ML021260228
| ML021260228 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 04/23/2002 |
| From: | Brenett Warren Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| 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-99-334, NRC-338, RAS 4396 | |
| Download: ML021260228 (186) | |
Text
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- I V-DOCKETED tJSNRC Official Transcript of Pro'ceedings ZU02tMAY-3 AM IO:.6 NUCLEAR REGULATORY COMMI$$SIS C
RETIARY AQJU SCTloSsAFF
Title:
Tennesse Valley Authority Watts Bar Nuclear Plant, ~Unit I Sequoyah Nuclear Plant,'U~nits I and 2 Browns Ferry Nuclear Plant, Units 1,2,3 Docket Number:
Location:
Date:
50-390-CivP; ASLBP No.I: 01-791-01-CivP, Chattanooga, Tennes s'6ee Tuesday, April 23, 2002 Work Order No.:
N RC-338 Pages' 262-445 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 29005 (202) 234-4433 i f--TeMPAte,- grzc v, &3p-S-eey-4=-)
Page 262 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
_-_-_-_-_-_-__--x In the Matter of:
- Docket Nos. 50-390-CivP TENNESSEE VALLEY AUTHORITY
- 50-327-CivP; 50-328-CivP
- 50-259-CivP; 50-260-CivP (Watts Bar Nuclear Plant, Unit 1; : 50-296-CivP
. Sequoyah Nuclear Plant, Units 1&2;:
. Browns Ferry Nuclear Plant, Units : ASLBP No. 01-791-01-CivP 1, 2 & 3)
EA 99-234 x
Courtroom A U.S. Bankruptcy Court 31 E. 11th Street Chattanooga, TN Tuesday, April 23, 2002 The above entitled matter came on for hearing pursuant to Notice at 9:55 a.m.
BEFORE:
CHARLES BECHHOEFER, Chairman ANN MARSHALL YOUNG, Administrative Judge RICHARD F. COLE, Administrative Judge
Page 263 APPEARANCES OF COUNSEL:
On behalf of the Nuclear Regulatory Commission:
DENNIS C. DAMBLY, Attorney JENNIFER M. EUCHNER, Attorney NICHOLAS E. HALTON, Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 On behalf of Tennessee Valley Authority:
BRENT R. MARQUAND, Attorney JOHN E. SLATER, Attorney Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-1499
-amd-DAVID A. REPKA, Attorney Winston & Strawn 1400 L Street, N.W.
Washington, D.C. 20005-3502
Page 264 WITNESSES:
James Luehman Katherine Welch Thomas McGrath I NDE X
DIRECT CROSS REDIRECT RECROSS 281 311 322 354 359 364 EXHIBITS:
Staff:
2 9 170 1 66 Joint:
34 FOR IDENTIFICATION IN EVIDENCE 4 18 282 32 9 418 2 83 355 32 1 295 3 09 44 4 7 53 34 3 32 1 2 94 30 8
Page 265 1.P R
C E E D I N G S 2
CHAIRMAN BECHHOEFER:
On the record.
3 Good morning, ladies and gentlemen, we're here for 4
the evidentiary hearing in a proceeding which concerns a May 5
4, 2001 order imposing a civil monetary penalty of $110,000 6
against the Tennessee Valley Authority (TVA) based on a 7
claimed violation by TVA of 10 CFR Section 50.7 for alleged 8
discrimination against the former TVA employee for engaging 9
in protected activities.
10 This evidentiary hearing is scheduled as noticed 11 in our Notice of Evidentiary Hearing which was dated March 12 25, 2002 and issued by the Board and published in the 13 Federal Register.
14 At the outset, let me introduce first the Board 15 members and then for the record, we'll have all the parties 16 introduce themselves.
On my left is Judge Richard Cole and 17 on my right is Judge Ann Marshall Young and my name is 18 Charles Bechhoefer and I'm the Chairman of the Board.
19 For the record now, would the parties wish to 20 introduce themselves?
21 MR. DAMBLY:
For the NRC staff, this is Dennis C.
22 Dambly, D-a-m-b-l-y, from the Office of General Counsel.
23 MS. EUCHNER:
Jennifer M. Euchner from the Office 24 of General Counsel.
25 MR. HALTON:
Nicholas E. Halton, H-a-l-t-o-n,
Page 266 1
Office of General Counsel.
2 CHAIRMAN BECHHOEFER:
TVA.
3 MR. MARQUAND:
Your Honor, my name is Brent 4
Marquand, I'm with the Office of General Counsel for 5
Tennessee Valley Authority.
My co-counsel is John E.
6 Slater, he's also with the Office of General Counsel, 7
Tennessee Valley Authority and David Repka with Winston, 8
Strawn in Washington, D.C.
9 We also have with us at counsel table Don Green, a 10 human resource and labor relations expert; Kathy Welch, who 11 is also a labor relations expert and Ed Vigluicci, who is an 12 attorney with the Office of General Counsel, TVA.
13 CHAIRMAN BECHHOEFER:
Are there any preliminary 14 matters that any party wishes to raise before we start?
15 MS. EUCHNER:
Yes, Your Honor, the staff has a 16 supplemental document list.
I have already provided a copy 17 of this to TVA's counsel.
Here are copies for each of the 18 Judges.
19 JUDGE YOUNG:
Is this part of what you've already 20 provided us or do you have that separated.
21 MS. EUCHNER:
This has not been provided yet.
We 22 had a little technical difficulty with the faxes and we'll 23 have copies of those tomorrow.
24 CHAIRMAN BECHHOEFER:
Any objection?
25 MR. MARQUAND:
Your Honor, we would like to
Page 267 1
reserve the objections until such time as either the 2
documents are testified to or tendered.
This is rather late 3
in the day to be supplementing exhibit lists, particularly 4
with documents that were never identified and produced in 5
discovery.
6 JUDGE YOUNG:
Have you ever seen them before?
7 MR. MARQUAND:
I have not seen the first one and I 8
don't have the other four documents here to even know 9
whether I've seen them or not.
10 CHAIRMAN BECHHOEFER:
Well, the first one I'm 11 aware of is the staff's published policy on enforcement 12 actions that's been approved by the Commission actually, and 13 we can almost take official notice of that one.
That's the 14 foundation for investigative actions, so that you could 15 almost take official notice of, I believe.
16 I think it has a NUREG number, but whatever.
17 MS. EUCHNER:
I believe it does.
18 Your Honor, the other four documents on the list 19 were all provided to the staff from TVA during discovery, 20 they are all TVA documents.
21 JUDGE YOUNG:
Do you want us to have them at this 22 point or do you have any objection to us going ahead and 23 having them among or collection so we'll be able to refer to 24 them quickly when we get to them?
25 MR. MARQUAND:
I certainly don't have any
Page 268 1
objection to the Board having them, but we don't have them 2
either.
3 JUDGE YOUNG:
Why don't you go ahead.
4 MS. EUCHNER:
The only one that I have right now 5
is the enforcement policy and I already gave counsel for TVA 6
a copy of that.
7 (Brief pause.)
8 CHAIRMAN BECHHOEFER:
Any further preliminary 9
matters?
10 MS. EUCHNER:
This morning, counsel for the staff 11 and counsel for TVA also reached agreement on two joint 12 stipulations, as we discussed in the last prehearing 13 conference.
One related to a document signed by Carolyn 14 Evans of Region II and the other related to the Ronald 15 Grover/TVA OIG Report and Mr. Marquand has signed copies of 16 those and I believe he'll be able to provide copies at a 17 later time.
18 MR. MARQUAND:
That's correct.
19 CHAIRMAN BECHHOEFER:
Thank you.
20 Any further matters?
Otherwise, do the parties 21 wish to have opening statements?
I assume you probably do.
22 MR. DAMBLY:
Actually the staff didn't plan to 23 make an opening statement.
I think it's pretty well laid 24 out in our response to the Motion for Summary Disposition 25 and I don't see any need to repeat all that at this point.
Page 269 1
MR. MARQUAND:
Your Honors, I would like to make 2
some brief opening remarks.
3 As Your Honor has already noted, we're here 4
because of TVA's appeal of a Notice of Violation issued to 5
Tennessee Valley Authority.
There were also separate 6
Notices of Violation issued to two individuals --
Thomas 7
McGrath and Wilson McArthur.
The Notice of Violation to 8
TVA, of course, alleges that TVA took discriminatory action 9
against an individual.
10 We would point out that a corporate entity is not 11 capable of forming that specific intent, it has to be based 12 on the intent of individuals.
And that's what we're here to 13 examine --
did Dr. McArthur and Mr. McGrath have the 14 necessary intent to discriminate against Gary Fiser --
can 15 the NRC staff prove by a preponderance of the evidence that 16 the actions that were allegedly taken against him were done 17 so as a discriminatory animus.
18 The events that this case arises out of occurred 19 in 1996.
TVA, as we've already noted, for years had been in 20 a construction mode, we had some 50,000 workers at some 21 point in time, and as the five nuclear units all came on 22 line, there was no longer a need for a large construction 23 force.
In addition, over time, the electric industry has 24 become very --
much more competitive. And beginning in 1988 25 and stretching even up to the present, TVA continues to look
Page 270 1
for ways to streamline its work force, to do more with less 2
and the current work force within the nuclear organization 3
of TVA is around 3400 people.
In 1996, they were looking at 4
downsizing and specifically looking at the plants and at the 5
corporate organization, now to accomplish what they needed 6
to do in an operating organization and be competitive in the 7
nuclear industry.
8 Mr. McGrath took over the operations support 9
organization in 1995 when his predecessor became very ill, 10 and Mr. McGrath inherited a task to look at how to organize, 11 reorganize operations support.
The further they got into 12 1996 and began the budget planning process, he got even 13 further directives about reducing the size of the 14 organization, reducing the head count in the organization.
15 As a result, a number of jobs in operation support were 16 eliminated, functions were combined or even completely 17 eliminated at the corporate organization.
Some of them were 18 shifted to site organizations, were simply not done any more 19 corporately.
20 As a result of the elimination of a number of 21 jobs, new jobs were created.
This is the process that's 22 followed in TVA.
TVA is a federal agency, it is, however, 23 an excepted civil service, meaning it doesn't follow the 24 classified and competitive civil service rules.
It operates 25 under Section 3 of the TVA Act.
Page 271 1
And one mistake I believe that staff has made 2
throughout this is assuming that TVA operates the same way 3
as the NRC does, and that's not the case. TVA has its own 4
personnel system, has its own processes and simply to put 5
TVA in the same pigeon hole and say TVA has to operate the 6
same way as the NRC staff is a mistake.
TVA has its own 7
processes and follows them.
8 In the reorganization process, the way that it 9
happened in 1996, not just with respect to operations 10 support, not just with respect to corporate TVAN, but with 11 respect to all of TVA Nuclear, all three of the nuclear 12 sites, corporate nuclear and operations support, jobs were 13 eliminated, new jobs were created and the process then in 14 TVA is to look and see whether people have a right to new 15 jobs as a result of Office of Personnel Management 16 Regulations; that is, are they at the same competitive 17 level.
If they're not, it's TVA policy that the jobs be 18 posted for competition.
The first step is to determine if 19 somebody's got a right to somebody --
whether an incumbent 20 to an old job has a right to a new job.
If they don't, the 21 job is posted for competition.
22 And that's what happened in operations support.
A 23 number of jobs were eliminated, jobs were created --
24 functions were combined, functions were eliminated, new jobs 25 were created.
When the new jobs were created, they were
Page 272 1
then posted for competition, if an incumbent didn't have a 2
right to the new job.
3 In this case, we're talking about the chemistry 4
organization in corporate.
It had been chemistry and 5
environmental, there was a combination of functions, they 6
decided we'll combine radiological control organization with 7
chemistry and environmental. In the process, they also 8
decided we're going to eliminate the environmental functions 9
in the corporate organization.
10 When they did that, there were existing jobs for 11 program managers or specialists, they didn't manage people, 12 they managed programs.
There were existing jobs, there were 13 three people who had the title Chemistry and Environmental 14 Program Manager Specialist.
You'll hear these three people 15 mentioned over and over.
16 Gary Fiser, who is the complainant who filed the 17 Department of Labor complaint which initiated the NRC Office 18 of Investigations and ultimately culminated in the NOV.
Two 19 other individuals --
Sam Harvey and an individual by the 20 name of E.S. Chandrasekaran, and everybody will refer to him 21 as Chandra because his name is difficult to pronounce.
22 Those three individuals, their jobs, their positions, were 23 eliminated and new position descriptions were created simply 24 as Chemistry Program Manager and those were specialist 25 positions.
They were going to create one as a specialist to
Page 273 1
minister to the pressurized water reactors, so it was 2
Chemistry PWR.
And another specialist to minister to the 3
boiling water reactors at Browns Ferry, that was Chemistry 4
BWR.
And they posted those jobs in accordance with their 5
normal process, just like the grand majority of jobs are 6
posted for competition.
7 They then proceeded to have a selection.
TVA's 8
got a selection process.
They followed the selection 9
process.
The selection process provides for people to apply 10 for the jobs, they submit their applications. The selecting 11 manager then looks at the various applicants, he looks at 12 personnel records, service reviews, resumes and whittles 13 down the list of applicants to the people who meet the 14 minimum qualifications for the job. The selecting official 15 then, along with the human resource consultant, retains the 16 services of other individuals to sit on a selection review 17 board. As a part of the process, the selection review board 18 interviews the candidates.
19 In this case, there were a number of candidates 20 for the particular position Mr. Fiser sought.
Everybody 21 obviously couldn't be selected for one position.
The 22 selection review board determines ahead of time the 23 questions that are going to be asked.
Every candidate is 24 asked the same questions.
In fact, the three member board 25 of the selection review board decides ahead of time that
Page 274 1
each board member will ask the same questions of each 2
candidate so you get the same nuances.
They then 3
independently score those candidates and at the end 4
accumulate the scores.
5 Mr. Harvey and Mr. Chandra scored far and away 6
better than Mr. Fiser.
The selecting official then took 7
the scores from the selection review board and the 8
recommendation from the selection review board based on 9
those questions and made his selection in accordance with 10 the selection review board's recommendation.
11 Now what we're here about is whether or not, TVA's 12 following of those processes and decisions to reorganize and 13 the downsizing were done for good and legitimate reasons or 14 whether they were discriminatory.
15 NRC has the burden of proof to show by a 16 preponderance of the evidence that the decisions that 17 affected Mr. Fiser were done for discriminatory reasons.
I 18 will suggest to you that when you see the numbers of 19 employees who all went through this process, there can be no 20 conclusion but that these were for legitimate purposes only.
21 The staff's NOV has been based upon a number of 22 circumstances, none of which goes to show that Mr. Fiser was 23 better qualified or should have been selected.
24 In every selection, there's going to be 25 differences because of human nature, the different
Page 275 1
compositions of the selection review boards and different 2
circumstances of individuals.
The fact that Mr. Fiser had 3
filed a complaint some three years previously, there's no 4
evidence that that had any bearing upon his nonselection 5
here.
6 As we previously remarked to the Board, this is a 7
unique proceeding.
TVA does not lightly appeal a Notice of 8
Violation.
Obviously the $110,000 penalty is not all that's 9
at stake.
We feel that this retrospective second guessing 10 of what could have happened, ways that could have made the 11 selection process better.
The inferences that staff would 12 draw, negative inferences, in every situation putting them 13 in the darkest possible light of the circumstances that did 14 occur casts a chill on management's ability to manage these 15 plants in a safe and effective manner.
And that's why we're 16 here, is because this type of violation where nothing 17 untoward happened makes it difficult to manage these plants 18 effectively and safely. For managers to be having to make 19 decisions which they know will later be second-guessed and 20 Mr. McGrath and Dr. McArthur, who spent their entire career 21 raising safety concerns and seeing that they're properly 22 addressed, to have to make management decisions, casts a 23 chill on their effective management skills.
24 There are a couple of issues that I'd like to 25 briefly tough on.
Page 276 1
Tom McGrath was the Chairman of what's called 2
TVA's Nuclear Safety Review Board.
TVA's Nuclear Safety 3
Review Board is an independent body that looks at the safety 4
and operation of plants, it does it on a quarterly basis.
5 They go out and they look at every aspect of the plant and 6
it's their job to monitor those plants and make sure they're 7
being done safely.
That was his function.
8 And in this case, it's suggested that Dr. McGrath 9
Tom McGrath and Dr. McArthur, who is also the Chairman of 10 the Chemistry Subcommittee, had some animosity towards Mr.
11 Fiser for issues he supposedly raised.
And I will suggest 12 to you that what the evidence will show is that it was the 13 Nuclear Safety Review Board which was raising issues about 14 the effective and safe operation of plants and particularly 15 the chemistry program at Sequoyah where Mr. Fiser worked.
16 There was no reason in the world for them to harbor any 17 animosity towards him for some five years for them to wait 18 in the weeds until they had some chance to retaliate against 19 him.
20 The evidence will show that they go out to these 21 plants on a quarterly basis and they raise numerous issues.
22 And Mr. Fiser, on the contrary, was not raising issues to 23 them, they were raising issues about the effective 24 performance of the chemistry organization.
25 Further, the protected activity which the staff
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 277 has identified to us so far is not any protected activity that Tom McGrath ever had any knowledge of.
He didn't work at the plant where Mr. Fiser worked.
His knowledge was based on his review of the chemistry operation at Sequoyah.
And the particular concerns that staff has identified that Mr. Fiser supposedly had protected activity were actually concerns raised by other people when Mr. Fiser was assigned elsewhere.
Until this proceeding was initiated, until Mr.
Fiser filed his complaint, Mr. McGrath was unaware of those issues, he was unaware that Mr. Fiser had filed a previous Department of Labor complaint.
We previously briefed the issue of temporal proximity and I'd like to address the unreasonableness of the staff's assumption of retaliation.
I've previously mentioned how --
JUDGE YOUNG:
Excuse me.
I don't want to cut you off, but I'm not sure that making legal arguments at this point is appropriate.
MR. MARQUAND:
I understand that.
I do not intend to make legal argument.
JUDGE YOUNG:
Okay.
MR. MARQUAND:
What I would like to address is we all understand what the prima facie case is, and there is an assumption that --
presumption in the law --
that having raised some sort of safety concern, which is protected
Page 278 1
activity, and subsequently some adverse action, there's a 2
legal inference then of discrimination.
And that's based 3
upon an assumption of human nature that somebody raises a 4
concern that causes a disruption to your program, that maybe 5
there's some motivation to retaliate.
6 In this particular case, I've already mentioned 7
that it was Mr. McGrath's and Dr.McArthur's job themselves 8
to look at these plants and raise safety concerns.
I would 9
also point out that the unreasonableness of the assumption 10 that Mr. Fiser raised a concern in '91 or filed a Department 11 of Labor complaint in '93 and the unreasonableness of 12 assuming that they waited in the weeds, as I said, until 13 1996 to do him in.
In fact, the evidence will show that in 14 1994, Mr. Fiser returned to work directly under Dr. McArthur 15 and Dr. McArthur was involved in a selection review board 16 that selected Mr. Fiser for a job that he applied on.
If he 17 had wanted to retaliate, why didn't he retaliate in 1994 18 when he had an opportunity to do so, when he had an 19 opportunity to not select him for a job?
Why did he wait 20 another two years and then through some machinations set up 21 a selection review board, which he was not a part of, to try 22 to do in Mr. Fiser.
It simply defies logic.
23 As I said, the staff has the burden to prove by a 24 preponderance of the evidence discrimination.
It doesn't do 25 just to suggest that there are fact from which an inference
Page 279 1
may be drawn.
At the close of the day, there will not be 2
any evidence to support a finding of discrimination that Tom 3
McGrath or Dr. McArthur had discriminatory animus that 4
caused Mr. Fiser not to be selected in 1996.
5 Thank you.
6 JUDGE YOUNG:
Do you mind if I ask a question?
7 CHAIRMAN BECHHOEFER:
No, not at all.
8 JUDGE YOUNG:
You mentioned that there were 9
separate Notices of Violation against TVA, Mr. McGrath and 10 Mr. McArthur.
We only have before us the Notice of 11 Violation against TVA, correct?
12 MR. MARQUAND:
The only violation that has been 13 appealed is the one against TVA. However, the staff and TVA 14 have both, for their own independent reasons, designated the 15 violations issued against Dr. McArthur and Mr. McGrath as 16 exhibits and they are Joint Exhibits 48 and 49.
17 JUDGE YOUNG:
I just wanted to clarify that, thank 18 you.
19 MR. DAMBLY:
There were no orders issued against 20 Mr. McGrath or Dr. McArthur, just violations.
21 JUDGE YOUNG:
Thank you.
22 CHAIRMAN BECHHOEFER:
I guess the staff may 23 proceed.
24 MS. EUCHNER:
Your Honor, the staff calls James 25 Luehman to the stand.
Page 280 1
JUDGE YOUNG:
That raises another question.
Are 2
there --
are any of the other people in the audience 3
witnesses?
Because if they are, I think we had discussed 4
earlier sequestering the witnesses.
5 MS. EUCHNER:
I believe there are at least two TVA 6
witnesses in the courtroom at the moment.
7 MR. MARQUAND:
There are.
8 JUDGE YOUNG:
Okay.
So do you have any objection 9
to having them sequestered?
And I guess, when we say 10 "sequestered," I guess --
is there a place in the hall or 11 somewhere, a snack bar or something?
12 MR. SLATER:
There's an area in the hallway, Your 13 Honor.
There's some benches out there.
14 JUDGE YOUNG:
I think they've got two --
theyive 15 got two.
Is there any issue with the two people that TVA 16 has staying that we need to deal with at this point?
17 MS. EUCHNER:
Yes, when we call the next witness, 18 we'll want the other witness to leave.
But they can stay 19 for Mr. Luehman's testimony.
20 JUDGE YOUNG:
Well, we'll leave it up to you to 21 raise any further issues about that.
22 MS. EUCHNER:
Okay, Your Honors.
23 CHAIRMAN BECHHOEFER:
Could you spell his name, 24 please.
25 MS. EUCHNER:
L-u-e-h-m-a-n.
Page 281 1
COURT REPORTER:
L-u-e-h...
2 MS. EUCHNER:
M-a-n.
3 CHAIRMAN BECHHOEFER:
Thank you.
4 COURT REPORTER:
Thank you.
5 Whereupon, 6
JAMES G. LUEHMAN 7
appeared as a witness herein, and having been first duly 8
sworn, was examined and testified as follows:
9 DIRECT EXAMINATION 10 BY MS. EUCHNER:
11 Q
Please state your name for the record.
12 A
My name is James G. Luehman, L-u-e-h-m-a-n.
13 Q
What is your current position at the Nuclear 14 Regulatory Commission?
15 A
My position, I'm the Deputy Director of the Office 16 of Enforcement.
17 Q
What are your duties in that position?
18 A
In that position, I supervisor --
I'm the first 19 line supervisor of all the enforcement specialists and 20 senior enforcement specialists assigned to the Office of 21 Enforcement in headquarters.
And in that role, I also am 22 the management representative from the Office of Enforcement 23 who sits on all the enforcement review panels that review 24 enforcement cases for possible escalated action.
25 Q
What guidance does the NRC staff use to implement
Page 282 1
the Commission's enforcement program?
2 A
The staff uses two primary documents:
the 3
enforcement policy, which is a Commission-approved document; 4
and the enforcement manual, which is a staff-generated 5
document which provides guidance for the implementation of 6
the Commission's improved enforce --
approved enforcement 7
policy.
8 (The documents referred to were 9
marked for identification as 10 Staff's Exhibit #170.)
11 Q
I show you what I have marked as Staff Exhibit 170 12 for the record.
Do you recognize this document?
13 A
Yes, I do.
14 Q
Please identify it.
15 A
The document is a copy of the --
the Commission's 16 enforcement policy.
By the date, it's a copy of the --
it's 17 a version of the policy that would have been in effect that 18 the time the notice of violation in this case was issued.
19 Q
Okay.
20 MS. EUCHNER:
For the record, Your Honors, this is 21 a document I've provided you this morning, and I would move 22 to have that entered into evidence.
23 CHAIRMAN BECHHOEFER:
Any objection?
24 MR. MARQUAND:
No objection.
25 CHAIRMAN BECHHOEFER:
This is Staff 170?
1-7-0?
Page 283 1.
MS. EUCHNER:
1-7-0.
CHAIRMAN BECHHOEFER:
The document's admitted.
3 (The documents, heretofore marked 4
as Staff's Exhibit #170, were 5.received in evidence.)
6 BY MS. EUCHNER:
7Q Under this policy, how does the NRC categorize the 8
significance of a violation?
9 A
The NRC --
under the enforcement policy, 10 violations are categorized by four severity levels; Severity 11 Level 1 being the most significant violations, and then on 12 down to Severity Level 2, 3, and 4.
13 Q
What part of the enforcement policy does the staff 14 use to determine the severity level of a violation?
15 A
The primary portion of the policy that the staff 16 uses to determine the severity level of violation are what's 17 called the supplements, which are in the --
towards the end 18 of the enforcement policy.
19 Q
How many supplements are there?
20 A
There are eight supplements to the enforcement 21 policy.
22 Q
What categories do the supplements cover?
23 A
Well, I can just read them.
