something rather than seeing what's going on. l l 8 MR. LARSEN: Right. That's right. l 9 JUDGE BECHHOEE'ER: Well, it you have reason to 10 believe that is true, and have factual material that would 11 tend to support your position, of course, you can present ! 12 it. But I think you .:,ught to make clear, too, which of the 13 two organizations you're talking about. 3 (N O 14 I believe that in the position we are as a Board, Q \ 15 we can't tell the statt how to conduct its investigations 16 or inspections, as the case may be, and a general 17 suggestion as to how they could revamp their procedures 18 would not be appropriate. However, deficiencies in your i 10 particular -- in the investigations and in the production 20 or any of the evidence they would use against you, would be 6 2 21 relevant to those -- to the weight to be given that 22 particular evidence. So, to that extent, your point could 23 be raised under -- as counter to the particular evidence 24 that you believe was gathered improperly. ! l 25 Or, in addition, it not all the facts as you see tQ QU ! j l l I
l l 41 l g 1 them concerning a particular matter are set forth by the 2 statf, you have the right to present testimony, either your 1 3 own or others to support your version of what the facts 1 4 should be. 5 MR. LARSEN: So this can be added in at the 6 hearing. 7 JUDGE BECHHOEFER: Then we decide what we believe 6 is correct. l 9 MR. LARSEN: But this can be done at the hearing. j l 10 It doesn ' t have to be addressed separately. l 11 JUDGE BECHHOEFER: Well, no, it -- normally, it 12 can be done at the hearing, although it is a good idea, as 1 13 we have said, to have prepared testimony in advance, l r i N 14 several weeks before. We will be setting a schedule
' -p"A L
15 eventually, but prepared testimony is considered to be done 16 at the hearing but it is prepared earlier and that's 17 subject to cross examination at the hearing. But it 18 extends the process a little bit, but it makes the hearing 10 itselt much shorter and easier -- 20 MR. LARSEN: Right. 1 21 JUDGE BECHHOEFER: -- and where real differences 22 can be emphasized. 23 JUDGE SHON: 1 might say, Mr. Larsen, again since 24 you are not represented by counsel and you're not used to 25 some ot these ideas, the whole business of discovery, pre-('T Q'q U
l l l 42 ll l 1 trial preparation or pre-hearing preparation, submittal of 2 testimony in advance and so on, is built around a notion 3 that, you know, there is no more Perry Mason. You do not 4 come charging in with a surprise. And the staff is not to 5 come charging in with a surprise to you either. O MR. LARSEN: Uh-huh. 7 JUDGE SHON: You can legitimately find out what 1 8 they're going to say about you and if they want to know, 9 you must tell them what you're going to say about them. 10 MS. LARSEN: May 1 make a statement? ! 11 JUDGE BECHHOEFER: Certainly. 12 MS. LARSEN: I think one of the objective pieces 13 of material that might be considered was a statement made
f")V 14 by a member of the statf.
16 JUDGE BECHHOEFER: I I can't hear you. 16 MS. LARSEN: You can't hear me? 17 JUDGE BECHHOEFER: 1 can't hear you. m MS. LARSEN: I say, I think something that ought 19 to be statement right now that might be considered 20 objective material is a statement that was made by a member 1 21 of the statt to my husband and that was, "We have the right 22 or the power to destroy you". I better not say "right". 23 l'd better say, "We have the power to destroy you". And an 1 24 a one-man citizen, as a one-man operation, I'm sure that 25 someplace in the volumes of information and regulation put ( b)$O V
l I , I l l 1 43 l l g 1 out by the Government, I'm sure that's possible. I 2 But it seems up tront, that it needs to be l 3 established that whatever was attempted by my husband was 4 misconstrued as being willfulness. It's very difficult for 5 me to state these pieces ot information right now, because l 6 I'm very emotional about it. It completely destroyed our 7 business and if that's what the intention was of the people 1 1 8 that made the investigation on my husband, that's what they 9 accomplished. And it's very difficult for us. And I think 10 it needs to considered right now as part of pertinent 11 information. 12 MR. LARSEN: How can this be introduced at the 13 hearing? Can this be introduced? Does it have to be
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14 addressed separately? v 15 JUDGE BECHHOEFER: Let us talk about it. Off the 16 record for a moment. 17 (Discussion held off the record.) 18 JUDGE BECHHOEFER: Back on the record. We 19 believe that the issue you raise can be -- fit under the 20 issues that we've already set forth and particularly under 21 the question ot the propriety of revocation which we stated 22 is going to be one of the issues -- 23 MR. LARSEN: Okay. 24 JUDGE BECHHOEFER: -- revocation as distinguished 25 trom something else. That certainly would go to the matter th ( e) s. b,
44 h 1 of willfulness and that type of thing, also the specific 2 charges which could be read. We've told the staff to come 3 up in its direct case with examples -- or showing how it 4 fits under -- how their allegations fit under the 5 willfulness criteria which is -- seems to be part of the 6 revocation penalty. So, they will have to establish that 7 and you will have a chance to respond. You get a chance to 1 present your side of the case. And then we have to decide 8 9 which one we believe or go with, i 10 MR. LARSEN: But, I -- okay, that will be fine. 11 It does not -- 1 mean, it seems like I'm on the defensive { i 12 about willfulness when, in fact -- a I 13 JUDGE BECHHOEFER: Well, the staff has got to r'% : 3 14 prove -- t /
%d 15 MR. LARSEN: -- there's a question whether they 16 were willtul.
