ML021290452
| ML021290452 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 04/30/2002 |
| From: | Brenett Warren Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A | |
| References | |
| +adjud/ruledam200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, NRC-338, RAS 4408 | |
| Download: ML021290452 (201) | |
Text
I'?,45 1 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Tennesse Valley Authority Watts Bar Nuclear Plant, Unit I Sequoyah Nuclear Plant, Units I and 2 Browns Ferry Nuclear Plant, Units 1,2,3 Docket Number: 50-390-CivP; ASLBP No.: 01-791-01 -CivP r-1--1)
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Work Order No.: NRC-338 Pages 960-1158 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 Ie-pl -e=SecY-03;
Page 960 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 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 Courtroom B U.S. Bankruptcy Court 31 E. 11th Street Chattanooga, TN Tuesday, April 30, 2002 The above entitled matter came on for hearing pursuant to Notice at 9:00 a.m.
BEFORE:
CHARLES BECHHOEFER, Chairman ANN MARSHALL YOUNG, Administrative Judge RICHARD F. COLE, Administrative Judge PAGES: 960 THROUGH 1158
Page 961 APPEARANCES OF COUNSEL:
On behalf of the Nuclear Regulatory Commission:
DENNIS C. DAMBLY, Attorney JENNIFER M. EUCHNER, Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
-and-NICHOLAS HILTON, Enforcement Specialist Office of Enforcement 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
-and-DAVID A. REPKA, Attorney Winston & Strawn 1400 L Street, N.W.
Washington, D.C. 20005-3502
Page 962 IN D EX WITNESSES: DIRECT CROSS REDIRECT RECROSS Gary L. Fiser 988 -- -- --
EXHIBITS: FOR IDENTIFICATION IN EVIDENCE Staff:
34 Premarked 1144 44 P remarked 1 005 45 P remarked 10 08 90 Premarked 1 096 168 1090 1 090 16 9 1113 1 1 19 177 985 9 87 TVA:
112 972 113 976 Joint:
27 Premarked 107 6 30 Premarked 99 9 31 Premarked 1 00 1 32 Premarked 1 014 33 Premarked 1 04 1 43 Premarked 1 03 2 59 Premarked 10 98 60 Premarked 1 12 0
Page 963 1P R 0 C E E D I N G S 2 CHAIRMAN BECHHOEFER: Good morning, ladies and 3 gentlemen. I hope you all had either a pleasant or a 4 productive weekend, take your pick.
5 Before we started, the Board wanted to raise the 6 possibility of what we might do if we cannot finish by next 7 Thursday, and one possibility is that we move the hearings 8 to Rockville, Maryland. Another possibility is to negotiate 9 i space perhaps in this courthouse for later dates, if we 10 should need it. We don't know what the status of various 11 people's cases will be by that time. But a possibility 12 would be to move it to Rockville, our headquarters in 13 Rockville where we have a very nice hearing room. But that 14 might entail greater efforts by at least one of the parties 15 here.
16 MR. MARQUAND: Your Honor, we appreciate -- Mr.
17 Dambly has already informed us he didn't think the hearing 18 would be over next Thursday. As far as I know, all the 19 witnesses are TVA employees and we've got two plants that 20 are in outages right now and I'm not sure that we can afford 21 to take those people out of the plants and send them up to 22 Rockville for the number of days to have them waiting to 23 testify. And we would appreciate it if we could reschedule 24 -- if it's necessary, if counsel doesn't think he can 25 complete his case in time for us to finish ours by next week
Page 964 1 if we could find some space here. Obviously we don't have 2 to continue the case on into the next week, whatever 3 everybody's schedules will allow. As Your Honors probably 4 noticed, this building is for sale. It's a TVA building.
5 If there's not space in this building, I'm sure we can find 6 space.
7 JUDGE COLE: You might have to rent space.
8 MR. MARQUAND: We would even provide you space.
9 In the TVA building we've got around here, I'm sure we could 10 find a large conference room that's available just as easily 11 accessible as this one is.
12 CHAIRMAN BECHHOEFER: We have had too many 13 spectators lately. The first day or two we did.
14 MR. MARQUAND: Well, I think those were primarily 15 people who didn't know they weren't in the bankruptcy 16 courtroom.
17 CHAIRMAN BECHHOEFER: Oh.
18 (Laughter.)
19 JUDGE YOUNG: If y'all have any idea at this point 20 how much time in addition to the scheduled time do you 21 anticipate we'll need. And second question, is there any 22 way that you could plan your witnesses so that there'd be 23 less need to have people sort of sitting around waiting at 24 any given point, should we have to finish up there.
25 MR. MARQUAND: Fortunately a lot of ours are
Page 965 1 either across the street or 20 minutes down the road. We've 2 only got two I believe who have had more than an hour to 3 drive here, so --
4 JUDGE YOUNG: More than what?
5 MR. MARQUAND: They're at Watts Bar, which is more 6 than an hour's drive, but the others are at Sequoyah, which 7 is 20-30 minute drive and the others are literally across 8 the street in that huge complex on the other side of 9 Warehouse Row.
10 JUDGE YOUNG: How much more time do you think 11 you're going to need?
12 MR. DAMBLY: As far as I know, all the witnesses 13 that we have scheduled or planned, whatever, problems are 14 going to be dealt with between this week and next week.
15 We'll have Mr. Easley coming in tomorrow and Mr. McArthur 16 coming in Thursday and Mr. Grover is coming Monday. So the 17 rest of the people, as Brent indicated, are all TVA 18 employees.
19 MR. MARQUAND: And that's true. As you know, Dr.
20 McArthur is coming in from Provo, Utah and then we've got --
21 CHAIRMAN BECHHOEFER: But that's this week.
22 MR. MARQUAND: That's this week. And as I said, 23 there's at least three or four other witnesses at plants and 24 they're in outages and they're -- for instance, one is the 25 only -- right now, he's the only certified radiation
Page 966 1 protection manager at the site, at Browns Ferry, so he can't 2 leave the site to come up here until we can get somebody up 3 there for him. In addition, he called me in tears last 4 Friday and his wife is gravely ill and we're going to have 5 to work around his schedule.
6 JUDGE YOUNG: So do you have any idea?
7 MR. DAMBLY: Time-wise?
8 $JUDGE YOUNG: Right.
9 MR. DAMBLY: I think by the end of next week, we 10 should only have a couple of witnesses left that may take a 11 fair amount of time and then three or four, five fairly 12 short witnesses. I don't know how long -- I know TVA had 42 13 witnesses, I don't know how long they intend.
14 CHAIRMAN BECHHOEFER: Some of them have left.
15 MR. DAMBLY: And I did want to make that point 16 because Mr. Marquand keeps suggesting it's taking the staff, 17 but we had agreed up front that I would call and they would 18 do their direct if it was an overlapping witness.
19 CHAIRMAN BECHHOEFER: And we already did one.
20 MR. DAMBLY: Mr. Marquand took longer with Mr.
21 McGrath than I did.
22 CHAIRMAN BECHHOEFER: We already did one of them.
23 MR. DAMBLY: Right. So this is kind of a 24 combined, if you will, presentation and I would think -- I 25 think two more weeks probably at the rate this is going, is
Page 967 1 going to be necessary.
2 MR. MARQUAND: Two more weeks beyond the three 3 scheduled?
4 MR. DAMBLY: Yes.
5 JUDGE YOUNG: Two more weeks in addition to this 6 week and next week?
7 MR. DAMBLY: Well, I said by the end of next week, 8 if things are going the way I expect they will, we won't be 9 finished and I would think that would take maybe three plus 10 days to finish -- maybe longer than that -- Mr. Kent will be 11 one of the witnesses and he could ba fairly long witness. So 12 it might take three to four days to finish the staff's case.
13 Then I don't know what Mr. Marquand and his boxes full of 14 documents here will take.
15 JUDGE YOUNG: So you've got Mr. McArthur and Mr.
16 I Fiser this week.
17 MR. DAMBLY: And Mr. Easley.
18 JUDGE YOUNG: And Mr. Easley and then Mr. Grover 19 Monday. Are there any other long witnesses?
20 MR. DAMBLY: I expect at that point, Mr. Fiser 21 will continue. Are there any other long witnesses for 22 staff's case?
23 JUDGE YOUNG: Right.
24 MR. DAMBLY: I would expect that Mr. Kent and Mr.
25 Boyles would take a fair amount of time. Mr. Boyles was the
Page 968 1 principal --
2 JUDGE YOUNG: Well, just keep in mind that it's 3 going to be difficult for us probably to find a two week 4 time period in the next couple of months when we can be down 5 here straight for two weeks. And coming back and forth, you 6 know, we may need to figure out what to do about all these 7 boxes.