The --
Supplement 1 24 is reactor operations; Supplement 2 is Part 50 facility 25 construction; Supplement 3 is safeguard; Supplement 4 is
Page 284 1
health physics; Supplement 5, transportation; Supplement 6 2
is fuel cycle and material operations; Supplement 7 is a 3
supplement called miscellaneous matters; and then Supplement 4
8 is emergency preparedness.
5 Q
How do these supplements aid the staff in 6
determining the severity level of a violation?
7 A
The supplements provide examples in the relevant 8
areas that I --
that I read in the titles, provide examples 9
for violations that the staff would normally classify at the 10 various severity levels for the subject matter in that 11 particular supplement.
12 Q
What supplement applies to a Section 50.7 13 violation?
14 A
The examples for 50.7 violations would be found in 15 Supplement 7 in the enforcement policy, which is the 16 miscellaneous matters section.
17 Q
What page of the policy is Supplement 7 on?
18 A
In the --
in the exhibit, that would be found on 19 it's hard to see where it is.
Got to take the --
20 Supplement 7 would be found on 61164 of the copy that I have 21 before me.
22 Q
How does Supplement 7 distinguish between a 23 Severity Level 1 violation of 50.7 and a Severity Level 4 24 violation of 50.7?
25 A
The easiest way to explain that is to probably
Page 285 1
read --
is to read the examples.
Under Severity Level 1, a 2
Severity Level 1 violation for 50.7 violation is an action 3
by senior corporate management in violation of 50.7 or 4
similar regulations against an employee.
Under Severity 5
Level 2, the example is an action by plant management or 6
mid-level management in violation of 50.7 or similar 7
regulations against an employee.
Under Severity Level 3, an 8
the example is an action by first-line supervision or 9
low-level management in violation of 50.7 or similar 10 regulations against an employee.
11 Q
What is the focus of these examples of 50.7 12 violations?
13 A
The focus of the examples is --
the primary focus 14 is the level of the individual that --
that caused the or 15 performed the discriminary act or caused the discrimination, 16 his level --
his or her level in the organization.
17 Q
Are there any other issues that you could consider 18 when determining the severity level of the violation?
19 A
The --
yes.
The examples in the --
in the policy 20 are guidance, and we typically follow them.
However, there 21 may be --
there may be case where the --
just looking at the 22 level of the individual that --
that caused the 23 discrimination alone is not --
is not completely 24 appropriate, because the --
the actual act of discrimination 25 itself may have been relatively minor for a senior corporate
Page 286 1
official, or vice-versa, a low-level individual who --
who 2
conducted a particularly significant act of discrimination.
3 Q
Okay.
Once the staff has determined the severity 4
level of a violation, what does the staff do next?
5 A
Once the --
once the staff determines the severity 6
level, if that severity level is a Severity Level 1, 2, or 7
3, the staff would then typically consider whether that 8
violation warrants a civil penalty.
9 Q
Under this policy, how does the staff determine 10 what the appropriate civil penalty for a particular 11 violation is?
12 A
For that we would go to the base civil penalties 13 section under a section of the policy called "Enforcement 14 Actions," and there's a Table 1-A in that section which we 15 is the first place we would consider.
16 Q
What page is Table 1-A on in the enforcement 17 policy?
18 A
Table 1-A, in the copy that I have, is on Page 19 61150.
20 Q
What does Table 1-A provide?
21 A
Table A provides the base civil penalty for the 22 Severity Level 1 violations for various types of licensees.
23 Q
And how does it distinguish the licensees?
24 A
Primarily, the licensees are distinguished by 25 their --
their size and ability to pay.
Page 287 1
Q After you get the base civil penalty from table 1-2 A, what's the next step?
3 A
Then you proceed to Table 1-B, which is located in 4
the policy directly below Table 1-A.
And, based on the 5
severity level of the violation, you use the --
basically 6
the --
the percentage adjustment factors that are given 7
there, 100% for a Severity Level 1 violation, 80% for a 8
Severity Level 2 violation, or 50% of the base penalty from 9
Table 1-A for a Severity Level 3 violation.
10 Q
So, to summarize these two tables, Table 1-A 11 determines what the base civil penalty is, based on the type 12 of licensee and their ability to pay? And then Table 1-B 13 adjusts the civil penalty based on what severity level the 14 violation is?
15 A
That's correct.
16 Q
What other factors does the staff consider in 17 determining civil penalty?
18 A
Once the --
the base civil penalty for the --
has 19 been determined using the two tables, you then proceed to 20 the civil penalty assessment flowchart which is located on 21 the next page of the enforcement policy I was provided.
22 MS. EUCHNER:
For the record, that's Page #61151.
23 BY MS. EUCHNER:
24 Q
What are the main considerations for determining 25 the civil penalty using this flow chart?
Page 288 1
A Well, the first --
starting on the lefthand side, 2
the first consideration is the --
is the severity level of 3
the violation in the first decision block.
The severity 4
level of the violation; whether the violation was willful or 5
not; and if it was non-wilful, whether it occurred in the 6
first --
in the last two years or the last two inspections.
7 Q
If this is the first Severity Level 3 non-willful 8
violation within the last two years or two inspections, what 9
is the next step that you would take?
10 A
Well, in that case you would answer the first 11 decision block, "yes," and you would be up on the upper 12 line.
And going into the second decision block which has 13 "Credit for corrective action," and there's a question mark 14 there.
15 Q
If the staff gives the licensee credit for 16 corrective action, what happens next?
17 A
Then, again, you answer that decision block "yes,"
18 and you end up at the box --
the top box on the right-hand 19 side, which would --
which would indicate there would be no 20 there would be a notice of violation but no civil 21 penalty.
22 Q
And if the staff does not give the licensee credit 23 for corrective action, what happens?
24 A
Then you would be --
you would answer "no" in that 25 decision box, and you would come over to the second box, the
Page 289 1
middle box on the right-hand side, which is a notice of a 2
violation and a base civil penalty.
3 Q
Okay.
If this is a Severity Level 1, Severity 4
Level 2, or a willful Severity Level 3 violation, what is 5
the first consideration?
6 A
Well, in that case, if you have either a Severity 7
Level 1, 2, or it's a willful violation, then the answer in 8
the first box in the left-hand side is going to be "no,"
9 rather than the "yes" for the --
for the non-willful 10 Severity Level 3.
11 Q
Okay.
And what's the first consideration for 12 credit?
13 A
Then you would come over to the decision block 14 which has "credit for identification" in it.
And that's the 15 next consideration you would make.
16 Q
Under what circumstances does the staff usually 17 give a licensee credit for identification?
18 A
The staff typically gives the licensees credit for 19 identifying violations if they identify a problem at the 20 plant and --
and properly report it, if it's required to 21 report --
be reported under NRC regulations, or they place 22 it in their corrective action system as a deficiency and --
23 and start taking corrective actions for --
for that issue.
24 Q
Does the staff typically give a licensee credit 25 for identification if they deny the violation occurred?
Page 290 1
A I think it would be very difficult to give license 2
a licensee credit for identification for an issue that 3
they deny occurred in those cases where they would take no 4
actions based on that denial.
5 Q
If the staff gives the licensee credit for 6
identification, what is the next step?
7 A
If you answer the credit for identification 8
question "yes," then you're back up on the upper line, and 9
the next block you're in is the credit for --
credit for 10 corrective action block again.
11 Q
If the licensee gets credit for both 12 identification and corrective action, what does the staff 13 do?
14 A
Again, you would be to a notice of violation with 15 no civil penalty.
16 Q
If they get credit for identification but they do 17 not get credit for corrective action, what does the staff 18 do?
19 A
And then again you would be in the middle block on 20 the right-hand side, "Notice of violation and base civil 21 penalty."
22 Q
If the staff gives the licensee credit for 23 identification but does not give them credit for corrective 24 action, what does the staff do?
25 A
If we do give them credit for identification and
Page 291 1
not for corrective action, then, like I think I just said, 2
the notice of violation --
they get a notice of violation 3
and the base penalty.
4 Q
Okay.
What happens if the staff does not give the 5
licensee credit for either identification or corrective 6
action?
7 A
Well, then you --
then you answer the credit for 8
identification block "no"; you answer the credit for 9
corrective action block "no"; and you're at the very bottom 10 box, which is "Notice of violation and two times the base 11 civil penalty."came 12 Q
What types of corrective action would the staff 13 consider for giving credit to a licensee?
14 A
Typically, the staff is looking for two types of 15 corrective action.
They're looking for --
we're looking for 16 corrective action for the --
the particular example of 17 violation that's been identified.
In other words, very 18 specific to the --
to the case or the issue at hand.
And 19 then we're also looking for broader corrective action that 20 that would look at correcting other possible violations 21 that may exist that are similar to this, or corrective 22 actions that would prevent additional examples that would be 23 similar to the violation that occurred, from occurring.
24 Q
Do you require the licensee to take both specific 25 and broad corrective action in order to give them credit for
Page 292 1
corrective action?
2 A
Yes.
3 Q
Are there any limits to the amount of a civil 4
penalty that the staff can issue?
5 A
The --
the staff's --
the staff is limited by the 6
statutory maximum of $110,000 per day, or in the --
at the 7
time that this violation was issued, we --
if we were 8
issuing it at a per-day --
per-day civil penalty, we'd be 9
$110,000.
And typically, most violations are issued as 10 violations that are --
are one-time occurrences, and 11 therefore that would be considered for one day of civil 12 penalty, or $110,000.
13 Q
What does the staff do if the civil penalty 14 exceeds the $110,000 limit?
15 A
If you get to the block --
that would occur if you 16 get to that bottom block.
It could occur if you get to a 17 base penalty that's two times the base for a power reactor, 18 because, for instance, for a Severity Level 1 violation, 19 that would come out to $220,000, which would be above or 20 even the two-times the base for a Severity Level 2 21 violation, which would come out to $168,000, and therefore 22 we would cap the civil penalty at 4110,000 for that single 23 violation.
24 Q
What information does the staff use in reaching 25 its determination on the violation and the civil penalty?
Page 293 1
A The staff uses various sources of information to 2
to reach that decision.
Typically, we have --
we have an 3: inspection report or an investigation report; we have 4
information provided by the licensee in written documents, 5
such as --
such as reports that they're required to make for 6
particular violations; or information that they provide us 7
at an enforcement conference or after an enforcement 8
conference.
So we have a wide range.
And, of course, in 9
discrimination cases, we may also rely on information that 10 is --
that is provided in the Department of Labor process to 11 reach our decision.
12 Q
If there is a report and exhibits by NRC Office of 13 Investigations, do the conclusions of OI's report bind the 14 NRC staff?
15 A
No.
The --
Office of Investigations is a fact-16 finding organization.
They do reach their conclusions, and 17 then the staff independently reviews their conclusions and 18 evidence before reaching its --
it's own determination.
19 Q
After the staff determines that there is a notice 20 of violation and that there should be a civil penalty 21 imposed, how does the staff notify the licensee of its 22 decision?
23 A
The first step in the process when we've reached 24 that decision that we think that it warrants a Severity 25 Level 3 or above, is we offer the licensee an opportunity
Page 294 1
for an enforcement conference, which, depending upon the 2
issue, may be open or closed to the public.
3 Q
What usually happens at an enforcement conference?
4 A
The staff typically lays out what we see as the 5
potential violation to the licensee, and the licensee has an 6
opportunity at that enforcement conference to make their --
7 to make arguments why we're incorrect either on the facts or 8
on the application of the policy or on the law.
9 Q
After the enforcement policy, what does the staff 10 do if it decides that there should be a notice of violation 11 and proposed civil penalty?
12 A
After the enforcement conference, what typically 13 happens is there is a meeting of the --
of the decision 14 makers in the relevant staff offices to evaluate the 15 information provided by the licensee.
If the licensee has 16 failed to persuade us, then --
of their position, then we 17 would go ahead and issue a notice of violation and, if 18 appropriate, based on following the escalated enforcement 19 process, a proposed civil penalty.
20 Q
Are you familiar with the staff's proposed action 21 in this case?
22 A
Yes, I am.
23 (The documents referred to were 24 marked for identification as Joint 25 Exhibit #47.)
Page 295 1
Q I show you what has been marked as Joint Exhibit 2
47 for identification.
Do you recognize this document?
3 A
Yes, I do.
4 Q
Please identify it.
5 A
This is the notice of violation and proposed 6
imposition of civil penalty that was issued to the Tennessee 7
Valley Authority in this case.
8 MS. EUCHNER:
Your Honors, I'd like to move Join 9
Exhibit 47 into evidence.
10 MR. MARQUAND:
No objection, Your Honor.
11 CHAIRMAN BECHHOEFER:
Without objection, the Joint 12 Exhibit 47 will be admitted.
13 (The documents, heretofore marked 14 as Joint Exhibit #47, were received 15 in evidence.)
16 BY MS. EUCHNER:
17 Q
What is Joint Exhibit 47, in a little bit more 18 detail?
19 A
The joint exhibit is a cover letter that transmits 20 a notice of violation to the Tennessee Valley Authority.
21 And attached is the notice of violation --
to that letter is 22 the notice of violation, which provides the --
the violation 23 that the staff has determined occurred, and the --
in this 24 case, also transmits and informs TVA of the civil penalty 25 that we're seeking for that violation.
Page 296 1
Q Would you please read the violation as it appears 2
in the notice of violation.
3 MR. MARQUAND:
Objection.
Document speaks for 4
itself, Your Honors.
No reason to have him read things that 5
are already in the record, unless there's a question about 6
it.
7 MS. EUCHNER:
Well, Your Honor...
8 MR. MARQUAND:
I'm not sure it's helpful.
9 MS. EUCHNER:
...TVA continually, throughout our 10 hearing conferences, seems to believe that the staff is 11 bound by what is in the cover letter as opposed to what is 12 in the notice of violation, and I really wanted to emphasize 13 the limited nature of what's in the notice of violation.
14 MR. MARQUAND:
We can read the notice of 15 violation, as Your Honors can.
I'm not sure it's helpful to 16 ask witnesses to read the entirety of documents into the 17 record.
18 MS. EUCHNER:
For the record, it's two paragraphs, 19 Your Honor, that I'm seeking to have him read.
20 CHAIRMAN BECHHOEFER:
Well, overrule the 21 objection.
22 BY MS. EUCHNER:
23 Q
Please read the notice of violation.
24 A
50.7 prohibits discrimination by a 25 commissioned licensee against an employee for engaging in
Page 297 1
certain protected activities.
Discrimination includes 2
discharge or other actions relating to compensation, terms, 3
conditions, and privileges of employment.
The activities 4
which are protected include but are not limited to:
5 providing a commission --
the licensee with information 6
about nuclear safety at an NRC licensed facility, or 7
testifying at any federal proceeding regarding any provision 8
related to the administration or enforcement of a 9
requirement imposed under the Atomic Energy Act or the 10 Atomic --
or the" --
excuse me, "or the Energy 11 Reorganization Act.
12 "Contrary to the above, the Tennessee Valley 13 Authority, TVA, discriminated against Mr. Gary L. Fiser, a 14 former corporate employee, for engaging in protected 15 activities.
Specifically, in July 1996, TVA eliminated Mr.
16 Fiser's position of chemistry and environmental protection 17 manager, operations support, as part of a reorganization, 18 and took subsequent actions to insure he was not selected 19 for one of two new positions within operation support.
TVA 20 took these actions at least in part in retaliation for Mr.
21 Fiser's involvement in protected activities.
Mr. Fiser's 22 protected activities included the identification of 23 chemistry-related nuclear safety concerns in 1991 through 24 1993, and in the subsequent filing of a Department of Labor, 25 DOL, complaint in September of 1993, based, in part, on
Page 298 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 these chemistry-related nuclear safety concerns."
Q Thank you.
JUDGE YOUNG:
Just for the record, you may have said this before, but you --
what you read was the indented portion of the first page of Enclosure 1 to Exhibit 47; correct?
THE WITNESS:
That's correct.
JUDGE COLE:
Joint Exhibit 47.
Yeah.
THE WITNESS:
Yeah.
JUDGE YOUNG:
Thanks.
BY MS. EUCHNER:
Q According to this notice of violation, what level of violation did the staff issue to TVA in this case?
A Under Supplement 7 of the enforcement policy, this was classified at Severity Level 2.
Q Now I'd like you to go back to Supplement 7 of the enforcement policy.
What were the positions of the TVA individuals that the staff concluded were the discriminating officials?
A The positions were that...
MR. MARQUAND:
I'm going to object.
Up to this point in time, the witness has testified about NRC policies.
Now he's apparently going to testify about his know of the facts of the case.
We don't have any foundation to establish that he has any knowledge of the facts of this
Page 299 1
case.
2 In addition, I would note that he's never been 3
identified as anyone with knowledge, if that's the case.
We 4
specifically sent interrogatories to staff on two different 5
occasions and asked them that question, and he was never 6
identified, nor was anyone in the Office of Enforcement 7
identified as anyone with knowledge of the facts of the 8
case.
So there apparently can't be a foundation for him to 9
testify about facts in this case.
10 JUDGE YOUNG:
Your question was:
What was his 11 position?
12 MS. EUCHNER:
What were the positions.
13 Essentially, I...
14 JUDGE YOUNG:
What were the...
15 MS. EUCHNER:
What were the positions of the two 16 TVA individuals that the staff concluded were the 17 discriminating officials?
18 MR. MARQUAND: And my objection goes to his 19 foundation for that knowledge.
And he apparently can't have 20 that foundation.
21 JUDGE YOUNG:
When you say "positions," are you 22 talking about their points of view or their --
or their 23 personnel positions?
24 MS. EUCHNER:
I'm talking about what level of 25 management they are within TVA, and that goes to the
Page 300 1
application of the...
2 JUDGE YOUNG:
Can't that be stipulated?
3 CHAIRMAN BECHHOEFER:
Let's cool it for a minute.
4 JUDGE YOUNG:
Can't that be stipulated?
5 CHAIRMAN BECHHOEFER:
No.
Not...
6 MR. MARQUAND:
We can certainly stipulate to it, 7
but we object to this witness testifying about facts of the 8
case when he's never been identified to us as an individual 9
with knowledge.
10 CHAIRMAN BECHHOEFER:
Well,...
11 MS. EUCHNER:
Your Honors,...
12 CHAIRMAN BECHHOEFER:
let me clarify something.
13 I assume you're asking not for his knowledge of the facts of 14 the case, but the --
the facts upon which the Office of 15 Enforcement took action.
16 MS. EUCHNER:
That is correct.
The reason I'm 17 asking is because...
18 CHAIRMAN BECHHOEFER:
And he --
he's testifying as 19 to how OE arrived at its position.
20 MS. EUCHNER:
Yes, that is correct, Your Honor.
21 CHAIRMAN BECHHOEFER:
And (indiscernible) 22 perfectly acceptable, so...
23 JUDGE YOUNG:
I think they could probably 24 stipulate what the positions --
what positions they held.
25 Is this really a matter of dispute, what positions they
Page 301 1
held?
2 MS. EUCHNER:
No, Your Honor, it is not.
I think 3
we agreed that at the time of the event, what positions they 4
held.
5 MR. MARQUAND:
And we stipulate they were senior 6
level management.
7 MS. EUCHNER:
Okay.
Then I don't need him to 8
answer that question.
9 MR. MARQUAND:
Further, Your Honor, we are not 10 disputing the severity level of the notice of violation 11 position.
We are disputing the violation occurred.
12 BY MS. EUCHNER:
13 Q
When there is more than one discriminating 14 official, how does the staff determine what the severity 15 level should be?
16 A
The staff uses the position of the --
the highest 17 position within the organization at which discrimination 18 occur.
19 Q
How did the staff reach its determination that 20 this was a severity Level 2 violation?
21 A
The staff would go to Supplement 7 under 22 miscellaneous matters, and go to the applicable examples, 23 starting with Severity Level 1 first, reading that example, 24 and --
and then going to Severity Level 2, and proceeding 25 down into Severity Level 3, and determining, based on these
Page 302 1
general examples, because obviously the examples talked 2
about people being senior managers and mid-level managers.
3 So these are general examples, and we try to take the --
the 4
specifics within a given organization of the managers 5
involved and find the correct fit for their positions under 6
the severity levels.
7 Q
And what was the best fit?
8 A
We felt in this case, given not only their level 9
in the organization, but the type of people that they 10 supervised, that the best fit was the example under Severity 11 Level 2, action by plant management or mid-level management 12 in violation of Tennessee APAR 50.7.
13 Q
Once the staff determined that this was a Severity 14 Level 2 violation, how did the staff determine the proposed 15 civil penalty?
16 A
Again, the staff in this --
in this case, as in 17 the other cases, would have gone back --
would go to the --
18 Table 1-A and define the type of licensee to determine the 19 base civil penalty for a --
for a Severity Level 1 violation 20 for that type of licensee.
21 Q
Okay.
Please go to Table 1-A in your policy.
22 A
Right.
23 Q
What would the base penalty under TVA be for this 24 policy?
25 A
Any of the TVA power reactor licenses, they would
Page 303 l
fit under the A --
under Table 1-A, which is power reactors 2
and gaseous defusion plants, which has a base civil penalty 3
of $110,000 for a Severity Level 1 violation.
4 Q
Once you have the $110,000 base civil penalty, 5
what was the next step?
6 A
The next step would be to go to Table 1-B and make 7
the adjustment for the severity level.
And in this case, 8
that would be a Severity Level 2, which means that the base 9
civil penalty would be 80% of the Severity Level 1 amount, 10 which would make it $88,000.
11 Q
After making this initial determination of the 12 base civil penalty, how did the staff reach it's final 13 determination as to the amount of the civil penalty?
14 A
We proceed over to the next page of the 15 enforcement policy, back to the flowchart, and enter the 16 flowchart to make that determination.
17 Q
Okay.
And the first box in the flowchart is first 18 non-willful Severity Level 3 in two years or two 19 inspections.
20 A
Right.
And this...
21 Q
Does that apply to this case?
22 A
No, it doesn't, for two reasons.
One is that it 23 was a Severity Level 2 violation, so we would answer "no" on 24 that basis.
Also the --
it was --
it was not a non-willful 25 violation, it was a --
it was a wilful violation.
So the
Page 304 1
staff --
that was the staff's determination, so we would 2
answer "no" in that first decision block.
3 Q
Okay.
After reaching that conclusion, what was 4
the next step the staff considered?
5 A
The staff considered whether the licensee 6
warranted credit for identifying the violation.
7 Q
In this case did the staff give TVA credit for 8
identification?
9 A
No, we did not.
10 Q
Why not?
11 A
Primarily because TVA alleged that --
that no 12 violation existed.
13 Q
After the staff determined that TVA should not get 14 credit for identification, what did the staff consider next?
15 A
The staff considered the corrective actions taken 16 by the Tennessee Valley Authority.
17 Q
Okay.
In this case, did the staff give TVA credit 18 for corrective action?
19 A
No, we did not.
20 Q
Why not?
21 A
Because the staff made the determination that the 22 corrective actions that TVA took were not sufficient to 23 warrant credit for corrective action.
24 Q
Why didn't the staff give the licensee credit for 25 taking a comprehensive corrective action?
Page 305 1
A The --
again, going back to my --
what I stated 2
earlier, typically the staff is looking for corrective 3
actions of two types, corrective actions for the specific 4
case.
In this case, because TVA denied that a violation 5
occurred.
Their corrective actions with regard to the 6
specific case didn't warrant it.
And then, in --
with 7
regard to general corrective action to prevent similar type 8
of violations, TVA did do some things.
I think that their 9
summary of those are discussed in the --
in the cover letter 10 to the notice of violation.
They issued, I think, some kind 11 of note or advisory at their plants, but that was very 12 similar to previous advisories that they'd given to their 13 employees in this regard and in the past; that those hadn't 14 proven very effective, so we didn't think the mere 15 reissuance of that was a --
was a comprehensive action to 16 prevent recurrence of other violations.
17 Q
Based on your conclusions --
well, the staff's 18 conclusion that TVA did not get credit for either 19 identification or corrective action, what civil penalty, 20 under the flowchart, could the staff have issued?
21 A
We would answer the identification block "no" 22 which would take us to the corrective action block, decision 23 block, which we would answer "no."
And that would take us 24 to a notice of violation and a --
and a civil penalty of two 25 times the base civil penalty for a Severity Level 2.
Page 306 1
Q What would two times the base civil penalty have 2
been in this case?
3 A
It would have been $168,000.
4 Q
What civil penalty did the staff propose?
5 A
The staff proposed the statutory maximum of 6
$110,000.
7 Q
What information did the staff rely upon in 8
reaching its conclusion that TVA committed a violation of 9
Section 50.7, and that a proposed civil penalty should be 10 issued?
11 A
Well, the staff relied on the --
the Office of 12 Investigations report that was issued in this case.
The 13 staff also had access to information that dealt with the --
14 with DOL complaint that was filed by Mr. Fiser.
We also had 15 information that --
that the --
that TVA provided at --
in 16 enforcement conferences or at enforcement conference.
17 Excuse me.
18 Q
When you say that --
when you say that the staff 19 relied upon NRCOI, did you rely upon the conclusions of 20 NRCOI, or the information they gathered at their 21 investigation?
22 MR. MARQUAND:
Objection; leading.
Let's ask him 23 what he did rely upon, rather than put the words in his 24 mouth, since that's an issue in this case.
25 MS. EUCHNER:
I have no problem with that, Your
Page 307 1
Honors.
2 BY MS. EUCHNER:
3 Q
What information from NRCOI did the staff rely 4
upon?