17 JUDGE BECHHOEFER: Yeah, the staff has to prove la that your violations were -- or we think the staff has to 19 prove that they were willful. The staff has to prove its 20 entire case. Whether or not -- we also think that 21 revocation depends on some willful conduct although there 22 could conceivably some exceptions to that. That will be 23 part of the statf's case which you will see and have a 24 chance to respond to. So, the matter you have raised do 25 tit in the issues we've raised so far. (x A NY
45 l g 1 MS. HODG DON : Judge Bechhoefer, if I may, yes, 2 Mr. Griffin would like to speak to this idea of -- 3 allegations of misconduct on the part of the staff insofar 4 as they go beyond what might be directly at issue here 5 which they might. 6 JUDGE BECHHOEFER: Well, as I mentioned -- yes, 7 he's welcome to speak. 8 MS. HO DGDON: If he may. I mean, he just wants 9 to tell you what the procedure is insofar as it might be 10 relevant, because it might not be proper to raise some of 11 these things here, whereas the staff might well -- there is l I 12 an avenue for taking care of them. l l 13 J UDGE BECHHOEFER: Right, right. I think I had j 14 mentioned that the general way the staff conducts its 15 investigations is not within our jurisdiction to look at, l I 16 but the way they conducted this -- the way they obtained 17 certain evidence in this case and the implications would be j 18 relevant as fitting under the specific issues. But, go 19 ahead. 20 MR. GRIFFIN: Okay, Mr. Larsen, the Board might 21 be influenced by any evidence you can bring or that you l 22 might give them that would indicate that an NRC employee 23 acted improperly, gone beyond the scope of his authority or 24 it 1 understood what you were saying awhile ago, made a 25 threat, that would certainly sounds like to me, that would 0
46 ll g 1 be beyond the scope ot authority. There is a group within 2 the NRC that watches and makes sure that the NRC personnel 3 conduct themselves properly, it you've raised this concern, 4 whether you raise it in a public forum, whether you raise 5 it privately to an NRC person. 6 We're obligated to tell you that there is such an 7 agency to investigate this type of matter. It's called the 8 NRC Office of Inspection and Audit. And I would encourage 9 you to contact this ottice and tell them what your concern 10 is and give them as much detail as -- in this matter, so 1 11 that they can investigate it. It's their duty to do so and I 12 their findings would, I'm sure, be of interest to you. 13 J UDGE SHON: Are you suggesting that if such an (*; k-['; 14 investigation is undertaken, it should be undertaken at (/ 15 such a time that its results would be available for this 16 hearing, and, if so, were you suggesting that we might 17 delay the hearing until such an investigation could take la place or -- 19 MR. GRIFFIN: I'm not suggesting that all, but 20 that would be a decision you would have to make 21 independently. If you thought that this would effect your 1 22 decision related to these specific citations of regulations 23 -- violations of regulations, that would be your decision. 24 l'm just saying any time somebody makes an allegation 25 against NRC employees, it is our duty to inform that person l . (~~'s l Y-l~% l L-)
47 l g 1 the remedy that he has available to him, and that's the 2 tull scope of my comment. 3 JUDGE SHON: Such an investigation would probably l 4 be a rather lengthy matter, I would think. 5 MR. GRIFFIN: If the initial preliminary 6 interviews and everything indicated impropriety on the part 7 of -- and if there were many witness, it could take a long 8 time, or it might be a long time before OIA had an 9 opportunity to put resources on it. 10 JUDGE SHON: Right. We'll go ahead and set a 11 schedule today anyway. 12 JUDGE BECHHOEFER: Yeah, and I think the schedule 13 would not contemplate waiting for an OIA investigative l l f ^T 14 report, but perhaps by the time we got to the hearing, if v 15 it appeared that something was coming forward, we might 16 have to postpone it. I think it could be quite a few 17 months before OIA came up with a report, but hopefully, it la wouldn't be that long before they got to the item. 19 Now, the next thing we would wish that the 20 parties, to the extent they could, could get together and 21 stipulate matters tor which there is no -- I think we 22 mentioned this brietly before -- for which there is no real 23 ditterence of opinion. And for instance, the content of 24 the shipments from -- I'm just setting these forth as 25 examples, possible examples, not necessarily all inclusive. O w U l l l
l l 1 l I l 48 l 1 The contents of the shipments from Wyoming on December 20, 2 '87 and I guess, June 1st, '88 -- well, I'm not sure those l 3 dates are right. No, those dates aren't right. No, June 4 1st, '87 and -- it was June 1st, '87 and December 20th, l l 5 '87, what actually those shipments were made up of, what l 6 materials, possibly that would be something you could 7 stipulate to. i 8 The tailure -- another one would be the failure 9 to furnish baseline urine samples tor two employees. That 10 seems to be admitted, not the reasons for the tailure or 11 the reasons that we would derive from that, the fact that l 12 there was a failure, would seem to be something that you i 13 and the statf could sit down and just stipulate it. We can l /~T l k-[f'S I / 14 put all these tacts in the record, and then those would be 1 'r / 15 tacts we could rely on but we -- any implications drawn i 16 trom those facts would be whatever comes out at the j 1 l 17 hearing. 18 This is just a method of saving hearing time when 19 we get -- for matters for which there is no real dispute, i 20 The failure to furnish background urine samples, on at i 21 least one occasion is another matter which you could 22 probably stipulate to. And there may be numerous other 23 matters which, it they were stipulated to, they could be 24 submitted to us, and unless we were aghast at what the 25 stipulations were, we would probably just accept them and O u U