8 MR. MARQUAND: I'm sure the parties could work out 9 something between us to find someplace to securely store 10 exhibits and records in between times.
11 JUDGE YOUNG: Well, think about it, and also think 12 about the possibility that you could schedule your 13 witnesses such that it might be that there were some that 14 would be easier to bring up to Rockville if that ends up 15 being the only practical option.
16 MR. MARQUAND: I've done cases where we have 17 traveled like that, where we've done some here and ended up 18 19 JUDGE YOUNG: Right, get the ones that are more 20 uncertain here out of the way first or something like that.
21 MR. MARQUAND: Right.
22 JUDGE YOUNG: We can do updates as we go this week 23 and next and see how we're doing and whether the 24 expectations change maybe.
25 JUDGE COLE: So both parties are of a mind that
Page 969 1 there's no way we can finish by next Thursday?
2 MR. DAMBLY: I certainly don't see any way, Your 3 Honor.
4 JUDGE COLE: Mr. Marquand.
5 MR. MARQUAND: These things always last longer 6 than the parties anticipate.
7 JUDGE YOUNG: That's what I've found. I was 8 hoping that wasn't true in the federal system, but --
9 MR. MARQUAND: Especially in the federal system, 10 isn't that right?
11 (Laughter.)
12 JUDGE COLE: Maybe they'll surprise us.
13 (The Judges confer.)
14 CHAIRMAN BECHHOEFER: Any further preliminary 15 i matters before we resume?
16 MR. MARQUAND: I have a couple, Your Honor.
17 Last week, we discussed the issue of the 18 admissibility of Tom McGrath's deposition without confront 19 him with it pursuant to Federal Rule of Civil Procedure 20 32(a)(2). I prepared a short memorandum addressing that 21 issue of admissibility and, as we discussed last week, the 22 law appears to be that a managing agent under that rule has 23 to be someone who is authorized by the legal entity to speak 24 on those particular issues at the time of the deposition 25 that was taken. In this case, of course, Mr. McGrath, at
Page 970 1 the time of the deposition was not in nuclear power, he was 2 not authorized to speak for nuclear power and even 3 previously when he had been the manager of operations 4 support, the scope of his authorization at that time would 5 have been limited to the matters within his camp. That is, 6 he could speak certainly about his reasons for the 7 reorganization and about the reasons that he knew about for 8 the selection, et cetera.
9 But as we point out, he's a fact witness, it's not 10 like this is a contract matter and he's saying here is the 11 position of the company on these matters. It's more here is 12 what I saw, here is what I said, here is what I thought.
13 And the deposition would not be admissible in any proceeding 14 governed by the Federal Rules of Civil Procedure Rule 15 32(a)(2) and I just wanted to provide Your Honors with this 16 memorandum. And I've also appended to it a case which 17 addresses all these matters and specifically looks at the 18 admissibility of depositions (1) with respect to the agent 19 or the individual's status at the time of the deposition; 20 and also another individual they addressed, the scope of the 21 individual's authority to speak on behalf and they said 22 well, look, he can speak on certain matters, but he can't 23 speak broadly to bind the corporation.
24 And I would like to provide those at this time to 25 Your Honors.
Page 971 1 CHAIRMAN BECHHOEFER: Well, I might say that while 2 on occasion we use the Federal Rules as guidance, the NRC 3 rules are what govern. And at least my interpretation was 4 that under the NRC rules, as long as the deposition didn't 5 leave out any crucial part, NRC rules required that all 6 relevant parts or maybe the entire deposition be put in.
7 MR. MARQUAND: Yes, sir, Your Honor, I understand.
8 CHAIRMAN BECHHOEFER: That was the basis for at 9 least my ruling on the matter.
10 MR. MARQUAND: I understood that the NRC rules 11 looked to the Federal Rules for guidance and as I read the 12 NRC rules, it certainly did -- as the Federal Rules said --
13 if part is admitted, then all relevant parts have to be 14 admitted, as the Federal Rules do.
15 CHAIRMAN BECHHOEFER: Yes, that's what it said.
16 MR. MARQUAND: I looked for guidance and this is 17 the only thing I could find for guidance anywhere about the 18 admissibility of depositions when the individual is not 19 confronted with that deposition.
20 Do I need to provide a copy of this memorandum as 21 well to the court reporter for the record?
22 JUDGE YOUNG: Either that or you may also --
23 unless it's made an exhibit, you may also want to file it 24 with the Office of the Secretary.
25 MR. MARQUAND: As I said, I'm not mailing it and I
Page 972 1 don't have the facilities here to do that, could we simply 2 make that the next TVA exhibit in order, just simply for 3 purposes of identification. I know it's not evidentiary.
4 CHAIRMAN BECHHOEFER: That's a good idea.
5 MR. MARQUAND: So we would make this TVA Exhibit 6 112 and I'll mark it TVA X-112 and provide an original and 7 two to the court reporter as well.
8 CHAIRMAN BECHHOEFER: TVA what number?
9 MR. MARQUAND: 112.
10 JUDGE YOUNG: You might want to -- if you've got 11 more copies or could make more copies, I think the court 12 reporter needs three --
13 MR. MARQUAND: I've got three.
14 JUDGE YOUNG: Oh, great, okay. 112, right?
15 MR. MARQUAND: Yes.
16 (The document referred to was 17 i marked for identification as TVA 18 Exhibit Number 112.)
19 MR. MARQUAND: And I'm not asking the court to 20 rule or do anything on that at this point in time, I simply 21 wanted to put that in the record.
22 CHAIRMAN BECHHOEFER: Ms. Euchner, did you wish to 23 say something?
24 MS. EUCHNER: Staff would just note that 2.740(a) 25 I subsection (g) permits the use of a deposition for any
Page 973 1 l reason. And therefore you do not need to look to the 2 Federal Rules for guidance.
3 CHAIRMAN BECHHOEFER: Right, well, that was the 4 basis for my earlier ruling on the subject.
5 MR. MARQUAND: The other matter --
6 CHAIRMAN BECHHOEFER: We admitted the deposition 7 already as an exhibit. I think we admitted it.
8 tMR. MARQUAND: I think we admitted it and I think 9 that we also had made a commitment to Your Honors to get 10 back with you today to provide you any legal authority one 11 way or the other on that issue.
12 JUDGE COLE: What was that exhibit number?
14 JUDGE YOUNG: There was another exhibit I had in 15 my notes, TVA Exhibit 51, that was going to be supplied and 16 I'm not sure if that's the same one, but there was one --
17 Exhibit 51 was to be supplemented maybe?
18 MR. MARQUAND: Yes, I believe that 51 was a TVA 19 exhibit which were excerpts from the Nuclear Regulatory 20 Commission's report by the Office of Investigations. And 21 I counsel for staff indicated that they might wish to 22 supplement that by putting in the entire thing.
23 1 JUDGE YOUNG: Right.
24 MR. MARQUAND: And the other exhibit that we dealt 25 with and sort of left hanging Friday was TVA Exhibit 103,
Page 974 1 which were the staff's responses to TVA's contention 2 i interrogatories. We have gone through those over the 3 weekend and identified the specific ones we wish to have 4 made part of the record.
5 We have simply redacted from it the ones that are 6 not pertinent and I don't know whether you wish that to have 7 a new exhibit number, but we would like to submit that as 8 'part of the record as well.
9 MS. EUCHNER: Staff would like the opportunity to 10 review it before determining whether it has any objections.
11 JUDGE YOUNG: And that's TVA Exhibit 103?
12 MR. MARQUAND: Well, it was 103, but we've cleaned 13 i it up, so I think we probably need to give it a new exhibit 14 number. Let's give it TVA X-113.
15 e JUDGE YOUNG: Now what number was the deposition 16 ' and did we actually get that physically entered?
17 MR. MARQUAND: I believe that was already 18 premarked as a staff exhibit.
19 MS. EUCHNER: That was Staff Exhibit 107 and 20 actually while we're on the subject of that, when we were 21 reviewing our copy of it last week, we realized that there 22 were certain pages toward the end of the document that for 23 some reason didn't get copied and so I have copies of those 24 1 to be inserted into yours.
25 JUDGE YOUNG: And then just to get all our numbers
Page 975 1 straight. Exhibit 51, was that a TVA or a staff exhibit?
2 MR. MARQUAND: That was a TVA exhibit.
3 JUDGE YOUNG: And the staff was going to 4 supplement that?
5 MS. EUCHNER: And the staff is prepared to 6 supplement that this morning.
7 JUDGE YOUNG: Okay.
8 MS. EUCHNER: These are the missing pages to Staff 9 Exhibit 107.
10 (Documents were proffered.)