5 A
The staff --
as the staff does in every case, we 6
relied on the facts gathered.
Obviously their -- their 7
conclusions and why they reached those conclusions would be 8
considered.
9 Q
Do those conclusions bind the staff?
10 A
No, they do not.
11 Q
After the staff issued the notice of violation and 12 the proposed civil penalty, what happened?
13 A
Once that action was taken, the --
the Tennessee 14 Valley Authority, under the Freedom of Information Act, 15 requested the information that the staff had relied on, that 16 we would have previously held as predecisional in this case.
17 But once we took our --
you know, issued our proposed notice 18 of violation, then the Tennessee Valley was free, under 19 Freedom of Information Act, to request the documents that 20 the staff would have withheld up to that point, and that's 21 in fact what they did.
They filed a FOIA request for staff 22 documents.
23 Q
Once TVA received their response to the FOIA 24 request, what did they do?
25 A
They --
a response to the notice of violation and
Page 308 1
proposed imposition of civil penalty was provided to the 2
staff.
3 Q
After the staff received that reply, what did it 4
do?
5 A
The staff then --
the staff, like it does in --
in 6
al cases, would review the appropriate offices, which in 7
this case would have been the Office of Enforcement, the 8
Office of the General Counsel, the Region 2 office, as well 9
as the Office of Investigation would review the licensee's 10 response.
Then the office of --
the offices would meet and 11 a decision would be made whether to adjust in any way either 12 the civil penalty or the notice of violation that we had 13 issued based on the licensee's response.
14 (The documents referred to were 15 marked for identification as Joint 16 Exhibit #53.)
17 Q
I show you what has been marked as Joint Exhibit 18 53 for identification.
Do you recognize this document?
19 A
Yes, I do.
20 Q
Please identify it.
21 A
This document is a cover letter and --
and the 22 order imposing the civil penalty in this case.
23 MS. EUCHNER:
Your Honors, I'd like to move Joint 24 Exhibit 53 into evidence.
25 MR. MARQUAND:
No objection, Your Honor.
Page 309 1
CHAIRMAN BECHHOEFER:
Joint Exhibit...
2 MS. EUCHNER:
I'm sorry.
3 CHAIRMAN BECHHOEFER:
Joint Exhibit 53 will be 4
admitted.
5 (The documents, heretofore marked 6
as Joint Exhibit #53, were received 7
in evidence.)
8 BY MS. EUCHNER:
9 Q
And what does this cover letter and order provide 10 for?
11 A
This cover letter and order --
the order provides 12 for --
basically, it's the staff's response to the 13 licensee's response to the notice of violation.
Basically, 14 it concludes that --
in essence, that the staff does not --
15 did not accept TVA's arguments against the notice of 16 violation and proposed imposition of civil penalty, and the 17 enclosed order imposes that civil penalty, and under the --
18 under Part 2 of Tennessee (Indiscernible) Part 2, the 19 licensee could either pay the civil penalty, or contest it 20 and request a hearing.
21 MS. EUCHNER:
Your Honors, I have nothing further 22 of this witness.
23 CHAIRMAN BECHHOEFER:
I have one clarifying 24 question before the cross-examination.
And I think we'll 25 take a short' break before we get into that.
But, Mr.
Page 310 1
Luehman, did the staff in any way rely on --
can't see the 2
number.
It's on Page 61153.
Rely on what's termed under 3
Paragraph small "D," and I guess, when you track it back, 4
there are some other numbers.
But exercise its discretion?
5 Did the staff in any way, in this --
in instituting this 6
notice of violation, use that authorization?
7 THE WITNESS:
Well, anytime we have a notice --
8 anytime we have a proposed imposition of civil penalty, we 9
always have, as --
if you go back to the --
to the 10 flowchart, you'll see on the flowchart that there are --
11 there are little "D"s indicated on the decision making 12 flowchart.
And those are --
those tDI's indicate 13 opportunities for the staff to exercise enforcement 14 discretion.
The staff, in making a determination whether 15 enforcement discretion should be granted, would consider the 16 discussion and the criteria in the enforcement policy, part 17 of which you pointed to.
In this case, I'm not aware of 18 what specific discussions the staff had on whether 19 discrimination --
I mean, excuse me, whether discretion was 20 warranted, or if there were any such discussions.
21 CHAIRMAN BECHHOEFER:
Let's come back about --
22 assuming that time is right, about 11:20.
23 (Brief recess.)
24 CHAIRMAN BECHHOEFER:
Okay, Mr. Marquand, you 25 ready to go or do you need a couple of minutes?
Page 311 1
MR. MARQUAND:
I need about two more minutes.
2 CHAIRMAN BECHHOEFER:
All right.
3 (Brief recess.)
4 CROSS-EXAMINATION 5
BY MR. MARQUAND:
6 Q
Good morning, Mr. Luehman.
7 A
Morning.
8 Q
I'm Brent Marquand.
I'm the attorney for 9
Tennessee Valley Authority.
I have a few --
just a few 10 questions.
11 In your direct examination you used the term "we" 12 when you were describing the staff's assessment of this 13 case.
Were you involved in that assessment?
14 A
I was involved in a portion of the staff's 15 assessment of this case.
16 Q
Okay.
You were one of the people, then, that 17 relied upon the OI report and the information gathered by 18 the OI?
19 A
To the extent that I was involved in the case, 20 once I came to the Office of Investigation; that's correct.
21 Q
Now, you identified notice of violation issued to 22 TVA which is Joint Exhibit 47.
23 A
Yes.
24 Q
And I believe Joint Exhibit 47 includes a 25 transmittal letter.
Do you have that in front of you?
Page 312 1
A No, I do not.
I --
I have the order now, but I 2
don't have the...
3 Q
You don't have the entire Joint Exhibit 47?
4 A
I have the two --
two...
5 MS. EUCHNER:
Mr. Marquand, it's on the binder.
6 BY MR. MARQUAND:
7 Q
I've handed you Joint Exhibit 47 which includes 8
the February 7th, 2000 letter, and Enclosure 1, which is 9
entitled, "Notice of Violation and Proposed Imposition of 10 Civil Penalty"; you see that?
11 A
Yes.
12 Q
You were aware of both of these documents?
13 A
I'm aware of both of these documents; yes.
14 Q
You've seen them before?
15 A
Yes.
16 Q
All right.
Is there anything in the letter 17 inconsistent with the notice of violation?
18 A
Inconsistent with the violation?
I don't...
19 Q
Is the letter consistent with the notice of 20 violation?
21 A
In my opinion, yes, it is.
22 Q
I'm going to ask you to look at Joint Exhibit 53, 23 which is a May 4, 2001 letter entitled, "Order."
I'm sorry, 24 let me --
strike that.
25 I'm going to ask you to look at Joint Exhibit 44,
Page 313 1
which is a September 20, 1999 letter from the NRC to TVA 2
entitled, "Apparent violations, employment discrimination 3
requirements."
4 MR. MARQUAND:
And, with the Court's indulgence, 5
I'm going to write on the bottom of it "JX-44," so we can 6
remember where it came out of the volumes.
7 JUDGE YOUNG:
We're looking at the September 20th 8
letter.
9 MR. MARQUAND:
Yes, Your Honor.
10 BY MR. MARQUAND:
11 Q
Mr. Luehman, do you see the September 20, 1999, 12 "Apparent violation, employment discrimination 13 requirements," letter before?
14 A
Yes, I think I have.
15 Q
That was --
was that something that the staff 16 considered prior to issuing notice of violation in this 17 case?
18 A
I think it's pretty clear from the February 7th, 19 2000 letter that --
that the staff did consider it, because 20 there's references made to this letter in that letter.
21 Q
Okay.
And, in fact, the notice of violation which 22 you read to us previously states, does it not, that --
the 23 initial sentence, "As a result of an NRC Office of 24 Investigation report issued on August 4, 1999, a violation 25 of NRC requirements was identified."
If you look at Joint
Page 314 1
Exhibit 47.
2 A
Yes.
3 Q
Okay.
And the Joint Exhibit 44, the letter dated 4
September 20, 1999, has, as enclosure 1, a synopsis of the 5
Office of Investigation.
6 JUDGE YOUNG:
Hold on one second.
Do you have the 7
right page?
8 CHAIRMAN BECHHOEFER:
I think mine's different 9
than yours.
10 JUDGE YOUNG:
It's the staff joint exhibit 11 document.
It's the one says "Joint Exhibits 24 through 65."
12 13 CHAIRMAN BECHHOEFER:
Right.
14 JUDGE YOUNG:
Exhibit 44, September 20th letter.
15 JUDGE COLE:
Yeah, it's identified at the top as 16 IA99-043 to Wilson C. McArthur.
17 MR. MARQUAND:
It's Joint Exhibit 44.
It's to 18 John Scolese.
I think 43 is the one to Wilson McArthur.
19 JUDGE COLE:
Well, it's 44 in my book.
20 JUDGE YOUNG:
Better check the record copy.
Let's 21 take a second, make sure we have the right one in the record 22 copy.
23 MR. MARQUAND:
Exhibit --
I'm sorry, Exhibit 45 24 should be the one to Dr. McArthur.
Exhibit 44 should be --
25 is the one we're talking about.
And it should have been
Page 315 1
addressed to TVA.
2 JUDGE YOUNG:
Can we just stop for a second and 3
let the court reporter make sure the record copy's right.
4 (Off the record.)
5 BY MR. MARQUAND:
6 Q
You have seen the synopsis of the OI report which 7
is Enclosure 1 to Joint Exhibit 44?
8 A
Yes.
9 Q
And you've seen the summary of the Office of 10 Investigation's report which is Enclosure 2 to Joint Exhibit 11 44.
12 A
I think that in the past sometime I have reviewed 13 it; yes.
14 Q
And in the staff's consideration of issuing the 15 notice of violation and the order of civil penalty, you 16 would have seen the Office of Investigation's report and the 17 evidence gathered by the Office of Investigation?
18 A
Yes, the staff would have seen that information.
19 Personally, I did not because I had not arrived in the 20 Office of Enforcement at the time the notice of violation 21 and proposed imposition of civil penalty was issued.
22 Q
I thought you said --
your testimony was that --
23 phrased in the context of "we" arrived at these decisions 24 and "we" felt in this case the best fit was this or the best 25 fit was that.
Page 316 1
A I was speaking on behalf of the staff.
I was --
I 2
was --
I arrived in the --
in the Office of Enforcement 3
prior to the issuance of the order imposing a monetary civil 4
penalty, and, therefore, that's when my personal review of 5
that information started.
6 Q
All right.
All right, so did you personally 7
review the Office of Investigation's report and the evidence 8
gathered prior to the issuance of the civil penalty?
9 A
Prior to the issuance of the civil penalty?
10 Q
Yes.
11 A
Have I reviewed that information?
Yes.
Did do a 12 did I review it prior to that document being written, the 13 answer is no.
14 Q
So did you just review it to prepare for your 15 testimony today, then?
16 A
No.
In my responsibility as the Deputy Director 17 of the Office of Enforcement, I reviewed it as part of the 18 staff's decision to issue the May 4th, 2001 order imposing 19 civil penalty.
20 Q
That was my question.
Did you review it prior to 21 the May 4th, 2001 order?
22 A
Yes.
I thought you said the proposed.
Excuse me.
23 24 Q
When you reviewed the Office of Investigation's 25 report and investigation, did you learn that the
Page 317 1
investigation did not include a review of the 1993 2
Department of Labor complaint?
3 A
I don't recall what --
what I knew when about the 4
Department of Labor complaint.
5 Q
Okay.
Did you ever learn that the Office of 6
Investigation never reviewed the 1993 Department of Labor 7
complaint in issuing their --
this --
their report and their 8
investigation?
9 A
I recall that there was --
we --
there was 10 discussion on the staff to the --
to the extent that the 11 Office of Investigation looked at the issues raised with the 12 Department of Labor complaint, whether that was a --
I don't 13 recall whether that was that they had never looked at it.
14 Q
If the investigative file shows that that 15 complaint was never included in that investigation, would 16 you agree that they had never looked at it?
17 A
I think that's a question you'd have to ask OI.
I 18 mean, I don't know what they've --
they're required to put 19 in their investigative files.
20 Q
Let me ask you to look at Joint Exhibit 44, 21, which is a summary of the Office of 22 Investigation report.
23 A
Yes.
24 Q
If you will look at the second paragraph of that 25 summary, the very last sentence, do you see the sentence
Page 318 1
that says, "In his DOL complaint the employee named as 2
parties to his discrimination the individuals who served as 3
committee member, Nuclear Safety Review Board, NSRB, and 4
chairman NSRB in 1993."
Do you see that?
5 A
Yes, I see that.
6 Q
Did you ever learn that, in fact, Mr. Fiser's 1993 7
Department of Labor complaint did not name Tom McGrath, who 8
was the Chairman of the NSRB, and did not mention Dr.
9 McArthur, the committee member, as an individual he accused 10 of discrimination?
11 A
I think I --
the answer to that is yes, I learned 12 that because of the --
in the notice that --
of violation 13 and proposed imposition of civil penalty cover letter 14 there's a discussion of that, of whether individuals were 15 named or not.
16 Q
Right.
And did you learn, in reviewing the file 17 and the information TVA provided, that the first time that 18 the NRC Office of Investigations --
or that it was called to 19 the attention of staff the contents of the 1993 DOL 20 complaint was at the predecisional enforcement conference 21 when TVA brought it to their attention?
22 A
Well, that --
I --
I have no reason to dispute 23 that, and I think that's part of the reason that we have a 24 predecisional enforcement conference, is to make sure that 25 any --
any facts that the staff has that are incorrect, that
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 319 needed to be corrected, are --
are corrected, and that the staff properly considers them.
So the conference, I guess, accomplished it's part of it's purpose, by getting those facts from TVA.
Q Let me ask you to look at Joint Exhibit 47.
A Okay.
Q If you'd look at the very bottom line of the first page, do you see the sentence that begins, "The nature of the nuclear safety concerns included is identification of various chemistry-related issues at the Sequoyah facility in the 1991 to 1993 time frame.
Do you see that sentence?
A Yes.
Q Did you ever ascertain from the Office of Investigation's report that, in fact, Mr. Fiser had not raised any chemistry-related issues at Sequoyah in that time frame?
A I --
I never reached that conclusion; no.
Q You never ascertained that one way or the other?
A I never...
Q Is that your conclusion?
A My conclusion is what?
Q Is your conclusion that he identified chemistry-related issues at Sequoyah from 1991 to 1993.
A It's the staff's position.
Q Well, you said you reviewed it and that you
Page 320 1
concurred in the order.
Is that...
2 A
And I concurred in the --
I concurred in the 3
staff's position.
So that the extent that the staff 4
concluded that, I had no objection to the staff's 5
conclusions.
6 Q
But in reviewing the Office of Investigation 7
report investigation, did you ever ascertain any specific 8
chemistry-related issues he purportedly raised in that time 9
frame?
10 A
Personally, I don't think that my review of the 11 Office of Investigation's report, again, coming in prior to 12 the order imposing civil penalty, would have gone to that 13 depth of review.
14 Q
I have no further questions.
Thank you.
15 A
Uh-huh (affirmative).
16 MS. EUCHNER:
Your Honors, the staff has no 17 further questions.
18 CHAIRMAN BECHHOEFER:
Okay, thank you.
19 MR. MARQUAND:
Your Honor, we would tender Joint 20 Exhibit 44 at this time.
We tender Joint Exhibit 44, the 21 letter to TVA which Mr. Luehman testified was the September 22 20, 1999, letter from the NRC to TVA.
23 MS. EUCHNER:
No objection, Your Honor.
24 CHAIRMAN BECHHOEFER:
The Joint Exhibit 44 will be 25 entered.
Page 321 1
(The documents referred to were 2
marked as Joint Exhibit #44 and 3
received in evidence.)
4 (Whereupon, a luncheon recess was taken at 5
11:44 a.m., the hearing to resume at 1:00 p.m.,
6 the same day.)
7.
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Page 322 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AFTERNOON SESSION CHAIRMAN BECHHOEFER:
Back on the record.
Hope you all enjoyed your lunch.
MR. DAMBLY:
Oh, yeah, it was great.
MS. EUCHNER:
Staff would like to call Kathy Welch to the stand, please.
Whereupon, KATHERINE WELCH appeared as a witness herein, and having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION BY MS. EUCHNER:
Q Ms. Welch, what is your current position with the TVA?
A My current position with TVA is Senior Manager, Shared Resources, Corporate TVA Human Resources.
Q Corporate TVA what?
A Human resources.
Q Human resources.
What is your educational background?
A I have a Bachelor's Degree in Business Administration.
Q When you completed your schooling, what was your first job?
A I was a TVA employee when I completed my schooling.
Page 323 1
Q Were you a TVA employee during your schooling?
2 A
Yes, I was.
3 Q
What was your position while you were in school?
4 A
I held various positions while I was in school.
5 Q
Okay.
6 A
I held administrative positions as well as 7
management positions.
8 JUDGE YOUNG:
Can everyone hear?
9 CHAIRMAN BECHHOEFER:
Not too well.
10 JUDGE YOUNG:
Can you speak up a little bit?
11 THE WITNESS:
Okay.
12 JUDGE YOUNG:
See if you can get closer to --
13 thanks.
14 THE WITNESS:
Okay.
15 BY MS. EUCHNER:
16 Q
When were you first hired by TVA?
17 A
In 1986.
18 Q
In what position?
19 A
In a clerical position.
20 Q
How long did you hold that position?
21 A
Somewhere in the neighborhood of two to three 22 years.
23 Q
What was your next position with TVA?
24 A
Information systems specialist.
25 Q
Was that a promotion?
Page 324 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A
Yes, it was.
Q Did you compete for that position?
A As far as I recall; yes.
Q What were your duties in that position?
A Document control and records management duties.
JUDGE YOUNG:
You're still going to have to speak up a little bit.
THE WITNESS:
Okay.
CHAIRMAN BECHHOEFER:
I didn't hear that name.
JUDGE YOUNG:
Document control?
Document control; is that what you said?
THE WITNESS:
Yes, I did, Your Honor.
CHAIRMAN BECHHOEFER:
Okay.
BY MS. EUCHNER:
Q Approximately how long did you hold the information systems specialist position?
A A year or two.
Q What was your next position?
A Entry level management position in the document control and records management organization.
Q Was that a promotion?
A Yes, it was.
Q Did you have to compete for that position?
A Yes.
Q After that, what was your next TVA position?
f
1 2
3 4
A speciali Q
a labor
,st Page 325 The next position was labor relationships Can you tell me approximately what year you became relations specialist?
A 1994.
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q
A Q
A Q
A of Labor Q
involve?
Okay.
Was that a promotion?
Yes, it was.
Did you compete for that position?
Yes, I did.
What were your duties in that position?
Primarily, my duties were to coordinate Department complaints and EEO complaints.
When you say "coordinate," what exactly does that A
That involved keeping track of the complaints that we had open, briefing management on decisions or statuses of those cases that came along; coordinating with management on some fact-finding when complaints were received; and keeping the records of complaints.
Q How long did you hold that position?
A Somewhere in the neighborhood of three years.
Probably a little longer than that.
Q All right.
And what was your next position?
A The next position I went into was human resource manager at Sequoyah Nuclear Plant.
Page 326 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q
A Q
A Q
Sequoyah A
Q A
Q A
nuclear.
Q A
Q A
Q A
Q A
Was that a promotion?
Yes, it was.
Did you compete for it?
Yes, I did.
Approximately what year did you head out to as human resources?
'87 --
or, excuse me, '97 or '98.
Okay.
How long did you hold that position?
Two-and-a-half to three years.
And what was your next position?
My next position was labor relations manager for Was that a promotion?
Yes, it was.
Did you compete for it?
Yes, I did.
Now, was that a corporate position?
Yes, it was a corporate position.
And what position did you take after that?
The position I am currently in.
Q Okay.
Is your current position --
was that a promotion?
A Yes, it was.
Q Did you compete for it?
A Yes, I did.
1 2
3 4
5 6
7 8
9 10 11 12 Page 327 Q
Now, you mentioned earlier that you went to college and graduated during your TVA employment; is that correct?
A Yes.
Q When did you go to school?
A Actually, I went to school prior to coming to work for TVA.
When I came to work for TVA, I had two associate's degrees.
Q Okay.
A One in business, and one in information systems.
After being hired by TVA, I returned to school and achieved my bachelor's degree.
Q And when did you receive your bachelor's degree.
A Sometime in the early '90s.
Q Okay.
You said in about 1994 you became a labor relations specialist.
Did you have any training to be a labor relations specialist prior to taking that position?
A On-the-job training.
Q Okay.
And what kind of...
A I also --
I also had --
most of my courses going for my bachelor's degree were focused in the area of human resources.
Most of my senior level courses.
Human resources and labor relations.
Q What kind of on-the-job training did you do for that position?
13 14 15 16 17 18 19 20 21 22 23 24 25
Page 328 1
A I --
as a matter of doing my job, I had access to 2
other professionals in the HR and labor relations community 3
that served as mentors and coaches.
4 Q
Did you ever take any in-house training that was 5
designed for TVA employees?
6 A
Yes, I did.
7 Q
What kind of training?
8 A
Supervisory training, labor relations training.
9 Primarily those types of courses.
And, of course, the 10 general employee training and fitness for duty training, et 11 cetera.
12 Q
What was involved in the labor relations training?
13 A
Labor relations training covered the environment 14 that the --
the labor environment that TVA worked in.
It 15 was an overview of the contractual agreements that we had 16 with the labor unions, and there was some information in 17 those courses, as I recall, on federal complaints.
18 Q
Have you ever taken any external training on labor 19 relations or personnel matters?
20 A
No, I have not.
21 Q
What position were you holding in 1996?
22 A
I believe I was still in the labor relations 23 position.
24 Q
Now, according to a statement that we have from 25 TVA OIG, I think it'd be document number, for the record,
Page 329 1
this is Staff Exhibit 166 for the record.
2 (The documents referred to were 3
marked for identification as 4
Staff's Exhibit #166.)
5 Q
According to that document, your title was federal 6
appeals specialist.
Can you explain what you were doing in 7
that position?
8 A
Federal appeals --
I said earlier, labor 9
relations, specialist, those terms...
10 JUDGE YOUNG:
Excuse me for a second.
11 MS. EUCHNER:
I'm sorry?
12 JUDGE YOUNG:
You said it was 166?
13 MS. EUCHNER:
Yes, Staff Exhibit 166, Your Honor.
14 JUDGE YOUNG:
Which volume is that in?
15 MS. EUCHNER:
It should be in Volume 8 of the 16 staff's exhibits.
Would you like me to repeat the previous 17 question, Ms. Welch?
18 THE WITNESS:
Yes.
19 BY MS. EUCHNER:
20 Q
What were your duties as a federal appeals 21 specialist?
22 A
The duties of a federal appeals specialist were, 23 as I previously stated --
and I may have stated my title as 24 labor relations specialist.
The official title of record 25 was federal appeals specialist beginning in 1994.
Page 330 1
Q All right.
And you had mentioned, among the 2
duties for that position, that you coordinated DOL 3
complaints, that you would brief management on status, that 4
you were involved with coordinating and fact-finding.
5 A
Uh-huh (affirmative).
6 Q
Specifically, when a DOL complaint is filed at 7
TVA, what were your duties?
8 A
My duties were to review the complaint that was 9
filed, and to do some fact-finding based on the complaint 10 that was received, report that fact-finding back to 11 management so that appropriate action could be taken and TVA 12 could prepare a response to the initial complaint.
13 Q
What kind of fact-finding did you engage in?
14 A
Interviewing employees and managers, those who 15 were involved in the issue.
16 Q
Did you take written statements from these 17 employees?
18 A
No, I did not.
19 Q
Did you keep any notes about what you found?
20 A
I kept some notes about what I found; yes.
21 Q
Okay.
In terms of preparing a response, does that 22 mean that you worked with the attorneys who were 23 representing TVA before the Department of Labor?
24 A
Yes.
25 Q
When TVA decided that they wanted to settle a DOL
Page 331 1
complaint, would you be involved in the settlement, as well?
2 A
Yes, I could be.
3 Q
What would your duties be when considering a 4
settlement?
5 A
It could be gathering information; it could be 6
actually talking with a complainant about a settlement 7
agreement.
8 Q
Would you be involved in drafting a settlement 9
agreement?
10 A
I did participate in drafting a couple of 11 settlement agreements, I think; yes.
12 Q
Okay.
If you didn't draft the settlement 13 agreement, would you get a change to review settlement 14 agreements that had been drafted by other TVA employees?
15 A
I have been involved in reviewing some settlement 16 agreements; yes.
17 Q
Okay.
Now, you had mentioned that you conduct 18 some fact-finding, some interviews of employees.
Is this a 19 parallel investigation to what TVA Office of the Inspector 20 General does?
21 MR.
SLATER:
Your Honor, I object., I believe, as 22 a basis for Ms.
for TVA stipulating that the witness list 23 could be supplemented at this late date, the subject of Ms.
24 Welch's testimony would be the advice that was given by the 25 Office of General Counsel with respect to Mr. Fiser's 1990
Page 332 1
with respect to Mr. Fiser's threat of filing a DOL 2
complaint with respect to his 1996 --
or the 1996 posting of 3
the job at issue.
4 JUDGE YOUNG:
Do we have that --
I don't think we 5
have your stipulations yet, do we?