1 49 l l g 1 put them into the record and those would be facts we could 2 rely on. ! l 3 We would view that as a method of saving hearing l l l 4 time certainly and letting the hearing be based on -- or i 5 consider only matters that we really had to resolve. So, 6 we would encourage, Mr. Larsen, you and the staft to try to i l l 7 get together at some point to work out some stipulations. ' l 8 I would encourage both parties to see what you could do on 9 that. There seem to be many facts that could be stipulated 10 to and without drawing any implications for what they mean l 11 in terms of things like willfulness, but that fact that i 12 certain things happened. ) 13 Now, the next item on our list is the discovery f n l 14 which we mentioned before. To what extent do the parties k-y)-)S L j i 15 wish to have some discovery? Mr. Larsen, do you have any j i 16 idea since we've explained a little bit about what ) 17 discovery is, whether you would wish to engage in any -- 18 MR. LARSEN: In other words, is there any 19 information out there that I would like to discover? i 20 JUDGE BECHHOEFER: Yeah, pertinent to your case. l i 21 MR. LARSEN: Pertinent to the case. 22 JUDGE BECHHOEFER: Yeah. It so, we'll have to i 23 set a schedule for you to do so, give you a certain number l 24 or weeks to engage in -- weeks or months or however long it i 25 takes. And I'm going to ask the same question to the ( 4 (h _j
50 ll g 1 statf, whether statf -- staff has greater authority to get l 2 information on its own and may or may not need further 3 discovery, but based on some of the issues that we've 4 spelled out, the staff may wish to also discover. So, both 5 parties have that right. 6 MR. LARSEN: Are you saying do I want to have 7 some? 8 JUDGE BECHHOEFER: Yes. 9 MR. LARSEN: I think we have enough to present 10 our case right now. There could be more out there, but I 11 don't think it would make any difference. 12 JUDGE BECHHOEFER: Now what about the staff? 13 MS. HODGDON: The staff will probably want to 14 take Doctor Singh's deposition. 15 JUDGE BECHHOEFER: Yes, that would be useful. 16 And that would relate to one of the issues that we said we 17 were interested in, too. 18 MS. LARSEN: John, you might mention the fact 19 that maybe he won't be real quick to want to come if he's 20 ready to publish. Maybe he wants to get his -- 21 MR. LARSEN: No, he said he would help. 22 MS. LARSEN: Okay, because he is publishing -- 23 his publishing is eminent and he might not want to share it 24 until it's published, you know, because he's really guarded 25 about his information right now. So, I don't know. You'll O O
51 l g 1 have much more influence, I'm sure over that. Maybe he'll 2 be quicker to -- 3 MR. LARSEN: I think he said he would be glad to l 4 help. 5 JUDGE BECHHOEFER: Well, is there a particular 6 time frame? 7 MR. LARSEN: Well, his publication will be out in 8 two months was the figure he told me. 1 9 JUDGE SHON: There are ways of handling discovery i 10 betore an administrative tribunal such as this that make it 1 i 11 possible to use material that people don't want disclosed l l 12 to the public or that don't want disclosed immediately to l 13 the public. There are such things as what are called O'] N-f (/ 14 protective orders. We could sign a protective order and l 15 have everyone sign an agreement not to disclose it. And it 16 could, indeed, if you wanted to even close the hearing to l 17 the public when matters are discussed, if this is 18 necessary, but you have to have good reason for this, and 19 things like this. You have to show why it is necessary. 20 MR. LARS EN : I think that he will be cooperative. 21 JUDGE BECHHOEFER: Right, as I say, we could 22 arrange -- 23 MR. LARSEN: But that is an option. 24 JUDGE BECHHOEFER: -- for his testimony not to be 25 made public and certainly for depositions to be kept vmV
l 52 l ll g 1 protected at least until his publication date. That could 2 be arranged. 3 MS. LARSEN: I think that would be wise, because 4 he -- l 5 JUDGE BECHHOEFER: But we would have to be given 6 certain facts and statements and, I guess, the staff would 7 have to file its request for a deposition first and 8 theoretically, you would have to ask tor a protective 9 order, and you may wish to work Mr. Larsen in developing ) l 10 something like that, since we already know that something j l l 11 like that is eminent. I think the staff has done this in l 12 the past. l 13 MS. HODGDON: The staff might also want to depose l f') k- 14 the other witness. It's not quite clear to me what he's l 15 being offered for. Mr. Noack, 1 presume is a fact witness. 16 JUDGE BECHHOEFER: Right. Well, anyway, you can 17 perhaps work out with Mr. Larsen, any protective order 18 which might be useful. And we would certainly be agreeable 19 to that, particularly if it had a time limit of whatever 20 the publication date were. That would not be a difficult 1 21 type of protective order to work out, I don ' t think. And 1 22 don't think the statt should have any -- I assume you would 23 not have any problem with that kind of a -- 24 MS. HODGDON: No. I should think that if he's 1 25 scheduled to publish something in two months, that the 1
*O
53 ll g 1 something that he's scheduled to publish already exists 2 and, therefore, that we could use it under appropriate 3 protection. 4 JUDGE BECHHOEFER: Right, right, right. And I 5 might say, to the extent necessary, we even could have that 6 portion of the hearing what's called in camera and the 7 transcripts would not be available except to named 8 individuals, parties, and would not be released to the 9 public until whenever the protective order expired. So, 10 these arrangements can be worked out and it would be not 11 unusual at all. 12 JUDGE KLINE: It you need it, be sure to ask for l 13 it though. O x-f"%
+ 4 14 JUDGE BECHHOEFER: Yes. Now, in terms of \J 15 discovery, the Boa rd has found references to three items 16 which we don't have yet, and we probably should have in our 17 reco rd . And Mr. Larsen, 1 assume you've received all 18 these, but if you haven't, then you should, too. There is l
19 an inspection report, 99990004/88-21 dated April 26th, 1988 l 20 which was referenced by Mr. Spitzberg. I don't think we've 21 ever received that. And subject to appropriate deletions, l 22 it necessary, I think we should probably see that, ! 23 deletions of names of informants, that type of thing. 1 24 don't think that's one ot the reports we got. 25 MS. HODGDON: No, I don't believe that report's t'N l (_('-)s
54 l g 1 been given to you. I think there are several other reports 2 that are post the date of the inspection reports that you 3 do have. 4 JUDGE BECHHOEFER: Well, there's a reference -- 5 MS. HODG DON: These are later. 6 JUDGE BECHHOEFER: -- by Mr. Spitzberg in one of 7 the documents you supplied to us and I do think we ought to 8 have that one. If you think there's anything else of that 9 sort that would be pertinent to the issues we've raised -- 10 MS. HODGDON: I think there are at least two and 11 possibly three inspection reports that we will give you. 12 JUDGE BECHHOEFER: Okay, and presumably Mr. 13 Larsen will get copies if he hasn't already. The other
,~
14 matters -- we see references to two more CAL's which we
-;'L)T 15 didn't ask for before, but one March 18th, '88 and another !