11 CHAIRMAN BECHHOEFER: Are these only the missing 12 pages?
13 MS. EUCHNER: Yes, they are only the missing pages 14 because I think only about seven pages out of about 120 were 15 missing.
16 CHAIRMAN BECHHOEFER: Oh, okay.
17 JUDGE YOUNG: Are they at the end or in the middle 18 or --
19 MS. EUCHNER: They're toward the end, I believe 20 the first page missing was 85.
21 JUDGE YOUNG: All right, it skips from 85 to --
22 oh, they're not all in sequence -- 85, 87 and then there's 23 another place.
24 JUDGE COLE: I thought that TVA Exhibit 112 was 25 admitted in evidence. Did you say that, Mr. Marquand?
Page 976 1 MR. MARQUAND: I submitted it into the record, 2 Your Honor.
3 JUDGE COLE: Because the transcript does not 4 indicate that as being admitted.
5 JUDGE YOUNG: That's the one he just admitted this 6 morning.
7 JUDGE COLE: 112?
8 JUDGE YOUNG: That's the brief.
9 MR. DAMBLY: NRC Exhibit 107 -- Staff Exhibit 107 10 is the McGrath deposition that was admitted.
11 JUDGE COLE: So the McGrath deposition is 107, all 12 iright, thank you.
13 JUDGE YOUNG: The draft deposition or --
14 MS. EUCHNER: The pages that I just gave you are 15 C from the McGrath deposition.
16 JUDGE YOUNG: McGrath, okay.
17 MR. MARQUAND: I know we're sort of wandering 18 instead of finishing one subject at a time. We were talking 19 ,about the NRC staff's responses to TVA's discovery and I 20 have marked that as TVA Exhibit 113 and I will provide Your 21 Honors with a copy and an original and two copies for the 22 court reporter.
23 (The document referred to was 24 1 marked for identification as TVA 25 Exhibit Number 113.)
Page 977 1 (Documents were proffered.)
2 MR. MARQUAND: I realize the staff's responses to 3 interrogatories are not evidentiary in nature, but I do 4 believe it's appropriate for them to be received into the 5 record to establish what the staff's sworn statements of 6 what the staff's contentions are in this proceeding and 7 should be a part of the record so that we all know exactly 8 what the issues are that we're here about and that are to be 9 tried.
10 JUDGE YOUNG: That we're what?
11 MR. MARQUAND: Why we're here.
12 JUDGE YOUNG: Okay, I'm still missing ends of 13 sentences sometimes.
14 MR. MARQUAND: I'm sorry, Your Honor.
15 JUDGE YOUNG: Now was this one of the ones that 16 you were going to try to reach some agreement about or -- in 17 other words, does this represent any combined effort on your 18 part or is this --
19 MR. MARQUAND: We had TVA Exhibit 103, which was 20 their entire discovery responses. We've simply gone through 21 and identified the specific responses that we wish to call 22 to the Court's attention. And we've excised -- if you'll 23 turn over several pages, you'll see where several pages are 24 blank.
25 JUDGE YOUNG: Right.
Page 978 1 MR. MARQUAND: We've excised those from this so 2 that we don't have to argue about those. This only deals 3 with the contentions that we feel are important for the 4 Court to know what the staff's position is. And we're 5 willing to submit those into the record to establish what 6 the staff has gone on record as indicating are their 7 contentions and their issues that they want to try in this 8 case.
9 MS. EUCHNER: A quick review shows that they're 10 still missing one of our supplements, but we would like the 11 opportunity maybe to take during the lunch hour to look at 12 i it, because I drafted all of our responses and I can't look 13 at it this morning because I'm going to be doing direct exam 14 of Mr. Fiser. So if we could have until after lunch, to 15 give me an opportunity to review it.
16 MR. MARQUAND: What we've done, as I said, was we 17 identified the specific interrogatory responses and if there 18 were supplements that dealt with those specific 19 interrogatories, we included those supplements. I think 20 that there are not --
21 MS. EUCHNER: Your Honor, that's not entire 22 accurate --
23 MR. MARQUAND: Let me finish, please. I think 24 that there were not included -- and I may be mistaken, but I 25 made an effort to include supplements to any interrogatories
Page 979 1 which we have been provided. If we weren't provided -- for 2 instance, on the first page, we have Interrogatory 1, 3 response to Interrogatory 1 of the first set of 4 interrogatories. If there was subsequently a supplement to 5 . that interrogatory, we made an attempt to include it. I'm 6 human, I may have made a mistake somewhere, but my 7 understanding was that we went through and found whatever 8 supplements there were to that specific interrogatory and 9 included those. Similarly, we've included responses --
10 staff's response to Interrogatories 2 and 3 and if there 11 were supplements to those, we've included them.
12 If the staff supplemented something we didn't 13 specify, we didn't include that supplement, because we 14 didn't specify that particular contention either.
15 So we tried to be consistent through here. If 16 we've identified in the first set of interrogatories an 17 interrogatory response, then we tried to include the 18 supplements to that particular response as well.
19 MS. EUCHNER: Your Honor, specifically -- and I'm 20 only talking about one of these that I know off the top of 21 my head, Interrogatory 9, which Mr. Marquand went into great 22 detail about last week --
23 THE REPORTER: Excuse me, could you use the 24 podium, please, we can hear you better.
25 MS. EUCHNER: There was a letter that I drafted to
Page 980 1 Mr. Marquand, I believe it was sometime in January of 2002 2 in response to a letter he had sent to me asking for further 3 supplementation. And I did provide further supplementation 4 at a minimum to Interrogatory Number 9. I don't know 5 whether it was to any of the other interrogatories they've 6 left here. And prior to approving this, I'd certainly like 7 the opportunity to assure that they didn't leave any 8 relevant information out.
9 CHAIRMAN BECHHOEFER: We're prepared to give you 10 the opportunity. After lunch today, will that be 11 sufficient?
12 MS. EUCHNER: I think that would be sufficient, 13 Your Honors.
14 CHAIRMAN BECHHOEFER: I take it we don't need a 15 two or three hour lunch break to accommodate that.
16 MS. EUCHNER: No, Your Honors.
17 CHAIRMAN BECHHOEFER: Okay.
18 Anything further? Otherwise, the staff may 19 proceed.
20 MS. EUCHNER: The staff actually also has a number 21 of preliminary matters.
22 CHAIRMAN BECHHOEFER: Oh, okay.
23 MS. EUCHNER: There is one other documents in your 24 files that we discovered reproduction only copied one side 25 of it instead of double siding it, so I want to provide
Page 981 1 copies of that to you now, and that is Staff Exhibit 134.
2 It is the McArthur transcript for his predecisional 3 enforcement conference.
4 MR. MARQUAND: I don't believe Staff 134 has been 5 tendered into the record.
6 MS. EUCHNER: No, it has not. I'm simply 7 correcting the copies of it.
8 (Documents were proffered.)
9 JUDGE YOUNG: So we can just substitute this.
10 MS. EUCHNER: Yes.
11 JUDGE COLE: Is this just part of it or is this --
12 MS. EUCHNER: You can take the one that's in there 13 out and replace it with this.
14 Additionally, Your Honors, we have compiled a 15 notebook for the supplemental document list that we provided 16 last week and we do have one other supplemental document 17 list that has two documents in it, and those are also 18 included in these notebooks.
19 (Documents were proffered.)
20 JUDGE YOUNG: This is -- oh, I'm sorry. So this 21 is to replace the revised documents --
22 MS. EUCHNER: This simply adds two documents to 23 last week's list. And the notebook that I just gave you 24 includes the documents that were on last week's list as well 25 as the two documents on this week's list.
Page 982 1 JUDGE YOUNG: Okay.
2 MS. EUCHNER: And the last item --
3 CHAIRMAN BECHHOEFER: Is there a hole puncher 4 around here?
5 MS. EUCHNER: Oh, yes, we do have a hole puncher.
6 (Brief pause.)
7 JUDGE YOUNG: This contains 171 through 176?
8 MS. EUCHNER: Yes, Your Honor.
9 JUDGE YOUNG: The revised document list that you 10 submitted last week, you've renumbered the ones in that, 11 correct?
12 MS. EUCHNER: Yes, I basically continued them in 13 sequence to the end of our exhibits.
14 JUDGE YOUNG: And then you've added two more. So 15 the supplemental document list that you gave us last week 16 listed 1 through 5 would actually 171 through 175?
17 MS. EUCHNER: I believe we may have numbered the 18 first document on that list, the enforcement policy, we may 19 have numbered that one 168 when we entered it into evidence.
20 i JUDGE YOUNG: I guess what I'm looking for and 21 maybe we have it, is do we have any index to these new 22 exhibits that has them with their correct numbers as you've 23 now given them to us?