6 MR. SLATER:
Your Honor, the stipulation was on 7
the record that, in lieu of calling Mr. Marquand as a 8
witness, Ms. Welch would be substituted to talk about what 9
advice the Office of General Counsel gave with respect to 10 the posting of the job or the titlement of the job under the 11 1994 settlement agreement.
12 MS. EUCHNER:
Your Honor, the staff didn't have 13 the opportunity to depose Ms. Welch, so we actually don't 14 know what her job history is, what her duties are, which are 15 directly relevant to the questions I'm going to get to about 16 this case.
17 MR. SLATER: Well, it's a little late to --
to be 18 conducting discovery when, in fact, they've had information 19 about --
or had the statement of Staff Exhibit 166 for an 20 awful long time.
They could have asked to take her 21 deposition.
22 MS. EUCHNER:
Let's...
23 JUDGE YOUNG:
Mr. Slater, there was a --
you 24 referred to the record.
Could you direct us to the place in 25 the record that this...
Page 333 1
MR. SLATER:
I believe it was the --
that during 2
the fifth prehearing telephonic conference in which we had a 3
of course, there were several...
4 JUDGE YOUNG:
Right.
But that --
and I'm asking 5
for a citation to the record so that we could look at that.
6 MS. EUCHNER:
Your Honors, I don't believe that 7
the staff stipulated that it would only question Ms. Welch 8
as to Mr. Marquand's advice.
What the staff agreed to was 9
that, in lieu of calling Mr. Marquand at that point, we 10 would agree to accept Ms. Welch as a witness.
We also added 11 Ms. Welch to our witness list.
And being that she is on our 12 witness list, I believe the staff should be permitted to 13 question her as to all areas of her knowledge in the Fiser 14 case.
15 MR. SLATER:
Well, Your Honor, I disagree.
I 16 believe during that prehearing conference, specifically when 17 Mr. Marquand was going to be --
was named as a witness to 18 testify about the legal advice provided to Ms. Welch 19 concerning the 1994 settlement agreement.
And as a --
as a 20 to avoid that --
not to avoid, but to --
to resolve that 21 issue, it was agreed, I believe, that Ms. Welch would be 22 substituted as a witness to testify about that particular 23 advice.
And further, Your Honor, in --
in the supplemental 24 witness list, itself, it quote --
quote, "Welch --
Welch 25 worked in labor relations --
in the labor relations
Page 334 1
organization during the events relevant in this proceeding.
2 Welch can testify to legal advice provided by Brent 3
Marquand, related to whether or not the 1994 settlement 4
agreement between Fiser and TVA guaranteed Fiser a 5
position."
And that's the extent of it.
6 JUDGE YOUNG:
Before we go any further, can anyone 7
provide us to a citation to the record to what you're 8
talking about? Because that's what you're basing this on, 9
and I think we need to look at that.
10 MR. SLATER:
Well, I don't believe we have a copy 11 of the transcript.
12 JUDGE YOUNG:
I do.
Do you know what page that 13 was said on?
My highlighting, by the way, is merely for the 14 purpose of drafting an order, so don't draw any conclusions 15 from that.
16 MR. SLATER:
We're on Page 245 of this transcript.
17 It 's question from you.
It says, "Mr. Daniel, given what 18 you --
what you just heard from Mr. Marquand, what is your 19 argument at this point, and is there anything further that 20 you would want to ask Mr. Marquand? What would it be?"
Mr.
21 Daniel:
"Let me make two points, Your Honor.
First, as to 22 the advice on the 1994 settlement agreement, we'll take Ms.
23 Welch and her statement and we can put her on the witness 24 list and not worry about Mr. Marquand on that."
25 MS. EUCHNER:
Your Honor, I'd like to note that
Page 335 1
that doesn't state that we're going to limit her testimony 2
to that.
That says we were willing to accept her testimony 3
on that in lieu of Mr. Marquand's testimony.
4 JUDGE YOUNG:
Was she on your witness list before?
5 6
MS. EUCHNER:
Originally, no.
Because, quite 7
frankly, we would have preferred Mr. Marquand.
But the 8
questions that I'm asking right now, I can't ask her 9
questions about her review of the settlement agreement until 10 I know what her duties were and what she normally would do 11 when reviewing such things.
So that is what these questions 12 are going for, so that when I do get to asking her about the 13 Fiser matter, I can limit myself to questions that are 14 directly related to her duties.
15 JUDGE YOUNG:
What page were you reading from?
16 MR. SLATER:
245.
17 JUDGE YOUNG:
245.
And your question again?
18 MS. EUCHNER:
My question was:
When conducting 19 her fact-finding when she interviews employees, is this a 20 parallel investigation to what the TVA Office of the 21 Inspector General cndcts, or does she work in conjunction 22 with the Office of the Inspector General?
23 JUDGE YOUNG:
And your objection was that that 24 went beyond the advice of the '94 settlement agreement?
25 MR. SLATER:
That is correct, Your Honor.
That
Page 336 1
doesn't seem to be background information to me.
2 JUDGE YOUNG:
And your argument as to why you 3
should be permitted to ask her questions that go farther 4
than on the advice on the '94 settlement agreement?
5 MS. EUCHNER:
Well, I have two responses to that.
6 First, we never said that we would only question her on that 7
matter.
We put her on our witness list, specifically, so 8
that we could ask her other questions.
And related to the 9
OIG investigation, she was interviewed by a TVA OIG in the 10 1996 complaint.
And we're trying to get a sense of does she 11 work with the people that she was interviewed by; is she 12 familiar with the interviews that they have conducted when 13 she was doing her review of the Fiser settlement agreement; 14 was she familiar with all of the interviews that had been 15 done.
Matters such as that.
I don't intend to take this 16 very far, Your Honor.
I just want to know if she was 17 working in conjunction with OIG, or if OIG did one 18 investigation and she did another.
19 MR. SLATER:
Now, that's still --
that goes way 20 beyond simply what the --
the Office of General Counsel, 21 what advice did that office provide to Ms. Welch regarding 22 the 1994 settlement agreement.
23 JUDGE YOUNG:
Let me just ask you, Ms. Euchner.
24 In agreeing --
and maybe Mr. Dambly --
sorry, Euchner.
In 25 agreeing to take Ms. Welch as a substitute witness for Mr.
Page 337 1
Marquand, are you saying that --
that you should be able to 2
ask her questions that you would not have asked Mr.
3 Marquand, or are you saying that this is a question that you 4
would have asked Mr. Marquand?
5 MS. EUCHNER:
We would have asked him similar 6
questions related to his job, related to what he did 7
normally when he reviews DOL complaints.
So we would have 8
asked him parallel questions.
Obviously they're going to be 9
a little bit different because Ms. Welch is not an attorney 10 and Mr. Marquand is.
11 But, yes, we would have asked him what are his 12 duties, do his duties include, you know, fact-finding, 13 settlements, that sort of thing.
14 MR. DAMBLY:
Your Honor, if I could be heard on 15 this, also.
If you recall the preheating conference, the 16 board was very concerned with the issue of two attorneys 17 being called.
And to help the board out and help Mr.
18 Marquand out, because he had...
19 JUDGE YOUNG:
Well, not to help us out.
20 MR. DAMBLY:
...really put himself --
well, you 21 all seem to be very anxious not to have to make that ruling.
22 We agreed to take Ms. Welch, but I did not agree to take Ms.
23 Welch to just parrot whatever Marquand told her.
That's not 24 saving anybody anything.
25 JUDGE YOUNG:
Okay, but let...
Page 338 1
MR. DAMBLY:
We agreed to take her as a witness, 2
as a TVA person who is supposed to know about this, how they 3
got there and put Mr. Marquand's advice into the context of 4
their background and experience.
Not just say, 'Well, Brent 5
said 'X'."
If that's all we're going to do, then we would 6
have taken Brent.
7 JUDGE YOUNG:
Okay, let me make something real 8
clear from this point on.
At least from my point of view, 9
and Judge Cole and Judge Bechhoefer can --
can say their 10 point of view on it if they differ from me.
But I advise 11 all of you, do not do anything to do us a favor.
This is 12 your case, and you have a responsibility to represent your 13 clients.
And you should never agree to anything just to do 14 the judges a favor.
And we do not consider that you agree 15 to anything on that basis.
You agree to whatever you agree 16 to based on your best assessment of what is in the best 17 interest of your clients.
18 Now, with that said, it doesn't sound as though 19 this is going to go very far.
Do we need to discuss it 20 among ourselves?
Okay, go ahead.
21 CHAIRMAN BECHHOEFER:
The board will --
22 unanimously agrees to overrule the objection.
So...
23 MS. EUCHNER:
Thank you, Your Honors.
24 JUDGE YOUNG:
Well, I didn't state my opinion on 25 it.
Actually, I do think that we need to limit this
Page 339 1
somewhat in terms of the agreements that were made on these 2
issues, given that this appears to be a small foray into a 3
related matter, I'm not going to disagree with my 4
colleagues.
But, I do think that --
that we don't want to 5
just open the door to everything beyond what --
what was 6
discussed in our previous conference.
7 MS. EUCHNER:
I'll repeat the question for you, 8
Ms. Welch.
9 BY MS. EUCHNER:
10 Q
When you conducted your fact-finding into DOL 11 complaints, were you doing a parallel investigation to the 12 Office of Inspector General's investigation, or did you work 13 with the Office of Inspector General?
14 A
Actually, the two things are totally separate and 15 different.
What I did was a fact finding to gather some 16 facts so that management could make some initial decisions.
17 What the OIG did was something entirely separate from what I 18 was doing.
They did a full-blown investigation and issued 19 an investigative report.
And it was independent of anything 20 that I did, and much more comprehensive.
21 Q
When you work on DOL cases, is there a group at 22 TVA that's designated as the individuals who always work on 23 DOL issues?
24 A
At any given time, primarily, yes, there is.
25 Q
Okay.
Are there --
are the people who work on
Page 340 1
this, are they all in similar positions to you, like a labor 2
relations specialist, or are there people from other areas 3
involved?
4 A
I don't know that I understand what you mean.
5 Q
Do you work with all people from human resources, 6
all people from labor relations, all people from OGC, or is 7
it a combined effort when you're reviewing these DOL cases?
8 A
It would involve the people who were --
had a need 9
to know related to the specific case.
10 Q
Okay.
Typically, would "need-to-know" include the 11 managers who were involved in the case?
12 A
Perhaps.
13 Q
Okay.
When a DOL case is being litigated before 14 the Department of Labor, what are your duties during the 15 case?
16 A
At that point, the attorneys are handling the 17 case, and I might have provided documents for them or 18 something along those lines.
19 Q
Do you participate in the determination of what 20 TVA's position is going to be before the Department of 21 Labor?
22 A
I provide information.
23 Q
Well, what it would be --
right now I'm talking 24 hypothetically.
25 A
I provided the facts that were gathered, and
Page 341 1
information.
2 Q
Do you have any experience or training regarding 3
reading or analyzing contracts?
4 A
There are a lot of kinds of contracts.
5 Q
Specifically settlement agreements.
6 A
No formal training.
7 Q
Okay.
Do you have informal training?
8 A
I've had on-the-job training on interpretation of 9
agreements; yes.
10 Q
During June 1996, were you contacted by someone in 11 human resources regarding a 1994 settlement agreement 12 between TVA and Gary Fiser?
13 A
I'm not sure that I'm understanding the time frame 14 that we're talking about here.
15 MS. EUCHNER:
Your Honors, I'm going to approach 16 the witness with staff Exhibit 166.
17 JUDGE COLE:
1-6-6?
18 MS. EUCHNER:
1-6-6.
19 MR. SLATER:
Your Honor, I don't believe that Ms.
20 Euchner has --
you know, has brought out that Ms. Welch has 21 made an inconsistent statement so that...
22 COURT REPORTER:
Excuse me, if you could speak 23 just a little...
24 MR. SLATER:
Yes.
25 She is showing the witness the statement.
For
Page 342 1
what purpose, I don't know.
She hasn't indicated that --
2 whether she...
3 JUDGE YOUNG:
What's your purpose?
4 MS. EUCHNER:
The purpose is to refresh the 5
witness's recollection as to the time.
She's --
she did 6
indicate that she was not familiar with the time frame, and 7
I'm showing her this document to refresh her recollection.
8 JUDGE YOUNG:
Okay, thank you.
9 BY MS. EUCHNER:
10 Q
Who contacted you from human resources?
11 A
Ben Easley.
12 Q
Okay.
And what did he ask of you?
13 A
He asked me to review the settlement agreement to 14 determine if it entitled Mr. Fiser to any position at TVA.
15 Q
Did he specify what position they were talking 16 about, or did he just say in general review it?
17 A
To review the settlement agreement to see if it 18 entitled him to a position with TVA.
19 Q
Okay.
What did you do in response to Mr. Easley's 20 request?
21 A
In response to his request, I reviewed the 22 settlement agreement to determine if there was any words in 23 that agreement that would have guaranteed him a position for 24 any length of time at TVA.
25 Q
Did you look at any other related documents, other
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 343 than the settlement agreement?
A I don't recall looking at other documents.
Q Did you contact anyone to find out the history of the 1993 DOL case that led to the settlement agreement?
A I contacted the Office of the General Counsel attorney, Brent Marquand, to ask him if I was interpreting the settlement agreement correctly based on the question that was asked of me.
Q Did you have any involvement in drafting or negotiating of the settlement agreement which Mr. Easley requested you to review?
A No, I did not.
Q Did you review any other documents when you conducted this review of the settlement agreement?
A I don't recall reviewing any others.
MS. EUCHNER:
Your Honor, I'm approaching the witness with Joint Exhibit 34.
(Brief pause.)
BY MS. EUCHNER:
Q Ms. Welch, do you recognize this document?
A Yes, I do.
Q Would you please identify it?
A It is a Memorandum of Understanding and Agreement between TVA and Mr. Gary Fiser.
Q Is this a settlement agreement that you reviewed?
Page 344 1
A Yes, it is.
2 Q
After reviewing this settlement agreement, what 3
was your conclusion?
4 A
My conclusion was that Mr. Fiser was not entitled 5
to any continued --
let me say he was not guaranteed a job 6
with TVA, by virtue of this settlement agreement, forever.
7 Q
What language in the settlement agreement led you 8
to that conclusion? And if you need a moment to review it, 9
take your time.
10 A
Okay.
11 (The witness reviews the document.)
12 A
On page number 2, item number 1 stated that Mr.
13 Fiser was going to be placed in a position and that that was 14 going to be retroactive.
Mr. Fiser --
and there as no other 15 language in this settlement agreement that I could find that 16 went on to say anything about the length of time that he 17 would stay in that position, the length of time that he 18 would stay with TVA or anything of that nature.
19 Q
So essentially the language of the settlement 20 agreement is silent as to the question that Mr. Easley asked 21 you.
22 A
Yes.
23 JUDGE YOUNG:
Does this have a specific date?
Is 24 the 3/24/94 the date of the actual agreement or is that just 25 some --
Page 345 1
MS. EUCHNER:
I believe the date of the agreement 2
is on the second line of the agreement, the 5th day of 3
April.
4 JUDGE YOUNG:
Okay, thank you.
5 BY MS. EUCHNER:
6 Q
Would it be a reasonable interpretation of the 7
language of this settlement agreement that Gary Fiser was 8
entitled to the chemistry position so long as it was in 9
existence and he didn't do something such as, you know, 10 commit misconduct to result in getting him fired?
That so 11 long as this position existed, that it was his position?
12 A
State that question again, please.
13 Q
So long as this position was in existence at TVA, 14 was Mr. Fiser entitled to it, barring some misconduct or 15 something else that would result in him being removed from 16 TVA?
17 A
I don't think there's anybody at TVA that has a 18 guarantee that they'll have a position for any length of 19 time.
20 Q
That's not what I asked, Ms. Welch.
I asked if 21 the position existed, whether he would be able to stay in 22 it.
So that if from 1994 to 1996, it was the same position 23 and that position still existed, would he still be entitled 24 to it?
25 A
And your question is?
Page 346 1
Q Is there anything in the settlement agreement that 2
says that he's not entitled to the position if it still 3
exists?
4 A
No, there's nothing in the settlement agreement.
5 Q
In reaching your conclusion, did you consider 6
anything other than just the language in the settlement 7
agreement?
8 A
The only other fact that I can recall that I was 9
aware of at this time, was that Mr. Fiser was not in the 10 position that's stated in the settlement agreement at the 11 time I was asked to look at this.
He was in another 12 position.
13 Q
Okay, who told you that?
14 A
Mr. Easley.
15 Q
Did you accept what Mr. Easley told you at face 16 value or did you conduct an examination to determine if he 17 was in fact not in the same position?
18 A
I either accepted what he told me or I looked up 19 the information on the human resource system.
20 JUDGE YOUNG:
Human resource system?
21 THE WITNESS:
Yes, ma'am.
22 BY MS. EUCHNER:
23 Q
Did you review any of Mr. Fiser's position 24 descriptions?
25 A
I don't recall reviewing them.
Page 347 1
Q In making a determination as to whether Mr. Fiser 2
was guaranteed a position, would it have changed your 3
conclusion if Mr. Easley had told you he was still in the 4
same position?
5 A
I can't see where it would, no.
6 Q
Are you familiar with TVA's selection policies?
7 MR. SLATER:
Objection, Your Honor, she's going 8
way beyond the advice that the Office of General Counsel 9
provided with respect to the settlement agreement.
10 MS. EUCHNER:
Your Honor, I'm trying to understand 11 what she reviewed, whether she just reviewed the settlement 12 agreement or whether she actually conducted a review to 13 determine whether what HR told her was in fact true.
14 MR. SLATER:
Your Honor, I think Ms. Welch has 15 already answered that question.
I think still this is a 16 continuation of the fishing expedition, Your Honor.
If 17 staff wanted to get at this type of information, they knew 18 about Ms. Welch and they could have taken her deposition.
I 19 still think this is going well beyond the agreement to 20 resolve the issue in the fifth prehearing conference.
21 MS. EUCHNER:
Your Honor, if Mr. Marquand had been 22 called to the stand, I would have asked him the same 23 questions.
24 JUDGE YOUNG:
What Ms. Welch relied on?
25 MS. EUCHNER:
No, I would have asked him obviously
Page 348 1
what he relied upon, instead of what Ms. Welch relied upon.
2 And according to the statement that we do have from Ms.
3 Welch, she conducted her own review and then went to Mr.
4 Marquand.
What I'd like to do is find out what her review 5
was, what she based it on, whether she reviewed any 6
selection policies to determine whether her conclusion was 7
in accordance with the selection policies.
8 MR. SLATER:
Your Honor, I still think the 9
question has been asked and answered.
10 JUDGE YOUNG:
I think we are going a little bit 11 far afield.
Do you have any further argument you want to 12 make?
13 MS. EUCHNER:
I can go ahead and move on, Your 14 Honors.
15 BY MS. EUCHNER:
16 Q
In reviewing this settlement agreement, is it your 17 position that under the terms of the agreement, TVA could 18 have eliminated this chemistry position given to Mr. Fiser 19 one week later and Mr. Fiser would have no recourse because 20 it didn't specifically guarantee him the position for any 21 length of time?
22 A
Based on what I read in the settlement agreement, 23 Mr. Fiser was to be placed in a position.
That was to be 24 made retroactive and that was done.
I can't speculate about 25 what may or may not have occurred.
I reviewed the
Page 349 1
settlement for what TVA agreed to do and that was the extent 2
of my review.
3 Q
After you reviewed it, what action did you take 4
then?
5 A
After I reviewed it and spoke with Mr. Marquand, I 6
responded back to Mr. Easley.
7 Q
I'd like to go back to your conversations with Mr.
8 Marquand.
Specifically what did you ask Mr. Marquand when 9
you called him?
10 A
Whether or not this settlement agreement 11 guaranteed Mr. Fiser a position.
12 Q
Okay.
Did Mr. Marquand give you a response 13 immediately or did he get back to you?
14 A
I don't recall. I know that he himself reviewed 15 the settlement agreement.
Whether he pulled it while I held 16 on the phone or called me back, I don't recall.
17 Q
Do you know whether he reviewed anything other 18 than the settlement agreement?
19 A
No, I do not.
20 Q
Do you know whether Mr. Marquand was involved in 21 the negotiating and drafting of that settlement agreement?
22 A
I do not know if he was involved.
23 Q
Does Labor Relations normally ask an attorney who 24 did draft or negotiate a settlement agreement to also 25 interpret the same settlement agreement?
Page 350 1
A Not necessarily.
Attorneys change.
2 Q
Why did you call Mr. Marquand?
3 A
Because Mr. Marquand was the attorney in the 4
Office of General Counsel who had primary responsibility for 5
working on Department of Labor complaints.
6 Q
Do you know whether Mr. Marquand was the attorney 7
who represented TVA before the Department of Labor in Mr.
8 Fiser's 1993 DOL complaint?
9 A
I don't know.
10 Q
What did Mr. Marquand tell you after completing 11 his review of the settlement agreement?
12 A
That the settlement agreement didn't guarantee a 13 position forever for Mr. Fiser.
14 Q
Did he make any recommendation as to what you 15 should tell Human Resources?
16 A
Just that.
17 Q
Did he recommend that you tell TVA Human Resources 18 that they could go ahead and post the position?
19 A
I don't recall him saying that.
20 Q
Did he explain his rationale for why the 21 settlement agreement didn't guarantee Mr., Fiser a position?
22 A
Because the agreement was silent, there was 23 nothing in the agreement that provided for that.
24 Q
Did he ever tell you that Mr. Fiser had abandoned 25 the position that he got in the settlement agreement when he
Page 351 1
competed for and was selected for the chemistry and 2
environmental program manager position?
3 A
As I recall, Mr. Easley told me that.
4 Q
After you spoke to Mr. Marquand, what did you do?
5 A
I responded back to Mr. Easley on the question 6
that he posed about the settlement agreement.
7 Q
Did you advise that HR could go ahead and post the 8
chemistry position that was in question?
9 A
That wasn't what I was asked to do, I was just 10 asked to interpret the settlement agreement.
11 Q
If you or Mr. Marquand had advised Human Resources 12 that the settlement agreement did guarantee Mr. Fiser the 13 chemistry position, would Human Resources have posted the 14 position?
15 MR. SLATER:
Objection, calls for speculation, 16 Your Honor.
17 JUDGE YOUNG:
Do you know what the normal course 18 of action is?
Is there any general procedure such that you 19 would know the answer to that question?
20 THE WITNESS:
Your Honor, there are 21 determinations that a human resource person can make on 22 whether or not a position is posted.
I am not an expert in 23 that area of classification and competitive levels, et 24 cetera. So in speculation, given the question that was asked 25 of me on the settlement agreement, was asked because they
Page 352 1
were trying to make a determination on whether or not they 2
were going to go forward with what they believed to be the 3
thing to do, and that is to post the job, then I would think 4
they would go ahead and post the job, because the settlement 5
agreement was not posing a barrier, as Mr. Fiser was 6
alleging.
7 BY MS. EUCHNER:
8 Q
Ms. Welch, I believe that I asked you earlier and 9
you said that you were not involved in the 1993 Fiser DOL 10 complaint, is that correct?
11 A
Yes.
12 Q
Do you know why Mr. Easley then called you to 13 review the settlement agreement?
14 A
Because I was in the federal appeals position at 15 the time.
16 MS. EUCHNER:
Your Honor, I have nothing further 17 of this witness.
18 CHAIRMAN BECHHOEFER:
Before you start your cross 19 examination, just for my own education, when a person is 20 placed in a position, is not that position --
assuming it's 21 a permanent position as distinguished from a two week or two 22 year or whatever limited appointment --
isn't there a 23 presumption that a person will stay in that position for as 24 long as it exists --
or may stay.
Not saying that he will 25 or won't, but may stay, may occupy that position as long as
Page 353 1
the position continues?
2 THE WITNESS:
Your Honor, they could stay in a 3
position as long as the position existed, or they could, of 4
their own choosing, move on to another position.
5 CHAIRMAN BECHHOEFER:
Correct. But there's no 6
limitation on the position description, if you will, which 7
says that after a certain amount of time a person can be 8
transferred without his consent, is there --
or is there?
9 THE WITNESS:
No, but positions change over time 10 and the way that the work is performed changes over time, 11 which could result in a position description changing, and 12 therefore, a determination then is made if people move with 13 the position or if the position is then posted for 14 competitive bid.
15 CHAIRMAN BECHHOEFER:
I see. Does TVA have 16 temporary limited position descriptions, X position will be 17 a two year position or a one year position or whatever?
18 Does it use that type of system at all?
19 THE WITNESS:
No, Your Honor.
20 CHAIRMAN BECHHOEFER:
Okay, thank you.
21 JUDGE YOUNG:
I had a question I wanted to clarify 22 about your earlier testimony also.
Did I understand you 23 correctly that in effect you based your questions to Mr.
24 Marquand and your general understanding of the situation on 25 the settlement agreement, and I think you also said your
Page 354 1
knowledge that Mr. Fiser was at that time in a different 2
position than the position described in the settlement 3
agreement --
did I understand that right?
4 THE WITNESS:
Yes, Your Honor.
5 JUDGE YOUNG:
Okay, I just wanted to clarify that.
6 Mr. Slater, go ahead.
7 MR. SLATER:
Thank you, Your Honor.