1 16 one April 1st, '88. Assuming some relevance to this 17 proceeding, we would like to see copies of that. There are 18 no violations ot those alleged, but we would like to see 19 what other conditions may have been imposed on Mr. Larsen. 20 It there's any others, we would just as soon see them, too. 21 But those are ones that we have seen through looking 22 through the record. So, basically that inspection report 23 and any other, plus the two CAL's and we don't mean to 24 imply that you should deliver these to us on the spot. We 25 -- you can take a reasonable time to just send us copies n un
1 55 I l ll g 1 and Mr. Larsen it he doesn't have them already.
? l'm sure he has the CAL's. So -- okay, the next 3 matter -- those are the only ones that we saw, looking 4 through the record that we -- if there are other documents l
S that the staff believes are pertinent to the issues we've l l 6 raised, we would wish the staff to provide them both to us j l 7 and Mr. Larsen. But, the only specific things that we see 8 are the ones that we mentioned. 9 The next question is, normally in a proceeding -- 10 at least a licensing proceeding, there will be what is j l 11 known as a local public document room. There isn't one 12 here and normally the staff does not set up such documents ; i 13 rooms, but one of the things the document room would have O k- 14 is a transcript in it. And transcripts, if you go out and 15 buy them are reasonably expensive. So, we wondered what, 16 it anything, the staff would suggest for a transcript. 17 Mr. Larsen, 1 assume you don't anticipate having la to purchase a fairly expensive transcript, because -- and 19 the only way you normally would get it would be to purchase 20 one. I don't r. r . ' what the rates are but they're 21 considerable. 22 MR. LARSEN: Transcript or what? l 23 JUDGE SHON: For example, this. l I 94 JUDGE BECHHOEFER: Ot this or -- 25 MR. LARSEN: Oh, okay. [ b, v
56 l g 1 JUDGE BECHHOEFER: -- and of the hearing itself. 2 A written copy of everything that's -- 3 JUDGE SHON: Everything that we have said here 4 today, will be recorded and bound usually with a little 5 blue paper cover. The same is true of the hearing. If 6 there is a deposition, for example -- the staff suggested 7 it might to depose Doctor Singh. l 8 JUDGE KLINE: Well, he'll be sent that. 1 9 JUDGE SHON: What? l 10 JUDGE KLINE: 1 He'd be sent that. 1 11 JUDGE SHON: He what? , 12 JUDGE KLINE: He'd be sent a copy of that, 1 l l l l 13 think. l (') . k-f"3 14 JUDGE SHON: I don't know. That certainly would
'L) 16 also be made as a transcript. I think you might get a copy 16 of that free. But, copies from the hearing itself or from 17 this pre-hearing conterence, you probably wouldn'c get.
18 And they usually run -- the total volume of the thing is 19 something like a couple or hundred pages for a day's j 20 hearing. This will probably a hundred and I don't know ] 21 exact rates, but the price of the individual copies is like i 22 a dollar a page. It might be titty cents a page, but it's j l l 23 money. 24 MS. LARSEN: Which at this point, we really are 25 pressed tor, so I don't -- l 1 1 l t L,..f 8 L) ; I i 1
57 l g 1 J UDGE BECHHOEFER: Now, I wondered whether the 2 statf might want to send a transcript either directly to 3 Mr. Larsen or maybe Brigham Young could set up a document 4 room. I don't know that -- I understand that Mr. Larsen 5 probably has copies or all of the pertinent information G that's in the document room either in Washington or in 7 Region 4. Does the staff know this or does -- Mr. 8 Spitzberg, do you -- are you aware of whether there's 9 anything in the Region 4 document room or document 10 collection that's available to the public that Mr. Larsen 11 might not have received or has he gotten everything? 12 MR. SPITZBERG: He's received everything issued 13 by our office. There are, of course, internal notes and 14 messages. 15 JUDGE BECHHOEFER: Well, internal notes don't go 10 into the public -- I'm referring to matters that go into 17 the public document room which would -- 18 MR. SPITZBERG: I believe he's received all of 19 this material. 20 JUDGE BECHHOEFER: I see. So it would only be 21 the transcripts then, that -- we were trying to figure out 22 what arrangement could perhaps be made. If worse comes to 23 worse, we could run a xerox copy of ours, but -- and 24 normally the parties to the proceeding will -- if there are 25 major mistakes in the transcript, they will file a motion l
58 I for transcript corrections. But of course, you can only do h l 2 that if you've seen the transcript. 1 3 MS. LARSEN: What if you just choose to trust 4 them, that they're going to say -- I mean, they're under an 5 order to speak the truth, aren't they? I mean, I just -- 6 JUDGE KLINE: But you need the transcript to read 7 over -- like the transcript of today's proceedings, we 8 listed a number of issues. Now, you -- 9 J UDGE BECHHOEFER: Well, we issue a pre-hearing 10 conference order, but it will not have every detail that I 11 tried to spell out. It will have the general categories of l 12 issues that I named, eleven -- ten or eleven issues and 13 they will be listed, but all of the comments that I made l l (~)']
\--r
(_/ 14 will not be. 15 JUDGE KLINE: It will be useful, in other words, 10 to read over what happened today. l 17 JUDGE SHON: It will also be useful when you 18 prepare what is going to be essentially a final argument, j l 19 if you want to submit proposed findings to us after the l 20 hearing. You will want to be able to say, "Well, so and so 21 l said this and he said it at page so and so of the 1 1 22 transcript. So, that's true and that proves we're right". i i 23 Do you see what I mean? Not having a transcript available ! { 24 to do that sort of ching might be to your disadvantage. l l 25 JUDGE BECHHOEFER: Yeah, and every party has the l IkIl ! I