24 MS. EUCHNER: Not yet, we can provide one of those 25 tomorrow as well as a cover page, we're going to go ahead
Page 983 1 and print those out, as well as for the notebooks I'm about 2 to give you, we're going to print out new cover pages for 3 those.
4 JUDGE YOUNG: I just wanted to make sure which 5 numbers went with which identifying descriptions. But if 6 you're going to give us something else, I'll just hold off 7 on that.
8 MS. EUCHNER: And the last item that I have 9 relates to I believe it's TVA Exhibit 51, which was the 1993 10 NRC Office of Investigations Report that the staff wanted 11 all of the supplements included. I believe the report was 12 issued in 1995 and it related to Mr. Fiser's 1993 DOL 13 complaint. We have complete copies of the report and all of 14 the exhibits here. I don't know whether we want to renumber 15 that a new exhibit or just replace TVA Exhibit 51. It's up 16 to Your Honors.
17 MR. MARQUAND: Your Honor, I think any time we get 18 involved in renumbering an exhibit which has already been 19 admitted into the record and you refer to specific page 20 numbers, you generate confusion as to what the record is.
21 The witness has been on the stand and testified about 22 certain page numbers with respect to the Bates stamp numbers 23 and I think that -- I haven't looked at the staff's proposed 24 exhibit, but I think the Bates stamping may not correspond 25 with the testimony that's in the transcript that you already
Page 984 1 have back. And I think it would be confusing to substitute 2 one for the other. I think we just need to assign a new 3 number and go on from there.
4 JUDGE YOUNG: Assign a new number to the complete 5 thing or --
6 MR. MARQUAND: That's fine.
7 JUDGE YOUNG: What about just the pages that are 8 added so that we don't have duplicate pages.
9 MS. EUCHNER: That might be difficult just to sit 10 there and pick and choose which pages weren't, so it might 11 be better to renumber the whole thing.
12 JUDGE YOUNG: So they're interspersed, it's not 13 just an addition that's appended at the end of it?
14 MS. EUCHNER: I'm not sure what TVA included in 15 their exhibit and I think it would just be easier -- this is 16 not a particularly thick document, unlike the 1998 report, 17 which we also have. So I think it might just be easier to 18 keep it in a notebook of its own and have it be a complete 19 set, and the staff would also like to enter the report with 20 all the supplemental exhibits into evidence, to go along 21 with TVA Exhibit 51.
22 JUDGE YOUNG: So that would be 177?
23 MS. EUCHNER: I believe that's the number.
24 CHAIRMAN BECHHOEFER: Will that be 177?
25 MS. EUCHNER: That would be fine.
Page 985 1 (The document referred to was 2 >marked for identification as Staff 3 Exhibit Number 177.)
4 CHAIRMAN BECHHOEFER: This number's 177?
5 MS. EUCHNER: Yes, Your Honor.
6 CHAIRMAN BECHHOEFER: And is this the complete OI 7 report?
8 MS. EUCHNER: Yes, with all of the supplemental 9 exhibits.
10 CHAIRMAN BECHHOEFER: Are there any redactions in 11 there or not?
12 MS. EUCHNER: The only redactions that are 13 included is privacy act information; addresses, phone 14 numbers.
15 CHAIRMAN BECHHOEFER: Okay.
16 JUDGE YOUNG: I don't mean to block you from my 17 view, but sort of -- housekeeping is a challenge in this --
18 the cramped quarters here.
19 CHAIRMAN BECHHOEFER: Ms. Euchner, I take it the 20 staff has offered Staff Exhibit 177.
21 MS. EUCHNER: Yes, Your Honor.
22 CHAIRMAN BECHHOEFER: And any objection to that?
23 MR. MARQUAND: Which document, Your Honor?
24 MR. DAMBLY: 177.
25 CHAIRMAN BECHHOEFER: 1-7 -- with the complete OI
Page 986 1 report.
2 MR. MARQUAND: I have no objection to it being 3 proffered for purposes of showing what the complete report 4 was. I do have problems with -- with purported statements 5 by people in here that are simply summaries of something 6 they told somebody being considered as evidence. If those 7 people are called to testify, that's fine. But to have 8 purported summaries of other people who aren't even going to 9 e appear to testify as witnesses, I don't think is appropriate 10 to consider that as evidence. But simply to show what OI 11 did and what they considered, I think that's appropriate.
12 MS. EUCHNER: Your Honor, what OI did and 13 considered isn't relevant. The reason we are submitting it 14 all is we want all of the witness statements to be 15 considered when reviewing the OI report. And the witness 16 summaries that Mr. Marquand is referring to were all 17 prepared by a TVA employee of the inspector general's 18 office. They are not summaries prepared by an NRC employee.
19 20 MR. MARQUAND: They certainly are summaries, and 21 they certainly were prepared years ago, and many of them are 22 summaries of people who aren't going to be called as 23 witnesses. And to just slide stuff into evidence like that, 24 I don't think it's appropriate even in this sort of 25 administrative proceeding. I don't think it's really
Page 987 1 helpful to have that kind of lax procedures, even -- even in 2 an administrative proceeding.
3 MS. EUCHNER: Your Honors, that's basically a 4 hearsay objection, and hearsay is admissible in an NRC 5 proceeding.
6 CHAIRMAN BECHHOEFER: The board will admitted 7 Staff Exhibit 177. We -- we, of course, will weigh the 8 various statements and -- which is our general practice, 9 anyway. And OI reports are -- as long as they're relevant, 10 are routinely admitted into proceedings of this type. So we 11 will admit that and -- but we will be careful about the 12 weight that we give to various attachment statements.
13 JUDGE YOUNG: I'll just add my statement for the 14 record. For the reasons that I gave last week, I do have a 15 little bit more reservation, based on looking to the rules 16 of evidence for guidance, about allowing documents like this 17 in. But I would certainly agree with my colleagues that the 18 objections will be considered on how much weight we give the 19 evidence.
20 MR. MARQUAND: Thank you, Your Honors.
21 (The documents, heretofore marked 22 as Staff Exhibit #177, were 23 received in evidence.)
24 CHAIRMAN BECHHOEFER: You now ready to proceed?
25 MS. EUCHNER: I am, Your Honor. The staff calls
Page 988 1 Gary Fiser.
2 Whereupon, 3 GARY FISER 4 appeared as a witness herein, and having been first duly 5 sworn, was examined and testified as follows:
6 JUDGE YOUNG: Mr. Fiser, since I'm over at the 7 other end, and since we've been having trouble hearing all 8 through the -- through the hearing, I'd like to ask if you 9 could have your chair as far over as possible so that we can 10 all see you, and also try to speak directly into the 11 microphone.
12 THE WITNESS: Which one?
13 JUDGE YOUNG: The smaller black one I think is the 14 one that works.
15 THE WITNESS: Okay.
16 JUDGE YOUNG: You may have to pull it over.
17 CHAIRMAN BECHHOEFER: There are acoustic problems 18 here, and partially because it's blocked off by the 19 barriers.
20 THE WITNESS: I understand.
21 JUDGE YOUNG: And you may need to speak up, also, 22 just because of the same problems.
23 DIRECT EXAMINATION 24 BY MS. EUCHNER:
25 Q Please state your name for the record.
Page 989 1 A My name is Gary Fiser.
2 Q What is your educational background?
3 A I have a B.S. Degree from Ouachita University, 4 Arkadelphia, Arkansas.
5 Q Could you spell Ouachita for the record, please.
6 A O-u-a-c-h-i-t-a.
7 JUDGE YOUNG: I think we are going to have 8 trouble. Is that microphone turned...
9 JUDGE COLE: Is that turned on? That microphone?
10 THE WITNESS: Can it be turned up? I recently had 11 a tumor removed...
12 JUDGE YOUNG: Oh, goodness.
13 THE WITNESS: .. .from my throat, and they had to 14 cut the nerve. And it's going to take a while for it to 15 come back. So I apologize. I understand it's horrible to 16 listen to, but I'm not sensitive, and if you can't hear 17 anything, you ask me to repeat it. It's not a problem.
18 BY MS. EUCHNER:
19 Q After you finished school, what was your first job 20 in the nuclear industry?
21 l A I started to work at Arkansas Nuclear One in the 22 chemistry department.
23 Q What were your duties in that department?
24 A I was essentially an entry level chemistry, slash, 25 i HP, health physics person.
Page 990 1 Q About how long did you hold that position?
2 A Let's see, I started in 1973, and I suppose I 3 worked in -- I that classification and subsequent ones 4 leading up to the senior chemist position over about the 5 next approximately six years.
6 Q Okay. And you mentioned the senior chemist 7 position. About when did you assume that position?
8 A And that would have been in -- and these titles 9 are many years old, so forgive me if I don't get it exactly 10 right. It seemed like it was in approximately '78 or '79.