8 CROSS EXAMINATION 9
BY MR. SLATER:
10 Q
Ms. Welch, I just want to get the time sequence 11 down.
Could you take a look at Joint Exhibit 34 that Ms.
12 Euchner asked you to look at earlier?
It's the settlement 13 agreement.
14 What is the date of that settlement agreement?
15 A
The date of the settlement agreement is April 5 of 16 1994.
17 Q
And when Mr. Easley came to you concerning whether 18 or not --
came to you with respect to Mr. Fiser's complaint, 19 when was that?
20 A
That was in June of 1996.
21 Q
That was a couple of years later, is that correct?
22 A
Yes.
23 Q
Now I believe you testified that TVA did what it 24 was supposed to have done under this agreement, is that 25 correct?
Page 355 1
A Yes, it is.
2 Q
If we could turn to page 2 of Joint Exhibit 34 and 3
in paragraph that's numbered number 1, what was TVA supposed 4
to do with respect to placing Mr. Fiser in a job?
5 A
TVA was to select Mr. Fiser for the position of 6
program manager, technical support and make his salary, 7
$76,027.68 retroactive to October 4 of 1993.
8 Q
Now did TVA do that?
9 A
Yes.
10 Q
Now at some point in time after TVA placed Mr.
11 Fiser in the program manager position in technical support, 12 did Mr. Fiser bid on a new job?
13 A
Yes, he did.
14 Q
And was Mr. Fiser selected for a new job?
15 A
Yes, he was.
16 Q
So at the time that Mr. Easley came to you, Mr.
17 Fiser was not in the job that TVA placed him in under the 18 settlement agreement, is that correct?
19 A
That's correct.
20 MR. SLATER:
Your Honor, we move that Joint 21 Exhibit 34 be admitted.
22 MR. DAMBLY:
No objection.
23 CHAIRMAN BECHHOEFER:
Without objection, Joint 24 Exhibit 34 will be admitted.
25 (The document referred to was
Page 356 marked as Joint Exhibit Number 34 2
and received in evidence.)
3 BY MR. SLATER:
4 Q
Now I believe on direct you said that Mr. Easley 5
came to you because Mr. Fiser had indicated that he thought 6
he was entitled to this job under Joint Exhibit 34, is that 7
correct?
8 A
Yes.
9 Q
And in response to Mr. Easley's concern, you 10 reviewed the settlement agreement, is that correct?
11 A
Yes, that's correct.
12 Q
And your review of that settlement agreement --
13 after reviewing that settlement agreement rather, you came 14 to the conclusion that Mr. Fiser was not entitled to the job 15 that HR was seeking to post, is that correct?
16 A
That's correct.
17 Q
Was not entitled to it under the agreement.
18 A
Under the agreement, that's right.
19 Q
Was it your understanding at the time Mr. Easley 20 came to you that HR had already made a decision to post the 21 position, but wanted to check to make sure that the 22 settlement agreement did not --
as you put it, was not an 23 obstacle or barrier to that posting.
24 A
That's correct.
25 Q
And your review --
or pursuant to your review, you
Page 357 1
came to the conclusion that this agreement did not contain 2
words that TVA owed the job that HR was thinking about 3
posting --
owed him that particular job.
4 A
That's correct.
5 Q
And that job was different from the job that was 6
given to him in 1994.
7 MS. EUCHNER:
Your Honor, I'm going to object to 8
that question, the witness said on direct that she didn't 9
have any direct knowledge of that and that she only went on 10 what Mr. Easley told her.
11 JUDGE YOUNG:
I think that's correct.
Is that 12 correct --
your recollection of what you said earlier?
13 THE WITNESS:
Yes, Your Honor.
14 BY MR. SLATER:
15 Q
So Mr. Easley told you that it was another job.
16 A
Yes.
17 Q
And --
strike that.
Once you had completed your 18 review and came to the conclusion that the settlement 19 agreement did not entitle Mr. Fiser to this job in 1996, 20 then you contacted the Office of General Counsel, is that 21 correct?
22 A
Yes, it is.
23 Q
And could you tell us why did you contact the 24 Office of General Counsel?
25 A
Because they are our legal advisors and they're
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 358 involved in the settlement agreements that we use and I wanted to ensure that the interpretation that I was --
or the conclusions that I was reaching in my review of the settlement agreement was consistent with what the Office of the General Counsel would think.
Q Now after consulting with the Office of General Counsel, what advice was given to you?
A That there was no guarantee of a position for any length of time under this agreement.
JUDGE YOUNG:
Did you say the position or a position?
Just what did you say, I didn't catch it.
THE WITNESS:
I'm sorry, I said that there was no guarantee of a position under the settlement agreement.
JUDGE YOUNG:
A position.
THE WITNESS:
Yes.
BY MR. SLATER:
Q And after getting the advice from the Office of General Counsel, what did you do?
A I let Mr. Easley know.
Q What did you let Mr. Easley know?
A I let him know that there was no guarantee under this settlement agreement for Mr. Fiser to have a position.
Q I want to back up just a little bit.
When you spoke to Mr. Easley, did he lead you to believe or lead you to understand that the new job that HR sought to post was a
Page 359 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different job than he was currently occupying?
A Yes.
MR. SLATER:
Thank you.
JUDGE YOUNG:
Anything further?
REDIRECT EXAMINATION BY ME. EUCHNER:
Q At the time that Mr. Easley called you and asked you to review the settlement agreement, did he also inform you that Mr. Fiser was threatening to file another Department of Labor complaint?
A Yes, he did.
Q Did you make your determination that the settlement agreement didn't guarantee Mr. Fiser a position before or after Mr. Fiser filed his Department of Labor complaint?
A His complaint came later as I recall.
Q Were you involved in the 1996 DOL complaint?
A Very, very briefly.
JUDGE YOUNG:
Judge Bechhoefer.
CHAIRMAN BECHHOEFER:
I couldn't hear your last answer.
THE WITNESS:
I'm sorry.
What was the question again?
MS. EUCHNER:
I believe the question was did you determination that the settlement agreement didn't make your
Page 360 1
guarantee the position before or after Mr. Fiser filed his 2
1996 DOL complaint.
3 THE WITNESS:
This decision was made before then.
4 BY MS. EUCHNER:
5 Q
You said that Mr. Easley told you that Mr. Fiser 6
was in a different position and that they were seeking to 7
post a new position, is that correct?
8 A
Yes.
9 Q
Do you know for a fact whether Mr. Fiser's 10 position had in fact changed?
11 A
He was not holding the job title at that time that 12 is reflected here in the settlement agreement.
13 Q
Did you review the job functions of the job title 14 in the settlement agreement and the job title of his current 15 position to determine if it was in fact a different position 16 or did you rely solely on the titles of the positions being 17 different?
18 A
I relied upon the titles being different.
19 Q
If the position that HR was seeking to post and 20 Mr. Fiser's positions were the same as opposed to different 21 positions, would that have changed your advice?
22 A
If the --
ask the question again, please.
23 Q
If the position that HR was seeking to post was 24 the same position that Mr. Fiser was currently holding, 25 would your advice on the settlement agreement have changed?
Page 361 1
A My advice on the settlement agreement would have 2
stayed the same.
3 JUDGE YOUNG:
If Mr. Fiser was in the same 4
position described in the settlement agreement, would you 5
have advised them that they could still post that position?
6 If Mr. Fiser were in the same position.
I think that's what 7
she's asked.
8 MS. EUCHNER:
That is, Your Honor.
9 THE WITNESS:
Can you ask the question again, 10 please?
11 BY MS. EUCHNER:
12 Q
If the position that Human Resources was seeking 13 to post was the same position that Mr. Fiser had been given 14 in the settlement agreement and it was the same position he 15 was currently holding, would you have advised Human 16 Resources that they could post the position or that the 17 settlement agreement didn't guarantee?
18 MR. SLATER:
Your Honor, that's the sixth time 19 she's asked that question and in fact it's a compound 20 question.
I believe Ms. Welch's role in this matter was to 21 advise whether or not there was a guarantee under the 22 settlement agreement to continued employment, not whether or 23 not to post the job.
That was an HR matter.
24 THE WITNESS:
Right.
25 MS. EUCHNER:
Your Honors, that's not the question
Page 362 1
that I'm asking her.
What I'm asking her is she said she 2
made this interpretation after Mr. Easley told her they were 3
going to post a different position, and I'm asking her would 4
her determination have changed if she knew that it was the 5
same position that Mr. Fiser had been granted in the 6
settlement agreement, that they were seeking to post. I'm 7
asking if that fact would have changed your interpretation 8
of the settlement agreement.
9 JUDGE YOUNG:
Ms. Welch testified that --
and 10 that's what I clarified before --
that she based her 11 understanding and advice and so forth on the settlement 12 agreement and her knowledge that Mr. Fiser was in a 13 different job than that stated in the settlement agreement.
14 So on that basis, I think the question is appropriate.
Go 15 ahead.
16 BY MS. EUCHNER:
17 Q
Would the fact that the position was the same as 18 the position granted in the settlement agreement have 19 changed your interpretation of the settlement agreement?
20 A
So you're asking me if --
21 JUDGE YOUNG:
Let me see if I can clarify.
My 22 understanding of your testimony earlier was that Mr. Easley 23 came to you about a new job.
Mr. Fiser had raised a 24 problem, you looked at the settlement agreement, you were 25 aware that Mr. Fiser was at that time in a different job --
Page 363 1
THE WITNESS:
Yes, Your Honor.
2 JUDGE YOUNG:
and her question is if you had 3
not been aware that Mr. Fiser was in a different job and in 4
fact he was in the same job described in the settlement 5
agreement, which was --
and that that same job was also 6
being posted --
as I understood the question --
what would 7
you have advised Mr. Easley in that circumstance?
8 THE WITNESS:
In that circumstance, I would have 9
advised him not to post the position.
10 MS. EUCHNER:
Thank you, Your Honor.
11 CHAIRMAN BECHHOEFER:
I have one follow up 12 question perhaps.
If the position that Mr. Fiser was 13 occupying had the same duties as the position named in the 14 settlement agreement but a different title, what would your 15 response have been then.
If they changed the title but not 16 the substance of the duties of the position.
17 THE WITNESS:
So if the position was the same?
18 CHAIRMAN BECHHOEFER:
With a different title.
19 THE WITNESS:
With a different title.
20 CHAIRMAN BECHHOEFER:
Yes, would you have then 21 advised them to post or not to post?
22 THE WITNESS:
Yes, Your Honor.
If the position 23 was the same and the only difference was the title?
24 CHAIRMAN BECHHOEFER:
Yes.
25 THE WITNESS:
Then I would have advised them not
Page 364 1
to post.
2 CHAIRMAN BECHHOEFER:
Not to post.
3 THE WITNESS:
Not to post.
4 CHAIRMAN BECHHOEFER:
Okay.
5 MR. SLATER:
No further questions.
6 CHAIRMAN BECHHOEFER:
Thank you.
7 (Witness excused.)
8 CHAIRMAN BECHHOEFER:
Before we go off, Mr.
9 Dambly, do you intent to introduce Staff Exhibit 166, to 10 which you referred?
11 MS. EUCHNER:
Oh, no, Your Honor, I was not going 12 to introduce it into evidence, I was merely using it to 13 refresh the witness' recollection.
14 CHAIRMAN BECHHOEFER:
Okay.
We'll take a ten 15 minute break.
16 (A short recess was taken.)
17 CHAIRMAN BECHHOEFER:
Back on the record.
18 MR. DAMBLY:
At this time, the staff wishes to 19 call Thomas McGrath.
20 Whereupon, 21 THOMAS MCGRATH 22 appeared as a witness herein and, having been first duly 23 sworn, was examined and testified as follows:
24 DIRECT EXAMINATION 25 BY MR. DAMBLY:
Page 365 1
Q Mr. McGrath, where are you presently employed?
2 A
Tennessee Valley Authority.
3 Q
In what position?
4 A
I'm the Senior Project Manager for System 5
Integration and Optimization.
6 Q
Okay.
7 JUDGE YOUNG:
Say that again?
8 THE WITNESS:
The Senior Project Manager for 9 ;System Integration and Optimization.
10 BY MR. DAMBLY:
11 Q
What's your educational background?
12 A
I have a bachelor's degree in chemical engineering 13 and I'm also a graduate of the Atomic Energy Commission's 14 Bettis Reactor Engineering School.
15 Q
When did you get your B.S. in chemical 16 engineering?
17 A
1968.
18 Q
From where?
19 A
University of Notre Dame.
20 Q
Notre Dame. And when did you go to the Bettis 21 Reactor School?
22 A
1969.
23 JUDGE YOUNG:
Give us that name again, Atomic --
24 THE WITNESS:
Well, the Atomic Energy Commission 25 ran what's called the Bettis Reactor Engineering School.
It
Page 366 1
was a school for the staff of the Naval Reactors Division of 2
the AEC.
3 BY MR. DAMBLY:
4 Q
And at the time you went to Bettis, were you in 5
the Navy?
6 A
Yes, I was.
7 Q
When did you join the Navy?
8 A
Immediately on getting out of college, I had been 9
in college in ROTC.
10 Q
Okay.
And following your attendance at Bettis, do 11 you have any further formal education?
12 A
I took several graduate classes in chemical 13 engineering at Catholic University, but did not get a 14 degree.
15 Q
What was the first job you had after getting out 16 of Bettis?
17 A
In Naval Reactors, I was assigned to what was 18 called the Primary Components Division, I worked on 19 equipment for Naval nuclear reactor plants such as heat 20 exchangers and filters and ion exchangers.
21 Q
And how long were you in that position?
22 A
I worked for Naval Reactors a total of about 16-23 1/2 years, that particular job I was probably in for a year 24 or two, I don't remember exactly.
25 Q
And that was Naval Reactors under Admiral
Page 367 1
Rickover?
2 A
Yes, it was.
3 Q
Did you ever work on Admiral Rickover's staff?
4 A
Well, the entire group was called Admiral 5
Rickover's staff, I was a direct report to Admiral Rickover 6
from about 1978 to 1982.
7 Q
And what was your function as a direct report to 8
Admiral Rickover?
9 A
I was the head of the Naval Reactors field office 10 in Bremerton, Washington.
11 Q
When you left the Navy I guess after 16-1/2 years?
12 A
That's when I left the Naval Reactors program, I 13 was only on active duty in the Navy the first five years, 14 after that I was in civilian job working first for the Navy 15 and then I believe when I switched over, it had evolved into 16 ERDA rather than the AEC at the time.
17 Q
When you worked on Admiral Rickover's staff, were 18 you --
formally in the Naval military or were you in civil 19 service?
20 A
I was only in the formal military the first five 21 years I was there.
22 Q
When you were on Admiral Rickover's staff, how 23 many civilians did you supervise or manage?
24 A
I'm not sure --
I might have at various times had 25 one, the biggest office I had, while it was like 17 people,
Page 368 1
there were two civilian secretaries, the rest were active 2
duty military.
3 Q
Did you ever conduct any reductions in force while 4
you were in the Naval civil service?
5 A
No, I did not.
6 Q
Following your Naval career and Naval civilian 7
career, where did you go next?
8 A
I went to work for Lockheed Shipbuilding in 9
Seattle, I was there from 1984 to 1987.
10 Q
This was a civilian position or civil service 11 position?
12 A
No, you asked when I left the Navy program.
13 Q
Right.
14 A
I went to work for Lockheed Shipbuilding, a 15 private company, from '84 to '87.
16 Q
Work on government contracts?
17 A
Yes, primarily so.
18 Q
What was your responsibilities at Lockheed?
19 A
I was originally the director of quality 20 assurance.
After nine months to a year, I guess about nine 21 months, I was promoted to the director of the LSD program, 22 LSDs are large amphibious ships that were being built for 23 the Navy and I was subsequently promoted to the director of 24 program management, and all the program directors for the 25 various different product lines we had worked for me.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 Page 369 Q
Now was your work at Lockheed --
did it involve nuclear materials, nuclear reactor powered ships?
A There was no nuclear work.
Q Okay. Following Lockheed, what was your next position?
A In May of 1987, I went to work for TVA.
Q As what?
A After a couple of months of orientation, I was assigned to Watts Bar where my initial position was the manager of projects.
Q Manager of projects?
A Yes.
Q All projects or a specific area, or what?
A Watts Bar at the time was under construction, it wasn't directly responsible for the overall construction project, but there were various smaller capital projects, upgrades which had been put in place and the project managers for those worked for me.
Q Okay, and how did you obtain your job at TVA, your first job?
Did you respond to a nationwide --
A No, I had decided to leave Lockheed.
In making some contacts in looking for other jobs, one day I got a call from TVA who had heard from someone else who I had talked to that I was looking for a job and I got a call from someone who was on the head of nuclear power's staff at the 20 21 22 23 24 25
Page 370 1
time and asked me if I wanted to come in for an interview.
2Q And who was the head of nuclear power at the time?
3 A
Admiral Stephen White.
4 Q
Had you worked with Admiral White during your 5
Naval career?
6 A
I met him once, but I can't really say I worked 7
with him.
8 Q
In obtaining your first position at TVA, was there 9
a formal competition, to the best of your knowledge?
10 A
I don't know what the process was.
I did have to 11 go through a number of interviews.
TVA was hiring a large 12 number of people at that time.
13 Q
And how long were you the manager of projects at 14 Watts Bar?
15 A
Probably for only about six months after I was 16 assigned as the --
I moved into an acting position as the 17 maintenance superintendent at Watts Bar.
18 Q
That's still in '87, or '88?
19 A
It would have been either late '87 or early '88, 20 I'm not sure.
21 Q
During your tenure as manager of projects, were 22 there any reductions in force that your were responsible 23 for?
24 A
No.
25 Q
Were you responsible for removing anyone for
Page 371 1
misconduct, taking adverse actions?
2 A
Not at TVA, no.
3 Q
Now what were your duties as acting maintenance 4
supervisor and how long were you in that position?
5 A
I was the maintenance --
the acting maintenance 6
superintendent until sometime in 1989, I don't remember 7
exactly what the months were, and I ran the maintenance 8
department in the plant manager's organization.
9 Q
And again during that period, there were no 10 reductions in force or downsizing going on?
11 A
The only reduction --
we had a --
I'm not sure of 12 the exact size of the work force, but a number of them were 13 hourly workers as opposed to annual --
hourly trades and 14 labor vice annual trades and labor and within the nuclear 15 program, they had made a decision to eliminate all the 16 hourly trades and labor.
That was done during the period I 17 was there.
My recollection is that was all taken care of 18 out of corporate, I really had nothing to do directly with 19 it.
20 Q
When you joined TVA --
all the positions you've 21 held in TVA --
we'll get them --
you were in a management 22 position, is that correct?
23 A
That's correct.
24 Q
During that first I think you said two months of 25 orientation, were you given any management training related
Page 372 1
to personnel issues?
2 A
Somewhere within my first year or so, I remember 3
going to a class where I had this huge binder, supervisor's 4
notebook, of items, I don't know for sure if it was in the 5
first two months or not, but --
6 Q
And what subjects were covered there?
7 A
I no longer recall, that was 14-15 years ago.
8 Q
I don't blame you.
I'm having trouble with 14-15 9
minutes ago.
10 Do you recall ever receiving any training on 10 11 CER 50.7, employment discrimination or Section 211 of the 12 Energy Reorg Act of DOL cases?
13 A
I know that I was very familiar with those 14 requirements because of the --
TVA has policies on nuclear 15 safety and on --
actually the procedures, the rights of 16 employees to take differing positions to resolve problems 17 and I was very familiar with those.
I do not recall whether 18 I specifically took a class on it, but I was familiar.
19 Q
Okay.
And I'm not sure, did I ask you how did you 20 become acting maintenance supervisor, was it just a transfer 21 or was there a competition?
22 A
There was not a competition.
I believe the 23 maintenance superintendent may have been on loan to one of 24 the other plants at the time.
25 Q
And how long were you in that position?
Page 373 1
A It was between six months and a year, but I don't 2
remember exactly.
3 Q
And where did you go next?
4 A
And also during that period of time, I got a 5
series of assignments where I was assigned to the 6
operational readiness review teams at the restart for 7
Sequoyah and subsequently in later years for Browns Ferry 8
and Watts Bar's startup.
But in those first couple of 9
years, I probably spent close to half my time working on 10 those teams.
But my next assignment after Watts Bar is I 11 was transferred downtown to take a position as a corporate 12 outage manager in the corporate maintenance organization.
13 Q
Do you recall when that was?
14 A
Either in the second --
probably second half of 15 1988, maybe early 1989.
16 Q
And the operational readiness teams you were 17 working on, that as in parallel with when you were the 18 acting maintenance supervisor?
19 A
Yes, in fact, I started it while I was still the 20 manager of projects.
21 Q
Oh.
And when you went to the corporate outage 22 management position, was that a permanent job or were you 23 acting in that job?
24 A
I think it was a permanent job.
25 Q
Do you recall how you got that one?
Page 374 1
A I know I was transferred to it --
at the 2
particular pay level I was at then, the different --
putting 3
people into those --
selections for those positions were a 4
process that eventually sent the paperwork up to the board 5
that frequently took --
the Board of Directors of TVA and so 6
the paperwork to get in a position sometimes would not get 7
done until months after you were actually in it.
8 Q
You say you were placed in the corporate outage 9
manager's position and sometime later the TVA Board of 10 Directors approved that?
11 A
Yes.
12 Q
And again, was there, to your knowledge, a formal 13 competition or someone decided --
14 A
I was not aware of a formal competition.
15 Q
What were your duties as corporate outage manager?
16 A
The primary duties I was assigned initially was to 17 assist Sequoyah in the planning for the first outage that 18 they would have after they had restarted their first unit.
19 It was 1988 we restarted the first unit I think, and to 20 assist them in planning the refueling outage for that unit.
21 Q
During your time in corporate outage management, 22 did you --
were your responsible for any reductions in 23 force?
24 A
No, I was not.
25 Q
Any downsizing efforts?
Page 375 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A
No.
Q Any adverse actions?
A No.
Q And where did you go from corporate outage management?
A From corporate outage management, my supervisor was at that time a contractor, he left TVA.
For a short while I was made acting corporate maintenance manager after this contractor left.
Q How short a time?
A I don't --
I think it was less than six months, I don't remember exactly though.
Q And there were no reductions in force in that --
A No.
Q What did you do after that at TVA?
A I became the manager of the staff for the chief nuclear officer.
Q And who was the CNO at that point?
A Oliver Kingsley.
Q Do you remember what year we're talking about now?
A I started that --
I believe I started that somewhere around mid-1989.
Q And was there a competition for that?
A No.
Q How did you come to get the job?
Did they just
Page 376 1
call you up and say we want you to be in this position?
2 A
I really don't recall the mechanics of it.
I 3
suspect that Mr. Kingsley asked me if I wanted to take that 4
position.
5 Q
And how long did you work as the manager of the 6
staff for Mr. Kingsley?
7 A
That position --
it was probably for about two 8
years.
There was one change in late 1989, in addition to 9
those positions, I took over as the chairman of the nuclear 10 safety review board.
11 Q
Before we get to the NSRB, what were your 12 functions as manager of the staff for Mr. Kingsley?
13 A
It covered a variety of things, some were 14 preparing responses to the things that --
items that had to 15 come out of his office.
A lot of my time was spent 16 reviewing documents that came in for his signature or his 17 approval, to review and give him my recommendations on it.
18 There were various periodic reports that he had to make like 19 to the Board of Directors or something and my staff was 20 responsible for handling those.
21 Q
How big was the staff that you managed?
22 A
It was typically about three people.
23 Q
Three people.
And what functions did they do?
24 A
They all worked on the same kinds of things that I 25 did and within it we had a number of special projects that
Page 377 1
we'd get for short whiles and as I said I also continued in 2
that period to do things like operational readiness reviews.
3 Q
Mr. Kingsley's staff, did it have an HR person on 4
it, directly on his staff or --
5 A
He had a person who had an HR background, they 6
were not in the HR organization, and that person did not 7
work for me.
8 Q
Who was that?
9 A
Sue Wallace was the person's name.
10 Q
How many people who worked directly for Mr.
11 Kingsley didn't work for you?
12 A
Well, all of his vice president level individuals 13 all worked directly for him.
All of his regular line 14 management reported to him, such areas as engineering, 15 operations, the sites.
There was an HR manager for nuclear 16 who reported directly to him.
There was another vice 17 president over nuclear assurances, licensing managers, I 18 don't remember exactly how many there were.
19 Q
I'm sorry, I didn't --
you answered the question I 20 asked but I was speaking of on Mr. Kingsley I guess personal 21 staff.
You said you were the manager of his staff.
How 22 many other people, not in line organizations reporting up to 23 him, but just on his staff, worked for Mr. Kingsley but 24 weren't under your supervision?
25 A
I remember Sue Wallace who I had and who obviously
Page 378 1
was his administrative assistant, his secretary and I think 2
she may have had an assistant who worked with her.
That's 3
all that was on the staff.
4 Q
And during that time frame how long did you 5
continue on Mr. Kingsley's staff --
manager of his staff?
6 A
Until --
it was probably late 1990 sometime.
7 Q
Were there any reductions in force or downsizing 8
that occurred during the time that you were managing Mr.
9 Kingsley's staff?
10 A
No.
11 Q
Did you have any social relationship with Mr.
12 Kingsley?
13 A
Very little.
Over the years, he invited me to a 14 couple of his children's weddings.