- - - _ - - - - - - - - o
l 1 1 1 59 ll l 1 r ig h t to submit proposed findings and -- proposed findings 2 after the hearing, what the party proposes that we find as 3 a matter of tact and what result we reach and reasons why. 4 And, the party which is proposing the order, which is the 5 statt, woula submit theirs first and then you would submit 6 a response. And then the staff would have a rebuttal which 7 would have to be limited to matters set forth in your 8 response. Then we would put it all together and hopefully l 9 come out with an intelligible decision of some sort. So it 10 would be almost essential for you to have a transcript. l 11 And while you might be able to recollect and take 12 notes, you'd do much better seeing exactly what was stated. 13 And then, of course, transcript corrections would be for -- O k-f'~} (/ 14 only it the Reporter didn't put down exactly what was said. l 15 That is normally less important because the gist of what's 16 said usually comes through even if every word may not be l 17 pertect. But, every Reporter will make a few mistakes, you 18 must admit. Maybe not, maybe not. 19 JUDGE SHON: Hopefully -- , 1 20 JUDGE BECHHOEFER: Okay, well anyway, the parties 21 have the opportunity to file corrections if they think it's 22 necessary. Well, in lieu of a public document room, would 23 the statt be willing to say that, like Mr. Larsen's living 24 room could be a public document room, just send him a copy 25 of the transcript? l I _ _ - - - - - - - - - - -- 1
60 ll g 1 MS. HODGDON: 1 don't know that we do that. I 2 have copied sections of transcripts for persons in NRC 3 proceedings, when asked to do so by the Board, but 1 don't ) J 4 know about supplying -- 1 really don't know the answer that S question. As regards to setting up a public document room, 6 I could certainly ask the LPDR people about doing that 7 possibly here at the University. The only limitation on 8 that is, of course, 1 can't make the University take it. I 9 mean, I can otter it to them. 1 can't make them take it. 10 MR. WOOD: The University will take what it is 11 ottered. 12 MS. HODGDON: We can do that then. We can do 13 that. O("}
%.J 14 JUDGE BECHHOEFER: It would only be one 15 transcript, because apparently Mr. Larsen has received all 10 the other documents. Well, the transcript of today plus --
17 that would be available for use of anybody around the 18 University as well. l 19 MS. HODGDON: I certainly didn't mean to cast any 20 aspersions on the University. What I meant was that, I had l 21 tried in the past to set up local public document rooms l 22 without success and that therefore -- 23 JUDGE BECHHOEFER: You know, when the thing at 24 issue is a thousand megawatt nuclear power plant and the 25 transcripts are -- run twenty thousand pages and all kinds l l l
61 g 1 ot -- the local universities and local libraries are often 2 unwilling to accept the responsibility for the storage and 3 sate-keeping and keeping in arrangements. But that isn't 4 what's here. This is a simpler matter. 5 MS. HODGDON: We can do it that way, then. I 6 think that would be agreeable to everybody. 7 J UDGE BECHHOEFER: Okay. I guess you would have 8 access to it over here then. I also don't know quite how 9 long these things take. Our copies won't be delivered tor, 10 I think, tive days, but beyond that, the staff will have to 11 make other copies and that may take longer. So, it will 12 not be there tomorrow. Okay. Okay, we're up to the 13 scheduling section.
\- 14 JUDGE SHON: I think so.
15 J UDGE BECHHOEFER: Now, based on what we've 1G talked about today, we would like to now set some 17 schedules. The first would be -- I guess, since there will 18 not be any formal discovery schedule, a filing date for 19 prepared testimony. And the statt would presumably file , l 20 its testimony first. Then atter a period of time, Mr. 21 Larsen, you would file testimony, and then beyond that, 22 what date we set for the start of the evidentiary hearing 23 or at least general time trame. So, what would the staff's 24 view of how long it would take you to develop your 25 testimony be, based on what we've talked about today? l
\
ll l t
62 llll 1 2 It will probably take us, I'd say least a week to issue a pre-hearing conference order which will spell 3 out -- 4 MS. HODGDON: I don ' t know. I'll see, if you'll 5 give me a moment. 6 JUDGE BECHHOEFER: By the way, before we get into 7 actual setting or the schedule, we would like to emphasize 8 that our regulations also encourage parties, if they can 9 work out some sort or settlement, that would be perfectly 10 acceptable. I don't know whether settlement is possible 11 here, a penalty something less than revocation or something 12 ot that sort, but if the staff would change its mind and 13 decide that it could live with something less, we would l (N 14 certainly not objects to settlements and the regulations
}
15 encourage that. So, if you and Mr. Larsen could work 16 something out, that would be fine. But anyway let's go to 17 setting schedules, but by setting schedules, we don't want 18 to indicate that we're precluding possible settlement, if l 19 you should choose to go that way. l 20 So, did you have any -- l 21 MS. HODG DON: I was just conferring with Mr. l 1 22 Spitzberg about what he thought about the amount of time 23 that would be required for certain aspects of the testimony 24 that would come from -- 25 JUDGE BECHHOEFER: Why don't we go off the
'1 l
l 63 1 record? l 2 (Discussion held off the record.) 3 J UDGE BECHHOEFER: Back on the record. Ms. 4 Hodgdon? l I 5 MS. HODGDON : The 1st of April. l l 6 JUDGE SHON: The first of April.
