ML021070181
| ML021070181 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 04/09/2002 |
| From: | Murphy K Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A | |
| References | |
| +adjud/ruledam200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, NRC-319, RAS 4311 | |
| Download: ML021070181 (65) | |
Text
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Jo DOCKETED Official Transcript of Proceedings USNRC NUCLEAR REGULATORY COMMISSIONSECRETARY RLEIIAKINGS AND ADJDIATIONS SArFF
Title:
Tennessee Valley Authority Watts Bar Nuclear Plant, Unit I Sequoyah Nuclear Plant, Units I &
Browns Ferry Nuclear Plant Units I PRE-HEARING CONFERENCE 2
,2 &3 Docket Number:
Location:
Date:
50-390-CivP; ASLBP No.: 01-791-01-CivP (teleconference)
Tuesday, April 9, 2002 Work Order No.:
NRC-31 9 Pages 199-261 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 I -. - i / c e = &
C V O S
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD PANEL PRE-HEARING CONFERENCE
x Docket Nos.
- 50-390-CivP; IN THE MATTER OF:
- 50-327-CivP; TENNESSEE VALLEY AUTHORITY
- 50-328-CivP; (Watts Bar Nuclear Plant,
- 50-259-CivP; Unit 1; Sequoyah Nuclear
- 50-260-CivP; Plant, Units 1 & 2;
- 50-296-CivP; Browns Ferry Nuclear
- ASLBP No.
Plant, Units 1, 2 & 3
- 01-791-01-CivP
- EA 99-234 x
Tuesday, April 9, 2002 Via telephone conference call The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m.,
BEFORE:
CHARLES BECHHOEFER, Chairman RICHARD F. COLE, Administrative Judge ANN MARSHALL YOUNG, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES:
2 On Behalf of the Licensee, Tennessee Valley 3
Authority, 4
BRENT MARQUAND, ESQ.
5 JOHN SLATER, ESQ.
6 EDWARD BIGLIUCCHI, ESQ.
7 Office of General Counsel 8
Tennessee Valley Authority 9
400 West Summit Hill Drive 10 Knoxville, Tennessee 37902 11 (865) 362-4251 12 13 DAVID REPKA, ESQ.
14 Winston & Strawn 15 1400 L Street, N.W.
16 Washington, D.C.
20005 17 (202) 371-5700 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On Behalf of the Nuclear Regulatory Commission:
DENNIS C. DAMBLY, ESQ.
JENNIFER M. EUCHNER, ESQ.
Office of General Counsel Nuclear Regulatory Commission Room 15 E2 One White Flint North Rockville, Maryland (301) 415-1578 ALSO PRESENT:
NICHOLAS HILTON, NRC/OE NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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P-R-O-C-E-E-D-I-N-G-S 2
(10:00 a.m.)
3 JUDGE BECHHOEFER:
Good morning, ladies 4
and gentlemen.
This is a pre-hearing conference, I 5
guess we called it, in the proceeding involving --
let 6
me introduce the members of the board first.
7 Richard, introduce yourself.
8 JUDGE COLE: Richard Cole, Administrative 9
Judge.
10 JUDGE YOUNG:
Ann Young, Administrative 11 Judge, Ann Marshall Young.
12 JUDGE BECHHOEFER: We would appreciate, by 13 the way, when anybody speaks to introduce themselves 14 first.
Identify themselves first, I should say.
We 15 should have all the parties or participants identify 16 themselves at this stage.
I'll start with TVA, I 17 guess.
18 MR. MARQUAND: This is Brent Marquand and 19 John Slater.
We represent TVA.
We're located right 20 now in Knoxville, Tennessee.
21 MR. BIGLIUCCHI:
This is Ed Bigliucchi, 22 Office of General Counsel, TVA as well.
23 MR. REPKA:
This is David Repka, counsel 24 to TVA.
I'm with Winston and Strawn and I'm located 25 in Washington, D.C.
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JUDGE BECHHOEFER:
And staff.
2 MR. DAMBLY: For the staff, this is Dennis 3
Dambly along with Jennifer Euchner and Nick Hilton.
4 JUDGE BECHHOEFER:
Mr. Hilton, could you 5
just identify yourself?
6 MR. HILTON:
Yes.
This is Nick Hilton.
7 I'm with the Office of Enforcement.
8 JUDGE BECHHOEFER:
- Well, pending are 9
several motions.
The board has actually reached a 10 decision on several of them already.
I would like Ed 11 Young to summarize the ones we are all in agreement 12 on.
13 JUDGE YOUNG:
Okay.
First of all, NEI's 14 motion to file an amicus brief, we have agreed that we 15 will consider that.
That motion is granted.
16 With regard to the staff's motion in 17 limine with regard to Mr. Peters and certain documents 18 related to Mr. Grover, we would deny those motions.
19 With regard to Mr. Peters, we agree with TVA that any 20 objections would go to the weight to be given that.
21 The staff can through cross-examination of Mr. Peters 22 bring out any weaknesses in his statistical analysis.
23 With regard to Mr.
Grover and the 24 documents related to him, and we may need to go 25 through them.
I think there was a memorandum to Mr.
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- Grover, two memoranda, a termination letter, Mr.
2 Grover's BOL and EEO complaints, and then finally the 3
OIG report.
4 Of those documents, I think probably the 5
one that I personally would have the most problem with 6
would be the OIG report because that kind of thing 7
generally has a lot of hearsay in it.
It's not 8
generally admissible under ordinary rules of evidence.
9 But we are persuaded by TVA's argument 10 that with regard to bias and also credibility and 11 given the generally relaxed rules of evidence in 12 administrative proceedings that all of those would be 13 admitted on the issues of bias and credibility.
14 Do you want to add something?
15 JUDGE BECHHOEFER:
Yes.
We believe that 16 the circumstance that led to the information 17 concerning Mr. Grover arose after the transaction 18 involved in this proceeding does not preclude that 19 testimony or document because they show a tendency 20 toward bias, or they may show that.
It is something 21 we should consider.
The fact that it arose after the 22 fact ought to preclude our, at least, hearing it.
23 JUDGE YOUNG:
Obviously when the staff 24 calls Mr. Grover, you can bring out any testimony to 25 sort of rehabilitate his credibility and counter any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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evidence based on bias.
With regard to --
2 MR. DAMBLY:
Your Honor, this is Dennis 3
Dambly for the staff.
Just so I'm clear on this, the 4
board --
I mean, to the extent you are going to allow 5
the IG report in, the board is not going to make 6
determinations on whether that's true or false, just 7
the fact that there is a report out there that says he 8
did something wrong? Otherwise, we are going to need 9
about 10 or 15 more witnesses and a bunch of subpoenas 10 and you're going to have to try a second case.
11 JUDGE YOUNG:
I think with regard to the 12 report, as I said before, that is the kind of thing 13 that I would generally exclude. In my previous job as 14 an Administrative Law Judge in Tennessee in which I 15 heard a lot of personnel cases, that is the kind of 16 thing that would not come in under the rules of 17 evidence because it generally has a lot of hearsay in 18 it.
19 We're in sort of a different situation 20 here because the rules of evidence are relaxed.
I 21 wouldn't give much, if
- any, weight to hearsay 22 contained within such a report.
It may be that once 23 we see it, that we would entertain additional 24 objections to portions of it as being unreliable 25 hearsay.
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The degree to which that kind of thing 2
would be taken by us to find that Mr. Grover was 3
credible or not credible or biased or unbiased is 4
something that is sort of difficult to tell you at 5
this point without seeing what it is.
It may be that 6
you want to go ahead and provide that report to us.
7 If you have already provided it, I
8 apologize and I just haven't looked at it.
Then 9
consider separately any particular objections to 10 portions of it that might be objectionable as sort of 11 hearsay within hearsay kind of thing.
12 MR. DAMBLY: Again, Judge, this is Dennis 13 Dambly.
My point was we're not going to object at 14 this point if the sole purpose that the document will 15 come in for us to say the TVA OIG did an investigation 16 and they made some conclusions.
17 But if the board is going to go into or 18 hear argument or whatever from TV that they are true, 19 then we have a whole other trial that is going to take 20 place and there is a separate enforcement action being 21 considered at the moment on whether or not that IG 22 report itself was an act of discrimination.
I think, 23 you know, if you're going to get into that, then we 24 are going to need a couple extra weeks of trial and a 25 whole bunch more witnesses and discovery.
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1 As long as it's only coming in to say they 2
did a report and they said he did some bad stuff and 3
that would make him upset with them, that's fine. But 4
to any extent that you're going to judge on the 5
truthfulness of those allegations, then we've got 6
serious problems and it's going to be a lot longer and 7
I need 10 or 15 more witnesses and a whole boat load 8
of documents.
