ML20058P097
| ML20058P097 | |
| Person / Time | |
|---|---|
| Issue date: | 10/19/1993 |
| From: | Robert Davis NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058P094 | List: |
| References | |
| 93-01-PF, 93-1-PF, 93-673-01-PF, 93-673-1-PF, NUDOCS 9310220077 | |
| Download: ML20058P097 (13) | |
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r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge t
Morton B. Margulies
)
In the Matter of
)
Docket No. 93-01-PF
)
LLOYD P.
ZERR
)
ASLBP No. 93-673-01-PF
)
)
FRC MOTION FOR A PREHEARING CONFERENCE.
AN ORDER REOUIRING A PARTICULARIZED EXHIBIT LIST.
AND AN ORDER STRIKING OR REOUIRING A SHOWING OF THE RELEVANCY OF CERTAIN OF DEFENDANT'S PROPOSED WITNESSES The Nuclear Regulatory Commission requests that the Presiding Officer schedule a prehearing conference as soon as possible concerning the Defendant's " Statement of Witnesses and l
Exhibits" served by mail on October 12, 1993.1 In particular,
-t the NRC seeks an order requiring a particularized exhibit list
- inasmuch as the Defendant has not in fact listed any specific exhibits from the more than twenty-four hundred pages of Other matters may be appropriate for consideration at a 1
prehearing conference.
For instance, the NRC has included in its witness list a proposed statement in lieu of testimony by David P.
Loveless, Senior Resident Inspector.at the South Texas Project Electric Generating Station, because the nature of his testimony F
is so limited.
The NRC will move very shortly for acceptance of' this statement pursuant to 10 C.F.R.
S 13.33(b), but is awaiting Defendant's response to the witness list before filing that motion.
The NRC also plans to move shortly for issuance of subpoenas for two witnesses on its witness list, David L.
Edge and a representative of the Hertz Corporation, who are not NRC employees.
Another matter which the NRC would propose for-discussion is whether the Defendant should complete examination of out-of-town NRC witnesses without regard to the scope of direct examination, as provided for in 10 C.F.R. S 13.33(c) and (e), so that such witnesses will not have to be away from their jobs for as much as four days, 11e., November 16 through 19.
9310220077 931019 l
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documentary material produced to the Defendant.
The NRC also seeks an order striking the Defendant's designation of certain high-ranking officials as potential witnesses: namely, Dr. Ivan Selin, NRC Chairman;, William C.
Parler, General Counsel; David C.
Williams, the Inspector General, and Martin G. Malsch, the Deputy General Counsel.
In addition, the NRC seeks an order j
requiring that the Defendant provide a statement showing the general subject-matter and relevancy of expected testimony of many of the witnesses whom he has designated (e.a.,
James M.
r Taylor, Executive Director for Operations and James H.
- Sniezek, Deputy Executive Director) so that it can be determined whether said individuals should be excused from any requirement for appearance at the hearing.
Sag, infra at 9-10.
l Pursuant to 10 C.F.R.
S 13.19, the Administrative Law Judge may use a prehearing conference for simplification of the issues, obtaining stipulations and admissions, limitation of the number of witness and such other matters as may tend to expedite the fair and just disposition of the proceedings.
An additional prehearing conference to achieve these purposes is now essential.
I.
Backcround By Order dated July 7, 1993, the Presiding Officer granted the NRC' motion for discovery by interrogatories.
Among those interrogatories was a request that the Defendant identify individuals with knowledge of the pertinent subject matter.
See,
" Answers to Interrogatories" numbered 2, 4,
6, 7-9.
]
Prior to the Order, the Defendant had an opportunity to present his challenges to the NRC's discovery requests and obtain rulings I
l I
i
)
+
3 from Chief Administrative Law Judge Margulies.
Return of-discovery was ordered by August 2, 1993.
On or about August 6, i
1993, the NRC received the Defendant's responses.
In response to the interrogatories requesting the identity of persons with knowledge of the nature, location and extent of overtime hours worked by the Defendant during Pay Periods 9, 10 l
and 11 in 1990, the Defendant stated only "Lloyd Zerr, staff of Georgia Power, NRC employees and government officials listed in discovery."
In response to a request that he identify "each person with knowledge supporting, tending to support, disproving 5
or tending to disprove, a contention of the Defendant that he did not submit false claims for overtime hours," the Defendant stated "Lloyd Zerr, NRC employees and government officials listed in discovery."
In response to a request for the identity of "each person with knowledge supporting, tending to support, disproving or tending to disprove, a contention of the Defendant that he did not submit false, fictitious or fraudulent travel vouchers," the i
Defendant answered only "Lloyd Zerr, NRC employees and government officials listed in discovery."
It now appears that these vague statements may not have constituted reasonable and " good faith" answers to the discovery request.