]
7 MS. HODGDON: 1 don't know what date. I forgot 4 8 to pull out my calendar. I don't know what date -- I have 9 one here somewhere. l l l 10 JUDGE BECHHOEFER: Wait a minute, I should have 11 it in here. That's a Sunday. l 12 MS. HODGDON: That's good. 13 JUDGE BECHHOEFER: So, make it the Friday before
/3 k
g 14 or the Monday after, April 2nd. 15 MS. HODGDON: It's a Saturday. April 1st is l 16 Saturday in '89. 17 JUDGE BECHHOEFER: Oh, wait a minute, wrong year. 18 Could you make it by the 31st of March, Friday or would you ; 10 preter the 3 rd ? 20 MS. HODGDON : What about the 4th of April? 21 JUDGE BECHHOEFER: Well, these are all tentative 22 anyway. 23 MS. HODGDON : I don't like Mondays and Fridays. 24 I like -- Tuesday is a better day for getting things out. ! 25 Tuesday is a very good day for doing things. 1 i i \ - - - - - - - - _ _
64 l g 1 JUDGE BECHHOEFER: Okay, for -- filing schedules, 2 by the way, for good cause, can also be changed. So, that l i 3 -- but it's a good idea to come up with a tentative date. 4 Let's set Tuesday, April 4th as the date the staff will 5 tile or mail its testimony. You're presumed to receive 6 that five days later. How much time do you think -- you l 7 ought to look at their case to see it there's anything in l 8 your case. In addition, you would want to respond and then l 9 you'll also be filing copies of any testimony you want. 10 So, how -- 11 MR. LARSEN: Is this -- 12 JUDGE BECHHOEFER: So, if they have Tuesday, 13 April 4th, which means you'd get it by the 9th or 10th of n/) A-
\_/
14 April, how much time beyond that do you think you would 15 need to prepare, you know, type and ycu'll have to send it l 16 to all the parties, but to find your testimony? 17 MR. LARSEN: Can I ask you, is this Doctor 18 Singh's testimony or what -- l 19 JUDGE BECHHOEFER: This would be all the 20 testimony that you would have. l l 21 JUDGE SHON: This would be everything that you 22 think you want to say or want your witnesses to say under 23 oath, all the data you want to present, including anything 24 that you may have seen in the staff's testimony that you 1 25 want to put in -- makes you want to put in additional l
l l I , I l l l 65 l 1 material. 2 MR. LARSEN: To respond to. 3 J UDGE SHON: Yeah. 4 JUDGE BECHHOEFER: Right, by your witnesses which I l 5 could include yourself. You presumably would appear as a i l 6 witness. 7 JUDGE SHON: We expect you to appear as a j 1 8 witness. j 9 JUDGE BECHHOEFER: Yeah. And then it would -- 1 10 you would not have to send extra copies of the two ) 11 responses, your March or your -- the other response to the 1 12 l order. Just bring a copy to the hearing on that and put it 1 1 13 in the record. We've already got that. But -- so how much i' 14 s-time do you think you might need for that? 15 MR. LARSEN: I'm not sure that I exactly 16 understand what staff's testimony is going to consist of. 17 Is this going to be all of their atfidavits that are said 18 over again or -- because affidavits is already testimony, 19 isn't it? 20 JUDGE BECHHOEFER: No, no. Those affidavits are 21 not introduced into the record yet. 22 MR. LARSEN: Oh, I see. I 23 JUDGE BECHHOEFER: To the extent the staft wishes 24 to use some or these things in the record, they would so
?S indicate.
I l l l 66 ll l 1 JUDGE SHON: I don't presume -- I would presume I 2 to tell the staff what they would be filing, but my guess l 3 would be that they will write separate and distinct 4 statements probably from Mr. Spitzberg or at least -- and 1 5 from other people that answer many of the questions we I 6 brought up today. j 7 MR. LARSEN: Oh, I see. I see what you're saying 8 now. 9 MS. LARSEN: Is it better to have more time -- it ) 10 seems to me that you'd want to have more time than not I 11 enough time. 12 JUDGE BECHHOEFER: That's certainly correct. 13 That sounds like a lawyer who said that. J /')'] k-{v 14 MS. LARSEN: Only a school teacher. 15 MR. LARSEN: I think to expedite things -- I 16 don't think it will -- three weeks at most, so maybe the 17 end of April. 18 JUDGE SHON: Three weeks from the 10th of April 19 would be the 1st of May. i i 20 JUDGE BECHHOEFER: That would be May 1st. And ! l 21 then the hearing would normally follow at least two weeks l 22 -- about two weeks later, ten or fifteen days later it 23 would start. It's -- that could be somewhat flexible. It 24 may depend, in part, on availability of hearing rooms. I j 25 think that we would likely have probably a couple of days
67 1 ot hearing, don't you think. h 1 2 JUDGE SHON: I would thing two days, yeah. The 3 staff might have some idea. So you have any idea? 4 JUDGE BECHHOEFER: It would be about a two-day 5 session do you think or -- 6 MS. HODGDON: I think, two days, your Honor. 7 MS. LARSEN: Will it be hear? 8 JUDGE BECHHOEFER: We don't know. We don't know. 9 We were going to try to -- ideally, the moot courtroom here 10 would be much better, but I don ' t know about its 11 availability. There's room for witnesses and spread out -- 12 well, the tables here are okay, but this would be a little 13 awkward for witnesses. s 14 MS. LARSEN: Oh, I just wondered if you wanted it i e> > 15 here or in Washington, D.C. or -- 16 JUDGE BECHHOEFER: No, no, we -- unless you all 17 want to travel to Washington. We have a hearing room. ja MS. LARSEN: We need to stay, but that would be l 19 -- I hate to have to drag you clear back here. ! l 20 JUDGE BECHHOEFER: No, that's part of our job. j 21 We always or routinely hold hearings in the neighborhood of l l 22 whatever the facility that's in question is. So, it would 23 be out here. What room it will be in, I don't know. But I 24 We Probably would need about two days from what I -- is my 25 guess. It might be -- able to be through in a day, but it