9 JUDGE YOUNG:
Let's come back to this in 10 just a minute and I would like to ask Mr. Marquand to 11 address your concerns. Maybe we should go straight to 12 that.
I have a feeling that this may take a little 13 while so it might be good for me to finish recounting 14 what the board has discussed with regard to the 15 motions in limine and then come back to that and hear 16 from Mr. Marquand and Mr. Repka, if appropriate, in 17 terms of what TVA intends to show through that report.
18 Also we may look at whether there is some 19 alternative way of approaching that particular part of 20 the documents related to Mr. Grover because that one 21 is the one that is of most concern.
22 With regard to the staff motion in limine 23 I'm sorry.
With regard to TVA's motion in limine 24 relating to the personnel policies, I think the staff, 25 Mr. Dambly, you've said that you don't have any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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problem not introducing them at the outset as long as 2
you can bring them in if any TVA witnesses makes them 3
relevant to their testimony. We don't see any problem 4
with proceeding in that manner. That sounds like that 5
sort of works itself out.
If anyone has any problem 6
with that, why don't you go ahead and state it at this 7
point.
8 MR.
MARQUAND:
I think that is a
9 reasonable approach, Your Honors.
This is Brent 10 Marquand of TVA.
11 JUDGE YOUNG:
Okay.
With regard to the 12 tape recordings and transcripts of tape recordings 13 that Mr. Fizer made, we think that the best approach 14 is to allow them in considering the transcripts only 15 as guidance, but also to allow to make sure that TVA 16 has all of those so that TVA can provide any 17 corrections or make clear any disagreement that TVA 18 has with how it was transcribed, what is on those 19 tapes.
20 If it turns out that they are so inaudible 21 that they are not useful, then obviously that would go 22 to the weight that we would give them.
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right away if they have not already.
2 MR. MARQUAND: Your Honor, we still don't 3
we've got two transcriptions and we don't have 4
anything else. We gave to the tapes to the staff ages 5
ago in discovery.
I don't know why they are doing 6
this the 11th hour but we don't have them.
7 There is one particular conversation in 8
there that is if it was audible, it would be very 9
pertinent. That hasn't been provided and I don't know 10 if there was any attempt to transcribe it.
11 MS. EUCHNER:
Your Honor, this is Ms.
12 Euchner for the staff.
We just received yesterday 13 more CDs.
We will be having them transcribed and we 14 will be providing copies to TVA.
The problem is we 15 haven't received all these enhanced CDs yet and that's 16 why TVA doesn't have them.
17 As for waiting for the last minute, this 18 is the federal government.
It took us a while to get 19 the appropriate funding to take care of this and the 20 enhancement takes a while.
We apologize to TVA that 21 they don't have them all yet but they are in the same 22 boat we are.
We don't have them all yet and we will 23 certainly make sure we provide them to them as soon as 24 we get them.
25 MR. MARQUAND:
Your Honor, I don't have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 any problem with the way the board wants to proceed 2
with the tapes with the caveat that the first hurdle, 3
it seems to me, that has to be crossed is whether the 4
tapes, or enhanced CDs, are sufficiently audible to 5
have any weight. At that point a determination can be 6
made whether they should be relied upon.
And then a 7
second hurdle has to be whether the transcripts, as 8
NRC staff admitted in their response, are of any value 9
or not.
10 JUDGE YOUNG: I think the approach that we 11 would like to take --
let me back up for one second 12 and say to the staff, whatever you need to do to get 13 those in and the minute you get them in, we want you 14 to provide copies to TVA through Federal Express 15 overnight mail, whatever method would get them to TVA 16 as quickly as possible or hand carry them over to Mr.
17 Repka's office along with any transcripts and be 18 advised that time is of the essence here.
We are 19 getting close to the hearing date.
20 Obviously if it got to the point that 21 something became so prejudicial to TVA that they only 22 received it the very last day, then we would have to 23 look at either some way to mitigate any prejudice or 24 consider either allowing them at that point would be 25 inappropriate.
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I think our general approach is allow the 2
tapes in, allow TVA full opportunity to provide their 3
own transcriptions or corrections to any 4
transcriptions that the staff makes.
Above all, get 5
these done and to both parties as quickly as is 6
humanly possible.
If you need to expedite something, 7
do that.
8 COURT REPORTER:
I'm sorry to interrupt.
9 This is the reporter.
Who was speaking directly 10 before Judge Young, please?
11 MR. MARQUAND: This is Brent Marquand from 12 TVA.
13 COURT REPORTER:
Thank you very much.
14 JUDGE YOUNG:
Thanks.
15 JUDGE BECHHOEFER:
This is Judge 16 Bechhoefer.
I might have been --
17 JUDGE YOUNG:
I don't think you were but 18 what did you want to say?
Judge Bechhoefer is just 19 pointing out that the staff says that portions of it 20 are audible.
Obviously that is what will determine 21 the weight that we give them.
We want to give TVA 22 full opportunity to challenge any parts of them.
23 Mr.
- Marquand, in response to your 24 statement of needing to make the separate ruling, 25 again I think that we will consider any objections NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that should be given to these and that weight would 2
start at zero and go to 100 and wherever we find it 3
appropriate would be the appropriate weight we would 4
give them.
5 I think probably we will allow the 6
- parties, if not require the parties, to oppose 7
findings of fact and conclusions of law after the 8
conclusion of the hearing so that we can have full 9
benefit of all your arguments on all these issues.
10 Now, this leaves us with things that we 11 need to talk about, that we think we need to talk 12
- about, and then if either of you see any other 13 subjects that we need to address this morning, we will 14 put those on our list.
15 First, to go back to the issue of the OIG 16 report, on TVA's OIG report on Mr Grover, we want to 17 hear from Mr. Marquand what he would intend to prove 18 by that.
Maybe you should also address whether there 19 is any other means by which you can bring that 20 information out other than through an investigative 21 report which would not generally be admissible for 22 reasons other than the relevance and so forth.
23 Then the other big issue obviously is the 24 testimony of Mr. Marquand and Mr. Bigliucchi.
We 25 would like to hear a bit more from the parties both in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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terms of arguments in response to each other's filings 2
including TVA's response to the staff, response to 3
TVA's motion in limine.
4 Also with regard to what the actual 5
testimony would be because it appears to us that you 6
are not on the same page with regard to what that 7
testimony would be.
Rather than wait until the 8
hearing to clarify that, we think that an efficient 9
use of everyone's time would be to clarify that at 10 this point so that we could make a better informed 11 ruling on that.
12 So are there any other subjects that 13 anyone thinks we need to address today that we may 14 have overlooked or that may have presented themselves 15 since the filings that we have received?
16 MR. DAMBLY:
Your Honor, this is Dennis 17 Dambly for the staff. There are requests from TVA for 18 subpoenas for two witnesses, Carolyn Evans and William 19 McNulty. Ms. Evans is an NRC employee and Mr. McNulty 20 was the Field Office Director or OI in Region II at 21 the time and is being called for his NRC testimony.
22 As you are aware, the board can't issue 23 subpoenas to NRC staff or require any special person 24 to testify. Moreover, I don't think the testimony is 25 relevant at all.
I mean, they are not witnesses.
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understand that they supposedly are to authenticate 2
documents and I didn't know we had any authentication 3
problems.
4 I'm not sure what their testimony would be 5
for but it's not proper for the board to issue 6
subpoenas for specific NRC employees absent some 7
showing that nobody else could provide whatever it is 8
that is necessary out of them.
They are not fact 9
witnesses at all.
10 JUDGE YOUNG:
Why don't we take those up 11 right away?
It seems like a relatively simple thing 12 to establish, Mr. Marquand.
If someone else besides 13 Mr. Marquand needs to speak to this, feel free.
Do 14 you need either one of those witnesses to do anything 15 other than authenticate documents?
16 MR. MARQUAND:
Let me tell you what I 17 intend to call each of them for and the staff can 18 address it.
Ms. Evans is a lawyer in Region II.
She 19 provided the legal advice or the analysis to OI of 20 their investigation of Mr. Fizer's 1993 allegations.
21 The staff provided to us her legal opinion as to that.
22 Apparently they intended to waive that, 23 whatever privilege there was.
Her legal opinion was 24 that Mr. Fizer had not engaged in protected activity 25 with respect to anything to establish his
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1 complaint.
- But, on the other hand, she said it 2
appeared that management --
that he had disagreements 3
with management over whether or not he had performance 4
issues.
5 In her view, he had been removed from his 6
position because of performance issues, even in his 7
own opinion.