Rather, the Defendant has now sprung upon the NRC and the Presiding Officer an extraordinary list of top NRC officials and other NRC employees as alleged i
witnesses.
I II.
The Defendant's Statement of Exhibits The Defendant's Statement of Exhibits cavalierly states that "the Exhibits shall include the numbered exhibits provided to i
4
-c
4 counsel by the Nuclear Regulatory Commission."
The NRC has produced over 2,400 pages of material to the Defendant.
It is obvious that the Defendant's statement clearly defeats the purposes and intent of the prehearing Order.
The issues have not been narrowed or simplified, and unfair surprise has not been prevented.
Moreover, the NRC cannot even develop any responses to specific exhibits because it has no indication of what the Defendant's exhibits will in fact be.
III.
The Defendant's Witness List The Defendant has listed multiple high ranking NRC officials without apparent consideration for the relevancy of their testimony.
As such, the scope of the Defendant's witness list appears to be an effort to inject irrelevant testimony and issues into the case and to divert the hearing from consideration of Mr. Zerr's conduct and liability.
The NRC submits that no order snould issue requiring the appearance of many of these witnesses unless the Defendant submits and establishes at least the general relevance of the proposed testimony so that the NRC and Chief Administrative Law Judge Margulies can assess whether such witnesses should be required to be made available for testimony.2 Without a general proffer fre,m Defendant, the NRC has only limited ability to respond to this onerous list.
Moreover, if 2
The NRC notes that the Defendant did not interview any NRC witnesses as provided for in the discovery Order in order to determine relevancy.
Defendants failure to conduct euch discovery during the specified period should not t>e permitted to lead to free-ranging exploratory inquiries of a host of NRC officials and employees at the hearing.
5 l
fully adopted, the Defendant's witness list would require numerous NRC officials with minimal if any first-hand and relevant knowledge to readjust their schedules and devote considerable time to their possible appearance at the hearing when it is not at all clear that this diversion from performance l
of the agency's health and safety mission is justified.
In some cases, the NRC is unaware of any personal knowledge or potential relevance of testimony by the witnesses.
In many e
other cases, any personal knowledge would seem to be marginal, 1
i duplicative or irrelevant.3 If the NRC is to do a responsible i
job of raising appropriate objections both on behalf of the witnesses and in the interests of a fair and efficient trial, a statement of the subject areas of testimony for many witnesses, i
identified below, is essential.
See Hoskins v. Wainwricht, 440 F.2d 69, 71 (5th Cir. 1971) (no denial of right to compulsory process when defendant fails to make colorable showing of need for production of a witness at government expense);
Derechin v.
State University of New York, 963 F.2d 513, 517 (2d Cir. 1992)
L (within court's discretion to impose sanctions against attorney for filing pretrial statement containing witness list that was i
not objectively reasonable and was plainly harassing);
Tiffany l
v.
Department of the Navy, 795 F.2d 67 (Fed. Cir. 1986) f (presiding MSPB official acted within discretion in ruling on l
Any probative value may be substantially outweighed by i
the likelihood for confusion of the issues, considerations of-undue delay or needless presentation of cumulative evidence.
See 10 C.F.R. 13.34.
witness list so as to exclude witnesses whose testimony was
(
i irrelevant, immaterial or repetitious).
Specifically, the NRC first moves to strike the designation of Ivan Selin, NRC Chairman, as a witness in this
[
i action.
The NRC is unaware of any evidence that Dr. Selin has participated in the events at issue.
Thus, on the basis of his l
lack of personal knowledge and relevant testimony, the NRC strenuously objects to the Defendant's designation of Dr. Selin.
i Moreover, even when the actions of top government officials are j
i at issue, those individuals should not be called to testify about their actions absent extraordinary circumstances. Simplex Time Recorder Co.
v.
Secretary of Labor, 766 F.2d 575, 587 (D.C.Cir.
1985) (ALJ properly denied request to call four officials of the l
Department of Labor to testify because information sought
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involved discretionary decisions concerning enforcement of the Occupational Safety and Health Act; party seeking testimony did i
not identify any information that it could not obtain from
{
published reports and available agency documents).
As one court noted in the context of pretrial discovery:
Not only must the integrity of the administrative process be protected, but public policy requires that the time and energies of public officials be conserved for the public's business to as great an extent as may be consistent with the ends of justice in particular cases.
Community Federal Savinos and Loan v. Federal Home Loan Bank, 96 F.R.D.
619, 621 (D.D.C. 1983).
l Further troubling, to say the least, is the fact that Dr.
i Selin would be an adjudicator in this case should the defendant
)
file an appeal of an adverse decision to the authority head
]
i i
7 pursuant to 10 C.F.R. S 13.39.
Thus, use of Ihr. Selin as a j
witness would constitute gross and improper interference with the i
adjudicatory scheme for cases of this nature.'