68 1 might not be because if the staft - particularly if staff 2 -- you both put on your testimony, but if the staff had 3 rebuttal, it might take a liule extra time. So, I would 4 say at least -- I would sq W ought to plan on at least 5 two days tor a hearing. 6 JUDGE SHON: I might point out, too, because I'm 7 sure you're not familiar with the usual administrative 8 proceeding of this sort, when testimony is filed in 9 advance, what you normally do is, you look over your 10 opponent's or adversary's testimony and try to prepare some 11 cross examination that will lead -- that well tend to make l l 12 it look less well-founded, that sort of thing. The time at 13 the hearing is largely devoted to cross examination because j m everybody has read the direct testimony. a 14 15 The only thing that is done for the direct testimony is the person who is 10 sponsoring it simply swears that it's true and correct to
)
17 the best of his knowledge and belief. i 18 JUDGE BECHHOEFER: Making any corrections to which -- l i 20 JUDGE SHON: And makes and corrections, right. I 21 Thereatter, the opposing side gets to ask questions in 22 Cross examination to try to probe the testimony to see 23 whether it is, in fact, well-founded and properly based. 1 I, l 24 And you'll have that opportunity. l 25 JUDGE BECHHOEFER: Well, it would look like l
69 l l g 1 somewhere in the week of May 15th through 21st? How does 1 2 that look for you? 3 JUDGE SHON: I have no problem. 4 JUDGE BECHHOEFER: Tentatively, we would try to 5 work out a hearing in the week of May 15th through 21st. 6 It may not work out that way because or other schedules. 7 JUnGE SHON: I have -- I'm involved in a rather 8 large case called the Sharn case on Long Island, and it's 9 going to be -- and so are you for that matter, I believe, l l 10 or may well be, 1 , l l l 11 JUDGE BECHHOEFER: So, we're not quite sure about ! 12 the schedules, but it might well be that week of the 15th 13 through 21st and may depend, in part on availability of
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14 hearing space, that type of thing. And if there has to be U) 15 a postponement of some of these other dates, again that I 16 would ettect the hearing dates. Normally, we like to have 17 all the testimony a couple of weeks in advance so we can ja look it in out office and make sure we are able to read it 19 first. We don't like to come uninformed into the hearing 20 and read the papers while we're sitting here on the bench. i 21 We like to be familiar betorehand. l 22 Well, finally, at the hearing, we will as usual, 23 attord persons a chance to make what we call limited 24 appearance statements. Those are not witnesses, but any 25 member or the public may come in and make a statement he or
70 ll g 1 she wishes, usually limited to around five minutes. That 2 doesn't constitute evidence as such, but if it raises 3 questions that the Board thinks are relevant, we can ask 4 the parties to explore those in greater detail to develop , l 5 cases. I 6 In a case like this, I don't imagine that anybody 7 very much would come in and make a statement, but it's a certainly available. It thousands of people in the 9 community want to come and testify to your good character, ] to well, that certainly is relevant. Although that may be 11 part of your -- you may want some of that as part of your 12 case rather than -- this is not testimony as such, but it 13 does give the Board a little better impression of some of A (_J-s 14 the surrounding circumstances, which, if we think they're b l 15 important enougn to rely on, then we would take steps to l i 16 have them otticially introduced into the record by a party. 17 Only parties, by the way, may introduce testimony 18 into the record. Is there anything that any of the parties 19 think that we have lett out or should raise, or any other 20 matters which anybody believes are pertinent that should go l 21 in. Otherwise, we'll -- 22 MS. HO DGDON: Well, I didn ' t understand the 23 discovery schedule. I mean, I thought -- because Mr. 24 Larsen said that he didn't think needed any discover and we l l 25 said that our discovery needs were probably quite limited
l 1 71 l l l g 1 that we didn't really get a discovery schedule. Am I 2 right? I mean, is that what happened? 3 JUDGE BECHHOEFER: I didn't set one. That's 1 4 exactly right. We would expect that your prepared 5 testimony would include any references you may need to the 6 depositions you'll be taking. I 7 MS. HODGDON: Yes, but I mean, I think to the -- l 8 J UDGE BECHHOEFER: It may not be part of -- 1 9 MS. HO DGDON: I am now understanding Mr. Larsen J 10 to say that it's his intention to call Doctor Singh as an ( 11 expert witness on a certain subject matter that I'm not 12 entirely sure of the limits of, and therefore, I am 13 conservatively planning to take Mr. -- Doctor Singh's { s 14 deposition. And also, I am planning to call experts in the d 15 are which 1 understand Doctor Singh might -- where his work 16 might lie. I think that Doctor -- Mr. Larsen is entitled 17 to more notice of my testimony of what my plans are with 18 regard to my expert witnesses as 1 am entitled to -- 19 JUDGE BECHHOEFER: Yeah. 20 MS. HODG DON: -- which generally comes about in 21 discovery. I just wondered if you had any mechanism for 22 taking care or that or it you're just leaving it informal 23 or what? 24 Judge Bechhoeter, Mr. Larsen said that he would 25 call Kevin Noack, Doctor Singh and himself. I believe
72 ll g 1 that's what he said. Now, it he changes his mind, of 2 course -- 3 JUDGE BECHHOEFER: Well, he mentioned one other 4 potential person, I thought. Is that correct, Mr. Larsen? 5 You mentioned one other person you might potentially call? 6 MR. LARSEN: Yes, I think -- we're still trying 7 to decide. 8 JUDGE SHON: Well, you then have the names of all 9 his witnesses, the three witnesses. There is a possible to tourth but you don't really know. 11 MR. LARSEN: Yes. 12 JUDGE BECHHOEFER: Why don't -- Mr. Larsen, by 13 Friday, March 17th, do you think you could give the staff l your final list of witnesses? W-}
