ML20206J637
| ML20206J637 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/20/1986 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-729 CH, NUDOCS 8606270226 | |
| Download: ML20206J637 (10) | |
Text
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UNITED STATES OF AMERICA G
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'M NUCLEAR REGULATORY COMMISSION A JUN 2 3198fr I3 i
BEFORE THE ADMINISTRATIVE LAW JUI GE DOCIEnNG &
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In the Matter of
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GENERAL PUBLIC UTILITIES NUCLEAR )
Docket No. 50-289 (CH)
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(Three Mile Island Nuclear Station,
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Unit No.1)
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NRC STAFF RESPONSE TO TMIA APPLICATION FOR SUBPOENA OF GARY L. MILHOLLIN I.
INTRODUCTION By its Application for Issuance of Subpoena, dated June 5, 1986
(" Application"), Three Mile Island Alert (TMIA) has requested the Presid-ing Officer to issue a subpoena to Administrative Judge Gary L. Milhollin to require Judge Milhollin to appear to testify as to his knowledge of Charles Husted's attitude and demeanor during the latter's testimony be-fore Judge Milhollin in the TMI-1 restart proceeding.
In its Application, TMIA asserts that, having observed the testimony of Mr. Husted and made findings and conclusions, Judge Milhollin possesses information relevant to issues in this proceeding--i.e.,
Mr. Husted's attitude,
demeanor, and forthrightness. Application, at 1.
On June 13, 1986, TMIA served TMIA's Brief in Support of Applica-tion for Issuance of Subpoena ("Brief").
There, pursuant to the Presid-ing Officer's direction, TMIA addresses (1) the adequacy of the notice in seeking the subpoena, (2) the general relevance of the testimony sought, 62 h h $ BOO 9
DESIGNATED ORIGINAL 0
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Certified By
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and (3) whether the request meets the requirements of 10 C.F.R.
Section 2.720(h)(2)(i).
On the adequacy of notice, while TMIA discusses its objections to entering into a stipulation on the factual question of how Charles Husted appeared during his testimony before the Special Master, TMIA never explains why it waited until after the final prehearing conference to seek the subpoena of Judge Milhollin.
Brief, at 1-2.
TMIA also argues that since the parties are familiar with Judge Milhollin's findings and conclu-sions in the Special Master's Report, there would be no prejudice to any party as a result of the lateness of TMIA's application.
d.
With respect to relevance, TMIA argues that Judge Milhollin's testi-mony is relevant to issues underlying the Appeal Board's decision to im-pose a condition affecting Mr. Husted - namely, Mr. Husted's demeanor and forthrightness during the prior hearing, as well as his attitude gen-erally.
TMIA also argues that Judge Milhollin was the only impartial ob-server of Mr. Husted's attitude and demeanor at the hearing, and thus can provide the best evidence on these matters.
Finally, with respect to 10 C.F.R.
I 2.720(h)(2)(i), TMIA argues that " exceptional circumstances" exist so as to support issuance of a sub-poena requiring Judge Milhollin's attendance and testimony at the hearing.
Specifically, TMIA argues that as the trier of fact in the reopened hear-ing on cheating, Judge Milhollin alone can " substantiate, amplify and ex-plain the basis for the facts stated in his report."
Brief, at 3.
TMIA also argues that Judge Milhollin is the only impartial witness available to contradict Mr. Husted on the latter's conduct at the hearing..Id.
The NRC Staff opposes issuance of the requested subpoena.
As discussed below, TMIA has failed to explain why it did not inform the parties of its intension to call Judge Milhollin at an earlier date.
Coming, as it does, after discovery and after the final prehearing con-ference, TMIA's Application is untimely.
Moreover, whether or not Judge Milhollin's testimony is relevant to the issues of Mr. Husted's demeanor and forthrightness, Judge Milhollin is an NRC judge, and, as such, a named NRC person within the purview of 10 C.F.R.
Section 2.720(h)(2)(i); TMIA has failed to demonstrate " exceptional circum-stances" under that provision.
Judge Milhollin was merely one of i
several persons, including representatives of TMIA,
who observed Mr. Husted's prior testimony, and who have been available to testify, I
without compulsion, on the same facts.
In addition, since testimony on the same facts is available from other witnesses, the testimony of the judge who tried the matter in a previous case should not be called, in order to avoid the possibility of unfair prejudice.
Based on these considerations, the Application should be denied.
II.
DISCUSSION I
A.
Timeliness i
TMIA apparently believes that because the Staff had proposed a stipulation among the parties as to how Mr. Husted appeared during his testimony before the Special Master, TMIA somehow is relieved from providing timely notice of its prospective witnesses.
During discovery, and at the meeting of the parties on May 12,-1986 in preparation for the final prehearing conference, as well as at the prehearing conference,
TMIA gave no indication that it intended to call any witnesses to establish the demeanor of Mr. Husted before the Special Master.