We intend to call her to establish that 8
that is the opinion she rendered and that is the 9
opinion she gave to OI which they relied upon in 10 closing the investigation of the 1993 complaint.
11 With respect to Mr. McNulty, he was, as I 12 understand it, the Field Director of OI responsible 13 for investigating Mr. Fizer's '96 allegation.
The 14 factual investigator is not available to testify and 15 we have questions about why they didn't address 16 certain matters including:
17 Why they didn't even look at the 1993 18 investigation? why they made certain representations 19 about the 1993 DOL complaint when they had not even 20 looked at the 1993 DOL file.
Why they characterized 21 the 1993 complaint in a certain fashion when they 22 didn't even look at it.
23 We have a lot of questions about why they 24 did what they did, the conclusions that they made.
25 The OI investigation and the court continues to be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 216 relevant in this case because it was expressly relied upon by the staff when issued the NOV.
JUDGE YOUNG:
Let me just address, first of all, one issue and see if we can get that out of the way.
That is, this proceeding is a de novo proceeding and I think it is fairly basic that we're not really looking at how well the staff did what the staff did.
We have to base our decision on the evidence we hear at this proceeding.
Whether the staff did or did not do something appropriately or did or did not give appropriate attention to particular evidence is really not relevant in this case.
With regard to Evan's legal opinion --
before we move on to that, I sort of see Judge Cole and Judge Bechhoefer nodding with regard to the relevance of how the NRC staff did its job in investigating that that would not be relevant.
JUDGE BECHHOEFER:
That is correct.
JUDGE YOUNG:
So that would lead to not allowing you to call Mr. McNulty if that is all we're looking at.
JUDGE BECHHOEFER: That's a recent policy.
JUDGE YOUNG:
Judge Bechhoefer is just saying that is also a recent policy statement of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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217 1
NRC.
2 With regard to Ms. Evans as to whether she 3
may have there might be some exceptional 4
circumstances such that she may have direct personal 5
knowledge of material fact such that she should --
6 such that TVA should be permitted to call her as a 7
witness.
8 I'll give my impression and that may also 9
provide some elucidation on our thinking with regard 10 to attorneys as witnesses generally, and that is I 11 don't think that we want --
I don't think it's a good 12 precedent to set to get into anyone examining lawyers 13 about their legal opinions.
14 If there's a document that shows it is 15 relevant, I would probably say the document could come 16 in but I don't think it's a good practice to be 17 examining any lawyer on either side about what their 18 legal opinions are.
19 That leaves some issues to be determined 20 but, again, with Ms. Evans if you've got some piece of 21 paper that says what her legal opinion is that the NRC 22 provided to you, that may be something that we can 23 talk about.
24 Apart from that, again, this is a de novo 25 proceeding so with that and the general hesitance to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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ask lawyers about their legal opinions and legal 2
advice, Mr. Marquand, do you have anything you want to 3
say about that?
4 MR. MARQUAND:
I do with respect to both 5
matters.
First of all, so long as the staff is 6
willing to stipulate that is --
we have the document.
7 We have a written opinion that that is the legal 8
opinion that she rendered and that is the basis upon 9
which OI concluded the 1993 investigation, we can 10 accept that.
11 JUDGE YOUNG: Mr. Dambly, would you agree 12 with that?
13 MR. DAMBLY:
With a couple of caveats.
14 First and foremost, whatever her legal opinion is is 15 totally irrelevant. The board has to make a decision 16 on what is protected activity and what's not.
I 17 guarantee you she said this was protected activity or 18 he wouldn't be trying to get a stipulation to get that 19 in the record.
It's irrelevant.
20 JUDGE YOUNG:
And, Mr. Dambly, that goes 21 to the whole issue of this being a de novo proceeding.
22 I agree with you and I think we probably all agree.
23 We need to make our own determinations on these 24 things.
25 MR. DAMBLY:
I don't see a need to have a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 stipulation that she came up with an opinion that they 2
like on one thing and didn't like on something else.
3 I just don't see the relevance of that.
4 In addition, if you were going to allow a 5
stipulation she wrote this document, then we would 6
want to add to the fact that OI did not do an 7
investigation in '93, they just accepted a document 8
from TVA's IG.
9 JUDGE YOUNG:
Mr.
Marquand, with Mr.
10 Dambly's wanting to add in the additional stipulated 11 fact that he just stated, could you to along with 12 that?
13 MR. MARQUAND:
I think we'll just submit 14 the 1993 investigation and I will let it speak for 15 itself.
With respect to --
16 JUDGE YOUNG:
Back up for a second.
17 You're saying instead of submitting Ms. Evans --
18 MR. MARQUAND: Just submit the whole thing 19 which includes her legal opinion.
20 JUDGE YOUNG: And, Mr. Dambly, do you have 21 any objection to submitting the whole thing?
22 MR. DAMBLY:
I may well.
Again, Your 23 Honor, this is a trial de novo and to the extent that 24 somebody has factual evidence, we're not here to 25 investigate whether OI did a good job or a bad job.
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1 Whatever they --
I mean, clearly they came 2
out in '96 and said TVA is guilty.
I mean, if we're 3
going to say in '93 they said they weren't and that 4
counts then in '96 we don't need this hearing because 5
this is the '96 issue and OI found they were guilty so 6
we don't have a need for the hearing.
7 MR.
MARQUAND:
That misses the point, Your 8
Honor.
That goes to the second matter which I wanted 9
to address.
We recognize this is a de novo hearing 10 and that the staff has to prove --
it is their burden 11 of proof to prove the notice of violation.
But that 12 being said, they would have to prove the notice of 13 violation and they have to prove it upon the theory 14 stated in the notice of violation.
15 While we're not here to contest or try to 16 prove that OI did a bad job, the notice of violation 17 says it is based upon the OI investigation report. If 18 there are other matters that OI did not consider that 19 are relevant to show that, in fact, there is not a 20 violation, that needs to be considered.
21 Now, with respect to the 1993 complaint, 22 what we've had is that staff take one position one 23 point in time and then as soon as they are called upon 24 they are taking another position. The point is in '93 25 they didn't view anything that Fizer had done as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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221 1
protected activity.
2 Now we're involved in a little shuck and 3
jive trying to say that maybe he did engage in 4
protected activity.
Well, I think it's relevant to 5
come in to show that they have changed their position 6
and that their positions keep changing depending on 7
what day of the week it is.
8 JUDGE YOUNG:
We may need to confer in a 9
minute here with the board but let me just ask, Mr.
10 Dambly, I assume you are going to have someone from 11 the staff who will be presenting some evidence on 12 behalf of the staff Office of Investigation, 13 Enforcement Division -- Office of Enforcement. Excuse 14 me, I'm stumbling to try to get the right term here.
15 JUDGE BECHHOEFER:
They mentioned at one 16 point Office of Enforcement.
17 JUDGE YOUNG:
Mr. Dambly, we are correct 18 in assuming that you will be calling someone, correct?
19 MR. DAMBLY:
Yes, Your Honor.
We're 20 calling Jim Leahman as the Deputy Office Director for 21 the Office of Enforcement to explain how the penalty 22 was arrived at.
23 JUDGE YOUNG: You do not intend to present 24 any other evidence from NRC staff on NRC staff theory 25 of how this is protected activity, etc.?
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1 MR. DAMBLY:
No, Your Honor.
Those are 2
legal questions that we have addressed in the brief.
3 Again, as we pointed out in the last pre-hearing 4
conference, and contrary to Mr.
Marquand's 5
representations, the NOV doesn't have some theory 6
that's been changing.
The NOV just says contrary to 7
50.7 they discriminate against Mr.
Fizer in part 8
because of his protected activities.
9 It's got no theories.
I don't know what 10 he's talking about.
He's back to his cover letters 11 and his OI reports and everything else.
He's not 12 dealing with the document which is at issue which is 13 the NOV itself.
14 JUDGE YOUNG:
Let me just ask you, Mr.
15 Marquand, you're not contending that Ms. Evans has 16 direct personal knowledge of material facts such that 17 an exception to the rule under Section 2.20(h) (2),
18 subsection (h) (2), would be applicable?
Are you or 19 are you?
20 MR. MARQUAND: Let me look at it a second.
21 My understanding is she had knowledge based --
her 22 knowledge is based upon her review of the information 23 OI gathered.
She analyzed it and concluded that he 24 had not engaged in protected activity.
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1 a witness, we will be more than happy to simply submit 2
the documents that were produced to us respecting the 3
1993 investigation.
4 JUDGE YOUNG: Am I correct in saying that 5
the investigative report is on --
the witness list --
6 pardon me.
