[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Notices]
[Pages 54748-54752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21827]


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NUCLEAR REGULATORY COMMISSION

[Docket No. IA-14-025-EA; ASLBP No. 14-932-02-EA-BD01]


In the Matter of James Chaisson (Enforcement Action); Notice of 
Hearing and Initial Scheduling Order

September 8, 2014.

Atomic Safety and Licensing Board

Before Administrative Judges: Alex S. Karlin, Chairman, Michael M. 
Gibson and Dr. Gary S. Arnold

I. Introduction

    This proceeding concerns a July 11, 2014 enforcement order issued 
by Patricia K. Holahan, Acting Director, Office of Enforcement of the 
U.S. Nuclear Regulatory Commission (Director) against Mr. James P. 
Chaisson.\1\ The Director alleges that Mr. Chaisson failed to comply 
with certain provisions of a confirmatory order that the Director 
issued to him in 2012 (2012 Order). Id. at 42,058. Mr. Chaisson 
requested an ``expedited hearing'' \2\ and filed an answer denying 
certain aspects of the 2014 Order.\3\ The Director filed an answer to 
Mr. Chaisson's answer.\4\ The Director does not oppose Mr. Chaisson's 
request for a hearing. Id.
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    \1\ In the Matter of James Chaisson, 79 FR 42,057 (July 18, 
2014) (2014 Order).
    \2\ Email from James Chaisson to NRC Hearing Docket (July 18, 
2014).
    \3\ Request for Hearing Submitted by James Chaisson (Aug. 4, 
2014) (Hearing Request).
    \4\ NRC Staff Answer to Request for Hearing (Aug. 15, 2014) 
(Director's Answer).
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    Pursuant to 10 CFR 2.329(a), on August 26, 2014, this Board 
conducted the initial scheduling conference in this matter.\5\ Our 
purpose was to discuss the development of an initial scheduling order 
(ISO) that would help achieve the just resolution of this dispute as 
efficiently and expeditiously as possible. The conference was conducted 
telephonically. The Director was represented in the conference by the 
NRC's Office of General Counsel. Mr. Chaisson participated without 
representation.\6\
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    \5\ See Order (Scheduling Initial Prehearing Conference) (Aug. 
14, 2014) (unpublished).
    \6\ Given that Mr. Chaisson is unrepresented, the Board will 
carefully scrutinize any agreement or consent by him purporting to 
waive or abandon any of his substantive or procedural rights. See 
Order (Scheduling Initial Prehearing Conference) (Aug. 14, 2014) 
(unpublished) at 4 n.5. We will look to see if any such consent or 
waiver is fully informed. Director's counsel should be especially 
scrupulous in informing Mr. Chaisson of the nature and extent of the 
rights that they might suggest that he waive or abandon. We also 
reminded counsel that their ethical duty of candor (e.g., their duty 
to disclose to this tribunal any relevant information and/or legal 
authority that is adverse to the Director's position) is especially 
important in cases such as this one, where the target of the 
government's enforcement action is not represented by counsel. See 
Model Rules of Professional Conduct R. 3.3(a)(3); 10 CFR 2.323(d) 
and 2.314.
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    During the initial scheduling conference, Mr. Chaisson withdrew his 
request that the hearing be expedited. Tr. at 27, 65-66. Mr. Chaisson's 
request for expedition was based on his concern that he would not be 
able to continue working if the 2014 Order went into effect before the 
hearing.\7\ However on August 14, 2014, the Director informed Mr. 
Chaisson that the 2014 Order ``is not effective until the Atomic Safety 
and Licensing Board rules on your hearing.'' Director's Answer at 1 
n.3. During the conference call, counsel for the Director confirmed 
that Mr. Chaisson's current responsibilities in his current job are not 
prohibited by the 2014 Order (because it is not in effect) or by the 
2012 Order. Tr. at 25. On that basis, Mr. Chaisson withdrew his request 
to expedite the hearing. Tr. at 27, 65-66.
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    \7\ Emails from James Chaisson to NRC Hearing Docket (Aug 4, 
2014, 17:14 EDT; Aug. 6, 2014).
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    In addition, during the initial scheduling conference, the parties 
acknowledged that 10 CFR part 2, Subpart G (the regulations applicable 
to enforcement proceedings) govern this adjudication.\8\ Accordingly, 
this ISO is based, in part, on the Subpart G regulations.
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    \8\ Tr. at 38. See 10 CFR 2.310(b) (``Proceedings on enforcement 
matters must be conducted under the procedures of subpart G of this 
part, unless all parties agree [otherwise].'')