11 I would have to have my resume before me to make sure.
12 Q What were your duties in the senior chemist 13 position?
14 A Well, I was still a functioning radio chemistry 15 laboratory analyst. My main duties had to do with the 16 primary side of the plant, where I was overseeing the radio 17 chemistry data and the chemistry data on the primary side of 18 the nuclear plant, and all radioactive effluents, the 19 sampling thereof, writing reports that went to NRC for 20 ' liquid and gaseous effluents, and writing procedures helping 21 to essentially run the entire radio chemistry program at 22 Arkansas Nuclear One.
23 Q Okay. After the senior chemist position, what was 24 your next position?
25 A I was promoted to the radio chemistry supervisor.
Page 991 1,
2 Q And what were your duties in that position?
3 A Within -- I -- I assumed full duties for all 4 personnel in the radio chemistry department, all reports 5 generated, interpretation of data, reviewing, signing, 6 signatory authority for the -- and approval for the various 7 data that were generated in the laboratory, interfacing, of 8 course, with regulatory groups, NRC, et cetera.
9 Q About how long were you in that position?
10 A I was in that position until approximately 1986.
11 Q And in 1986, what position did you assume?
12 A I was given an opportunity to go to the quality 13 control -- quality assurance organization, and I was 14 essentially a chemistry -- radio chemistry specialist in the 15 quality control organization, and then, again, overseeing a 16 lot of the -- mainly overseeing the chemistry groups, but 17 also all other groups on site, including security 18 operations, emergency operating procedures. We basically 19 got into most aspects of the plant.
20 Q After the quality control position, what was your 21 next position?
22 A After -- in 1987, I accepted a job here with TVA.
23 Q What was your first position with TVA?
24 A Again, don't hold me to the title, but I think it 25 was like a program manager, chemistry, here in the corporate
Page 992 1 ichemistry group.
2 Q How were you hired into that position?
3 A I was basically recruited by a manager here at TVA 4 and -- and then later offered a job by him.
5 JUDGE YOUNG: And then later what?
6 THE WITNESS: Offered a job by...
7 JUDGE YOUNG: Okay. Thank you.
8 THE WITNESS: .. .corporate chemistry manager.
9 BY MS. EUCHNER:
10 Q How long did you hold that corporate position?
11 A I would guess approximately six or eight months in 12 - seem like it was approximately May of 1988 I was asked to 13 take over the duties of Sequoyah chemistry superintendent, 14 Sequoyah Nuclear Plant.
15 Q Did you compete for that position?
16 A Not that I recall.
17 Q Do you recall who selected you for that position?
18 A At that time, I was working for a fellow by the 19 name of Ron Fortenberry.
20 JUDGE YOUNG: Portenberry (sic)?
21 THE WITNESS: Yes, ma'am.
22 JUDGE YOUNG: And this was superintendent...
23 THE WITNESS: This was the chemistry 24 superintendent at Sequoyah Nuclear Plant.
25 JUDGE YOUNG: Thank you.
Page 993 1 BY MS. EUCHNER:
2 Q When you rotated out to Sequoyah, was Fortenberry 3 your supervisor?
4 A As I recall, that's the fact. He was not there 5 very long, though.
6Q Okay. Did somebody replace him?
7 A Yes.
8 Q Who became your supervisor then?
9 A Steve Smith became my supervisor. He was the 10 plant manager at Sequoyah.
11 THE WITNESS: Can you hear me okay?
12 JUDGE YOUNG: Yes, thank you.
13 Q I show you what has been marked as Joint Exhibit 14 30. Do you recognize this document?
15 A Yes, ma'am, I do.
16Q Could you please identify what it is.
17 A It is a performance planning and evaluation for 18 managers, office, nuclear power, and performance appraisal.
19 Q Is that your signature at the bottom of the first 20 page?
21 A Yes, it -- it does appear to be; yes.
22 Q What rating were you given in this performance 23 appraisal?
24 A The overall rating was adequate performance.
25 Q And what supervisor signs this appraisal?
Page 994 1 A The supervisor that does the appraisal. Steve 2 Smith.
3 MS. EUCHNER: Your Honors, I move to have Joint 4 Exhibit 30 entered into evidence.
5 CHAIRMAN BECHHOEFER: Any objection?
6 MR. MARQUAND: Well, this is all interesting 7 background. We don't have a date for this document, and I 8 assume it's back in the '80s. It doesn't involve anybody 9 who's a party to this -- who's involved in this proceeding 10 or accused of doing anything. Steve Smith is long gone from 11 TVA. And what a performance appraisal for Mr. Fiser was 12 back in 1989 seems to have no bearing on any issue that's 13 involved in this proceeding.
14 MS. EUCHNER: Your Honors, throughout their 15 questioning of Mr. McGrath, as well as in their pleadings 16 for this case, they have repeatedly attacked Mr. Fiser's 17 performance while he was a chemistry superintendent at 18 Sequoyah. I intend to show and introduce all of his 19 performance appraisals for that time period in order to 20 demonstrate that, despite Mr. McGrath's testimony and TVA's 21 arguments, that he was not, in fact, a poor performance; 22 that he was a good performer. And I think that that is 23 relevant, considering that that is one of TVA's arguments, 24 that he wasn't engaged in protected activity, he was simply 25 a poor performer.
Page 995 1 MR. MARQUAND: I'm going to object, then, if 2 that's the purpose of this, is other than his background.
3 Counsel is now contending that they think that they want 4 proof that he was a good performer and that his removal in 5 1993 was other than based on his performance, because the 6 contention specifically that the staff identified to us 7 about did not include that. And, in fact, we asked them---
8 and I'll turn to it and tell you where it is---we asked them 9 whether or not they made a contention with respect to his 10 performance and they said they did not.
11 And I think it's inappropriate for them now -- for 12 this rabbit to go down another hole. They now raise another 13 issue that -- that they originally told us was not an issue.
14 When we asked them specifically...
15 JUDGE YOUNG: Didn't you open the door to that, 16 though, by your raising his performance at this hearing?
17 MR. MARQUAND: We have always said that he was 18 taken out of that position and not put back in the position 19 in '93.
20 JUDGE YOUNG: And not what?
21 MR. MARQUAND: He was -- he was rotated out of the 22 position as Sequoyah's chemistry superintendent in '92 and 23 was not put back into that. We have always been on record 24 as saying that was because of performance problems at 25 Sequoyah. And we specifically asked the staff, "Do you
Page 996 1 disagree?" And they said, "We do not contend that." And 2 our...
3 MS. EUCHNER: Your Honor, if I remember correctly, 4 the interrogatories said, "Do you contend that there was a 5 legitimate business reason for removing him, or do you 6 contend that if management perceived that Mr. Fiser was a 7 'poor performer, that that's a legitimate business reason?"
8 Staff makes no contentions regarding that. But TVA has 9 repeatedly cited in their briefs these particular 10 performance appraisals as evidence that Mr. Fiser is a poor 11 performer. And if they are going to rely upon attacking his 12 performance, then the staff should be able to question him 13 to demonstrate that they are, in fact, wrong.
14 MR. MARQUAND: That would be the case if the staff 15 hadn't gone on record in saying that they don't make a 16 contention that TVA was wrong in its perceptions about his 17 performance, and the performance of the chemistry 18 organization. If they do go on record and say that they 19 don't make that contention, I don't think that they can now 20 come around and go down a different hole.
21 CHAIRMAN BECHHOEFER: Well, I'm not...
22 MR. MARQUAND: Where's Alice supposed to go? This 23 is Wonderland.
24 CHAIRMAN BECHHOEFER: Well, if if poor 25 performance is -- is cited as a reason for something, this
Page 997 1 is evidence that would counter -- perhaps counter that.
2 MR. MARQUAND: I'm sorry, Your Honor?
3 CHAIRMAN BECHHOEFER: It would counter any claim 4 that Mr. Fiser was a poor performer.
5 MR. MARQUAND: We asked them that contention: Do 6 you contend that? Do you contend that that was anything 7 other than TVA perceiving? And they said they did not. And 8 now, for them to come in and say, "Oh, well, we -- then we 9 gave that interrogatory answer, but we really didn't mean 10 it. That really wasn't our contention. We're now 11 contending he was an adequate performer in Sequoyah 12 i chemistry. He was just fine," I think it's completely 13 contrary to the contention interrogatories we sent them.
14 JUDGE YOUNG: I think we're -- I think we're all 15 in agreement that it -- that it would be relevant. But, for 16 the record, you're making reference to something, and -- and 17 I don't think any of us know which interrogatory you're 18 talking about.