15 Q
Y'all didn't regularly have dinner or go out and 16 have drinks or anything?
17 A
No.
18 Q
Okay, where did you go in late '90?
19 A
In late 1990, there was a reorganization.
We had 20 had one of the vice presidents who had left who was over 21 materials and contracts and finance also at the time, but 22 the materials and contracts group was temporarily assigned 23 to me while they sorted out how to handle the organization 24 and the loss of this vice president.
About 1990, there was 25 a reorganization which resulted in my becoming the general
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 379 manager of materials, contracts and administrative support and I reported to Mark Medford, he was a vice president, I'm not sure what his title was at that time.
I also continued as the NSRB chairman, with that hat on having a direct reporting relationship to Kingsley.
When that reorganization was made, the original intent was that I would just temporarily remain chairman --
Q Of the NSRB?
A of the NSRB, because of a plan of another position under Medford which covered some other areas, there was a hope to hire someone into that position who would also be qualified to be the NSRB chairman.
However, that never happened and I continued on as the NSRB chairman.
Q Okay.
Now who did --
when you were the general manager of materials, contracts and admin support, you reported to Medford, who did Medford report to?
A Kingsley.
Q But then in your NSRB position, you reported directly to Kingsley?
A That's correct.
Q And since we've been there, I guess it's time to clear up what that is.
What is the Nuclear Safety Review Board?
A The Nuclear Safety Review Board is a board that we are required to have by the Tech Specs for Sequoyah and
Page 380 1
Browns Ferry.
Later on I believe it got in the FSAR of 2
Watts Bar, but basically by regulation, we have to have this 3
board, which is to provide an independent safety oversight 4
of the operations at all of our operating nuclear plants.
5 Q
Okay.
And was there one board or more than one 6
board?
7 A
There actually were three separate boards.
One 8
for Browns Ferry, one for Sequoyah and one for Watts Bar.
9 However, as the chairman, I was actually chairman of all 10 three of them.
And through the years, there were a lot of 11 common members between the boards.
12 Q
Okay.
While we're on the NSRB subject, how long 13 did you remain chairman of the NSRB or the NSRBs, I guess 14 would be more appropriate?
15 A
Until 1997.
16 Q
What happened in '97?
17 A
In 1997, I actually became the vice chairman for 18 awhile.
As part of some reorganizations at the time, the 19 chairmanship was assigned --
I believe it was the vice 20 president of engineering and technical support took over as 21 the chairman of the NSRB.
22 Q
And who was that?
23 A
Jack Bailey.
24 Q
Bailey?
25 A
Bailey.
Page 381 1
Q Now how long did you stay in the position of 2
general manager in materials, contracts and admin support?
3 A
I'm not sure of the exact time on that because 4
there was --
some time within the next two years, there was 5
a small reorganization that had moved the materials function 6
out of nuclear to more central item in TVA and I picked up 7
the nuclear fuels organization at that time and so there was 8
a change in my title to like general manager of nuclear 9
assurance, but there wasn't a whole lot of change in what I 10 was doing.
11 I then continued to do that until 1995 at which my 12 job was just changed to NSRB chairman only as part of our 13 efforts to get better aligned with having five operating 14 plants as opposed to plants still in restart and 15 construction.
16 Q
So late '90 you became the general manager of 17 materials, contracts and admin support, sometime later that 18 changed a little bit and you became nuclear assurance 19 manager?
20 A
Nuclear support manager.
21 Q
Nuclear support manager.
And then in '95, you 22 formally became --
I mean your sole position at that point 23 was chairman of the NSRBs?
24 A
That's correct.
25 Q
And did you occupy any positions after 1995 other
Page 382 1
than the chairman of the NSRB?
2 A
In October of 1995, I was assigned as the acting 3
general manager of operation support.
I continued in that 4
acting position until some time in 1997, at which I was 5
assigned as a senior project manager to work on a special 6
project we were having related to potential tritium 7
production at one or more of our plants.
While I was in 8
that position, I started working in part of a company-wide 9
effort on business transformation and was assigned to a team 10 on asset optimization to which I eventually became the team 11 leader.
12 Q
When did that occur?
13 A
I started working on that team some time in 1998.
14 Q
And that led to the position you're in now?
15 A
That led to me being assigned to a developmental 16 position in the bulk power trading organization where I went 17 to in July of 1999.
I stayed there until September of 2001 18 when I moved into the position I'm in now.
19 Q
Now at what point did you move out of TVA Nuclear 20 and into the --
21 A
July of 1999.
22 Q
July of 1999.
Into the bulk power position?
23 A
Yes.
24 Q
Now I guess I forgot to ask, but back when you 25 were the general manager of materials, contracts and admin
Page 383 1
and then became the nuclear support manager or whatever, did 2
you conduct any reductions in force, were there any under 3
you at that time, any downsizing?
4 A
I know in a number of years as part of our budget 5
efforts, that there were reductions.
Most of the time, I 6
recall the reductions being achieved by not filling 7
vacancies. There might have been a reduction in force, one 8
or two persons here or there, I do not specifically recall 9
any, but there might have been.
10 In addition, there were some reorganization items, 11 such as the NSRB support staff, although I remained 12 chairman, was moved over and combined with another nuclear 13 review staff in order to eliminate duplication of functions.
14 I don't know if there was any reduction involved with that, 15 but it was done not in my organization, in another one.
16 Q
Now when you were the acting general manager of 17 operations support, were there any reductions done then?
18 A
Yes, there were as part of the reorganization done 19 in the spring and summer of 1996.
20 Q
Do you know if there were any reductions in force 21 then?
22 A
Well, I forget the terminology of it.
There were 23 people whose jobs were eliminated within operations support.
24 At that time, for an individual, if they were to have lost 25 their job as a result of reorganization, TVA had a program
Page 384 1
called the services organization I believe was the name of 2
it, and an individual who lost his position had a choice of 3
either going to that services organization, in which case 4
they kept a job, or they could take what I think was a 5
pretty generous package to leave the company.
6 I believe within the words --
and I'm not in Hr --
7 they were not formally RIF'd.
When you asked me before 8
about previous ones, we had previous other programs prior to 9
the services program so where people may have left some of 10 those other organizations, they probably went to a program 11 like that as opposed to actually being RIF'd by civil 12 service type terminology.
13 Q
Okay. Now during your tenure at TVA, have you ever 14 either terminated somebody for misconduct or recommended 15 somebody be terminated?
16 A
No, I've not.
17 Q
Now at the NSRB --
and how did you come to get 18 appointed chairman of the NSRB or NSRBs?
How did that come 19 about?
20 A
I was appointed chairman because (1) our NSRBs in 21 1989 were not functioning well, both internal reviews in 22
Because of my background, both in the Navy 24 nuclear program and in participating in these operational 25 readiness reviews at TVA, Mr. Kingsley considered me to be
Page 385 1
well qualified to run those boards.
2 Q
What are the duties or what were your duties and 3
responsibilities as chairman of the NSRB?
What's NSRB's 4
function?
5 A
Well, as I mentioned when you asked me this about 6
ten minutes ago, the NSRB is set up by the Tech Specs and 7
we're required to have the NSRBs.
Their primary function is 8
safety oversight at the operations of our plants.
Within 9
the Tech Spec there's a list of about a dozen items that 10 NSRB is required to review, items such as audit reports, 11 LERs that were sent to NRC, and the purpose of reviewing 12 those as really functional areas is to look for potential 13 safety problems.
And really, our focus was on trying to 14 look at precursors to safety problems, not wait until there 15 really was one there.
16 In addition, we did have a specific Tech Spec 17 function that we had to concur with any Tech Spec changes 18 that were submitted to NRC.
19 Q
Okay, and how big was the NSRB staff at that time?
20 A
It varied a little over time, but it was in the 21 order of three to six people.
22 Q
And that would have been support staff.
That's 23 not members or does that include members?
24 A
That does not include members.
25 Q
How many members would be on say a Sequoyah NSRB?
Page 386 1
A Originally --
it's approximately 10.
2 Q
And how did the NSRB go about conducting its 3
business? How did you operate?
4 A
We received many documents review, both those 5
which we were required to review and others which might be 6
of interest.
An example of that would be an INPO evaluation 7
or a self-assessment done by one of the internal 8
organizations within TVA, plus items such as LERs and audit 9
reports.
Once we reviewed those documents, they were sent 10 out to the individual members for review.
Depending on the 11 specific documents, it was sent either to the entire board 12 or to a specific subcommittee.
13 The NSRB was set up --
over time, we had either 14 four or five subcommittees, the exact structure varied a 15 little bit over time. We would review those documents to 16 look for potential areas that we'd want to look into 17 further.
In addition, over the years, each board either had 18 four or five outside members who were very valuable to us 19 because they brought information of problems they had seen 20 elsewhere in the industry that we might want to go look into 21 to help us avoid it.
In addition, the NSRB staff would look 22 at items like the TVA nuclear experience review program to 23 see if there were items coming up there that were potential 24 subject matters.
25 Based upon that subject matter, we would set up
Page 387 1
agendas for the meetings.
Typically the first day of the 2
meeting was devoted to subcommittee activities in which each 3
subcommittee had an agenda where they would go and pursue 4
topics, typically through interviewing various personnel at 5
the sites.
6 The second day of the meeting was a full board 7
meeting.
The full board meeting would constitute perhaps a 8
few reports back to the whole board that were of general 9
interest to the board.
There would be reports back from 10 each of the subcommittees.
Additionally, there could be 11 discussion of action items.
If something was felt to be 12 important enough where NSRB really wanted to know what was 13 done --
and recognize, we did not have the authority to tell 14 anybody to do things, but if we thought something was enough 15 of a problem that we really wanted it evaluated and a report 16 back to us as to what was going on with it, we would create 17 an action item and we would get responses back to them.
18 Depending on the nature of the item, it could be a written 19 response, it could be a presentation at the meeting, and it 20 would take a vote of the whole board to close one of those 21 items, to say that it was done.
22 Subsequent to the meetings, --
and we normally met 23 quarterly, which was more frequently than required by 24 regulation, but we felt that was about --
and occasionally 25 more frequently if we thought there were problems going on
Page 388 1
at a plant. After each of those meetings, we issued a set of 2
minutes from the meeting. The minutes included an executive 3
summary that went to the TVA Board of Directors and more 4
detailed minutes that did not go beyond the chief nuclear 5
officer unless he felt there was really something in the 6
details he wanted to pass higher up.
7 Q
So the Sequoyah NSRB back in the early '90s, any 8
reports from there would go to who?
9 A
The reports from those would go to the chief 10 nuclear officer, who was Oliver Kingsley. And to correct 11 what I said, in addition, the reports --
the reports minus 12 the attachments, which were the subcommittee reports, would 13 also go to the Board of Directors of TVA.
They had further 14 distribution among the site vice presidents, the vice 15 president responsible for licensing.
There would be other 16 individuals who would get it as well.
17 Q
Now when you said there were 10 members 18 approximately at Sequoyah, was that including the four or 19 five outside people?
20 A
Yes.
21 Q
And those outside --
they were consultants, were 22 they from other utilities with nuclear power plants or --
23 A
They had a number of different ones.
Like in the 24 early 1990s, on the Sequoyah board at the time was the 25 nuclear advisor to the Board of Directors, who was an
Page 389 1
outside consultant that the Board had hired.
There was a 2
former NRC regional director on the Board, there was a 3
person in radiological controls.
I knew his work had 4
started in the Navy program and he moved on acting as a 5
consultant to a lot of utilities. One individual who was on 6
a lot of our boards was a retired vice president of General 7
Electric's nuclear engineering department.
8 Q
Now you said when you'd have these quarterly 9
meetings, if I understood you, the first day --
were those 10 subcommittee meetings?
11 A
The first day was subcommittee --
we normally 12 started off with a meeting of the full board in which we got 13 a briefing of what was going on at the site, whether there 14 were any emergent issues, something we ought to know about.
15 That briefing was typically by the plant manager.
Then the 16 subcommittee would break up and go off to do their own 17 agendas.
Typically, we would reconvene the whole board late 18 in that day to review any Tech Spec changes that we had to 19 cover.
20 Q
Then you had the formal meeting the second day?
21 A
The second day was then the formal meeting, right.
22 Q
Now I think you said earlier when these 23 subcommittees went off, they'd go to individuals in the 24 plant, talk to individuals in the plant?
25 A
Right, they might go actually out into the plant,
Page 390 1
to the control rooms, they might meet with the manager in 2
his office, they might follow a maintenance crew around for 3
awhile, a lot of different things they could do.
4 Q
And formally those were considered subcommittee 5
meetings if they just went and met with somebody in an 6
office and then it would show up in the minutes?
7 A
Yes, they issued in their minutes a summary of 8
what they had done during the day.
It wasn't a narrative, 9
it was a summary of what kind of items they had reviewed and 10 whether they had any findings based on their review.
11 Q
How many members in 1991-'92 were there on the 12 chemistry subcommittee of NSRB at Sequoyah?
13 A
At that time, I believe the subcommittee was just 14 two people, would have been an outside consultant named Tom 15 Peterson and Wilson McArthur.
The subcommittees were 16 typically two or three people.
17 Q
Can you spell Mr. Peterson's last name?
18 A
P-e-t-e-r-s-o-n.
19 Q
Thank you.
You indicated earlier you didn't have 20 any authority over --
I mean you could not order somebody to 21 do something at a plant.
22 A
That's correct.
23 Q
You'd have these action items but if somebody said 24 we're not interested, what was the result of that?
What 25 authority did you have or how could you bring something to
Page 391 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pass you would like to pass?
A I'd say there were two approaches.
The normal approach was that we felt that when we put together an issue, there was enough behind that issue that it was a question about the site pursuing it, the site pursued it.
It was not a problem that --
we had a problem in the early 1990s at Sequoyah with their not pursuing those generally and that was brought to the attention of the chief nuclear officer.
Q Mr. Kingsley?
A Mr. Kingsley.
And it was brought to his attention as an example of some of --
there were a number of performance deficiencies at Sequoyah in that time frame and it was really brought to his attention more as indicative of a more general problem out there of not getting problems quickly addressed and solved in that time frame.
Q What interactions do you recall, if any, having with Gary Fiser while you were on the NSRB for Sequoyah?
A I sat in on one subcommittee meeting where the subcommittee was meeting with him.
Q Do you recall when that was?
A November of 1991.
Q Do you recall what was discussed at that meeting?
A There are two specific things that stick out in my mind because they were recurring issues. About six to nine
Page 392 1
months earlier, the NSRB had questioned whether or not 2
Sequoyah could meet the NRC requirements on post accident 3
sampling, to take samples and analyze them within three 4
hours.
It was a concern brought by one of my outside people 5
from another utility.
It really originally started in this 6
case because other utilities had found problems by the time 7
they dressed out people in all their anti-contamination 8
things, they could not get it done.
We had brought up that 9
particular issue.
10 One thing that was at issue at this subcommittee 11 is that issue had been open for six to nine months, had not 12 yet been adequately addressed by the site, and in fact the 13 site and corporate chemistry were in disagreement over what 14 they needed to do and weren't working on resolving their 15 disagreements.
16 There was a second item of a more --
not as 17 important but --
that was an action item assigned by NSRB.
18 There was a second action item where we had asked the site 19 to take a look at potential unmonitored release path where 20 you could potentially get radioactivity to some liquid 21 effluent which was either not being continuously monitored 22 or periodically sampled.
I believe NSRB brought up that 23 issue because corporate chemistry had looked and said they 24 thought there were four of them at Sequoyah and we had 25 raised that issue to be --
as something that needed to be
Page 393 1
pursued.
2 The main items I remember from that particular 3
subcommittee meeting when I sat in on it was that neither 4
one of those actions were being addressed in a timely 5
manner.
And that was the item that was of most concern to 6
me.
7 During the course of that where I was listening to 8
the subcommittee, there --
the subcommittee discussed a lot 9
of different items, I was not in their meeting for the 10 entire day.
They discussed some other things but the two I 11 mentioned to you were the items that were important to me 12 and had also been reflected as NSRB action items.
13 Q
Do you recall any discussion in that meeting --
14 well, first, who was present at that meeting --
Mr. Fiser?
15 A
Mr. Fiser was there, Mr. Jocher was there, the 16 subcommittee was there.
17 Q
That was McArthur and Peterson?
18 A
McArthur and Peterson.
I think there may have 19 been a couple of people from Fiser's staff, but I don't 20 recall exactly who they were.
21 Q
Do you recall any discussion in that meeting on 22 problems with data trending in the chemistry department at 23 Sequoyah?
24 A
I think it was mentioned, but not something that I 25 saw to be a major issue and if you read the subcommittee's
Page 394 1
report of that meeting, data trending is listed.
They wrote 2
up an item about general issues with performance in 3
chemistry.
It was based on audits that had been done by 4
quality assurance reviews which had been done by the 5
corporate chemistry staff and their report issued eight or 6
ten examples in a two or three word example such as failure 7
to follow procedure, changes to QA records, buying chemicals 8
to the wrong specification and one of them that was there 9
said poor data trending.
10 JUDGE YOUNG:
What was the last one?
11 THE WITNESS:
Poor data trending was the last 12 one.
13 JUDGE YOUNG:
Second and third again?
14 THE WITNESS:
Second and third?
There were items 15 one of them items was buying chemicals to an incorrect 16 specification, another one had to do with a quality 17 assurance record being modified.
It was just kind of a 18 summary list of items that had really been identified by 19 other groups, not identified by the NSRB.
What the 20 subcommittee felt was that many deficiencies were indicative 21 of a more general performance problem in chemistry.
22 BY MR. DAMBLY:
23 Q
Do you recall there being a meeting in January of 24 1992 at Sequoyah discussing data trending?
25 A
There was no NSRB meeting in January of 1992.
1 2
3 4
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 395 Q
Was there a meeting that you attended in Mr.
Fiser's office in January 1992 with Fiser and Peterson and Jocher and McArthur?
A The only meeting I've ever had in Fiser's office with McArthur and Peterson and those people was the November 1991 subcommittee meeting.
Q Do you recall being in any meeting with Mr. Fiser where data trending was a big issue with you?
A No, I do not.
In fact I can tell you there was no such meeting.
Q You can tell me there was no such meeting?
A There was no meeting that I was in where data trending was a big issue with me.
Q All right.
JUDGE YOUNG:
Where data trending was a big issue THE WITNESS:
JUDGE YOUNG:
THE WITNESS:
With me.
with you.
Yes, ma'am, that was the question I was asked.
JUDGE YOUNG:
No meeting with you where data trending was an issue with anyone?
THE WITNESS:
As I mentioned, the subcommittee meeting I was at, there was some discussion of data trending, but not with me.
I recall there was some
Page 396 1
discussion of it, but it wasn't a particular concern to me 2
that I was pursuing.
Mr. Hamby (sic) asked me if there was 3
a meeting which I had at which data trending was a 4
significant concern to me and no, there was no such meeting.
5 BY MR. DAMBLY:
6 Q
Let me call your attention --
and I'll get it for 7
you too --
to Exhibit --
Staff Exhibit 95.
8 JUDGE COLE:
What volume is that in?
9 MS. EUCHNER:
Volume 5.
10 (Brief pause.)
11 JUDGE YOUNG:
Did you make an overall index to all 12 the exhibits, did each of you do that, to all of your 13 separate exhibits?
14 MR. MARQUAND:
Your Honor, if you will look in the 15 front of any of the notebooks we gave you, there is an 16 overall index of all the TVA exhibits and which exhibits are 17 in which volume --
18 JUDGE YOUNG:
Okay.
19 MR. MARQUAND:
of each of the TVA exhibit 20 books.
And I believe we put one in the front of each of the 21 joint exhibit books --
22 JUDGE YOUNG:
Pardon?
23 MR. MARQUAND:
We also put an index of the joint 24 exhibits in the joint exhibits books which we prepared.
25 JUDGE YOUNG:
So if we took one of those out, we
Page 397 1
could tell which volume any of yours were in?
2 MR. MARQUAND:
Yes, ma'am.
3 JUDGE YOUNG:
Okay, did we get that from you?
4 MR. DAMBLY:
You have in the front of each of 5
those volumes a complete exhibit list, going from 1 to 6
whatever we have in that particular --
7 JUDGE COLE:
But not identifying which volume 8
they're in?
9 MR. DAMBLY:
But identifying --
we will provide on 10 the side of your books for tomorrow what --
it's on the 11 front of the book --
12 JUDGE COLE:
Okay.
13 MR. DAMBLY:
You're working on it, I'm sorry.
But 14 that just says 5 of 8, it doesn't say what the exhibit --
we 15 will put spines in there for you in the morning that will 16 tell you which volume has which documents.
17 JUDGE YOUNG:
Well, just give them to us and we'll 18 put them in.
Thank you.
19 MR. DAMBLY:
Let's make sure we all have the same 20 document.
In my book, Staff Exhibit 95 is an April 24, 1997 21 U.S. Department of Labor Employee Personal Interview 22 Statement for Wilson McArthur.
Is that what everybody is 23 looking at?
24 BY MR. DAMBLY:
25 Q
And if you could turn to the next to the last
Page 398 1
page, Mr. McGrath.
The second paragraph starts, "In January 2
1992, I do recall a meeting where Peterson, Fiser, McGrath 3
and I, along with others present.
The meeting involved 4
various issues --
post accident sampling system, unmonitored 5
radiation release point, the big issue dealt with the data 6
trend.
There were scenarios by the --
I'm sorry --
there 7
was concerns by the Nuclear Safety Review Board (NSRB) that 8
the data was not being analyzed in looking for trends.
Tom 9
Peterson was concerned that we were not doing a good job in 10 dealing with the trend data.
Fiser's position was he did 11 not have the time to get it done.
We all had concerns about 12 them not trending which later became an INPO issue in 13 dealing with trends.
I do not recall McGrath getting upset 14 with Fiser and just walking out of the office.
I do know 15 that he was upset about the trend data."
16 MR. MARQUAND:
Can we finish reading the sentence 17 please, counsel?
18 MR. DAMBLY:
What else, as to the job offer to --
19 MR. MARQUAND:
It says "...trend data and other 20 issues."
21 MR. DAMBLY:
"...and other issues."
Okay.
22 BY MR. DAMBLY:
23 Q
Now was Mr. McArthur wrong?
And I'm sure you're 24 aware Mr. Fiser has testified that in January 1992 this 25 meeting took place.
Page 399 1
A In January 1992, there was no such meeting.
If 2
you will look at the NSRB minutes, all of which the NRC has, 3
you will see that there was a meeting in November of 1991.
4 Mr. Peterson, as a contractor, could not just show 5
up at TVA and have a meeting with someone.
6 JUDGE YOUNG:
What?
7 THE WITNESS:
He was a contractor for the NSRB, 8
he only came to TVA for NSRB meetings.
The NSRB meetings, 9
in that time frame, were held in November of 1991 and feb-10 of 1992.
You'll see that the first two items, the post 11 accident sampling system and the unmonitored radiation 12 release paths, are the two items that I mentioned to you 13 which I specifically remember being discussed at the 14 November 1991 meeting.
And those were the two issues that 15 were of concern to me.
I'll also point out that I did not 16 attend the entire meeting, it is quite possible that there 17 was extended discussion on trending when I wasn't even in 18 the room.
I went to part of the meeting.
As I said to 19 you, I was concerned about, on the post accident sampling 20 system and the unmonitored radiation release paths, that 21 those were not being addressed.
Post accident sampling was 22 a particular concern, as it was a potential regulatory 23 violation if we were not able to do what we're required to 24 do there.
25 I would really think here that Wilson may have
Page 400 1
been a little bit confused on the date.
If you recall 2
Fiser's DOL complaint, he says the meeting was January '92, 3
that may have affected Wilson's recollection but I think if 4
you read the minutes, you'll find it was November '91 and I 5
was concerned about the first two items.
The trending item 6
was not a concern -- was not a big concern to me and if you 7
read the minutes, you'll see the minutes which were written 8
by Peterson and McArthur does not portray the trending as 9
being a major issue at that meeting.
10 BY MR. DAMBLY:
11 Q
Do you think Mr. Fiser's DOL complaint also 12 confused Dr. McArthur as to what the big issue at the 13 meeting was?
14 A
It may very well have.
Recall that these 15 interviews were years after the meeting.
I would suggest 16 that the minutes that were written the day after the meeting 17 are perhaps the most accurate summary of what actually 18 happened in that meeting.
19 MR. DAMBLY:
About being upset about the trend.
20 MR. MARQUAND:
Objection.
That's not his 21 testimony.
He said he denied it; he didn't say he didn't 22 recall.
23 BY MR. DAMBLY:
24 Q
Okay.
You denied being upset with the data?
25 A
I was not upset about trending.
The trending was
Page 401 I
one of a list of many --
of many things that were indicative 2
of overall chemistry problems.
But the trending, per se, 3
was not a significant issue.
4 Q
Do you recall at all, during that meeting, you and 5
Mr. Peterson demanding that Mr. Fiser prepare or adopt a 6
procedure requiring trends to be done daily?
7 A
I never asked for a procedure.
There is nothing 8
in the minutes written by Mr. Peterson that indicates that 9
he asked for a procedure.
And relative to what you asked 10 before about NSRB, how it works, and what Peterson's report 11 would have been back to the full board, NSRB also did not 12 assign any action item relating to either trending or the 13 use of a procedure for trending.