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[[Page 54749]]

II. Notice of Hearing

    The Board grants Mr. Chaisson's request for a hearing and, pursuant 
to 10 CFR 2.312, issues this notice of hearing. Indeed, Mr. Chaisson, 
who is the target of the Director's enforcement order, has the right to 
demand and receive, not merely request, a hearing. See 10 CFR 
2.202(a)(3). The Board intends to conduct the hearing in Salt Lake 
City, Utah, at a time and place to be determined later. The hearing and 
this adjudication will be conducted under 10 CFR part 2, Subpart G.

III. Identification of Disputed Issues

    NRC regulations require that this ISO set forth ``the issues or 
matters in controversy to be determined in the proceeding.'' 10 CFR 
2.329(e). This is important because the scope and content of this 
adjudication, and the evidentiary hearing herein, are defined by the 
issues and matters that are disputed by the parties. For example, the 
scope of the mandatory disclosures that the parties must make under 
Subpart G is defined by the ``disputed issues alleged with 
particularity in the pleadings.'' 10 CFR 2.704(a)(2), 2.709(a)(6). 
Likewise, the scope of discovery under Subpart G covers any matter 
``that is relevant to the subject matter involved in the proceeding, 
whether it relates to the claim or defense of any other party.'' 10 CFR 
2.705(b)(1).
    Based on the written pleadings and the discussion during the 
initial prehearing conference, the issues and matters in controversy, 
as we see them now, are defined by the allegations in the Director's 
2014 Order and the responses contained in Mr. Chaisson's emails, answer 
and statements during the conference.

A. The Director's Allegations Include the Following

    1. Mr. Chaisson was employed from April 2009 through April 2010 as 
an area supervisor and lead radiographer for the Wyoming operations of 
Texas Gamma Ray, LLC (TGR), which, at that time, held a license issued 
by the NRC pursuant to 10 CFR part 34. The license authorized TGR to 
conduct certain radiographic operations. 79 FR at 42,057.
    2. On May 15, 2012, the NRC issued an order to Mr. Chaisson 
prohibiting him from engaging in NRC-licensed activities for a 3-year 
period. Id.
    3. The May 15, 2012 order was based on NRC's claim that Mr. 
Chaisson ``engaged in deliberate misconduct in violation of 10 CFR 
30.10(a)(1). Specifically, the NRC concluded that Mr. Chaisson chose to 
store a radiographic exposure device at a facility he knew did not 
comply with applicable NRC security requirements and was not an 
authorized storage location under TGR's license.'' Id.
    4. Mr. Chaisson requested alternative dispute resolution (ADR) 
concerning the May 15, 2012 order. Id. A mediation session was 
conducted on July 26, 2012. Id.
    5. As a result of the ADR, Mr. Chaisson signed an ``Agreement in 
Principal [sic] . . . in which he agreed to terms and conditions to be 
memorialized in a Confirmatory Order.'' Id.
    6. On September 10, 2012, NRC issued a ``Confirmatory Order based 
on the Agreement in Principal [sic].'' Id. [This Confirmatory Order is 
referred to herein as the ``2012 Order.'']
    7. Among other things, the 2012 Order prohibited Mr. Chaisson from 
engaging in NRC-licensed activities for an 18-month period, during 
which time he was required:
    a. To complete a 40-hour formal training course designed for 
qualifying radiation safety officers;
    b. To complete a 40-hour formal training course that meets or 
exceeds the requirements of 10 CFR 34.43; and
    c. To submit an article to NRC ``articulating the importance of 
compliance with NRC regulations and providing full and accurate 
information.'' Id. at 42,057-58.
    8. On March 28, 2014, Mr. Chaisson contacted NRC to determine what 
kind of training would be acceptable to meet the requirements of the 
2012 Order and on March 31, 2014, he requested a 6-month extension to 
fulfill the requirements of the 2012 Order. Id. at 42,058.
    9. Contrary to the requirements of the 2012 Order, Mr. Chaisson 
failed to complete the two 40-hour training courses, and failed to 
submit the article to NRC within the 18-month period specified in the 
2012 Order. Id.
    10. ``Mr. Chaisson's actions [specified in the previous paragraph 
9] constitute a violation of NRC requirements.'' Id.
    11. ``Based on the deliberate misconduct on which the May 15, 2012, 
Order was based, and Mr. Chaisson's violation of the September 10, 2012 
Confirmatory Order, I [the Director] lack the requisite reasonable 
assurance that Mr. Chaisson can be relied upon, at this time, to comply 
with the Commission's requirements and that the health and safety of 
the public will be protected if Mr. Chaisson were permitted at this 
time to be involved in NRC-licensed activities.'' Id.
    12. On the foregoing basis, the Director issued the 2014 Order.