7 MR. MARQUAND: I'm sorry. Your line broke 8
up.
9 JUDGE YOUNG:
Is the investigative report 10 on your witness list?
11 JUDGE BECHHOEFER:
No, on your document.
12 JUDGE YOUNG:
On your document list.
13 Pardon me, document list.
14 MR. MARQUAND:
It was intended to be 15 designated.
I understand it's on there as well as her 16 legal opinion.
17 JUDGE YOUNG:
Okay.
Mr. Dambly, you have 18 not objected to the investigative report?
19 MR. DAMBLY:
Well, Your Honor, we didn't 20 object to all the documents that are objectionable on 21 the list. There are lots of those documents. We just 22 figured you would handle those in the normal course of 23 the hearing.
If they go to put in something that is 24 irrelevant or otherwise, we would object at that time.
25 There are a lot of documents.
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1 JUDGE YOUNG:
Okay.
Okay.
That may be 2
the most appropriate way to deal with this.
As we 3
move forward to the hearing, this may --
several of 4
these things relating to investigative reports, the 5
TVA investigative report with regard to Mr. Grover, 6
the investigative report of the NRC with regard to Mr.
7 Fizer.
8 As I said, under the rules of evidence 9
normally I would not allow those in.
Whether they 10 should come in under some relaxed rules of --
relaxed 11 interpretation of the rules of evidence is something 12 that we'll have to think about.
But it also may be 13 something that you all may want to talk with each 14 other about and come to some kind of agreement on that 15 type of evidence.
16 Quite
- frankly, I think that we can 17 probably do without either of them and would not give 18 them a whole lot of weight anyway in making our own 19 decision about the matters at issue.
20 It would certainly make the proceeding go 21 a
little bit more efficiently and avoid some 22 tangential --
somewhat tangential issues with the 23 evidence on the primary issues on which will come in 24 primarily through other means.
That was a long 25 sentence but do you follow what I said, Mr. Dambly and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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225 1
Mr. Marquand?
2 MR. DAMBLY:
I think so, Your Honor.
3 Certainly with respect to the Grover IG report, the 4
staff would have no problem stipulating they did an 5
investigation and they concluded --
the IG concluded 6
that he engaged in various misconduct in listing 7
whatever they listed as the misconduct.
8 That's what OIG concluded and leave it at 9
that for purposes of showing --
I guess they are 10 trying to show he's biased because of the findings in 11 whatever year it was.
You know, that says that.
12 Without getting into whether those 13 findings are true, false, indifferent, whether we have 14 to go through phone logs and everything else for 15 purposes of trying to support a claim of bias, I think 16 it's sufficient to put in the record they did an 17 investigation, they made a conclusion that he engaged 18 in misconduct. It's already in the notice of removal, 19 I think.
20 JUDGE YOUNG:
Prior to the investigative 21 report on Mr. Fizer, I want to hear from Mr. Marquand, 22 too.
Do you think that you could work out 23 stipulations on both of those so that we don't need to 24 get into these things that would not normally come in 25 because they are replete with hearsay in the first NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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226 1
place?
2 MR. MARQUAND:
Your Honor. you had asked 3
me to address that issue earlier and I did not want to 4
protract this case by engaging in a trial with respect 5
to Mr. Grover.
I acknowledge that there may be --
I'm 6
not sure but there may be portions of the IG report 7
which are based on hearsay.
But to the extent that 8
any of that would reflect on his credibility, I would 9
not even attempt to go into any of that hearsay matter 10 with respect to that.
11 The parts that do reflect on his 12 credibility are parts that nobody could ever dispute 13 which are hundreds of pages of phone logs documenting 14 literally thousands of long distance phone calls that 15 he was making on his own time --
on TVA time on his 16 own personal business a thousand miles away from --
17 with respect to a realty company and business he was 18 conducting a thousand miles away from where he was 19 supposed to be working.
20 JUDGE YOUNG:
Could you work with Mr.
21 Dambly to try to work out a stipulation on that? Also 22 a stipulation on whatever you want to --
however you 23 want to characterize the investigation that was done 24 with regard to Mr. Fizer.
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1 some consensus here that if you could do that, that 2
would make this hearing go a lot more efficiently.
3 Given that we would not give much, if any, weight to 4
those investigative reports anyway, it would get those 5
issues put aside and get us to the more relevant 6
issues of what we need to decide in this case.
7 MR. DAMBLY:
Your Honor, I'm certainly 8
willing to try to work out a stipulation with staff.
9 MR. MARQUAND:
We have no problem, Your 10 Honor, in trying to move this along.
11 JUDGE YOUNG:
Great.
We're going to put 12 you on mute for just a minute.
13 (Whereupon, off the record.)
14 JUDGE YOUNG:
Counsel, if we can get a 15 clarification from you that might assist the board.
16 I
was suggesting that you might enter into 17 stipulations in lieu of submitting these investigative 18 reports relating to TVA's on Grover and NRC's on 19 Fizer.
20 I think that we all were sort of 21 understanding that with regard to the Grover one, for 22 example, we would agree there were phone records.
It 23 could be stipulated that TVA brought charges against 24 Mr. Grover based on a phone message showing a number 25 of phone calls without any further conclusions. Just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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228 1
basic facts that you could agree on.
2 Then with regard to the Fizer 3
investigative report, that it could be stipulated that 4
early on it was determined --
there was a view that 5
the 1991 to 1993 activities were not protected 6
activities such that we wouldn't need to --
there may 7
be some other parts to whatever stipulation you wanted 8
to make such that there would be no need to bring 9
those documents in.
Are we sort of on the same wave 10 length on that?
Is that something that the parties 11 can work on?
12 MR. MARQUAND:
Your Honor, this is Brent 13 Marquand.
I believe I would go a little further than 14 that with respect to both matters.
Not terribly much 15 further but a little bit, and that is with respect to, 16 for instance, the 0I's report and opinion with respect 17 to protected activity would reflect the matter that 18 the position taken by the staff initially was that 19 that protected -- that the activities from '91 and '93 20 were not, in fact, protected activities and append to 21 that the staff's written opinion on that for purposes 22 of making a record.
23 Then with respect to matters of what the 24 OIG had to say is not only TVA brought charges but 25 it's undisputed that Mr. Grover engaged in making NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 9 1
these phone calls.
He didn't dispute it when given a 2
chance to comment and provide information to TVA's 3
OIG.
4 It's undisputed that he made these calls 5
and he ripped the government off for literally 6
thousands of phone calls and was absent for more than 7
100 days.
It can be well documented he was away from 8
the work place without taking leave.
He engaged in 9
basically fraudulent activity with respect to his TVA 10 employer.
11 JUDGE YOUNG:
You're drawing a lot of 12 conclusions that you may want to think about limiting 13 to just what phone calls were made and the numbers and 14 so forth.
15 MR. MARQUAND: I'm sure we can write it in 16 a factual presentation.
17 JUDGE YOUNG: With all that said, I guess 18 Mr. Dambly, let me ask you, given that the alternative 19 is --
an alternative that might be considered by the 20 board would be to allow in the report given the 21 relaxed rules of evidence is the staff willing to talk 22 about written stipulations that both sides would agree 23 to in lieu of putting in all those --
the complete 24 report?
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1 previously yes, that we don't have a problem.
For 2
that matter, I would not have a problem if it makes 3
matters easy stipulating that Ms.
Evans wrote a 4
document and putting that document in.
5 Ms. Evans is not staff. She's not even in 6
the General Counsel's Office.
She's an attorney who 7
works in Region II as the regional counsel.
Her 8
opinion is not the staff's opinion, it's her opinion 9
but we can put her opinion in.
It's not what the 10 staff's opinion is or was.
11 JUDGE YOUNG:
It sounds like you've got 12 the makings of working out stipulations on both of 13 those things.
We encourage you to do that.
If we 14 need to set another time to talk, I'm not sure whether 15 we will be able to, but we encourage you to do that so 16 that can be off everybody's plate in terms of these OI 17 reports.
Given what Mr. Dambly just said about Ms.
18 Evans' written statement, then that takes care of the 19 issue of her as a witness, I think.
Any disagreement 20 with that?
21 MR. MARQUAND: I think that's a reasonable 22 approach, Your Honor.
23 JUDGE YOUNG: Thanks.
So that takes care 24 of Mr. McNulty and Ms.
Evans.
They are out as 25 witnesses.
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1 JUDGE BECHHOEFER:
Well, we can deal with 2
any agreements or lack of them at the outset of the 3
hearing right at the beginning.
4 JUDGE YOUNG:
We can deal with any 5
remaining disagreements at the hearing obviously.