In TMIA's Re-sponse to Mr. Husted's First Request for Production of Documents and First Interrogatories to Three Mile Island Alert, March 28, 1986, at 6, TMIA stated it intended to call the following persons as witnesses:
Messrs. P, Ward, Christopher, and Baci.
In TMIA's Response to GPU Nuclear Corporation's First Interrogatories and Requests for Production of Documents, April 23, 1986, at 11, TMIA stated it intended to rely at hearing on the testimony of Messrs. P, Baci, Ward, Christopher, Smith and Matakas.
Although requested to do so by the Staff, TMIA provided the Staff with no names of any potential witnesses.
See TMIA's Answers to NRC Staff's First Interrogatories and Request for Production of Docu-ments, April 14, 1986.
Finally, although TMIA had the opportunity and the obligation to inform the parties and the Presiding Officer of the names of expected witnesses at the final prehearing conference, it failed to identify Judge Milhollin, or any other witness,
on the issue of Mr. Husted's demeanor in the prior hearing.
See Record Transcript, at i
88, and May 19, 1986 letter from Michael W. Maupin to Hon. Morton B.
Margulies, inserted in Record Transcript following page 87.
TMIA's explanation as to why it did not agree to the Staff's pro-posed stipulation--that is, the centrality to TMIA's case of Mr. Husted's demeanor and forthrightness at the prior hearing--does little to explain TMIA's prior position that it did not intend to call any witnesses other than those it had designated.
The request for the subpoena appears to have been an afterthought of TMIA's arguments against entering into the stipulation.
The fact that TMIA only thought of calling Judge Milhollin l
j after negotiations on the stipulation were abandoned does not provide good cause for the lateness of its subpoena request.
Finally, inasmuch as anticipating the testimony of Judge Milhollin may very well have changed other parties' pretrial preparations, particularly their discovery requests to TMIA, it cannot be said that failure to inform the parties earlier is not prejudicial.
The fact that the parties were aware of Judge Milhollin's findings and conclusions of April 28,1981 is largely irrelevant, since his earlier findings could not be evidence in this de novo proceeding II and since the parties' preparation for hearing, now only days away, justifiably did not include any preparation for the ap-pearance of Judge Milhollin to testify.
Based on the foregoing considerations, it is clear that TMIA's Appli-cition is untimely.
B.
Relevance Inasmuch as the demeanor of-Mr. Husted in the prior proceeding is an issue in this proceeding, it is apparent that observations of Mr. Husted's demeanor before the Special Master are relevant.
And were 4
this a case involving the subpoena of a non-NRC employee, the Presiding Officer would likely weigh the need for the testimony sought, on the one hand, against the prejudice caused by the request's untimeliness, on the other hand.
IIowever, since Judge Milhollin is an NRC employee, any
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The Presiding Officer has ruled that "the proceeding is not in the nature of an appellate review...because it calls for a new record developed through a hearing de novo."
Ruling on Staff Objections to Prehearing Conference OrdeE Mirch 26, 1986, at 7.
balancing of equities must, as discussed below, be done in conformance with the requirement in 10 C.F.R. I 2.720(h)(2)(i) that named NRC person-nel may not be subpoenaed in absence of a showing of "exeptional circum-stances."
C.
Whether Exceptional Circumstances Are Present 10 C.F.R. I 2.720(h)(2)(1) provides:
In a proceeding in which the NRC is a party, the NRC staff will make available one or more witnesses designated by the Executive Director for Operations, for oral examination at the hearing or on deposition regarding any matter, not privi-leged, which is relevant to the issues in the proceeding.
The attendance and tectimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be re-quired by the presiding officer, by subpoena or otherwise:
Provided, That the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particu-lar named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the i
Executive Director for Operations require the attendance and testimony of named NRC personnel.
The subject Application, seeking the appearance and testimony of a part-l time NRC Administrative Judge, clearly seeks the attendance and testimo-ny of " named NRC personnel."
As a result, under 10 C.F.R. 5 2.720(h)(2)(i), TMIA is required to show " exceptional circumstances."
As discussed below, such " exceptional circumstances" do not exist, since Judge Milhollin does not have direct personal knowledge of a material fact not known to others whom TMIA could have sought to testify voluntarily or by compulsory process.
The Staff therefore believes that requiring j
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Under 10 C.F.R.
I 2.4(p) "NRC personnel" includes, inter alia,
" members of advisory boards, committees and panels of the NHCGs well as " members of boards designated by the Commission to preside at adjudicatory proceedings."
As a current member of the Atomic Safety and Licensing Board Panel, Judge Milhollin clearly falls within the definition of "NRC personnel."
l Judge Milhollin's testimony would be inconsistent with the purpose of the rule in question.
In its Statement of Consideration, the Commission noted that 10 C.F.R. I 2.720(h)(2)(i) is designed to maintain "the efficient and ex-peditious conduct" of agency functL. o while accommodating "the public interest in having participation by appropriate [NRC] personnel in resolv-ing matters in issue in an adjudicatory proceeding... 35 Fed. M. 19500 (1970).