19 MR. MARQUAND: Well, I'm trying to find it right 20 now.
21 MS. EUCHNER: Your Honor, and again I'd like to 22 know what they asked is whether the NRC contended that 23 management perceived him to be a poor performer.
24 JUDGE YOUNG: Do you know which number it...
25 MS. EUCHNER: The NRC doesn't make a contention as
Page 998 1 to whether any management perceived him to be a poor 2 performer.
3 JUDGE YOUNG: Do you -- do you know which number 4 we're talking about?
5 MS. EUCHNER: I do not know what number it is, I 6 just know that I read it over the weekend in my review of 7 the interrogatories. I'm not sure. It might be included in 8 those.
9 MR. MARQUAND: Well, maybe we can clarify this.
10 If the staff is not contending that management didn't 11 perceive him to be a poor performer, why do they need to 12 prove whether or not in fact he was or was not. If 13 management perceived him to be a poor performer, that's the 14 end of it. I mean, management's entitled to be right or 15 wrong, just as long as it's not discriminatory. And if 16 management decided that the chemistry program wasn't cutting 17 the mustard and that they needed to bring somebody else in, 18 right or wrong, that's not discrimination, and we don't need 19 to go and look at was management right, was Mr. Fiser doing 20 a good job or a bad job. The issue is: What was the intent 21 of management? And if management perceived that the 22 chemistry program wasn't up to snuff and wasn't performing 23 the way they needed to, if management perceived, based on 24 INPO reports, based on NSRB reports, based on management 25 looking and finding problems, that -- that they had a
Page 999 1 problem that they needed to address, that's the end of it, 2 and we shouldn't have to address was he good, was he bad, or 3 not?
4 JUDGE YOUNG: I think we're all in agreement that 5 that you did open the door to it and that it would be 6 relevant to the issues you've described.
7 CHAIRMAN BECHHOEFER: The board will admit Joint 8 Exhibit 30.
9 MS. EUCHNER: Thank you, Your Honors.
10 (The documents, heretofore marked 11 as Joint Exhibit #30, were received 12 in evidence.)
13 BY MS. EUCHNER:
14 Q At some point during 1989, did you have a change 15 in supervisors?
16 A As I recall, that is correct.
17 Q Who became your new supervisor?
18 A Mr. Bill Lagergren.
19 Q What position were you in when Mr. Lagergren 20 became your supervisor?
21 A I was still in the chemistry superintendent.
22 Q Okay. And what...
23 JUDGE YOUNG: You're saying "Logerman," L-o...
24 MS. EUCHNER: Lagergren, L-a-g-e-r-g-r-e-n.
25 BY MS. EUCHNER:
Page 1000 1 Q What was Mr. Lagergren's position at that time?
2 A He was the operations manager at Sequoyah Nuclear 3 Plant.
4 Q I'd now like you to turn to Joint Exhibit 31. Do 5 you recognize this document?
6 A Yes, I do.
7 Q What is it?
8 A An employee appraisal for manager and specialist 9 employees.
10 Q What is the date on this document?
11 A It's signed by me on September the 26th, 1989.
12 Q Would you please read-the summary that appears in 13 the beginning of the appraisal.
14 A "Mr. Fiser's performance for fiscal year '88 was 15 adequate and improved to solid performance through the first 16 three quarters of '89. Through this period he demonstrated 17 continued weaknesses in aggressiveness and communication 18 skills. Following specific discussions and coaching in 19 these areas, I have noted improvements, although not to the 20 degree I would have expected. Personnel related action is 21 not taken spontaneously, while actual chemistry results are 22 good. Though weaknesses noted last year persist, material 23 condition improvements of chemistry equipment is not being 24 pushed adequately."
25 Q Who was the supervisor who wrote and signed this
Page 1001 1 appraisal?
2 A That would be Mr. Lagergren.
3 MS. EUCHNER: Your Honors, I would like to move 4 Joint Exhibit 31 into evidence.
5 MR. MARQUAND: Same objections, Your Honor.
6 CHAIRMAN BECHHOEFER: Same answer, we'll overrule 7 it and admit the exhibit.
(The documents, heretofore marked 9 tas Joint Exhibit #31, were received 10 in evidence.)
11 BY MS. EUCHNER:
12 Q I'm showing you what's been marked as Staff 13 Exhibit 44. Do you recognize this document?
14 A Yes, I do.
15 Q What is it?
16 A It is another employee appraisal for manager and 17 specialist employees.
18 Q Did you sign this document?
19 A Yes, I did.
20 Q On what date?
21 I A November the 7th, 1990.
22 Q Would you please read the summary at the beginning 23 of the appraisal.
24 A "Gary's management performance has been very good.
25 He can succeed into a corporate chemistry management
Page 1002 1 position. Would need to gain detailed systems knowledge to 2 go further at plant, but has the ability to do so."
3 Q Like you to turn to the fourth page of that 4 document. I believe the top of that page is designated Page 5 2-B.
6 A That's correct.
7 Q How many of the listed accomplishments on this 8 appraisalL were you able to complete?
9 A All of them.
10 CHAIRMAN BECHHOEFER: All but what?
11 THE WITNESS: Every one of them.
12 CHAIRMAN BECHHOEFER: Oh, all of them.
13 MS. EUCHNER: Is there a particular...
14 JUDGE YOUNG: Excuse me. You said the fourth 15 page?
16 MS. EUCHNER: I believe it's the fourth page; yes.
17 It's the fourth page, Your Honor.
18 JUDGE YOUNG: And it says 2-B at the top?
19 CHAIRMAN BECHHOEFER: You just missed it.
20 JUDGE YOUNG: That says -- mine says 1-B at the 21 top. Are we looking at the same page?
22 MS. EUCHNER: Are you on Staff Exhibit 44?
23 JUDGE YOUNG: Yes.
24 MS. EUCHNER: I don't have a 1-B at all.
25 JUDGE YOUNG: 1-B. Where's the 2-B? Oh, okay,
Page 1003 1 I'm looking down at the Roman numeral 1-B. I see -- now I 2 see the other 2-B.
3 BY MS. EUCHNER:
4 Q Is there a particular goal listed on this page 5 that relates to INPO?
6 A Yes, #4 under "Regulatory Performance," is "Good 7 INPO review."
8 Q And does it say that you met that goal?
9 A Yes, it does.
10 Q I'd like you now to turn to the pages on which 11 your ratings appear. I believe it starts on Page 3. How 12 many of these rating areas were you given a rating of 13 "high"?
14 JUDGE COLE: When you say Page 3, is that the 15 third page of the document or is it a page numbered 3?
16 MS. EUCHNER: I'm sorry. It's the page' number at 17 the top, employee appraisal Page 3.
18 JUDGE COLE: Thank you.
19 BY THE WITNESS:
20 A Appears to be 18.
21 Q Is that all of them?
22 A Yes, it is.
23 Q If you go to Part 3 of this appraisal, I believe 24 the number on the top of the page reads Page 4.
25 A Okay.
Page 1004 1i Q Would you please read your first quarter 2 evaluations.
3 A "Preparation for INPO good. Handled several 4 personnel issues well and managed a downsizing effort well.
5 Chemistry performance good."
6 Q Your second quarter evaluation.
7 A "SALP period ended with no weaknesses noted in 8 chemistry, other than slowness to incorporate equipment 9 upgrades. Gary has pushed upgrade effort well."
10 Q And, for the record, what is SALP?
11 A Systematic licensing and appraisal period, I 12 think.
13 Q On the next page, the third quarter evaluation, if 14 you could read that, please.
15 A The third quarter evaluation says, "Special NRC 16 audit and INPO audits went very well. Chemistry program has 17 done very well."
18 Q And the fourth quarter?
19 A "Continued good performance up to and including 20 start of Unit 2, Cycle 4 refueling outage."
21 Q Who was the supervisor who wrote and signed this 22 appraisal?
23 A That would be Mr. Bill Lagergren.
24 MS. EUCHNER: Your Honors, I move to have Staff 25 Exhibit 44 entered into evidence.
Page 1005 1 MR. MARQUAND: Same objection, Your Honors.
2 CHAIRMAN BECHHOEFER: Objection overruled. The 3 board will admit Staff Exhibit 44.
4 .(The documents, heretofore marked 5: as Staff Exhibit #44, were received 6 in evidence.)
7 BY MS. EUCHNER:
8 Q At some point during 1989 or 1990, did your 9 position change?
10 A Between '89 -- yes, it did.
11 Q What was your new position?
12 A I -- I get my dates confused, it's been so long 13 now. But I think that is the period of time that I moved 14 into outage management.
15 Q I think we're a little bit earlier than outage 16 management. Was there a time you undertook --
17 environmental...