I Second, the NRC moves to strike the listing of the' General Counsel of the NRC, Mr. William C.
Parler.
Again, the NRC objects on the basis of lack of personal knowledge or relevancy.
If the Defendant seeks to explore whether and to what extent Mr.
Parler has provided legal advice to the Commission regarding this action, his effort represents an impermissible assault on privileged communications.
Moreover, as the chief legal counsel for the Commission itself, Mr. Parler will presumably serve i
actively in such a role should the Defendant seek an appeal of an adverse decision.
Requiring testimony of Mr. Parler in the t
instant matter would be a gross and improper interference with 1
his role as counsellor to the Commission.
For these reasons, the NRC moves to strike Mr. Parler from the witness list.
Third, the NRC moves to strike the listing of David C.
t Williams, the Inspector General of the NRC.
By statute, Mr.
j Williams serves as head of the Office of the Inspector General.
He should be accorded the same protection against burdensome testimony for top agency officials that should be extended to Dr.-
Selin.
Moreover, Mr. Williams does not have first-hand Even if a prior action of the Chairman was at issue, the ability to call the Chairman as a witness would be severely restricted.
- See, e.a.,
United States v.
Morcan, 313 U.S.
409,_
422 (1941) (mental processes of Secretary of Agriculture in determining reasonable rates under Packers and Stockyard Act should never have been subjected to the requirements of personal i
testimony; the integrity of the administrative process must be l
respected).
1
8 knowledge regarding the circumstances of the alleged overtime and travel fraud, and did not personally conduct the investigation in this case.
Indeed, the Defendant has the documentary record of the OIG investigation and will have the opportunity to examine t
the OIG investigator, Mr. Ron Fields, who has been identified as a witness by both the NRC and the Defendant.5 In short, the Defendant clearly has no extraordinary need for testimony by the Inspector General.
Fourth, the agency moves to strike the listing of Martin G.
Malsch.
Mr. Malsch serves as the Deputy General Counsel for Licensing and Regulation of the NRC.
As such, he performed the function of the reviewing official pursuant to 10 C.F.R. S 13.5, determining whether there was adequate evidence to believe that the Defendant was liable under 10 C.F.R.
S 13.3 and obtaining authorization from the Attorney General of the United States to issue a complaint.
Examination of his thought processes in this case should be prohibited as shown by the absolute prohibition, I
in 10 C.F.R.
S 13.20(c), on discovery of his notice to the Attorney General of an intent to issue a complaint.
- Moreover, Mr. Malsch had no involvement in the circumstances upon which the overtime and travel fraud claims are based.
t 5
The Defendant has also identified as witnesses two other OIG personnel, Thomas Blatchford, an investigative team leader, and Leo J. Norton, Deputy Director for Investigations.
The NRC does not object to the designation of Mr. Blactchford, but does object to the designation of Mr. Norton without scrue s?. awing of a subject matter as to which Mr. Norton can provide first-hand and relevant knowledge that is not already available from the documentary record and available witnesses.
.=
9 The Defendant has also listed many other NRC employees, including many other high-ranking NRC officials as to which a statement of subject-matter or proffer should be required.
These listed individuals are: Mr. James M. Taylor, Executive Director i
for Operations; Mr. James H.
Sniezek, Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations; Dr. Thomas E.
- Murley, Jr.,
Director of the Office of Nuclear Reactor Regulation ("NRR"); Frank J. Miraglia, Jr.,
Deputy Director, NRR; Frank P. Gillespie, Director, Program Management, Policy Development and Analysis Staff, NRR; Brian K.
Grimes, Director, Division of Operating Reactor Support, NRR; Eugene V.
- Imbro, Chief, Special Inspection Branch, NRR; Norman H. Wagner of NRR; Valeria H. Wilson, Office of the Executive Director for Operations; Dr. John T. Larkins, Executive Director, Advisory Committee on Nuclear Waste and Reactor Safeguards; James D.
Thomas and Martin Levy (now retired), Office of Nuclear Material i
Safety and Safeguards; Leo J. Norton, Assistant Inspector General for Investigations; Ellis W. Merschoff, Director, Division of Reactor Projects, Region II; and, Mr. Stewart Ebneter and Mr.
James L. Milhoan (former Deputy Administrator, Region II), the Administrators of Region II and IV respectively.'
The NRC believes that these witnesses either similarly lack first-hand or relevant knowledge of the facts (or possess such In its responses to discovery, the NRC did identify Frank 6
P.
Gillespie and Ellis W. Merschoff as witnesses to the events listed in the complaint.
However, in light of their limited role in the underlying events, as well as admitted documents and facts, it is not clear to the NRC that they can provide any additional, non-duplicative evidence.