B. Mr. Chaisson's Allegations Include the Following

    1. He did not deliberately violate any NRC requirements as alleged 
in the 2012 Order. Email from James Chaisson to NRC Hearing Docket 
(Aug. 4, 2014, 12:02 EDT).
    2. The 2012 Order does not accurately represent what he agreed to 
in the 2012 mediation process. Tr. at 43.
    3. He complied with the provision of the 2012 Order that required 
him to write and submit an article. Hearing Request.
    4. He attempted to comply with the provisions of the 2012 Order 
that required him to attend two 40-hour training courses, but 
circumstances beyond his control prevented him from doing so. Hearing 
Request.
    5. He requested that NRC grant him an extension for complying with 
the requirement of the 2012 Order that he attend two 40-hour training 
courses. 79 FR at 42,058.
    6. He did not deliberately violate the 2012 Order. Email from James 
Chaisson to NRC Hearing Docket (Aug. 4, 2014, 12:02 EDT).
    7. The sanctions proposed by the 2014 Order are inappropriate and 
excessive. Tr. at 41.
    8. The 2014 Order should not have been issued and should not be 
sustained.\9\
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    \9\ See Hearing Request; Emails from James Chaisson to NRC 
Hearing Docket (July 18, 2014; Aug. 4, 2014, 12:02 EDT; Aug. 4, 
2014, 17:14 EDT; Aug. 6, 2014).
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C. Board Specification of Issues or Matters in Dispute

    The Board concludes that the issues listed in Sections III.A and 
III.B are the ``issues or matters in controversy to be determined in 
the proceeding.'' 10 CFR 2.329(e). Thus, the scope of the mandatory 
disclosures, discovery, testimony, exhibits, and any other filings 
herein will include the foregoing issues and matters.
    We note that during the initial prehearing conference, the Director 
took the position that the scope of the adjudication ``should be 
limited to whether the 2014 Order was justified and appropriate.'' Tr. 
at 41. For example, the Director argued that Mr. Chaisson should not be 
allowed to dispute whether the 2012 Order accurately reflects the 
mediated settlement because Mr. Chaisson signed an agreement in 
principle that covered these points. Tr. at 42. The Director also 
argued that Mr. Chaisson should not be allowed to dispute the original

[[Page 54750]]