And if it had been a major 14 issue with NSRB, it would have resulted in an action item 15 being assigned.
16 Q
But do you recall Mr. Fiser making any statements 17 about procedure being a bad idea for trending or result in 18 violations because they couldn't comply with the procedure?
19 A
No.
20 Q
Did you have any concern at that time at Sequoyah 21 about procedural violations? Had there been procedural 22 violations in nuclear chemistry at Sequoyah?
23 A
Believe that the minutes of the meetings in that 24 time reflect that there were procedural violations as one of 25 the list of potential concerns that had been identified.
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 402 Q
Do you recall leaving that meeting and telling Dr.
McArthur that you wanted Fiser out of the position?
A That absolutely did not happen.
Q Go to Joint Exhibit 27.
MR. DAMBLY:
Maybe, if it's --
if it's okay with the Court, we can take like a five minute break, maybe set the speakers up here.
JUDGE YOUNG:
Let's make sure we're also talking about the same exhibit.
Is this the sequence of events?
MR. DAMBLY:
Sequence of events.
JUDGE YOUNG:
Okay.
Okay.
MR. DAMBLY:
And we'll be referencing Page 22, if we could take a break.
JUDGE COLE:
Let's make it ten minutes.
MR. DAMBLY:
Ten?
Okay.
JUDGE YOUNG:
And just for your planning purposes, we need to be out of the room by 5:00, so we need to start winding down...
CHAIRMAN BECHHOEFER:
Slightly before that.
JUDGE YOUNG:
...4:30 or quarter to 5:00, so we can all pack up.
(Brief recess.)
CHAIRMAN BECHHOEFER:
Back on the record.
MR. DAMBLY:
Again, we're --
we're now dealing with Joint Exhibit 27.
It's a document entitled, "Sequence
Page 403 1
of Events."
And let me represent to the board these are a 2
series of both notes and recorded conversations.
Mr. Fiser, 3
who will be here tomorrow to authenticate, spent time during 4
the I guess '91 to '93 time frame with a pocket recorder, 5
recording certain conversations which he took home and 6
transcribed.
7 JUDGE YOUNG:
These are the ones we discussed in 8
the telephone conference?
9 MR. DAMBLY:
Right.
Well, not these notes; no.
10 We had the --
the transcriptions --
this --
this is a --
Mr.
11 Fiser's...
12 JUDGE YOUNG:
These are his notes, these are not 13 the transcriptions?
14 MR. DAMBLY:
Well, part of it is --
is a 15 transcription.
He will tell you what it is.
16 MR. MARQUAND:
These are purported transcriptions 17 with notes?
18 MR. DAMBLY:
Right.
What we'll be into in a 19 moment is the enhanced version on CD that the staff had made 20 and will play for you of the pertinent point of the 21 conversation, and you can decide whether you can hear it or 22 not.
But...
23 And, again, Mr. Fiser will explain to you exactly 24 what this document is supposed to be.
Okay?
25 BY MR. DAMBLY:
Page 404 1
Q And with that, Mr. McGrath, if you could turn to 2
Page 22 of this document, about in the middle it starts off, 3
"McArthur:
Do you know when the downhill slide started on 4
you?"
5 MR. MARQUAND:
Your Honor, first of all, I'm going 6
to object.
This is a purported conversation between 7
McArthur and Fiser.
It's not --
we don't know the accuracy 8
of this document.
If it's being used to refresh his 9
recollection, it can be shown to him.
He can be asked if it 10 refreshes his recollection, and he can go on from there.
He 11 can't be impeached with it, it's clear.
And it's not 12 admissible on its own two feet.
It's inappropriate for 13 counsel to read it into the record.
The witness can be 14 shown...
15 JUDGE COLE:
This concerns Mr. McArthur, not Mr.
16 McGrath?
17 MR. MARQUAND:
That's right, it's of Mr. --
of Dr.
18 McArthur, it is not...
19 MR. DAMBLY:
It is Dr. McArthur saying what 20 happened after that meeting.
21 MR. MARQUAND:
And I --
I'm going to...
22 JUDGE YOUNG:
What's your --
stop.
What's your 23 purpose of --
of...
24 MR. DAMBLY:
My purpose is, Mr. McGrath has said 25 nothing bothered him at the meeting, he walked out, and he
Page 405 1
made no comments about Mr. Fiser.
2 JUDGE YOUNG:
And --
and this is the document of 3
this is the trend...
4 MR. DAMBLY:
You will hear the --
the actual 5
recorded...
6 JUDGE YOUNG:
Hold...
7 MR. DAMBLY:
conversation.
8 JUDGE YOUNG:
... hold --
hold on just a second.
9 My question is, I see Mr. McArthur and Mr. Fiser.
Is this a 10 purported meeting at which Mr. McGrath was supposed to be 11 present?
12 MR. DAMBLY:
No.
This was a recorded conversation 13 subsequently between Mr. Fiser and Dr. McArthur, who was the 14 subcommittee chairman at the meeting that Mr. McGrath was 15 at, and Mr. McArthur stating what happened after that 16 meeting to Mr. Fiser.
17 JUDGE YOUNG:
And so you want to get --
you want 18 to use this for what purpose again?
19 A
To see --
I mean, to --
to see if he --
if it 20 refreshes his recollection as to whether or not he made any 21 comments or not after the meeting about removing Mr. Fiser 22 from positions.
23 JUDGE YOUNG:
But I think it'd be better if you 24 just showed him the part.
25 CHAIRMAN BECHHOEFER:
Well, why?
Page 406 1
MR. DAMBLY:
All right.
2 CHAIRMAN BECHHOEFER:
Why?
3 JUDGE YOUNG:
Rather than read it into the record.
4 5
CHAIRMAN BECHHOEFER:
Oh.
Oh, of course it's 6
going to be part of the record.
7 BY MR. DAMBLY:
8 Q
Let me --
let me ask you if you'd look at starting 9
in the middle of the page, Dr. McArthur's statements.
His 10 first statement being, you know, when the slide started, and 11 then his follow-up statement.
If you could read those.
12 (The witness reviews certain material.)
13 A
All right.
14 Q
It does refresh your recollection?
Did you ever 15 make any statements to Dr. McArthur about Mr. Fiser being 16 removed from the Sequoyah chemistry position?
17 A
No.
And I'd like to correct a statement you just 18 made a few minutes ago.
19 Q
Yes, sir.
20 A
You --
you stated that nothing concerned me at 21 that meeting in November '91.
22 Q
About trending.
23 A
As I pointed out to you several times, the issues 24 of post-accident sampling and the unmonitored release pass 25 and the --
the failure of the management to address those
Page 407 1
issues was a significant concern to me.
2 Q
And you've also said that when Dr. McArthur told 3
DOL that the big issue was data trending, the that was 4
incorrect?
5 A
That's --
that is correct.
And as I pointed out 6
to you, if you'll read the minutes of that meeting you will 7
see that data trending is not a big issue.
8 Q
And who prepares the minutes of that meeting?
9 A
The minutes were prepared by Mr. Peterson and Mr.
10 McArthur.
11 Q
And if, during the course of that meeting, Mr.
12 Peterson or yourself raised an issue which Mr. Fiser pointed 13 out to you was not too bright, would that make it into the 14 minutes?
I mean, if your response is, "I want a procedure 15 written," and Mr. Fiser says, "You know, we write a 16 procedure we're going to violate it.
We don't need any NRC 17 violations you go, "Qops."
Would you write into the minutes 18 yourself that we just made this big mistake and Gary pointed 19 it out to us, or would that not show up in the minutes?
20 A
I suggested it in a discussion of such things, and 21 a member may suggest a solution for something and he gets 22 some information from the plant that he might have 23 overlooked, that that wasn't a very good solution, I would 24 not expect in the minutes for him to recommend that that 25 solution be pursued.
Page 408 1
Q So the fact that this isn't in the minutes doesn't 2
mean it didn't occur?
3 A
The fact that it isn't in the minutes does not 4
mean that it was a big issue.
Means it was not a big issue.
5 Q
Or it was an embarrassment to the people who 6
raised it?
7 A
No, it was not...
8 Q
And who wrote the minutes?
9 A
The --
no, because they also did not report it to 10 the NSRB, so it never became an overall NSRB issue.
11 Q
Well, the --
the...
12 JUDGE YOUNG:
Couldn't hear the last part of that.
13 14 A
Oh.
I say it was not --
if you look at --
if you 15 looked into minutes of your...
16 JUDGE YOUNG:
Just restate what you said 17 A
Okay.
I said they did not report it to the NSRB, 18 to the full board, so it did not become an NSRB issue.
19 JUDGE YOUNG:
Okay.
20 Q
But who's the "they" did not report it?
21 A
The subcommittee.
The subcommittee members and...
22 Q
And --
and at that meeting you were present, and 23 McArthur was present and Peterson was present?
24 A
The subcommittee meeting, I was present for part 25 of the meeting.
1 2
3 4
15 6
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 409 Q
And so if there is --
was something raised by you or Peterson, and Mr. Fiser pointed out the error of your suggestion, and it didn't make it into a subcommittee meeting minutes because Mr. Peterson and Mr. McArthur had control of those, you wouldn't expect it to make it into the NSRB meeting minutes, either, would you?
A You're asking me did I raise the issue of the trending.
I did not.
Q Was it raised in your presence?
A There was not a discussion of it as a big issue.
It might have been one of many smaller items mentioned during the meeting.
Q And and neither you nor Mr. Peterson...
A The --
the item that I remember from the minutes as I told you, the minutes that I remember from that meeting were the two issues of the post-accident sampling and the unmonitored release pass.
Q And that's based on your review of minutes?
A That's based on my memory of the meeting.
Q Your memory of the meeting ten years ago?
A And my memory is consistent with the minutes.
Q And, again, the minutes were prepared by Mr.
Peterson and Mr. McArthur or Dr. McArthur?
A That's correct.
Q So if Mr. Peterson suggested setting up a
Page 410 1
procedure which would result in violations, it's not likely 2
they'd put that in the minutes, is it?
3 MR. MARQUAND:
Objection.
We've had this question 4
asked several times.
It's entirely hypothetical and 5
speculative.
The witness has said...
6 MR. DAMBLY:
It's not hypothetical or speculative.
7 8
MR. MARQUAND:
...it wasn't raised in his 9
presence.
10 JUDGE YOUNG:
I think it's been asked and 11 answered.
I think we get the --
the point.
12 CHAIRMAN BECHHOEFER:
I think the question has 13 been asked and answered, so...
14 MR. DAMBLY:
Exhibit --
Staff Exhibit 80.
15 ;CHAIRMAN BECHHOEFER:
80?
16 MR. DAMBLY:
- 80.
Are we all there?
17 MR. MARQUAND:
Your Honors, I think it's 18 inappropriate for counsel to put hearsay statements in front 19 of the board if he's attempting to refresh the recollection 20 of the witness.
And until it's shown that it does --
even 21 if it does refresh his recollections, he should be 22 testifying from his memory, rather than directing the 23 board's attention to hearsay statements of people that are 24 not witnesses.
25 MR. DAMBLY:
Hearsay is perfectly admissible in
Page 411 1
NRC proceedings.
2 CHAIRMAN BECHHOEFER:
That's what I was going to 3
comment.
Hearsay is admissible.
4 MR. DAMBLY:
I intend to ask him whether or not he 5
ever told Dan Keuter statements about Mr. Fiser.
This is a 6
TVA supplied IG --
TVA IG document, their report of 7
interviews.
The TVA IG will be here to tell us whether they 8
made this up or not.
9 JUDGE YOUNG:
Probably the best procedure would be 10 to first ask the question and then, if there needs to be any 11 refreshing of memory, then let the witness see it.
We're 12 not a jury, we're judges.
We understand that if --
if it's 13 not appropriate, we won't give it any attention.
And if it 14 comes in, I presume it would be brought in through a witness 15 who is able to authenticate it and testify to it.
But at 16 this point, if you're just using them to refresh memory, 17 first see whether you need to, is --
is my suggestion.
18 MR. DAMBLY:
All right.
I will ask the question 19 first.
20 BY MR. DAMBLY:
21 Q
Mr. McGrath, did you ever tell Dan Keuter --
22 well, tell me who Dan Keuter was back in the '91, '92, '93 23 time frame with TVA.
24 A
I believe at that time he was the vice president 25 over the operations support area.
Page 412 1
Q And do you recall back in that time frame there 2
being a switch between Mr. Jocher and Mr. Fiser, with Mr.
3 Fiser going to corporate, Mr. Jocher going to Sequoyah?
4 A
Yes, I recall there was such a switch.
It was a 5
switch that I knew nothing about until after it had 6
happened.
7 Q
Okay.
And it is your testimony you didn't talk to 8
Mr. Keuter before then to say, "Don't make that switch"?
9 A
That is correct, because I had nothing to do with 10 the switch.
I did not know it was happening.
In fact, 11 subsequently, the next time I had an NSRB meeting and was 12 meeting with the Sequoyah site vice president---Jack Wilson 13 was his name---Jack Wilson told me that he was the one who 14 made the decision to swap Jocher and Fiser.
He relayed to 15 me a --
a story --
sorry, an incident which occurred on a 16 weekend where they had chemistry problems at the plant, 17 chemistry was out of specification in some systems.
18 Wilson found that he personally, as the site vice 19 president, had to come in to take charge of it because there 20 were no chemistry supervisors assigned for the weekend, 21 there were no chemistry supervisors or managers on call to 22 assist with the problem.
He came in and found other 23 problems, like the technicians who were on duty were not 24 qualified to do the analyses necessary to recover from the 25 situation.
Page 413 1
What he told me was that it wasn't until that 2
weekend that he realized how big a problem he had in 3
chemistry.
That he'd been hearing all these different 4
reports he was getting, but it really hadn't all come 5
together for him yet that he really had a big problem in 6
chemistry, and it was subsequent to that thing that he had 7
made the decision to ask for Jocher to be sent out to --
to 8
Sequoyah.
He --
this conversation I had...
9 Q
Who's the "he" you're talking about now?
10 A
Excuse me?
11 Q
Who's the "he" that...
12 A
That was Jack Wilson.
He was the site vice 13 president at Sequoyah.
We had this conversation in like May 14 of '92, which was about two months or so after the switch 15 had been made.
But I had no involvement in or any knowledge 16 that the switch was going to happen.
17 Q
And you never talked to Dan Keuter beforehand?
18 You were --
and Peterson to tell him, "Do not make that 19 switch.
Do not send Fiser to corporate"?
20 MR. MARQUAND:
Objection.
Compound question.
The 21 question --
first question was, "Did you have that 22 conversation?" he said, "Or Mr. Peterson."
One or the 23 other, but...
24 MR. DAMBLY:
Okay, forget Mr. Peterson.
He'll be 25 here.
Page 414 1
BY MR. DAMBLY:
2 Q
Did you ever have a conversation with Mr. Keuter, 3
before the switch was made...
4 A
No.
5 Q
... in which you said, "Don't transfer Fiser to 6
corporate"?
7 A
No.
8 Q
You made no recommendation, whatsoever?
9 A
No.
And as I just finished telling you, I didn't 10 even know the switch was being considered.
So I would have 11 not even had any opportunity to discuss anything about it 12 with anybody.
13 Q
Okay, referring to --
to the Staff Exhibit 80, Mr.
14 Keuter's statement to the IG, does that in any way refresh 15 your recollection as to any conversation you might have had 16 with him?
17 A
No.
18 Q
How often did you talk to Mr. Keuter in that time 19 period, '91 and '92?
20 A
Not very often.
21 Q
What was your relationship with Mr. Keuter? Did 22 he come before the NSRB?
23 A
Mr. Keuter at one point became a member of the 24 NSRB, but I don't remember exactly what the date was.
I 25 don't even remember exactly when Keuter came to work for
Page 415 1
TVA.
And I guess he obviously was there in 1992, but I 2
don't specifically remember when he got there.
And my --
my 3
normal --
duties outside of NSRB were not anything that had 4
any routine interface with Mr. Keuter.
So I did not have 5
routine discussions with him.
I know at one point he was 6
added as an NSRB member, but I really don't remember when 7
that occurred.
8 Q
Would you turn to Staff Exhibit 29.
9 JUDGE COLE:
NRC Exhibit 29?
10 MR. DAMBLY:
- 29.
It's the August 16th letter to 11 the Honorable James Sasser.
12 BY MR. DAMBLY:
13 Q
First of all, Mr. McGrath, do you know who's the 14 Honorable James Sasser?
15 A
At this period of time, I believe he was a senator 16 from the State of Tennessee.
17 JUDGE YOUNG:
Pardon?
18 THE WITNESS:
He was a senator from the State of 19 Tennessee at that time frame.
20 JUDGE YOUNG:
Oh, senator.
21 BY MR. DAMBLY:
22 Q
Have you ever seen this document before?
23 A
The only time I've seen this document before, 24 first I saw it is when you handed it to me at the deposition 25 you took in November of --
of 2000.
Page 416 1
Q That'd be 2001, I believe.
2 A
2000 --
yeah, 2001.
3 Q
It only seems that long ago.
4 A
Yes.
5 Q
Now, on --
on Page 3 of that document, there's a 6
statement that there was identified to NSRB a material false 7
statement made to the NRC.
Did anybody ever talk to you 8
about that issue?
9 A
No.
In all the time I had NSRB, no one ever 10 brought an issue up to NSRB about TVA having made a material 11 false statement.
I'm rather positive of that, because that 12 would have been a very big issue to me which I would have 13 immediately raised to the chief nuclear officer and others 14 if such a thing was brought up.
15 Q
And why would that be a very big issue?
16 A
I feel that it is a significant regulatory issue, 17 and that it's a safety issue, as I understand the definition 18 of a material false statement, which would say that we had 19 deliberately made some sort of a false statement to mislead 20 NRC.
21 Q
And did you understand it was also a criminal 22 issue, potentially?
23 A
I'm not sure I knew that before you just said it, 24 that it potentially was.
But whether it was or it wasn't, 25 to me it would be a significant issue.
Page 417 1
Q All right.
Did anyone --
now, you're saying you 2
haven't seen it.
Did anybody discuss that such a letter 3
existed with you, before I talked to you at your deposition?
4 A
No, no one had.
5 Q
And nobody asked you any questions?
You reviewed 6
the document back then about the issues raised in that 7
letter?
8 A
That's right, no one asked me any questions about 9
it.
10 Q
You had no interaction with TVA's IG in any 11 responses that were prepared?
12 A
That's correct, I had no interaction with anyone 13 on it.
14 Q
If you would turn to Staff Exhibit 30, which is a 15 September 9, 1993 document.
16 MR. MARQUAND:
Your Honors, since we have 17 identified Staff Exhibit 29 and there has been questioning 18 about it, the witness has said he was never aware of it, and 19 it does go to a point in this case, which is the fact that 20 he was not aware of any claimed protected activity of Mr.
21 Fiser, we would tender NRC Staff Exhibit 29 into evidence at 22 this point.
23 JUDGE YOUNG:
Any objection?
24 MR. DAMBLY:
Well, personally I think it's a 25 little premature for them to tender during my examination.
Page 418 1
But, nonetheless, I was planning on it, so I don't have an 2
objection.
3 CHAIRMAN BECHHOEFER:
Okay, exhibit will be 4
admitted.
I'm not sure as whose, but...
5 MR. DAMBLY:
Well, hopefully it's...
6 CHAIRMAN BECHHOEFER:
Staff exhibit.
7 MR. DAMBLY:
...Staff Exhibit 29, because it's in 8
our list.
9 (The documents referred to were 10 marked as Staff's Exhibit #29 and 11 received in evidence.)
12 MR. DAMBLY:
Now, if you would go to Staff Exhibit 13
- 30.
This is a September 9, '93, letter to the Honorable 14 James Sasser from William Hinshaw, II.
Says, "Inspector 15 General."
16 BY MR. DAMBLY:
17 Q
Now, at the bottom of the second page, under Mr.
18 Hinshaw's signature, there are some people named.
Edward S.
19 Christenberry.
Can you tell me who Edward S. Christenberry 20 was --
is?
21 A
He was a former general counsel of TVA.
22 Q
How about Craven Crowell?
23 A
He was a former chairman of the board.
24 Q
And Oliver Kingsley?
25 A
He was the former chief nuclear officer.
Page 419 1
Q At the time of --
this was in 1993.
Was he the 2
CNO?
3 A
Yes.
4 Q
And in 1993, you had a direct reporting 5
relationship, through the NSRB, to Mr. Kingsley?
6 A
Yes.
If I could correct this, I got a little 7
mixed up in the time.
At this time it says in here that Mr.
8 Kingsley was the president of the TVA generating group.
9 There was a period of time in there where TVA reorganized 10 both fossil power and nuclear power under Oliver Kingsley as 11 president of the generating group.
At that time it was an 12 individual named Dan Nauman in there who became the chief 13 nuclear officer.
And my reporting relationship would have 14 been to him in this time period where Kingsley was the 15 generating --
president of the generating group.
16 Q
Okay.
September 22nd, 1993.
I think that's a 17 memo to W. C. McArthur from E. B. Ditto, II.
First, could 18 you identify for us who E. B. Ditto is.
I mean, do you 19 know?
Other than reading his title there?
20 A
Other than reading his title here, I...
21 Q
Do you happen to know who M. R. Harding is?
22 A
Mr. Harding did at one time --
he'd become the 23 manager of the concerns resolution staff.
I don't know 24 exactly what...
25 Q
Mr. McArthur was your subcommittee chairman for
Page 420 1
chemistry at Sequoyah on the NSRB?
2 A
The subcommittee chairman for like Sequoyah was 3
Tom Peterson, not Mr. McArthur.
Mr. McArthur was a member 4
of the subcommittee, but he was not the chairman of the 5
subcommittee.
6 Q
Oh.
I thought earlier we had --
there were two 7
members?
8 A
There were two members.
9 Q
Peterson and McArthur?
10 A
Correct.
11 Q
Oh, maybe I was confused because I --
maybe it was 12 Mr. Marquand's opening where he said McArthur was the 13 chairman.
14 On the --
in the second paragraph of this memo 15 says, "The alleged issues are received in --
on September 16 21, 1993, from M. 0. Medford in a letter from Sasser to the 17 inspector general.
Who was M. 0. Medford?
18 A
Mark Medford was a vice president in nuclear 19 power.
I don't recall exactly what his title was at that 20 time.
He had several of the corporate support groups, and 21 nuclear assurance and licensing were most likely under him 22 in that time period.
23 Q
Was he one of the people you either replaced or 24 worked for earlier?
25 A
Yeah.
In fact, in 1993 I was --
I forget in which
Page 421 1
job title, but was in charge of one of the support groups 2
that worked for Medford at that time.
However, Mr. McArthur 3
did not work for me at...
4 Q
Excuse me?
5 A
Mr. McArthur did not work for me; nor was he in 6
the same organization as I was.
7 Q
Okay.
I mean, at that point the only relation 8
between yourself and Dr. McArthur was on the NSRB?
9 A
That's correct.
10 Q
Okay, if you'd go to exhibit...
11 MR. MARQUAND:
Is there a question about the 12 document, or are we just flashing documents in front of the 13 witness?
14 MR. DAMBLY:
There will be.
15 BY MR. DAMBLY:
16 Q
Can you go to Exhibit.32, which is another letter 17 dated, I guess, October 23, 1993, to Sasser from Hinshaw.
18 And the copies at the bottom are Carmichael --
can you --
19 Allen J. Carmichael.
Can you identify him?
Do you know?
20 A
I think in that time he was involved in the 21 communications portion of TVA.
I'm not positive, but I 22 think that's where he was.
23 Q
Okay.
Then we have Christenberry, Crowell, and 24 Kingsley.
25 Finally, if you'd look at Exhibit 33, which is the
Page 422 1
final response that we've been given.
Sasser --
this one's 2
from, I guess, a new inspector general, George T. Prosser.
3 And the cc's on that, do you know Ronald Loving?
4 A
In that time frame, I believe that he was in 5
charge of our Washington office.
6 Q
And Brent Marquand.
7 A
He's right next to you.
8 Q
So your testimony is that a letter which accused 9
the NSRB of a material false statement came into TVA, was 10 sent to everybody above you, people in --
on your 11 subcommittees, and nobody ever told you about it, 12 whatsoever?
13 A
This letter did not accuse NSRB of a material 14 false statement.
This letter of Senator Sasser's on Page 3 15 of your exhibit indicates that Mr. Jocher said he identified 16 to NSRB that a material false statement was made to NRC.
It 17 does not say that NSRB made a material false statement.
As 18 I'd previously answered, in the years I've been on NSRB no 19 one ever identified to us that TVA had made a material false 20 statement.
21 Q
Okay.
Then I'll change the question, if that's 22 your reading of the letter.
Nobody, even though there was 23 an allegation that came in from Jocher, Fiser, and Matthews 24 that material false statements had been identified to you, 25 along with all the rest of these items on here, and it went
Page 423 1
to Kingsley and Medford, who you reported to, it went to 2
McArthur, who was the subcommittee under you, and it went to 3
everybody in the general counsel's office, somehow you never 4
heard about the letter until November of 2001?
5 A
That's correct.
I was not involved in it.
And 6
going to McArthur here was in --
as I read this, it was sent 7
to him in his line position, not due to his NSRB position.
8 JUDGE YOUNG:
Pardon me?
9 THE WITNESS:
It was --
it was sent to Mr.