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14 15 MR. LARSEN: Yes. 16 JUDGE BECHHOEFER: So, let's set March 17th for 17 that. Now, would the staff be prepared to supply its list ) l 18 of witnesses by a similar date or would that be -- H) MS. HODGDON: I don't see how I'm going to have 20 testimony on the 4th of April unless I can get my witness 21 list together by the 17th of March. I suppose so, yes. 22 The 17th of March is okay. 23 JUDGE BECHHOEFER: Okay, let's set March 17th for f 24 just list of witnesses, which is one of the things you 25 would ask on discovery anyway and so would the staff. L
73 ll g 1 JUDGE SHON: We're making the assumption now, 2 that the list of witness surely will include the three main 3 people and would at most include one more, Mr. Larsen. 4 We're not limiting it. 5 MS. HODGDON: Mr. Larsen is -- 6 JUDGE SHON: No, no, but for the purposes of this 7 schedule. In other words if you come up with another dozen 8 people, we might have to delay things, yeah. 9 MR. LARSEN: Yeah, I understand. 10 JUDGE BECHHOEFER: Okay, well, then the schedule 11 we will set -- as far as we're concerned, discovery insofar 12 as it's going to take place, can begin immediately. By 13 March 17th, the parties will exchange lists of witnesses. 14 Then the statt will file its testimony on Tuesday, April 15 4th and Mr. Larsen will file his on Monday, May 1st, file 16 meaning dropping it in the mailbox here. We tell you when 17 we mean something to be in our hands or in the other l 18 party's hands by a given date. But under the general l 10 rules, you drop it in the mailbox by May 1st. 20 And then the hearing will be several weeks later, I 21 presumably the 15th through the 21st, but possibly subject 22 to adjustment because of our own schedules. And then after j 23 the hearing is through we'll establish schedules for l 24 further filings of proposed findings, that kind of thing. 25 MS. LARSEN: How long will this whole thing l ll
I J 74 ) l l g 1 continue. I mean, really, in reality how long is the whole 2 process? t j j 3 JUDGE BECHHOEFER: Well, the whole procedure 4 involves a number of ditterent steps and each of them I 5 requires a certain amount of time and it will take a couple 6 - proposed findings normally take a period of thirty to 7 sixty days anyway. l 8 JUDGE SHON: We might be able to shorten that. 9 J UDGE BECHHOEFER: Yeah, it possibly could be 10 shortened here. And then once we get that, it will take us 11 a certain amount of time to write a decision, depending on 12 how complex it is. It's hard to say. 13 JUDGE SHON: It's hard to say. O (_r x 14 JUDGE BECHHOEFER: Depending on obligations and 15 other cases and various -- 16 JUDGE SHON: It will be months, probably more l l 17 than one month, almost certainly after the end of the 18 hearing because you're going to have a month or more than a 19 month before all the proposed findings are in. And then we i ! l 20 have to have some time to analyze and write a decision. l l 21 What I'm saying is it's months after the hearing is over. 22 JUDGE BECHHOEFER: I would say a couple of months 23 at a minimum from the week we have the hearing, from the 24 few days we have the hearing. And there's really not much l 25 easier way to do it, because all the parties, including
75 l lg 1 yourselves, have to have an opportunity to present the best 2 side of your case, once a record is established. Then you 3 have to cite testimony and it's going to take you several - 4 - a number of days just to get the transcripts because we l 5 had contemplated ordering -- well, for the hearing we will 6 have immediately available transcripts, but by the time it 7 gets reproduced and sent to the library here, it's going to ; 1 8 be some time. 9 MS. LARSEN: Ball park figure. 10 JUDGE BECHHOEFER: For everybody to have all of 11 the opportunities that each party is entitled to, it just 12 takes that much time. But, it also enables a better record 13 to be prepared and hopefully, a fairer decision to be made. (9 Nr% MR. LA RSEN: 14 Will you be -- you three be in k-) i 15 attendance the whole time? 16 JUDGE BECHHOEFER: Oh, yes, we -- 17 JUDGE SHON: Barring unforeseen -- 18 JUDGE BECHHOEFER: Well, we have -- we could sit J 19 as a quorum of two. I have to be here. As Chairman, 1 20 have to be here. The lawyer has to be around. We could l 21 sit as a quorum of two, but we would hope not to do that l 22 because the decision is that of a three-member Board and we I 23 all join and although dissents are possible, but normally 1 I 24 we all join opinion and try to reach agreement on what the 25 record shows and what the results should be. I
I l l 76 l l 1 MS. LARSEN: It's really been an experience. 2 JUDGE BECHHOEFER: And then whoever doesn't like 3 our decision goes to the Appeal Board above us, which is 4 another NRC body and then sometimes the Commission looks 1 5 these things over and it worse comes to worse or best comes j 6 to best, you go to court after that. So, these proceedings l 7 do take a long time, but hopefully, they develop a record 8 which is fair to all parties and reaches a correct result. 9 So, is there anything further before we break. If not, we I 10 appreciate your attendance and we certainly thank the l 11 Brigham Young Law School here for the very nice reception 12 which they gave us, the facilities they made available and 13 we will see you probably in May, if schedules hold. (~ (-)f']
\J 14 So, we're off the record now.
15 (Whereupon, at 12:07 p.m., the above-entitled 16 matter concluded.) 17 18 19 20 i j l 21 22 1 23 24 4 25 1 <n l (_'~T 1 (-)
1 CERTIFICATE 2 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter 5 of: Wrangler Labs, Larsen Labs, Orion Chemical 6 Name: 7 8 Docket Number: 9999004, ASBLP No.: 89-582-01-SC 1 9 Place: Provo, Utah i 10 Date: February 22, 1989 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the () 15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings. 18 /s/ W$rD kry' ~0% o
/) $~ )
19 (Signature typed) : Hodd Briggs 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 l Heritage Reporting Corporation (202) 628-4888 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _______ ___}}