violations that formed the basis of the 2012 Order, i.e., whether, in 
2009-2010, Mr. Chaisson deliberately violated NRC regulations. Tr. at 
47. The Director argued that the current dispute should be limited to 
whether Mr. Chaisson violated the terms of the 2012 Order. Id.
    We do not agree. First, Mr. Chaisson asserts that the 2012 Order 
does not accurately reflect what he agreed to in 2012. Tr. at 45. If 
Mr. Chaisson asserts that he did not agree to undergo the two 40 hour 
training courses and to submit an article to the NRC within 18 months, 
then he may present evidence to that effect. Likewise, if the Director 
(who has the burden of proof herein) has a written agreement in 
principle, signed by Mr. Chaisson, specifying that he agreed to those 
terms and conditions, then the Director may present such evidence at 
the hearing.\10\
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    \10\ The issue--whether or not the 2012 Order accurately 
reflects what Mr. Chaisson agreed to--focuses on the final result of 
the mediation, not the various communications made by the parties or 
the mediator during the mediation process. Both parties may present 
evidence whether the 2012 Order accurately reflects the result of 
the mediation. But neither party will be allowed to present evidence 
concerning the back and forth communications that the parties 
exchanged during the mediation process. We are not going to rehash 
who said what to whom during the mediation. Likewise, the mediator 
may not be called as a witness in this proceeding. This comports 
with Rule 408 of the Federal Rules of Evidence, which states, in 
part: ``Evidence of conduct or statements made in compromise 
negotiations is . . . not admissible.''
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    Second, the 2014 Order explicitly states that the Director's 
findings and the sanctions she seeks to impose on Mr. Chaisson, are, in 
part, ``[b]ased on the deliberate misconduct on which the May 15, 2012, 
Order was based.'' 79 FR at 42,058. Meanwhile, Mr. Chaisson disputes 
that he ever engaged in such deliberate misconduct. Tr. at 56-57. This 
issue is clearly within the scope of this proceeding. While this 
proceeding will not litigate the validity of the 2012 Order (Mr. 
Chaisson did not challenge that order in 2012),\11\ the scope of the 
current proceeding definitely includes the appropriateness of the 
sanctions specified in the 2014 Order. The appropriateness of the 
sanctions in the 2014 Order is based, in significant part, on NRC's 
allegation that he engaged in deliberate misconduct in 2009-2010. This 
is an issue or matter in dispute in this case, and the Director and Mr. 
Chaisson are entitled to present evidence on it.
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    \11\ While we will allow Mr. Chaisson to use this adjudication 
to argue (and present evidence) that the 2012 Order is inaccurate 
(that is that it does not correctly reflect what he agreed to in 
2012), we will not allow him to use this adjudication to argue that 
the 2012 Order is invalid or should be overturned. If he had wanted 
to challenge the validity of the 2012 Order, he should have done so 
in 2012.
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D. Clarification or Simplification of the Disputed Issues

    The issues and matters in dispute that are listed in sections III.A 
and III.B above are subject to modification and adjustment. For 
example, during the prehearing conference, we encouraged the Director 
and Mr. Chaisson to communicate with each other to attempt to settle, 
clarify, or simplify the issues and matters in dispute. Tr. at 85-87. 
Pursuant to that discussion, Section IV.A of this order instructs the 
parties to consult with each other by September 30, 2014, and for the 
Director to submit a report to the Board concerning the results of that 
consultation by October 10, 2014. That consultation and report should 
include any jointly proposed modifications or adjustments to the 
matters listed in Sections III.A and III.B.

IV. Schedule

    In addition to the general deadlines and time frames applicable to 
proceedings under 10 CFR Part 2, the Board establishes the following 
initial schedule for this matter.\12\
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    \12\ In any conflict between this ISO and the general rules of 
10 CFR part 2 (including the model milestones set forth in 10 CFR 
part 2, Appendix B), the deadlines specified in the ISO shall 
govern.
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A. Initial Meeting of the Parties

    NRC's Subpart G regulations specify that, as soon as practicable 
after the issuance of the ISO, the parties shall ``meet to discuss the 
nature and basis of their claims and defenses and the possibilities for 
a prompt settlement or resolution of the proceeding or any portion 
thereof, to make or arrange for the disclosures required by Sec.  
2.704, and to develop a proposed discovery plan.'' 10 CFR 2.705(f). In 
accordance with these regulations, the parties shall consult. In 
addition to the foregoing topics, they shall discuss whether either 
party claims that confidential or protected information is involved in 
this proceeding and whether a protective order may be necessary. 
Specifically,
    1. By September 30, 2014, the Director and Mr. Chaisson shall 
consult (either in person or telephonically) to discuss the matters 
specified above; and
    2. By October 10, 2014, the Director or her representative shall 
file a brief report with the Board reciting the results of the 
consultation. This report should
    a. Identify any jointly proposed amendments, clarifications or 
simplifications to the issues and disputed matters listed in Sections 
III.A and III.B of this ISO;
    b. Include a proposed discovery plan that comports with the 
schedule and deadlines set forth in this ISO;
    c. Specify if either party believes that a protective order is 
necessary and, if so, submit a proposed protective order; \13\ and
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    \13\ See Pacific Gas and Electric Company (Diablo Canyon Nuclear 
Power Plant, Units 1 and 2), LBP-11-5, 73 NRC 131 (2011) for an 
example of a protective order.
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    d. Specify if the parties wish to pursue settlement or to seek to 
have a Settlement Judge appointed pursuant to 10 CFR 2.338(b).
    3. By October 17, 2014, Mr. Chaisson may file an answer to the 
report.
    4. Settlement is encouraged, but the parties should be aware that 
the fact that they are negotiating a possible settlement does not 
change any of the deadlines set forth in this ISO. See 10 CFR 2.338(f).