6 Hold on one second.
We are going to confer a moment.
7 (Whereupon, off the record.)
8 JUDGE YOUNG:
We're back.
Are there any 9
other issues besides --
I think we have taken care of 10 the OI report on Grover. You are going to try to make 11 a stipulation on that.
So that leaves us with the 12 issue of Mr.
Marquand's and Mr.
Bigliucchi's 13 testimony.
Is there anything else before talking 14 about that that we need to address?
15 MR. MARQUAND: I wanted to address at some 16
- point, and I don't care about when, this is a
17 housekeeping matter.
We would like to make --
these 18 are the exhibits for each member of the board and the 19 witnesses and staff.
We want to inquire about how 20 many sets are needed or how many record copies or 21 whatever so that we'll know how many to prepare.
22 Ms. Euchner have talked about how to go 23 about doing exhibits and what we have proposed to do 24 was provide a complete set of all the proposed 25 exhibits and we assume the court reporter or the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 courtroom deputy or someone would keep track of what 2
was admitted into evidence so that when the board 3
reviews the record, it will know which of the exhibits 4
have been admitted into evidence among those that have 5
been provided.
6 JUDGE YOUNG:
Let me just tell you how I 7
have done this in the past and this is something that 8
we can consider that has helped in fairly complex 9
cases where there are a lot of exhibits.
That is, if 10 you don't prenumber them and we admit them as we go, 11 we just number them all consecutively.
The ones that 12 we do not admit, if anyone wants to make an offer of 13 proof or we mark those as rejected exhibits using 14 letters instead of numbers, something to that effect.
15 MR. MARQUAND: Your Honor, what we've done 16 sometimes in the past that I think might expedite it 17 is to give each of the board members a notebooks, or 18 notebooks, of the exhibits.
Rather than having to 19 deal out copies of exhibits during the hearing, we can 20 simply refer to a number and everybody can turn to it.
21 Then at that point, as you said, we could 22 have it identified and admitted. At the conclusion of 23 the hearing we can take the books and clean them up 24 and remove anything that hasn't been admitted.
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1 and give them to everybody so everybody can flip to it 2
at the same time.
3 JUDGE BECHHOEFER:
I usually like to have 4
a record of what happens to all of the documents 5
proposed.
The documents that are not accepted into 6
evidence are supposed to travel with the record for 7
purposes of appeals and that kind of thing.
I think 8
they all ought to have a number.
9 JUDGE YOUNG: You said that you would have 10 them numbered, right, Mr. Marquand?
11 MR. MARQUAND:
I understand what Judge 12 Bechhoefer is saying but just because we've got them 13 on a list, you've asked us to identify anything we 14 might possibly use.
You know, there are things that 15 we may not even offer, wouldn't propose to offer 16 unless some issue came up.
I'm not sure that those 17 would need to travel with the record.
18 JUDGE BECHHOEFER:
They don't but we could 19 indicate that documents with certain numbers were not 20 offered. They don't drop out of the numbering system 21 but they aren't part of the record.
22 MR. MARQUAND: That's fine. We can leave 23 them in the books.
My question then is how many sets 24 of exhibits?
We need to have everybody speak up.
25 Obviously the board members and staff counsel and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 witnesses. I'm not familiar with having record copies 2
there may need to be or anything like that.
3 MR. SLATER:
Your Honor, this is John 4
Slater.
I believe according to the board rule, for 5
record purposes there should be an original and two 6
copies for the record.
What we are trying to figure 7
out is whether or not we have to have the original and 8
two copies separate from notebooks for each of the 9
three judges.
10 JUDGE YOUNG: You know that better than I 11 do, Judge Bechhoefer.
12 JUDGE BECHHOEFER:
Well, the original, of 13 course. The reporter needs to keep one and then he'll 14 certify the transcript and all the documents up to the 15 Secretary. The originals get filed with the Office of 16 the Secretary.
17 JUDGE YOUNG: What are the two copies for 18 that he was referring to?
19 JUDGE BECHHOEFER:
As specified by the 20 rules.
21 JUDGE YOUNG:
So he's asking where would 22 those two copies go?
Would they be two of the ones 23 the board uses?
24 JUDGE BECHHOEFER:
No.
25 JUDGE YOUNG:
In other words, you would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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235 1
need to provide at least one.
2 JUDGE BECHHOEFER:
At least one copy 3
should be for the record to the Secretary.
4 JUDGE YOUNG:
What he's asking is the 5
other two copies that are required by the rule.
6 JUDGE BECHHOEFER:
That's one of them.
7 That's one of them. The other was probably --
it used 8
to be for the appeal board but they don't have an 9
appeal board.
10 JUDGE YOUNG: There are three copies that 11 need to be provided for the official record.
12 JUDGE BECHHOEFER:
Well, one for each of 13 us in any event plus one for the party.
14 JUDGE YOUNG:
Three record copies.
15 MR. REPKA:
Judge, this is Dave Repka.
16 JUDGE YOUNG:
Excuse me.
Excuse me.
17 MR. REPKA:
This is Dave Repka.
I was 18 just going to offer in my experience we've given the 19 extra copies to the court reporter to keep with the 20 record. The court reporter would get the original and 21 two copies.
22 JUDGE YOUNG:
That's what I was thinking.
23 I think the answer would be yes, the three copies for 24 the court reporter.
Then let me just ask a question.
25 We've got over a foot high of staff exhibits in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 support of its opposition to the motion for summary 2
judgement.
3 Are you talking about giving each of us a 4
foot and a half high stock of documents?
If not, I 5
would prefer to have each of us have our own notebook 6
of exhibits.
If we are talking about a huge amount, 7
then that becomes somewhat of a different question.
8 MR. MARQUAND: Your Honor, I think it's a 9
huge amount.
10 MR. DAMBLY:
I would have to agree it's 11 going to be a huge amount.
I don't know why that 12 would be why you wouldn't want your own copy for the 13 hearing but, if you don't.
14 JUDGE YOUNG:
It may be that if you can 15 give us each a copy and also provide a mailable box 16 that we can send it back to you.
17 MR. MARQUAND: Your Honor, let me suggest 18 when we've done this, and I think this is the way we 19 would do it, if we could get each of you a set in the 20 notebooks with defined number of exhibit numbers 1 21 through 20 and 21 through 72 and then have each of you 22 get a banker's box with your --
23 JUDGE YOUNG:
We could e-mail it back.
24 JUDGE BECHHOEFER:
It could be e-mailed.
25 JUDGE YOUNG: Okay. That sounds good. As NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 long as we can mail them back so that we don't have to 2
hand carry them back.
3 MR.
MARQUAND:
We need three record 4
copies, three sets, one for each one of the judges.
5 We need to make a set for the staff and one for the 6
witness so there can be a set of these exhibits on the 7
witness stand and the witness can be directed to turn 8
to certain ones.
Then obviously have a main one in 9
house.
10 JUDGE YOUNG: Right.
And you're going to 11 do that together so that there is one set that both of 12 you have agreed on as these are the witnesses --
I'm 13 sorry --
these are the documents that may be offered 14 as exhibits.
Am I assuming correctly?
15 MR. MARQUAND: You are assuming more than 16 we contemplated.
We have talked with counsel for 17 staff and staff has identified the documents between 18 two lists that overlap.
We were going to propose --
19 it sounds to me like how we'll do it is we at TVA have 20 a lot of documents, staff's got a lot of documents, 21 and then there's lots that overlap.
22 I think we can provide at least maybe one 23 set of joint ones so that we don't have two sets of 24 numbers for the 60 documents. I think each party will 25 have to be responsible for their own.
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1 MR. DAMBLY:
That was our feeling, Your 2
Honor, that we would get together with TVA and come 3
out with probably 60 or more exhibits that both of us 4
had listed and we could do those as Joint Exhibits 1 5
through whatever in one volume or two volumes.
6 I don't know how many volumes it will take 7
for those documents.
Then each party could do their 8
own Staff Exhibit 1 through X and TVA Exhibit 1 9
through X.
10 JUDGE BECHHOEFER: That sounds reasonable 11 to me, at least.
12 JUDGE YOUNG: Very reasonable. As long as 13 we don't get duplicate sets it sounds very reasonable 14 to us.
I think we are all understood on that.
15 Any other things before we get to the 16 issue of the attorneys?
17 MR. MARQUAND:
Not for the staff, Your 18 Honor.
19 JUDGE YOUNG:
I think that it would be 20 helpful to us maybe, Mr. Marquand, if you could reply, 21 or Mr. Repka can reply to the staff with regard to Mr.