18 A Oh, I'm sorry.
19 Q ... became part of your job title?
20 A I'm sorry, that is true. So I was now -- the 21 title had then, I think, changed to chemistry and 22 environmental superintendent.
23 Q Were you required to compete for that position?
24 A Not that I recall; no.
25 JUDGE YOUNG: Chemistry and environmental
Page 1006 1 supervisor? Is that what you said?
2 THE WITNESS: Superintendent.
3 JUDGE YOUNG: Superintendent.
4 MS. EUCHNER: Did Bill Lagergren...
5 JUDGE YOUNG: At Sequoyah? I'm sorry.
6 BY MS. EUCHNER:
7 Q Did Bill Lagergren remain your supervisor after 8 this change in position?
9 A Yes, he did.
10 Q I'd like you to turn to Staff Exhibit 45. Do you 11 recognize this document?
12 A Yes, I do.
13 Q What is it?
14 A It's another employee appraisal.
15 Q Did you sign this appraisal?
16 A Yes, I did.
17 Q On what date?
18 A January the 29th, 1991.
19 Q Okay. Does this appraisal cover the entire fiscal 20 year, or is this a -- sort of like a midyear review 21 appraisal?
22 A Well, it says for fiscal year ending September 23 30th, '91, and so by virtue of the fact that I signed it in 24 January, this would be, I suppose, partial.
25 Q Who was the supervisor who wrote this appraisal?
Page 1007 1 A Mr. Bill Lagergren.
2 Q Okay. Please read the summary statement at the 3 beginning of this appraisal.
4 A It's a little difficult to read. Let me work my 5 way through it. "Very organized and has potential to 6 perform at higher management level than chemistry 7 superintendent or rotate to outage management position for 8 Unit 1, Cycle 5 and Unit 2, Cycle 5 outages to observe 9 leadership skills outside of his area of expertise."
10 Q Now, the section you just read indicates that 11 you're going to be rotated to outage manager. Did you 12 discuss that rotation with Bill Lagergren?
13 A Yes, I did.
14 Q And what did he tell you about the rotation?
15 A Well, he was very pleased with my performance.
16 And we had a great rapport. And he was looking for help for 17 management of the outage and had been looking for an 18 opportunity to, I think, broaden my experience base. And --
19 and he basically looked at me and he said, you know, "You've 20 done well. Chemistry's doing well. We had a good INPO 21 assessment. I would like for you to go help me manage the 22 outage. And, you know, if you do well, fine. If you really 23 mess up, the worst thing that could do would be that we 24 would put you back in chemistry and let you rot there." He 25 was very direct. Very kind, but very direct.
Page 1008 1 MS. EUCHNER: Your Honors, I would move to have 2 Staff Exhibit 45 entered into evidence.
3 MR. MARQUAND: Same objection, Your Honor.
4 CHAIRMAN BECHHOEFER: Objection overruled. The 5 exhibit will be admitted.
6 (The documents, heretofore marked 7 as Staff Exhibit #45, were received 8 in evidence.)
9 BY MS. EUCHNER:
10 Q Did you retain your duties as the chemistry and 11 i environmental superintendent during your rotation as outage 12 manager?
13 A No, I did not.
14 Q Was somebody acting for you as chemistry and 15 environmental superintendent?
16 A That's correct.
17 Q Who was it?
18 A While I was away, I placed Rod Richie and Scott 19 Watson in charge, and they would rotate, you know. One 20 would take it for a few weeks, and then the other.
21 CHAIRMAN BECHHOEFER: Who were -- who were those 22 people? I didn't catch all the names.
23 THE WITNESS: Rob Richie and Scott Watson. They 24 were both direct reports of mine in the chemistry 25 organization at Sequoyah.
Page 1009 1 Q I'm showing you what has been marked as Joint 2 Exhibit 32. Do you recognize this document?
3 A Yes, I do.
4 Q Please identify it.
5 A It's another employee appraisal.
6 Q Did you sign this appraisal?
7 A Yes, I did.
8 Q On what date?
9 A October the 3rd, 1991.
10 Q I would like you to turn...
11 CHAIRMAN BECHHOEFER: Joint Exhibit 32?
12 MS. EUCHNER: Joint Exhibit 32.
13 JUDGE YOUNG: Are you waiting for us?
14 MS. EUCHNER: Yes.
15 JUDGE YOUNG: Well, we're -- we're with you.
16 MS. EUCHNER: Okay.
17 CHAIRMAN BECHHOEFER: We are now. We just had to 18 get the right document.
19 BY MS. EUCHNER:
20 Q If you'd go to the fourth page of the appraisal.
21 At the top of the page it reads, "Employee Appraisal, Page 22 2-B."
23 A Okay.
24 Q How many of the goals for this year were you 25 unable to meet?
Page 1010 1 A Appears to be one.
2 Q Were there any of the goals on this performance 3 appraisal related to an INPO review?
4 A I don't see it on that page.
5 JUDGE YOUNG: When you -- just to clarify 6 something. When you say, "It appears to be one," is the --
7 is the indication of that the date?
8 THE WITNESS: No, ma'am. You see on page, again, 9 2-B, it has a list of accomplishments and performance on the 10 left column and goes, "Met" column, "Yes" or "No." And 11 there's only one "No" in that list.
12 JUDGE YOUNG: I'm sorry, I'm not...
13 JUDGE COLE: I don't see...
14 JUDGE YOUNG: ... I'm not following.
15 JUDGE COLE: ... that on this page, sir. Page --
16 "Employee Appraisal," dash, Page 2-B?
17 MS. EUCHNER: It's the fifth page of the document.
18 19 JUDGE YOUNG: There are two Page 2-Es.
20 THE WITNESS: Oh, I see. There two Page 2-Bs.
21 MS. EUCHNER: There are? Well, I guess TVA needs 22 to change their -- their forms, here, then, if there's two 23 Page 2-Bs.
24 JUDGE YOUNG: You're looking at the second Page 2-25 By?
Page 1011 1 ,MS. EUCHNER: It's the second Page 2-B.
2 JUDGE YOUNG: Okay.
3 THE WITNESS: I'm sorry.
4 JUDGE COLE: We're now on the same page.
5 CHAIRMAN BECHHOEFER: Okay.
6 BY MS. EUCHNER:
7 Q And I guess you will find the goals that are 8 referred to on the second Page 2-B, on Pages 2-A and the 9 first 2-B. Do any of those performance standards relate to 10 INPO?
11 A It appears to be #5-2-10.
12 Q Okay. And the other ones?
13 JUDGE COLE: That's not what I see here. It looks 14 like 5.0.3 has a "no."
15 JUDGE YOUNG: The question was...
16 MS. EUCHNER: I asked him the second question, 17 Your Honor. I asked him if any of the performance standards 18 related to INPO.
19 JUDGE COLE: Oh.
20 MS. EUCHNER: And that's what we're looking at 21 right now.
22 JUDGE COLE: I'm sorry.
23 BY MS. EUCHNER:
24 Q So 5.2.10. If you go back to the list, did you 25 meet that goal?
Page 1012 1 A Yes, I did.
2 Q Okay. Are there any other ones that relate to 3 INPO?
4 A NRC, SALP, hazardous waste. I do not see any 5 others.
6 Q If you go to Page 2 on your performance standards, 7 do you see any that relate to INPO?
8 A No, I do not.
9 Q Have to look at see what page you're on, then.
10 A Okay, wrong page.
11 Q Do any on that page reflect INPO?
12 A I'm sorry. Yes, I see #5.1.11, "Conduct chemistry 13 activities to achieve a chemistry index of 0.2 per unit.
14 Recognize this is for morfline operations."
15 Q And did you meet that goal?
16 A Yes, I did.
17 Q Okay. Any other on that page that relate to INPO?
18 A 5.2.2, "Implement actions as scheduled at Sequoyah 19 from INPO's self-assessment and findings from 1989 --
20 findings from 1989 evaluation to support the next INPO 21 evaluation in May of '91." 5.2.2.
22 Q Did you meet that goal?
23 A Yes, I did.
24 Q Any other ones on that page?
25 A "Throughout fiscal year '91, for any INPO overall
Page 1013 1 or other performance indicators that does not meet 2 established goals for two consecutive months establish an 3 action plan for approval and implementation within two 4 weeks," 5-2-3, and I met that one.
5 And then 5-2-4, "Operate in such a manner as to 6 contribute to the INPO overall assessment of two or better 7 for Sequoyah.' That'd be 5-2-4. And we met that one.
8 And this -- this next one, 5-2-5, relates as well, 9 because I recognized some of the -- the goals, which says, 10 "Throughout fiscal year '91, conduct Sequoyah site 11 operations to meet or exceed goals established for the 12 following: percentage of time auxilliary cooling water 13 system is out of speculate -- out of specification at a 14 percent of .2; condensate dissolved oxygen level, PPB of 2.5 15 steam generator blow-down getting conductivity in microsomes 16 (phonetic) per centimeter to be determined based on 17 morfline," because we were implementing a new program. That 18 would be 5-2-5. And I met those, as well.