B. Mandatory Disclosures

    NRC's Subpart G regulations specify that, unless the Board mandates 
otherwise, within 45 days of the ISO each party must automatically 
disclose to the other party certain information and documents. For 
example, within 45 days the NRC Enforcement Director must provide Mr. 
Chaisson with a copy of all NRC Staff documents that are ``relevant to 
disputed issues alleged with particularity in the pleadings [i.e., 
listed in Sections III.A and III.B herein].'' 10 CFR 2.709(a)(6)(i)(A). 
Likewise, within 45 days Mr. Chaisson must provide certain information 
and documents to the NRC Enforcement Director. See 10 CFR 2.704(a). 
That 45-day deadline, however, conflicts with the timing of the 
consultation mandated by 10 CFR 2.705(f) and discussed in Section IV.A 
above. Accordingly,
    1. In lieu of the 45-day deadline, Mr. Chaisson and the Director 
shall make their initial mandatory disclosures to each other by 
November 4, 2014;
    2. Mr. Chaisson and the Director shall update their mandatory 
disclosures monthly, on the second Wednesday of each month; and
    3. The monthly updates shall continue until the Board issues its 
decision after the hearing.

C. Discovery

    NRC's Subpart G regulations specify that, in addition to the 
mandatory disclosures specified above, and within certain constraints, 
Mr. Chaisson may pursue discovery against the Director. See 10 CFR 
2.709 (``Discovery against NRC staff''). For example, Mr. Chaisson (a) 
may serve written questions (referred to as ``interrogatories'') on the 
Director, (b) must show that the answers to the

[[Page 54751]]

interrogatories are necessary to a proper decision in this proceeding, 
and (c) ask the Board to direct the Director to answer those 
interrogatories. See 10 CFR 2.709(a)(2). If the Board agrees, it will 
instruct the Director to answer the interrogatories. In addition, Mr. 
Chaisson may require a member of the NRC Enforcement Director's staff 
to attend a prehearing meeting where he can require that staff member 
answer questions orally under oath (this is referred to as a 
``deposition''). See 10 CFR 2.709(a)(1), (3) and (4). Likewise, counsel 
for the Director may take the deposition of Mr. Chaisson or any other 
person, see 10 CFR 2.706(a); may file written interrogatories that Mr. 
Chaisson must answer, see 10 CFR 2.705(b); and may require him to 
provide the Director with a copy of any designated relevant document 
that is within his possession, custody or control, see 10 CFR 2.707(a). 
Neither party is required to pursue such discovery. However, any such 
discovery shall proceed as follows:
    1. Such discovery may not begin until October 10, 2014--10 days 
after Mr. Chaisson and the Director have held the consultation mandated 
by 10 CFR 2.705(f); \14\
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    \14\ This is the same date on which the Director is to submit 
her report concerning the results of the consultation, including the 
submission of any jointly proposed discovery plan.
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    2. Such discovery must be completed by January 15, 2015.

D. Motions for Summary Disposition

    Given the factual nature of the issues and matters in dispute 
herein, the Board concludes that motions for summary disposition (and 
any other form of dispositive motion) would be unproductive and would 
divert Mr. Chaisson and the Director from preparing adequately for the 
evidentiary hearing. Accordingly, no such motions may be filed.

E. Second Prehearing Conference

    The Board contemplates that the prehearing filings that each party 
must make before the evidentiary hearing can occur will need to be 
filed by February 20, 2015, and that the evidentiary hearing will occur 
in mid to late March 2015. At the moment, however, we are not mandating 
those specific deadlines. Instead, the Board will hold a second 
prehearing conference before January 30, 2015. The purpose of the 
second prehearing conference will be to set a specific time, date, and 
location for the evidentiary hearing and to establish firm deadlines 
for the prehearing filings that the parties must make.