22 Marquand and Mr. Bigliucchi. Then to what ever degree 23 necessary we think it would be helpful to hear what 24 questions would be asked and what the responses would 25 be so that everybody can understand where we are on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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239 1
this.
2 It seems to us that there is not a meeting 3
of the minds between the parties on what that 4
testimony would actually be.
This might be a very 5
efficient way of addressing early on.
6 MR. DAMBLY:
Your Honor, this is Dennis 7
Dambly for the staff.
Maybe to speed things up, Mr.
8 Bigliucchi was being called because during a break in 9
one of the depositions he indicated that he recalled, 10 or thought he had drafted a response to the Sasser 11 letter.
12 He has now put in an affidavit that he 13 didn't say that and he didn't do that and they put in 14 an affidavit from Donald Hickman.
The staff will be 15 more than happy to switch Mr.
Hickman for Mr.
16 Bigliucchi on the witness list.
17 MR. MARQUAND:
That's fine.
18 JUDGE YOUNG:
Pardon?
19 MR. MARQUAND: I said that's fine with us.
20 JUDGE YOUNG: Okay. Very good. Then that 21 takes care of Mr. Bigliucchi.
We thank you.
22 MR.
MARQUAND:
Thank you for your 23 participation, Ed.
24 MR.
BIGLIUCCHI:
I appreciate your 25 inviting me.
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240 1
JUDGE YOUNG:
Hold on one second.
Judge 2
Bechhoefer has a question.
3 JUDGE BECHHOEFER:
Is Mr.
Hickman a 4
lawyer?
5 MR. MARQUAND: Well, Mr. Hickman is ex-FBI 6
agent who is now the Acting Inspector General at TVA.
7 He's not a lawyer by trade.
8 JUDGE YOUNG:
They had an agreement that 9
he would be called instead of Mr. Bigliucchi.
10 JUDGE BECHHOEFER:
That sounds fine with 11 us.
12 JUDGE YOUNG:
- Again, thank you, Mr.
13 Bigliucchi. You are free to go and that takes care of 14 Mr. Bigliucchi.
15 MR. BIGLIUCCHI:
Thank you.
16 JUDGE YOUNG:
Moving on to Mr. Marquand.
17 Is there any further clarity on what Mr. Marquand's 18 testimony would be since the staff filed its response 19 and can we sort of get out on the table the remaining 20 disputes between you on the issue of what Mr. Marquand 21 would say if called as a witness?
22 MR. MARQUAND: First of all, the two areas 23 that I understand as to which I had involvement and 24 which there may have been some waiver.
In the process 25 of doing reorganization in 1996 when Mr.
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1 threatened to file a Department of Labor complaint 2
after he learned that they were --
actually knew that 3
they were going to post the job --
staff went to the 4
Labor Relations Officer --
5 JUDGE YOUNG:
We missed a word there.
6 MR. MARQUAND: Human Resources personnel, 7
who Mr. Fizer confronted, went to the Labor Relations 8
Officer and Nuclear was responsible for coordinating 9
Department of Labor cases and had some historical 10 knowledge. They went to that individual --
Mr. Fizer 11 was correct that --
12 JUDGE YOUNG:
Mr. Marquand, for some 13 reason we're losing words. I don't know whether there 14 is paper shuffling but we want to make sure we get 15 this so if you could back up a little bit there and 16 say the last thing you said over again.
17 MR. MARQUAND: Involved in writing the job 18 description for the new job and when he --
19 JUDGE YOUNG:
Excuse me.
I'm sorry.
20 We're still missing. You said "involved in writing."
21 We didn't catch the subject of that sentence.
22 MR. MARQUAND:
Mr. Fizer was involved in 23 writing the position description for the new job.
At 24 the point in time when he knew that the job was about 25 to be posted, he went to the Human Resources Officer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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and threatened to file the Department of Labor 2
complaint if the job was posted for competition.
He 3
told them he felt it was his job by right of his 1993 4
settlement agreement.
5 The Human Resource Officer then went to 6
the Labor Relations Officer.
The Labor Relations 7
Officer was responsible for handling and coordinating 8
Department of Labor complaints.
9 The Human Resource Officer asked the Labor 10 Relations Officer whether or not based upon the '93 11 settlement agreement Mr. Fizer had a right to the job, 12 not whether the job by virtue of OPM regulations 13 should be posted or not or whether Mr. Fizer had a 14 right to transfer under OPM regulations, but whether 15 he had a right under the settlement agreement to the 16 new job.
17 The Labor Relations Officer, Cathy Welch, 18 called me because I handled Department of Labor cases 19 for some years, and asked me for the same legal advice 20 and legal interpretation.
21 I looked at it very quickly, the 1993 22 settlement agreement, and said he had a right to be 23 placed in a certain job.
It doesn't guarantee him 24 that job for life.
It doesn't guarantee him any new 25 jobs.
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24 3 1
based on his allegations that he had a right under the 2
'93 agreement because it didn't give him that right.
3 As I understood it, they were in the 4
process of posting that job and I said, "You should 5
continue on in your processes and follow your normal 6
process."
That was the extent of my advice to Cathy 7
Welch, the Labor Relations Officer, who turned around 8
and provided that advice to the Human Resource 9
Officer.
That is the extent of my advice.
10 Ms.
Welch gave a
statement to the 11 Inspector General in the investigation of this and a 12 copy of that statement was provided to the staff.
13 Also at the predecision enforcement conference I said 14 the same thing.
It's a matter of record in both 15 situations.
The same thing.
16 The other matter that, as I understand it, 17 is involved is during the investigation by the 18 Department of Labor, they spoke to Wilson MacArthur.
19 Wilson MacArthur has been very ill since 1993.
He's 20 a very frail individual.
He was interviewed without 21 counsel present.
22 During that interview he indicated that he 23 had at one point in time been informed that Mr. Fizer 24 had surreptitiously tape recorded various 25 conversations.
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244 1
that. He said he thought I had done that.
He said he 2
thought I had indicated to him that based on that 3
knowledge he should be sensitive to the possibility he 4
was being tape recorded in the future.
That's the 5
extent.
6 Mr. MacArthur at other times has said that 7
he thinks he has seen a copy of the transcript or that 8
he has listened to the tapes.
I'm not sure that I 9
know what he's talking about when he says he's seen 10 copies of the transcripts because I haven't seen 11 copies of transcripts myself.
He may be confusing 12 that with another matter in another IG investigation 13 involving Mr. Jocher.
14 The IG tape recorded their interviews and 15 that was transcribed and those were provided to him 16 prior to him testifying in the Jocher case.
He may 17 simply have been confused on that. But, in any event, 18 he waived whatever privilege there was with respect to 19 the advise I gave him about being sensitive to the 20 fact that he was being tape recorded.
21 As far as I know, that's the only --
and 22 another individual by the name of Ben Easley who is 23 also a Human Resource Officer said that he was told 24 the same thing and he was also witness to the Jocher 25 case.
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1 divulgement by anyone of any information I provided 2
them about tape recordings that Mr. Fizer may have 3
made.
4 JUDGE YOUNG:
Mr. Dambly, given what you 5
just heard from Mr. Marquand, what is your argument at 6
this point and is there anything further that you 7
would want to ask Mr. Marquand, what would it be?
8 MR. DAMBLY:
Let me make two points, Your 9
Honor.
First, as to the advice on the '94 settlement 10 agreement, we'll take Ms. Welch and her statement and 11 we can put her on the witness list and not worry about 12 Mr. Marquand on that.
13 As to the tape recordings, we're talking 14 about the same tape recordings that you dealt with 15 earlier that have been enhanced and whatever.
Those 16 were given in confidence by Mr. Fizer to the TVA's IG 17 and he was told they wouldn't release those without 18 his knowledge, without his permission.
19 Then they ended up in Mr. Marquand's hands 20 without his permission. They were told he would just 21 send the letters and then would give them to Office of 22 the General Counsel.
Mr. Marquand proceeded to tell 23 people and maybe show people and he has refused to 24 tell us who he told which I don't think is privilege 25 in any way, shape, or form.
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246 1
He keeps talking about divulgement but 2
there is no privilege for he got information and 3
passed it on to people. He's not the client, he's the 4
attorney.
If he took information and passed it to 5
people and said, "Mr. Fizer's taping you on the DOL.
6 Watch out for him," that may well be a violation in 7
and of itself and we are entitled to inquire.
8 If he would like to tell us everybody that 9
he gave it to and what he told them and how he got it 10 in the first place, none of which is privileged, then 11 that takes care of the issue.
We asked for it in 12 discovery got stonewalled with, "Oh, it's attorney 13 work product," and God knows what all else.
I don't 14 know how it could be.