In other words, the Commission sought to conserve agency re-sources by limiting the subpoena of named employees to those unusual situations where the testimony of such persons was necessary to the reso-lution of matters in adjudication.
In this case, the Staff is presenting five witnesses, none of whom observed Mr. Husted's testimony before the Special Master.
- However, while Judge Milhollin did observe Mr. Husted's testimony, so did repre-I sentatives of TMIA and General Public Utilities Nuclear (GPUN).
As a result, Judge Milhollin's ability to report the nature of Mr. Husted's con-1 duct while on the witness stand on December 10, 1981 is not information uniquely in his possession.
Moreover, TMIA clearly could have sought 4
testimony from its own representatives without compulsory process, and the testimony of GPUN representatives might have been sought voluntarily or by compulsory process without the need to balance the policy consider-ations applicable to compelling the testimony of named NRC personnel.
In short, TMIA has had other means available to it, other than the testimony of Judge Milhollin, through which to address Charles Husted's conduct during his testimony (in addition to the testimony of Mr. Husted himself).
Since testimony on the facts in question is and has been 4
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available from persons other than Judge Milhollin, the named NRC employ-ee whose subpoena is now sought, the Staff believes the intent of the rule would be best served by denial of TMIA's request. 3,/
This conclusion with respect to the policies embodied in Commission regulations is further supported by consideration of the fact that the testimony sought to be subpoenaed is that of a trial judge on events that transpired before him at hearing.
It is generally agreed that judges should not be called upon to testify as to such matters unless their testi-mony is clearly necessary.
8 J.H. Wigmore, Evidence in Trials at Com-mon Law I 2372 (McNaughton rev.1961). Thus, in U.S. v. Frankenthal, 582 F.2d 1102,1107-8 (7th Cir.1978), a trial judge's testimony regarding an ex parte meeting with a defense attorney (who was later a defense witness), was upheld, notwithstanding the " sensitive problems" created by "the possibility that the prestige, dignity and authority" of the judge "may have been imparted to the prosecution's case," because the judge's testimony was not only relevant to the issue of the witness' credibility (his personal stake in the outcome of the proceeding) and presented fac-tually and concisely, but also contained unique information the judge alone could provide on the issue.
Id.
The Court observed that the judge "was the only possible source of testimony on [ highly pertinent factual] knowledge."
Id.
C f.
Zenith Radio Corp.
v.
Matsushuita
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It should be noted that were Judge Milhollin to be called as a wit-ness, the purpose of such testimony should not be to " substantiate, amplify and explain the basis for the fsats stated in his report."
This is not a proceeding to review the report of the Special Master, but, rather, a de novo proceeding.
As such the prior findings do not constitute evTdence and are not to be accorded deference in this case.
I Electric Industrial Co., 505 F. Supp. 1125, 1160-61 (E.D.P. A. 1980) re-versed and remanded in pertinent part, g Re Japanese Products Anti-trust Litigation, 723 F.2d 238, 269-70 (3rd Cir.1983) (findings on 1921 Anti-Dumping Act violations carrying imprimatur of Treasure Department excluded due in part to possible prejudice).
Thus, the general rule that a judge should only testify on events which transpired before him when clearly necessary tends to reinforce the Commission regulatory policy, contained in 10 C.F.R.
I 2.720(h)(2)(i),
that a named NRC employee (including NRC judges) should be required to testify only when " exceptional circumstances" are present.
Since, as i
discussed above, Judge Milhollin does not have unique knowledge of facts not otherwise available to TMIA, and testimony on the same facts could have been obtained either voluntarily or by compulsory process from non-NRC witnesses, TMIA's Application should be denied. O III.
CONCLUSION i
For the reasons discussed above, TMIA's Application to subpoena Judge Milhollin to testify should be denied.
Respec lly submitted, i
4 George E h
n Counsel rN Staff l
Dated at Bethesda, Maryland this 20th day of June,1986.
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Since TMIA has not sought the testimony of other persons on the issue of Mr. Husted's demeanor at the previous hearing, whether such testimony should be permitted at this late date need not be reached here.
However, were the testimony of other non-NRC wit-
. nesses sought, the Presiding Officer would be faced with an issue similar to that framed in Section 2.B above--i.e., whether the need for the testimony outweighed the untimeliness of the request therefor.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of
)
)
GENERAL PUBLIC UTILITIES
)
Docket No. 50-289 (CH)
NUCLEAR
)
)
(Three Mile Island Nuclear Station,
)
Unit No.1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO TMIA APPLICATION FOR SUBPOENA OF GARY L. MILHOLLIN" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of June,1986:
- Morton B. Margulies
- Atomic Safety and Licensing Board Administrative Law Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Louise Bradford Washington, DC 20555 Three Mile Island Alert 1011 Green Street
- Docketing and Service Section Harrisburg, PA 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq.
Washington, DC 20555 Maria C. Hensley, Esq.
Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Deborah B. Bauser, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036
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peorge E.
NRC Sta/
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Counsel fo ff
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