10 McArthur in his line position.
At that time, he was the 11 manager of technical programs and would have been over 12 corporate rad con and chemistry, and would have been the 13 logical person in corporate to send to for statements for a 14 review of concerns in the chemistry or radiological controls 15 area.
So he...
16 JUDGE YOUNG:
And you...
17 THE WITNESS:
I'm sorry, Your Honor.
18 JUDGE YOUNG:
... you ended your sentence earlier 19 by saying, "not in his" what?
20 MR. DAMBLY:
NSRB.
21 THE WITNESS:
Not in --
he was not sent it in his 22 NSRB function 23 JUDGE YOUNG:
Okay, NSRB capacity.
24 THE WITNESS:
This is --
you know, this was not 25 answered by an NSRB subcommittee.
He answered it as --
in
Page 424 1
his line position.
And that is correct; I was not involved 2
in this letter.
No one told me of this letter.
3 BY MR. DAMBLY:
4 Q
How often, in your experience, do letters come in 5
from senators to TVA?
6 A
I don't know.
I've not been in a job where I saw 7
how big that -- how much of that traffic there was.
8 Q
Well, I said in your experience.
How many have 9
you ever responded to, if any?
10 A
I don't think I've responded to any.
11 Q
Would you expect...
12 A
I'm trying to remember in the time period I was on 13 Kingsley's staff whether there might have been something.
I 14 I recall when I worked for naval reactors and did have a 15 job with doing it, that we used to get many, many letters 16 from Congress that were very simple questions and were --
17 were answered.
But I have not been involved in answering 18 any significant letter from a congressman or a senator.
19 Q
So, at least as far as you know,...
20 JUDGE YOUNG:
Let me ask you...
21 Q
... when a --
when a letter comes in accusing TVA 22 of wrongdoing by three people and forwarded by a senator and 23 says, "I'd like a response," and it mentions the 24 organization you're chairman of as having-been reported the 25 material false statement, that nobody would bring that to
Page 425 1
your attention?
2 MR. MARQUAND:
Objection; asked and answered.
3 A
As I've answered, I knew...
4 MR. MARQUAND:
Your Honors, I object to the 5
question.
It's been asked and answered.
It's 6
argumentative.
7 JUDGE YOUNG:
We're not all clear, so go ahead and 8
answer.
9 BY THE WITNESS:
10 A
As I guess I've told you a few --
I knew nothing 11 at all about this letter.
Normally on items like this I --
12 I would suspect on one of this nature that it was primarily 13 and most of the letters that went back, it looked like it 14 was assigned to the inspector general for review.
Why --
15 how the inspector general decides, in reviewing something, 16 as to --
to whom they will talk to, how they will pursue 17 that, I cannot speak to that.
18 Q
Well, in your relation...
19 A
I can just tell you on this one specific example, 20 that this particular letter was never brought to my 21 attention.
22 Q
In your relationship with Kingsley, if there --
23 something came in indicating a problem with the NSRB or 24 something had been reported to the NSRB and he got a copy of 25 it, he wouldn't share that with you?
Page 426 1
A In the --
in the case of an item like this one, 2
when Kingsley was briefed on it, he could have very well 3
have been briefed that this had been looked at and there was 4
no basis for the allegation, and therefore saw no reason to 5
carry it any further.
6 JUDGE YOUNG:
Carry that further?
7 THE WITNESS:
Carry that any further with me; yes.
8 9
JUDGE YOUNG:
Could I ask a clarifying question at 10 this point, and any of you can answer.
What does "SQN" 11 stand for?
12 MR. DAMBLY:
Sequoyah.
13 THE WITNESS:
Sequoyah.
14 MR. DAMBLY:
Sequoyah Nuclear.
15 MR. MARQUAND:
Your Honor, we --
we use a lot of 16 acronyms.
And so we call our plants by different acronyms 17 and...
18 JUDGE YOUNG:
Most of them I know.
That one I 19 just didn't...
20 MR. MARQUAND:
There are two other plants.
One is 21 BFN.
That's Browns Ferry.
And the other is WBN, which is 22 Watts Bar.
And you'll see both of those acronyms as well.
23 JUDGE YOUNG:
Thanks.
That gets me back on track.
24 25 BY MR. DAMBLY:
Page 427 1
Q Would you expect to have heard, as chairman of the 2
NSRB, about allegations concerning the NSRB that were, again 3
these indicate not just that Mr. Kingsley was briefed, 4
but he received a copy, says with attachments.
And Mr.
5 Christenberry.
6 A
Based on my working relationship with Mr.
7 Kingsley, I feel confident he would have brought to my 8
attention something that he saw was a valid concern about 9
NSRB.
I don't know whether even --
you know, to me it is 10 just speculation.
Did he know this was in here?
This is 11 one line buried in a multi-page --
seven-page letter.
We're.
12 speculating as to whether he picked it up when he read it, 13 if he noted the significance of it.
I don't know.
The only 14 thing that I can tell you is that he never discussed it with 15 me.
16 Q
And at this time you were a direct report of 17 Medford's; is that correct?
18 A
That's correct, I reported directly to Medford, 19 and continued to have a reporting relationship to the chief 20 nuclear officer, who at the time Kingsley was in this 21 position would have been Dan Nauman.
22 Q
And Medford did not...
23 JUDGE YOUNG:
Dan --
I couldn't hear you.
24 THE WITNESS:
Dan Nauman.
25 Q
Can you spell that?
Page 428 1
A Yeah.
I believe it was N-a-u-m-a-n.
2 Q
Nauman.
And Mark Medford didn't tell you about 3
this letter?
4 A
That's correct.
As I said to you, no one told me 5
about this letter.
6 Q
Anybody from the IG's office or from the general 7
counsel's office ever ask you any questions responding to 8
any of the technical issues raised in this letter? Not--
9 not saying "this letter," but, "Please, we got something in.
10 Can you give us an answer?" or any question, whatsoever?
11 A
No, I don't --
I do not --
I don't recall any 12 conversation of anyone asking me a question relating --
and 13 there's a lot of subjects in this letter.
And --
and 14 definitely not a call from the inspector general or the 15 general counsel's office or something, asking me for 16 information on these matters.
17 MR. DAMBLY:
I'm going to go into, next, the '96 18 reorg, and that could take us quite a while, if you want to 19 break now or run up --
I mean, I --
somewhere in the middle 20 of it or...
21 CHAIRMAN BECHHOEFER:
More than 15 minutes or so?
22 MR. DAMBLY:
Oh, I think it'll take more than 15 23 minutes to go through the '96 reorg.
I think that's fair to 24 say.
25 JUDGE YOUNG:
Would it...
Page 429 1
MR. MARQUAND:
We don't have any objection, given 2
the shortness of the...
3 JUDGE YOUNG:
Hold on one second.
Here's the 4
question.
We don't know, but do you think that your 5
questioning of Mr. McGrath on the subjects that Mr. Dambly 6
just asked would take longer than 15 or 20 minutes?
7 MR. MARQUAND:
Yes.
8 JUDGE YOUNG:
Okay.
So if you want to go ahead 9
with some introductory material on the reorganization, go 10 ahead, and --
and we'll just pick up from wherever we end up 11 at a quarter to 5:00 tomorrow.
12 MR. DAMBLY:
Okay.
13 JUDGE COLE:
Quarter till 5:00 tonight.
14 JUDGE YOUNG:
I mean we'll pick up tomorrow where 15 we end up at a quarter till 5:00 today.
16 MR. DAMBLY:
I'm glad to hear we're not starting 17 at a quarter till 5:00.
Thank you, Judge.
All right.
18 BY MR. DAMBLY:
19 Q
In 1995, you assumed a position as acting manager 20 of nuclear operations; is that correct?
21 A
I assumed the job of acting general manager of 22 operations support.
23 Q
And was that job sort of double-encumbered at that 24 time, initially?
If you know what I mean.
25 A
No.
Explain what you mean by "double-encumbered."
Page 430 1
Q Well, who was the person you replaced?
2 A
Don Moody.
When I initially was assigned it, Don 3
Moody was quite ill with cancer.
And he was.not able to 4
come to work all the time.
And as --
as his health 5
deteriorated over the next few months, the amount of time 6
that he was there got progressively less.
7Q Okay.
8 JUDGE YOUNG:
What.was the last thing you said?
9 THE WITNESS:
His name was Don Moody and he...
10 JUDGE YOUNG:
Just the last couple of words.
11 THE WITNESS:
Oh, the last couple of words.
As 12 his health deteriorated, I believe he eventually died in 13 March of '96 from cancer.
As his health deteriorated, the 14 amount of time he spent at work got progressively less 15 from...
16 JUDGE YOUNG:
Progressively less.
Thank you.
17 THE WITNESS:
Right.
18 BY MR. DAMBLY:
19 Q
Okay.
And s~o during an initial transition period, 20 both you and he were there; he' some days, *and( you all the 21 days?
22 A
Yes, that's correct.
23 Q
Okay.
And when did he no longer come and you were 24 full-time acting?
25 A
I don't recall exactly, but probably by about
Page 431 1
January he was rarely there.
2 Q
January of '96?
3 A
Yes.
4 Q
Okay.
How did the reorganization that took place 5
in '96 come about?
6 A
Back in the summer of '95, Kingsley had initiated 7
a relook at all of corporate nuclear.
What we were 8
approaching at the time is we had restarted two Sequoyah 9
units and two Browns Ferry units, and were approaching the 10 startup of the Watts Bar plant.
11 Q
Okay, now, hold one second.
Kingsley was now back 12 to CNO?
13 A
Yes.
14 Q
Okay.
He had gone to this other job for awhile 15 and returned?
16 A
Right.
TVA reorganized one more time in there and 17 split fossil and nuclear again, like they had been 18 previously.
19 Q
Okay.
20 A
And --
and he was now the chief nuclear officer 21 again.
And he had initiated this review of all of corporate 22 because, one, we were moving out of restart, new 23 construction mode, into five operating reactors.
24 Additionally, in the time, there was a lot of effort going 25 on in the entire nuclear industry to improve the efficiency
Page 432 1
of how nuclear did work.
And in this time frame there were 2
efforts going on by NEI to benchmark best practices, and to 3
provide information to look at how do we get to a 4
organization (sic) that is both effective, but also can 5
competitive.
6 JUDGE YOUNG:
Also what?
7 THE WITNESS:
Also can be competitive.
8 JUDGE YOUNG:
You're sort of trailing off at the 9
ends of your sentences.
Maybe if you'd sit a little closer 10 to the microphone.
11 THE WITNESS:
Sorry.
I'll try to do better on 12 that.
13 JUDGE YOUNG:
Thanks.
14 BY THE WITNESS:
15 A
So Kingsley initiated some actions.
There were --
16 there were other corporate organizations---engineering, 17 human resources---had all taken on those efforts.
He had 18 initiated the same sort of effort in operations support.
19 In --
I believe it was in September, but the month 20 before I was assigned over there, the results of operations 21 support review was reviewed with him by a number of the 22 managers.
I don't really know whether Moody was even --
23 whether his health permitted him to even attend that 24 meeting.
But I knew that when Kingsley asked me to come and 25 take it --
take over the organization and run it while Moody
Page 433 1
was ill, the first thing he told me was that he was 2
dissatisfied, the results had not --
he had many questions 3
related to the result.
He was concerned about such things 4
as duplication of effort, corporation performing operations 5
in the corporate office that should be done at the sites, 6
corporate maintaining extra personnel just to provide staff 7
augmentation to the site were some of the kind of examples.
8 And he really asked me to get started looking at 9
that, because he felt with Moody's state of health, that he 10 would not be able to do it.
So when I took over the 11 organization, after some time of getting a handle on what 12 everybody did for a couple of months, I started looking at 13 the organization and comparing it to information like NEI 14 was putting out, of what the similar organizations looked 15 like at good performing nuclear utilities.
So I started 16 looking at that organization.
17 Now, the next step that came was the --
the fiscal 18 year '97 budget planning process.
In that there was --
19 there was planning guidelines which were put out in a memo--
20
-it --
it was issued like the second week of March of 1996--
21
-that established goals for the next year.
Those goals for 22 all corporate organizations---and I want to stress these 23 were high-level organizations, it was all of operations 24 support, for example, it was not the individual subgroups 25 within it---we were given a goal to reduce our budget that
Page 434 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 year by a minimum of 17%.
There also were budget targets that ran out through fiscal year 2001.
But those further-out year ones really --
they already fit into the first assignment I had which said, "Hey, go look at what this organization should look like."
The expectation that I had from Kingsley was that this organization be set up in the most efficient way to support five operating plants as soon as we could logically get to that configuration.
It was not tied to out year budget numbers, but it was, "We need to get there.
Go and start working on this."
JUDGE YOUNG:
What was the end of that sentence?
THE WITNESS:
"We need to get there.
Go and start working on this."
JUDGE YOUNG:
Go and start working on this?
THE WITNESS:
To work on the organization.
JUDGE YOUNG:
Okay, thank you.
BY MR. DAMBLY:
Q Well, was the --
was the goal --
the overall goal by the year fiscal 2001 to reduce by 40%?
A The budget numbers for 2001 was a reduction of about 40%.
Q And you mentioned earlier you'd reviewed NEI and the data on what --
what the corporate outfit looked like for good performing plants?
Page 435 1
A Yes.
2 Q
Op support.
What data did you review?
What plant 3
data?
4 A
In the time, NEI had some meetings that I recall 5
going to that --
where information was given.
They were 6
just like presentations by various plants.
In that 7
particular time period, one of the best performing nuclear 8
utilities, both from a regulatory perspective, INPO 9
performance ratings, and overall cost, was VEPCO.
I 10 specifically recall that VEPCO had a...
11 JUDGE YOUNG:
What's PEPCO again?
12 THE WITNESS:
Well, VEPCO.
13 MR. DAMBLY:
14 THE WITNESS:
Virgilia Electric Power.
Virginia 15 Electric Power Company.
They were another nuclear utility.
16 They had four nuclear plants, if I recall correctly.
17 BY THE WITNESS:
18 A
And they had changed their organization to a --
19 one number I happen to recall now at the time is that the --
20 their rad con and chemistry organizations were like two 21 people in rad con and two people in chemistry.
In the same 22 time frame, Florida Power and Light had drastically cut 23 their corporation --
corporate staff back from 300 people to 24 50 people.
The general trend of the numbers that were 25 coming out in the nuclear power industry was to go to more
Page 436 1
of the work being done at the sites, rather than a central 2
corporate location.
3 Q
How did you go about deciding what organization 4
should have what numbers after the initial year, the 1996 5
reductions?
6 A
I had a meeting with my direct reports and I gave 7
them some guidelines to...
8 JUDGE YOUNG:
With your direct reports?
9 THE WITNESS:
The managers who worked for me at 10 the time, the --
within operations support there were about 11 five functional organizations, such as...
12 JUDGE YOUNG:
The managers who reported directly 13 to you?
14 THE WITNESS:
The managers who reported to me; 15 yes.
16 BY THE WITNESS:
17 A
And I gave them guidelines for what they needed to 18 go and look at.
And certain criteria, such as corporate 19 should only be doing things if it's the most cost-effective 20 way to do it, or you have a unique technical requirement 21 that might say, well, we only want to have one of these.
We 22 don't need these at every --
this expertise at each site.
23 There were a set of criteria I set for the people.
24 Now, and I also said what I wanted to do was set up that --
25 what should the organization look like.
Don't worry about
Page 437 1
exactly what year you're going to get there.
What should be 2
our steady state organization?
3 Q
Who were your direct reports?
4 A
At that particular time...
5 Q
At that point that you talked to?
6 A
There was the manager of nuclear training.
His 7
name was Larry Durham.
There was a group called maintenance 8
and technical support which was headed up by a David 9
Goetcheus.
There was the --
the corporate rad chem manager 10 job was vacant at the time, so I --
both Wilson McArthur, 11 who was the head of rad con, reported to me, and Ron Grover, 12 who was the head of chemistry.
13 Initially we had a performance assessment group.
14 I believe that manager's name was Tom Knight.
And then, in 15 addition to that, I had a few miscellaneous small groups who 16 were one person or two persons in --
one was operations, one 17 was fire protection, and one was outage support.
And each 18 of those groups was one or two people.
And and one 19 projects manager who reported to me.
20 But I provided all the input to --
asked for their 21 input back to me.
What I really told them was the guidance 22 that I wanted was to come up with what should be our long-23 term steady state organization.
What we need to do this 24 first year is to make the logical first step to get there.
25 That I really did not think in one year, just --
and we're
Page 438 1
really talking here in one year that, you know, I'm starting 2
an effort early in the year and I have about a month --
3 month or two here to make a decision, that they'd be able to 4
answer all the questions and do the transition of what it 5
would take to get to the final end state.
So the plan for 6
FY '97 was to take the logical first step.
Now, our budget 7
guidance said that logical first step had to be a minimum --
8 result in a minimum reduction of 17% in the budget.
9 Q
Okay.
10 A
And I asked those people to group together and 11 bring the information back to me as to what they should do 12 based upon functions related --
based on that functional 13 guidance I gave them, and to come back to me with their 14 recommendation.
15 Q
And do you recall in this time period any 16 discussions with the --
your direct reports about problems 17 you were having with generic position descriptions?
18 A
One of the criteria I had was not to use the 19 generic position descriptions, that I felt we should have 20 position descriptions that clearly identified the 21 responsibilities of the position.
Not just a flat --
the 22 generic ones tended --
as I said, they were not that 23 specific in it, specific position descriptions assist in 24 achieving the accountability and making clear to the 25 incumbent in the job what's expected of them.
Page 439 1
Q Did you also convey to your direct reports that 2
you would like to take as big a cut as possible the first 3
year?
4 A
I told them that what I wanted to do was to take 5
the logical first step.
6 Q
Did you make any indication that you felt it was 7
better for employees if they found out initially everybody's 8.going, rather than so many a year?
9 A
In the meeting I had with my direct reports, I 10 don't believe I told them that.
That was my opinion, that 11 in doing a reorganization of this nature, that it is better 12 for the employees if you just make it clear what you're 13 doing, and getting on and do it.
It also gave those 14 employees, given TVA's policy at the time, they would have 15 the opportunity to move into the service organization, and 16 one of those --
one of the things you could do in the 17 service organization is preparations to qualify for other 18 jobs in TVA.
So it would also give them the best 19 opportunity, long term, to find another job within TVA.
20 Q
Okay.
So, and we've had this discussion before, 21 but you thought it was better to remove people up front, 22 rather than having people retain employment for a year or 23 two years, during which time they would still get benefits 24 and could be looking for a job?
From a morale perspective.
25 A
From a morale perspective, and also from a
Page 440 1
business perspective.
For the situation you're describing, 2
I'd be keeping a person for whom we did not have a 3
functional need.
And in our --
the direction I had from Mr.
4 Kingsley to make the unit --
the organization as efficient 5
as possible and to be as competitive as possible, keeping 6
personnel just because I could have justified enough budget 7
to keep them would not have been consistent with his 8
direction.
9 Q
Okay.
So why didn't you take the whole cut the 10 first year?
11 A
Because in a number of areas, when I looked at --
12 let's take the example of nuclear training.
There were too 13 many open items in nuclear training.
At the time, TVA was 14 starting up a corporate-wide training group called the TVA 15 University.
A large portion of that was also coming up with 16 a company-wide computer program software, so that all 17 training data could be kept centrally within the company.
18 Nuclear had one, and there were isolated other pockets.
Our 19 nuclear training group, one, was very involved in that 20 particular project.
Until that project would finish, you 21 could not --
the need for that project would stretch out 22 about another year and then it would go away.
It was a one-23 time project, but you could not eliminate it now, because we 24 hadn't finished the project.
25 There also were open questions of the relative
Page 441 1
functions of the corporate chemistry group, training group, 2
and that was still being developed, relative to the 3
corporate nuclear group, relative to the site nuclear 4
training organizations.
And there were too many open issues 5
there in order to make the decision.
That particular group 6
was not --
they were not reduced at that time, other than to 7
lose a vacant position.
And losing the vacant position was 8
very --
clearly you didn't want to bring somebody into a 9
position that you might just turn around and eliminate a 10 short time later.
11 The following year, nuclear in 1997 time frame did 12 another --
a functional review of all of nuclear.
It was 13 done a different way.
It was made up of what was a pure 14 team of a lot of employees.
The pure team ran from mid-15 level managers down to secretary and --
secretaries and 16 first line engineers who looked at all the functions that 17 corporate was doing, they then went to the various 18 customers, who were primarily the sites, and said, "This is 19 what they're doing.
Does this meet your needs?
Is this 20 important to you or isn't it?"
And based on that, came back 21 and recommended another reorganization.
22 That particular reorganization a year later, in 23 the case of nuclear training, totally eliminated the 24 corporate training group.
That once we'd gotten through 25 this project, settled what TVA University was going to do,
Page 442 1
concluded there was no need for nuclear to have a separate 2
corporate training group.
That particular review then 3
concluded the organization that we had gone to in rad con 4
and chemistry was correct relative to the expectations of 5
the customers and their need.
6 JUDGE YOUNG:
Of the customers what?
7 THE WITNESS:
The customers and their needs.
8 JUDGE YOUNG:
And their needs.
9 BY MR. DAMBLY:
10 Q
The changes you made to rad con and chemistry in 11
'96 were --
I mean, they ultimately ended up that's the way 12 the organization stayed, as far as you know?
13 A
That's correct.
14 Q
Let me -- Book 7.
15 JUDGE COLE: ?
16 MR. DAMBLY:
That's what the exhibit is; yes.
At 17 the bottom it even has a Bate stamp number on it.
18 BY MR. DAMBLY:
19 Q
Mr. McArthur, could you identify this document for 20 us, please.
21 MR. MARQUAND:
This is Mr. McGrath.
22 Q
I mean McGrath.
I'm sorry.
It's getting late.
23 A
Well, I'm --
identify the document?
No, I'm 24 really not sure what it is.
It's not a document that I 25 prepared.
I --
I know I have seen it, but I can't, per se,
Page 443 1
identify it for you.
2 Q
Okay.
Well, to the best of --
well, let me ask 3
one question to it.
Did you ever not --
end up not being 4
acting, but actually in the nuclear operations manager 5
position?
6 A
No, I remained in it acting.
And in the 1997 7
reorganization, which we talked about, that position was 8
eliminated.
9 Q
Do the numbers reflected on this, which are head 10 count before and head count after the 1996 reorg for nuclear 11 operations, shows as acting GM, T. McGrath, are those 12 numbers accurate, best of your recollection?
13 A
To be honest with you, I'm not sure, because it 14 has the organization split up differently than I set the 15 organization up.
So I can't --
for example, I'll tell you 16 that performance assessment did not have 11 people.
I think 17 the --
before I believe the...
18 JUDGE YOUNG:
What assessment?
19 THE WITNESS:
The last group called performance 20 assessment.
This actually --
oh, okay.
Now I'm reading --
21 I tell you what I'm reading, and let me read it to you back.
22 23 BY THE WITNESS:
24 A
You notice this says at the top, "Nuclear 25 Operations."
Page 444 1
Q Right.
2 A
Now, my org --
the statement that said, "acting 3
general manager, T. McGrath," there is a little bit 4
misleading.
I only had part of what's on this list under 5
here.
The nuclear operations was the higher level 6
organization to which I reported.
I had the operations 7
support organization.
For example, the performance 8
assessment group that's there then was --
I'd mentioned 9
earlier performance assess --
there was a performance 10 assessment group within operations support.
As part of this 11 reorganization, it was moved into another group, which was 12 process and methods improvements, and those two 13 organizations were combined, which resulted in this number 14 of 11.
But I --
the numbers here look reasonable, but I 15 can't tell you that every one is exactly correct.
16 Q
If you could have a quick look at Exhibit 130, 17 which is an organization chart from February of '95, it 18 looks like, which shows Don Moody --
Moody as the acting 19 general manager of operations support.
Is that the 20 organization that you and...
21 A
Excuse me, what --
what...
22 Q
130.
23 A
130?
24 Q
Yeah.
It's just a one-page organization chart.
25 A
That --
that is the organization chart of the
Page 445 1
radiological and chemistry control portion of the 2
organization.
Don Moody had a much larger organization than 3
that.
4 Q
He had a larger.
With respect with --
back to 5
Staff Exhibit 128, the before and after head count.
6 JUDGE YOUNG:
Is this --
are you getting close to 7
a stopping point?
8 MR. DAMBLY:
This is as good as any.
We can stop 9
right now.
10 JUDGE YOUNG:
Okay.
You sounded like you were 11 going to start on a new subject, so I thought --
we thought 12 maybe...
MR. DAMBLY:
Well, this --
this is 13 appropriate.
I have no problem.
14 JUDGE YOUNG:
Okay, very good.
15 CHAIRMAN BECHHOEFER:
When we --
we'll start again 16 we'll adjourn now and start again at 9:00 a.m. tomorrow 17 in this same room.
18 (Whereupon, the hearing was adjourned at 4:48 19 p.m., to resume at 9:00 a.m. on Wednesday, April 20 24, 2002.)
21 22 23 24 25
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 Watts Bar Nuclear
- Plant, Unit 1, Sequoyah Nuclear Plant, Units 1 and 2, Brown ferry Nuclear Plat, Units 1,2,3 Docket Number:
50-390-CivP; ASLBP No. 01-791-01-CivP Location:
Chattanooga, Tennessee 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.
9if1 Warren 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