15 MR. MARQUAND: I disagree. The tapes were 16 given by Mr. Fizer to the Inspector General and the 17 Inspector General did not grant him any 18 confidentiality. They did tell him that they wouldn't 19 divulge it further without telling him, which they did 20 do.
21 They were provided to us in context of --
22 we were allowed to look at them in the context of 23 preparing for the DOL trial in the Bill Jocher case 24 which was at that time related, as you are aware, 25 because of the involvement of Jocher and Fizer were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 both in Chemistry and Jocher and Fizer are both at 2
Sequoyah. We have already referenced the letter that 3
both of them wrote to Senator Sasser.
4 JUDGE YOUNG:
Mr. Marquand, when you say 5
they were provided to us, do you mean the Office of 6
General Counsel?
7 MR. MARQUAND:
Yes.
We saw them as part 8
of our preparation for the Jocher case.
What we did 9
with them and how we --
what we did with them to 10 prepare for the Jocher case was certainly work 11 product.
The fact that I had a conversation with Dr.
12 MacArthur and Mr. Easley in the context of preparing 13 for trial in the Jocher case is work product and would 14 not be subject to disclosure.
15 The fact that Dr. MacArthur and Ben Easley 16 without the advice of counsel disclose that obviously 17 adds to them.
That is the extent of any disclosure 18 that has been made. That work product doctrine still 19 protects whatever we've done with respect to getting 20 ready for trial in that case.
21 As I said, I don't know of any transcripts 22 other than the "transcript" that Fizer made.
I don't 23 know where we're going with this.
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248 1
any sort of misconduct by anyone.
2 JUDGE YOUNG:
Let me just ask you, I
3 thought I understood you to say a minute ago and also 4
just now that the disclosure to Mr. MacArthur and Mr.
5 Easley were the only disclosures you made of those 6
tapes.
Did I understand that right?
7 MR. MARQUAND:
No.
Those are the only 8
disclosures that have been divulged.
I can think of 9
two other managers who are not involved in this case 10 who I --
maybe just one.
One for certain that I 11 informed to be sensitive to the fact that he might be 12 tape recorded. That was in the context of preparation 13 for the Jocher trial.
14 JUDGE YOUNG:
Mr.
- Dambly, does that 15 satisfy what you wanted to know?
16 MR. DAMBLY:
No, it doesn't, Your Honor.
17 Again, there's no work product privilege for "I got 18 this stuff from the IG who got it from Mr. Fizer and 19 I'm warning you watch out for Gary Fizer."
I would 20 like to know who he told because as you are well 21 aware, one of the big issues here is we keep hearing 22 nobody there knows about anything that Mr. Fizer did.
23 The three --
24 JUDGE YOUNG:
Hold on just a second.
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249 1
if I'm wrong but what I just heard Mr. Marquand say 2
that in addition to Mr. Easley and Mr. MacArthur there 3
may have been one other manager that he said to be 4
sensitive to the fact that maybe he is being taped 5
because there have been tapes.
6 What I'm asking you, Mr Dambly, is what 7
more would you want to know from Mr. Marquand?
Let's 8
get it out on the table what you want to know and 9
what, if anything, Mr. Marquand is saying he won't 10 tell you because I'm not clear on that at this point.
11 MR. DAMBLY: What I'm interested in is who 12 the other managers he talked to were and what he told 13 them.
14 MR. MARQUAND: What I told them had to do 15 with the context of getting ready for the Jocher 16 trial.
The fact that I told somebody to be sensitive 17 about the fact they were being taped was simply 18 incidental to the fact of getting ready for trial.
19 JUDGE YOUNG: And so, Mr. Marquand, you're 20 not telling who you said that to and you're saying it 21 is work product in your preparation for the Jocher 22 trial.
J-O-C-H-E-R, for the court reporter, I think 23 is how that's spelled.
Correct?
24 MR. MARQUAND:
That's correct.
25 JUDGE YOUNG:
And, Mr. Dambly, please NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 clarify for us what it is that you want from Mr.
2 Marquand that cannot be gotten anywhere else and that 3
would be --
and what is your argument on why apart 4
from what Mr. Marquand had told us we should allow you 5
to question him at the hearing about that?
6 MR.
DAMBLY:
- Again, Your Honor, Mr.
7 Marquand --
what I want from Mr. Marquand is the names 8
of the people he told and in the context he told them.
9 This is not work product.
Work product use mental 10 impressions.
"Mr. Fizer is tape recording. You watch 11 yourself," is not his mental impressions.
12 It's based on he was given documents or 13 tapes from the IG's office and he went out and spread 14 the word to people. We want to know who those people 15 were because we're interested in who knows about Mr.
16 Fizer's protected activity which they keep saying 17 nobody knew.
18 MR. MARQUAND: You can't dissect the work 19 product like that.
If I sit down with a witness and 20 work with them for two hours on a matter, you can't 21 dissect that conversation into little bits and pieces 22 and snippets and say this is protected and this isn't.
23 MR. DAMBLY:
Witness preparation is not 24 even work product.
It's his mental impressions of 25 what his theories are and everything else.
It's not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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251 1
what he told people.
It's not privileged in any way, 2
shape, or form.
3 JUDGE YOUNG: Mr. Marquand, let's see how 4
firm you are here on your -- you're saying that there 5
may have been one other manager. Are you objecting to 6
giving the name of the manager based on work product?
7 Is that what you're doing or have you thought that 8
through?
9 MR. MARQUAND:
I couldn't swear that I 10 even told this individual. He's the only person I can 11 think that I may have told it to.
I did work with 12 that individual in the context of the Jocher case but 13 I can't imagine who else I may have even had reason to 14 discuss it with.
15 JUDGE YOUNG:
But are you objecting to 16 telling Mr. Dambly who that person was?
17 MR. MARQUAND:
I would be willing to 18 disclose that if that put an end to it and the board 19 acknowledges that was the end of it. Aside from that, 20 I don't see any reason to waive whatever privilege or 21 protection we have.
22 JUDGE YOUNG:
Mr. Dambly, what --
23 MR. DAMBLY:
Your Honor, I'll make it 24 easy.
If he tells us who he talked to, or thinks he 25 talked to and divulged that Mr. Fizer was taping, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 52 1
is sufficient and we don't need to call him.
We may 2
need to call that person to see if that person then 3
told other people but that's a different question. As 4
far as Mr. Marquand, just tell us who you talked to.
5 JUDGE YOUNG:
If that would resolve this 6
issue, I think that would be good because --
- and, 7
again, I'm speaking for myself here but I think there 8
is a very strong policy against allowing counsel to be 9
called unless there are the exceptional circumstances 10 that would make the lawyer a witness who could give 11 testimony that was prejudicial against the client and 12 then necessarily, I think, gets us into these ethical 13 issues.
If this can be resolved by just giving that 14 name, I think that would be a very good course of 15 action.
16 JUDGE BECHHOEFER:
I would also like --
17 this is Judge Bechhoefer.
Work product is not an 18 absolute privilege.
Information which may be covered 19 by work product may be revealed and that is the only 20 way to get the information.
21 I think it is unlike the lawyer/client 22 privilege which is much more absolute.
I know there 23 are specific holdings to that effect, NRC holdings.
24 Mr. Marquand, would that --
if you are going to tell 25 us --
tell the staff, I should say.
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2 53 1
MR. MARQUAND: As I said, if Mr. Dambly is 2
willing to stipulate that puts an end to this issue 3
and he is then free to inquire of that individual what 4
he knew or whether he further disseminated that 5
information, that's fine.
Like I said, I don't know 6
that I told that individual.
It's been seven years 7
no, six years, but that is the only individual that 8
there was any reason to discuss the matter with.
9 JUDGE YOUNG: Mr. Dambly, that will close 10 the issue of calling Mr. Marquand and the witness once 11 and for all is what I understood you to say. Correct?
12 MR. DAMBLY:
Yes, Your Honor.
13 JUDGE BECHHOEFER:
Let me inquire one 14 thing first.
Would TVA have any objection if the 15 staff were to add to its witness list those particular 16 individuals?
17 MR. MARQUAND:
I would not object.
18 JUDGE BECHHOEFER:
Thank you.
I just 19 wanted to clarify that.
20 JUDGE YOUNG: You want to go ahead and say 21 it on the record, you can, or you can do it with the 22 two of you.
23 MR. MARQUAND: Mr. Fizer had tape recorded 24 the gentleman by the name of Rob Beacon who was the 25 plant manager at Sequoyah and I was aware of that and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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254 1
Mr. Beacon was a witness in the Jocher case.