V. Fifth Amendment Issues

    The Fifth Amendment to the Constitution of the United States 
provides, in pertinent part, that no person ``shall be compelled in any 
criminal case to be a witness against himself.'' The 2014 Order issued 
by the Director, and this adjudicatory proceeding, are administrative 
actions and do not constitute a criminal case. During the initial 
prehearing conference, however, counsel for the Director stated that 
there is a ``potential'' that a criminal case could arise concerning 
Mr. Chaisson's alleged violations. Tr. at 91. Given that Mr. Chaisson 
has no legal representation, it is incumbent on NRC, and this Board, to 
be alert to such issues and to inform him of his right against self-
incrimination in appropriate circumstances. Accordingly, and as ordered 
during the initial prehearing conference:
    A. On September 10, 2014 the Director shall submit a brief to the 
Board that specifies:
    1. Whether there is any potential that NRC will pursue criminal 
charges against Mr. Chaisson;
    2. Whether the NRC is aware that any other federal entity, such as 
the U.S. Department of Justice, is investigating this matter and/or may 
pursue criminal charges against Mr. Chaisson;
    3. Whether the Director or anyone on the NRC Staff has previously 
advised Mr. Chaisson of his Fifth Amendment right against self-
incrimination, and if so, when and how;
    4. Whether the right against self-incrimination attaches or has 
attached to Mr. Chaisson in this proceeding;
    5. If so, when did it attach; and
    6. If so, how we should handle this issue and protect Mr. 
Chaisson's constitutional rights.
    B. On September 17, 2014, Mr. Chaisson may file an answer to the 
Director's report.

VI. Conclusion

    This ISO is intended to promote the just resolution of this dispute 
as efficiently and expeditiously as possible. The deadlines set forth 
herein are firm, and will not be modified unless a party (in advance of 
the deadline) petitions this Board for a change and demonstrates to us 
that there is good cause for such a change. See 10 CFR 2.334(b). 
Appendix A provides a summary of the deadlines set forth in this ISO. 
The parties should note that settlement negotiations, while encouraged, 
will not delay this schedule unless the Board affirmatively grants such 
a delay.
    Objections to this ISO must be filed by September 15, 2014. See 10 
CFR 2.329(e).
    It is so ordered.

    Rockville, Maryland.
    Dated: September 8, 2014.

The Atomic Safety and Licensing Board.
Alex S. Karlin,
Chairman, Administrative Judge;
Michael M. Gibson,
Administrative Judge;
Gary S. Arnold,
Administrative Judge.

   Appendix A--In the Matter of James Chaisson: Deadlines Specified In
                        Initial Scheduling Order
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           Deadline                     Action            ISO section
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9/10/14.......................  Director files brief   ISO V.A
                                 concerning 5th
                                 Amendment.
9/15/14.......................  Either party may file  ISO VI
                                 objections to ISO.
9/17/14.......................  Chaisson may file      ISO V.B
                                 response concerning
                                 5th Amendment.
9/30/14.......................  Initial meeting or     ISO IV.A.1
                                 consultation of
                                 parties.
10/10/14......................  Director files report  ISO IV.A.2
                                 of consultation.
10/10/14......................  Parties can commence   ISO IV.C.1
                                 discovery.
10/17/14......................  Chaisson may file      ISO IV.A.3
                                 response to
                                 Director's report.
11/4/14.......................  Parties make initial   ISO IV.B1
                                 mandatory
                                 disclosures (to be
                                 updated monthly
                                 thereafter).
1/15/15.......................  End of discovery.      ISO IV.C.2
                                 Parties must
                                 complete discovery
                                 by this date.
Before 1/30/15................  Board conducts second  ISO IV.E
                                 prehearing
                                 conference with the
                                 parties to adjust
                                 and finalize plans
                                 for the hearing.
2/20/15 *.....................  Each party files its   ISO IV.E
                                 Prehearing
                                 Submittals. (These
                                 submittals consist
                                 of the party's (a)
                                 statement of
                                 position, (b)
                                 written testimony,
                                 and (c) exhibits).

[[Page 54752]]

 
Mid to late March 2015 *......  Evidentiary hearing..  ISO IV.E
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* These dates are subject to change and will be discussed during the
  second prehearing conference.

[FR Doc. 2014-21827 Filed 9-11-14; 8:45 am]
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