I l
10 limited knowledge of marginal relevance as to warrant I
consideration of their exclusion from the witness list in light of the available witnesses, documents and admissions) that the NRC should not be required to make them available without a reasonable showing of the relevance of their testimony.
l Therefore, the NRC respectfully requests that the Defendant be required to proffer the subject-matter of their proposed testimony so that the NRC can more adequately and fully raise any appropriate objections to their _lsting as witnesses.
Indicative of the burdensome prospects that are raised by i
the Defendant's witness list are the conflicting schedules of a number of the listed individuals as to whom the NRC has raised
(
objections above.
Based upon information obtained to date, for
{
example, the NRC has learned that:
Mr. Frank J. Miraglia, Jr.,
is scheduled to be on travel from November 17 through November 19; Mr. Frank P. Gillespie is schedule be on official travel in San Francisco from November 15 through November 17, for prerentation of a speech to the American Nuclear Society; Valeria H. Wilson is scheduled to be in training at the Federal Executive Institute in Charlottesville, Virginia, from November i
15 through December 10; Mr. Eugene V.
Imbro is scheduled to be in j
Georgia on November 15 and 16 and in Nebraska on November 17 through November 19; Mr. Brian K. Grimes is scheduled to be in San Francisco from November 16 through November 18.
The NRC also objects to the calling of non-NRC witness, Terry Lloyd.
Mr. Lloyd is the Assistant United States Attorney in the Southern District of Georgia who handled the criminal 1
11 matter concerning Mr. Zerr in which Mr. Zerr entered into a i
Pretrial Diversion Agreement.
The relevancy of testimony by Mr.
Lloyd is not apparent, and Mr. Lloyd has advised undersigned NRC counsel that he objects to the designation.
See United States v.
Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975), cert. denied 424 U.S.
942 (1976) (prosecutor allowed to be called as a witness only where " compelling and legitimate need" is shown).
In any event, the NRC cannot mandate his appearance.
IV.
Conclusion For the foregoing reasons, the NRC respectfully requests that a prehearing conference be scheduled for consideration of the NRC's request for an order requiring a particularized exhibit list, an order striking certain individuals from the Defendant's witness list (i.e.,
Dr. Selin and Messrs. Parler, Williams and Malsch) and an order requiring that the Defendant identify the subject-matter of the proposed testimony of other proposed witnesses identified above (pp. 9-10) so that it can be determined whether they should be excluded from the witness list.
t Respectfully submitted,
/
9" M,/
Roge K. Davis Dar M. Shapiro U.S.
Nuclear Regulatory i
Commission Office of the General Counsel Mail Stop 15B18 Washington, D.C.
20555-0001 Tel. 301/504.1606 Attorneys for the NRC DATED:
October 19, 1993
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ENCLOSURE 1 6
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED I
ATOMIC SAFETY AND LICENSING BOARD US NRCALJ i
Before Administrative Law Judge OCT 15' H95 Morton B. Margulies DOC Number 6
'+
l In the Matter of Docket No. 93-01-PF LLOYD P.
ZERR ASLBP NO. 93-673-01-PF i
a STATEMENT OF WITNESSES AND EXHIBITS Lloyd P.
- Zerr, by his attorney, Timothy E.
Clarke, Esq.,
respectfully lists the following witnesses for the hearing:
1.
Frank Gillespie 2.
John Larkins 3.
Valeria Wilson 4.
Pat Corvelli 5.
Randy Musser 6.
Len Wert 7.
Ken Brockman 2
8.
Al Herdt 9.
Ellis Merschoff 10.
Jim Milhoan 11.
Stu Ebneter 12.
Gene Imbro 13.
Brian Grimes 14.
Frank Miraglia 15.
Tom Murley i
16.
Jim Sniezek 17.
Jim Taylor 13.
Ron Fields 19.
Tom Blatchford 20.
Leo Norton 21.
David Williams 22.
Marty Malsch 23.
William Parler 24.
Ivan Selin 25.
Jim Thomas 26.
Norman Wagner 27.
Martin Levy 28.
Terry Lloyd 29.
Pat Schemm 30.
Ann Lovins t
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Lloyd P. Zerr further states that the Exhibits shall include the numbered exhibits provided to counsel by the Nuclear Regulatory Commission.
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- A M YMOTHY,E. CLARKE, ESQ l
5 North Adams Street Rockville, Maryland 20850
'?01) 217-9379 CERT!?!CATE OF EERVICE I HEREEY CERT!FY that a
true and
-:o rr ec :
- y 'of'the foregoing Response was served by first class Ur.ited States Mail, postage prepaid this
/12 day of October, 1993 on counsel for NRC, DARYL M.
- SHAPIRO, ESQ. and ROGER K.
DAVIS, U.
S. Nuclear Regulatory Commission, Cffice of the General Counsel, Mail Stop 15 BlB, Washington, D.
C.
20555.
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