I 2
believe that we discussed --
we may have discussed, I 3
just don't remember, the fact that Fizer tape recorded 4
him.
5 There is another individual.
I don't 6
remember telling this individual and he may have 7
knowledge of it but I don't know how he has knowledge 8
of it.
That is Charles Canton.
You are aware of him 9
as well.
I don't know if he was a witness in the 10 Jocher case or not.
He may have been.
11 JUDGE YOUNG:
Okay.
Are there any 12 remaining issues then relating to attorneys as 13 witnesses?
14 MR. DAMBLY: Not that I am aware of, Your 15 Honor.
16 JUDGE YOUNG: Very good.
I guess the only 17 other thing that strikes me that the board had talked 18 about a little bit, and that is --
19 JUDGE BECHHOEFER: Wait a minute. We got 20 two but he said before.
Didn't he?
21 JUDGE YOUNG:
Pardon?
Four?
22 JUDGE BECHHOEFER: I thought he said there 23 may have been four people.
24 JUDGE YOUNG: He's already given the other 25 two, I think.
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MR. MARQUAND:
MacArthur and Easley are 2
the two that counsel's aware of and they disclosed it 3
in their depositions and statements. I mentioned that 4
I may have discussed it with Beacon.
Charles Canton 5
may know about it but I'm not certain how he knows.
6 JUDGE BECHHOEFER:
Okay.
I knew you had 7
said four and I wanted to make sure we had them.
8 JUDGE YOUNG:
I think there is nothing 9
that remains on the issue of attorneys as witnesses.
10 Correct?
11 MR. DAMBLY:
Correct.
12 JUDGE YOUNG:
All right.
I'm assuming 13 from no one raising an objection that everyone agrees 14 with that.
15 The only other thing that I can think of, 16 and Judge Bechhoefer or Judge Cole may have other 17 things, but the only other thing that I can think of 18 that we wanted to look at is whether any of the 19 witnesses on either party's list would be cumulative 20
- because, if so, we would encourage not calling 21 witnesses who would merely provide similar testimony.
22 If, in the alternative, you wanted to 23 stipulate that X, Y, Z witnesses would testify to the 24 same thing, that would certainly make for a more 25 efficient hearing that would take less time.
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256 1
guess, would also apply to any evidence but primarily 2
in terms of calling witnesses.
3 If talking about that in particular today 4
would be helpful in getting us to that point, then we 5
have a little bit more time that we could spend in 6
seeing whether there are any witnesses that would fall 7
into that category.
8 JUDGE COLE: This is Judge Cole.
I merely 9
note that on the TVA witness list at least 15 are 10 listed as testifying about the 1996 reorganization.
11 I don't know whether we need that many witnesses on 12 that one matter, although it is an important matter 13 but it seems to me it would be overkill.
14 MR. MARQUAND:
Your Honor, I agree.
I 15 have listed them in the event that they might be 16 necessary.
Some of them if they testified would be 17 one and off very quickly.
Some of them at this point 18 I couldn't tell you that we absolutely needed them yet 19 or not depending on how the case developed.
I didn't 20 want to be put in a position of not listing somebody 21 and having somebody say we didn't list them if the 22 issue came to the fore.
23 JUDGE YOUNG:
Both parties will be aware 24 and attuned to whether their witnesses are cumulative 25 and try to avoid that as we go.
Obviously that may NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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257 1
not come out until we get to the witness.
2 We may during the course of the hearing 3
ask whether particular testimony is cumulative and 4
encourage you to move on and either side may raise 5
objections based on that in the interest of a more 6
efficient hearing without obviously cutting off either 7
side's right to present new evidence.
8 JUDGE BECHHOEFER:
I wanted to inquire 9
whether either party has sent us copies of the 10 subpoenas they wish us to issue. As far as I can see, 11 we haven't received any but maybe --
12 MS. EUCHNER: Your Honor, this is Jennifer 13 Euchner for the staff. Our subpoenas were attached to 14 the witness list. They were attached right behind it.
15 MR. SLATER: This is John Slater. We also 16 sent by messenger I think three or four subpoenas 17 directly to you.
18 JUDGE BECHHOEFER:
I'll have to check.
19 I've been away for the last four or five days.
Oh, 20 okay.
Judge Cole showed me.
21 JUDGE YOUNG:
You want to go through and 22 make sure we have all of them?
23 JUDGE COLE: The subpoenas I have I assume 24 that's from TVA.
I have one to Ben Easley, Carolyn 25 Evans, Gary Fizer, Ronald Grover, Sam Harvey the III, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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William J. McNulty, Tom Peterson, Jack L. Wilson.
2 MR. MARQUAND: I think we've already dealt 3
with Evans and McNulty.
4 JUDGE YOUNG:
All those except Evans and 5
McNulty you want to be issued.
And were there any 6
others that were not named?
7 MR. MARQUAND:
That's all that we have, 8
Your Honor.
We may not call all those but we simply 9
need them in the eventuality that their testimony does 10 become relevant.
11 JUDGE YOUNG:
Okay.
And then for the 12 staff, which witnesses do you want?
13 MS. EUCHNER:
Ben Easley and Ron Grover.
14 I also had one for Dr. MacArthur.
15 JUDGE YOUNG:
So those three?
16 MS. EUCHNER:
Yes.
Those are the three 17 witnesses we asked to subpoena.
Let me know if you 18 don't have them because I understand from Mr. Marquand 19 that Dr. MacArthur will be on the road sometime soon 20 and I want to make sure that he receives his subpoena 21 prior to his travel dates.
22 JUDGE YOUNG:
Mr.
Marquand, have you 23 talked to Dr. MacArthur and let him know that he will 24 be needed for the hearing?
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1 well but he's on a mission in Salt Lake City and he is 2
supposed to be coming back the second week of the 3
trial.
I'll work with staff on his schedule.
4 JUDGE YOUNG:
Please do work with each 5
other to try to accommodate all the needs of all the 6
parties.
Is there any witnesses that have special 7
circumstances such that you can work by agreement to 8
call them at particular times that would work for 9
them?
I think the board is willing to make those 10 kinds of accommodations to move us along.
11 Are there any other matters that we need 12 to address today?
13 MR. DAMBLY: I don't think so, Your Honor.
14 MR. MARQUAND: No, thank you, Your Honor.
15 JUDGE YOUNG: Court reporter, we probably 16 need to talk to you about how soon we can get the 17 transcript on this.
18 JUDGE BECHHOEFER:
Three days.
19 JUDGE YOUNG:
Three days? Okay.
Is that 20 what you understood?
21 COURT REPORTER: I am actually not in that 22 department here.
I don't handle when things are due.
23 JUDGE BECHHOEFER: I know we had specified 24 three days.
25 JUDGE YOUNG:
Okay.
Well, as long as we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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260 1
get it in three days that would give us enough time to 2
incorporate all our verbal rulings.
3 JUDGE BECHHOEFER: Three business days but 4
that should be by Friday.
5 JUDGE YOUNG: Does anyone see any need for 6
us to get together again?
If not, we will see you on 7
Tuesday, April 23 at 9:00 a.m.
8 JUDGE BECHHOEFER: Well, 9:30 is when the 9
hearing will start but we will be there earlier to 10 help set things up and make sure everything is 11 appropriate.
12 JUDGE YOUNG:
To we want to give a --
13 well, we're traveling on the 22nd.
TVA's emergency 14 motion for extension of time, I think Mr. Dambly 15 indicated that he didn't have any objection to that.
16 Did I recall that correctly?
17 MR. DAMBLY:
Yes, Your Honor.
I got you 18 there?
Did I lose you?
19 JUDGE YOUNG:
No.
We heard you.
20 JUDGE BECHHOEFER:
I just wondered if a 21 response was needed.
We'll grant it after the fact.
22 JUDGE YOUNG: If you do need anything from 23 us, I'm going to be out of the office this Friday and 24 next Friday.
We'll be traveling on the 22nd.
We'll 25 be in, I think, maybe that morning.
Maybe not.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 may be going straight.
In any event, if you need to contact us, keep those restrictions in mind because anything after, I guess, the 18th at a reasonable time would have to wait until we see each other the morning of the 23rd.
Friday but JUDGE BECHHOEFER:
I won't be here this I will be here the following Friday.
JUDGE YOUNG:
Anything else?
MR. DAMBLY:
No, Your Honor.
Thank you.
JUDGE YOUNG:
Thank you.
(Whereupon, at 11:35 a.m. the hearing was adjourned.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Tennessee Valley Authority Pre-Hearing Conference Docket Number:
50-390-CivP; ALSBP No. 01-791-OlCivP Location:
Teleconference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Kevi~n Mur ly Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com