19 Q Okay. I'd like you to turn to the second quarter 20 evaluation.
21 CHAIRMAN BECHHOEFER: Where is that?
22 MS. EUCHNER: I believe it is employee appraisal 23 Page 4 of the document. Part 3 if you're looking at the 24 Roman numerals.
25 ' CHAIRMAN BECHHOEFER: Oh, okay.
Page 1014 1 THE WITNESS: Okay, I'm there.
2 BY MS. EUCHNER:
3 Q The second quarter evaluation.
4 A The second quarter evaluation is, "Prepared for 5 and performance in this spring's employee evaluation good.
6 Interpersonal relationship with QA organization needs 7 improvement. Because of past goal performance, will rotate 8 to outage manager position to broaden experience and observe 9 and develop leadership skills." I apologize for the way I 10 sound.
11 Q And on the top of the next page, please read the 12 third quarter evaluation.
13 A The third quarter is, "Performance of chemistry 14 department has been good. Prep for INPO good. Moved to 15 outage management preparation team." "Moved to outage 16 preparation team."
17 Q Who was the supervisor who signed this appraisal?
18 A That would be Bill Lagergren.
19 I MS. EUCHNER: Your Honors, I would move to have 20 Joint Exhibit 32 entered into evidence.
21 MR. MARQUAND: Same objection, Your Honor.
22 CHAIRMAN BECHHOEFER: Objection overruled. The 23 board will admit Joint Exhibit 32.
24 (The documents, heretofore marked 25 as Joint Exhibit #32, were received
Page 1015 1 in evidence.)
2 BY MS. EUCHNER:
3 Q When did you return to your position as Sequoyah 4 chemistry and environmental superintendent from your 5 rotation as outage manager?
6 A I'm going to guess around January of 1992.
7 Q And at some point, either while you were outage 8 manager or after your return, did Bill Lagergren cease being 9 your supervisor?
10 A Yes, he did.
11 Q Who became your new supervisor?
12 A Mr. Pat Lydon. That's L-y-d-o-n.
13 Q Approximately how long was Mr. Lydon your 14 supervisor?
15 A Altogether, only a few weeks.
16 Q Upon your return as Sequoyah chemistry and 17 environmental superintendent, did you note that there were 18 some problems that occurred in the chemistry program during 19 your absence?
20 A Yes, I did.
21 Q Specifically, what problem did you note?
22 A There were a couple of things. First of all, we 23 were generating 50-plus trend plots a day.
24 JUDGE YOUNG: Fifty (50) plus...
25 THE WITNESS: Trend plots.
Page 1016 1 JUDGE YOUNG: Trend?
2 THE WITNESS: Chemistry trend.
3 JUDGE YOUNG: Trend plots. Thanks.
4 BY THE WITNESS:
5 A A day, at least four days a week. They had had 6 some computer problems. The computer was down. Those 7 trends were not being generated.
8 Q Okay. Prior to your rotation as outage manager, 9 what kinds of trends was Sequoyah chemistry performing?
10 A Oh, my goodness, we -- we were trending just about 11 everything we had data for. Primary site, secondary site, 12 environmental type issues. Let's see. Reactor coolant 13 performance, failed fuel monitoring. You name it. I mean, 14 we were generating a lot of trends.
15 Q How often were you generating the trends?
16 A Basically, well, we would get the complete package 17 out four times a week, and a limited version of it out five 18 times a week.
19 Q Was there a reason why the chemistry program had 20 stopped performing all of these trends during your rotation 21 as outage manager?
22 A Yes. As I recall, the computer that they were 23 using to generate the trends had some problems, and they 24 , were trying to get a service -- service person in to do some 25 repairs.
Page 1017 1 Q Upon your return, was Sequoyah chemistry able to 2 get the computer fixed so that the trending could resume?
3 A Yes, we were.
4 Q How soon after you returned from your rotation did 5 Sequoyah chemistry start performing the trend plots again?
6 A I do not recall the exact time, but it would have 7 been on the order of days; perhaps a couple of weeks, 8 something like that. I'm not exactly sure.
9 i Q At some point, did anyone from the Nuclear Safety 10 Review Board or NSRB raise this issue with you?
11 A Yes, they did.
12 Q When?
13 A As I recall, that was in a meeting that was 14 conducted in my office in February, I think February the 15 25th. I have notes about it, anyway. I think it's February 16 the 25th.
17 JUDGE YOUNG: Of which year?
18 THE WITNESS: That would be 1992.
19 BY THE WITNESS:
20 A Plus, as you will recall, the original intention 21 was for me to help manage both outages, and after the first 22 ioutage, Bill Lagergren told me that I needed to get back to 23 chemistry because he had heard that NSRB was raising some 24 issues with regard to chemistry, and I needed to get that 25 straightened out right away.
Page 1018 1 Q Who attended the meeting in your office?
2 A Oh, there were several members of my staff. Dr.
3 Don Adams, as I recall; Dr. Dale Nix, who worked for me, 4 both of those guys; Rob Richie; Debbie Bowdine. Other 5 members of my staff were in and out, as is usually the case.
6 Mr. Bill Jocher was present, as well, from corporate 7 chemistry, and NSRB members Dr. Wilson McArthur, a Mr.
8 Peterson, and McGrath.
9Q What was the problem that NSRB had with the 10 trending?
11 A The fact that for a while the trend -- the trend 12 package, the complete package of 50-some-odd trends were not 13 being generated while I was gone.
14 Q Did anyone from the NSRB ask you to do something 15 specifically related to trending?
16 A Yes. As I recall, it was Mr. Peterson who 17 essentially demanded that I put into procedure a requirement 18 that stated that I would generate 50-plus trend plots every 19 day, seven days a week, including holidays. He didn't care.
20 Q Okay. Did anyone else from the NSRB make the same 21 request?
22 A Yes, at one point, as I recall, Mr. Peterson and 23 Dr. McArthur began in the meeting, and then Mr. Peterson got 24 up, went out, got Mr. McGrath, brought him into the meeting, 25 and then repeated his demand that I place this in procedure.
Page 1019 1,
2 JUDGE YOUNG: What do you mean by "place into 3 procedure"?
4 THE WITNESS: If you place it in the procedure, it 5 is -- heretofore we had been generating these just out of an 6 understanding that we wanted to be the best, we wanted to 7 generate the data and distribute it to the plant in such a 8 manner that we would get a lot of insight, a lot of input 9 into the program. But there was no specific requirement to 10 do that in procedure. We were just doing it. And he wanted 11 -- in lieu of the fact that while I was gone there was a 12 period of time when we were not generating those, a few days 13 or weeks, I don't remember, he wanted it a hard and fast 14 requirement that we generate those every day as a procedural 15 mandate.
16 JUDGE YOUNG: Written down somewhere?
17 THE WITNESS: Written. Correct.
18 JUDGE YOUNG: Okay. Thank you.
19 CHAIRMAN BECHHOEFER: That was Mr. Peterson, you 20 say?
21 THE WITNESS: Yes, sir, it was, and Mr. McGrath.
22 JUDGE YOUNG: And Mr. McGrath?
23 THE WITNESS: Yes, ma'am.
24 CHAIRMAN BECHHOEFER: Okay. Okay.
25 BY MS. EUCHNER:
Page 1020 1 EQ What was your response to their request?
2 A My response was that -- that I could not comply 3 with their request to put that in writing, and therefore 4 making it a procedural requirement, because then, even if I 5 could come up with a way to do it on the weekends, if the 6 computer ever failed, I was in violation of my procedure, 7 and therefore in violation of the program. And these 8 procedures are reviewed and approved by -- by the plant PORC 9 committee and...
10 ,JUDGE YOUNG: By what? By...
11 CHAIRMAN BECHHOEFER: I didn't hear that.
12 THE WITNESS: By -- by the -- let's see, we call 13 it different things in different plants. That would be the 14 oh, I've forgotten. But it's a -- a high-level committee 15 that reviews and approves safety related work or work at a 16 nuclear power plant. And I'm trying to think of what PORC 17 stand for. I can't remember.
18 CHAIRMAN BECHHOEFER: It was not the NSRB?
19 COURT REPORTER: PORC committee?
20 THE WITNESS: P-O-R-C.
21 COURT REPORTER: Is that an acronym?
22 THE WITNESS: Yes, it is.
23 JUDGE YOUNG: What were the four letters?
24 THE WITNESS: As I recall, it was PORC, P-O-R-C.
25 At Arkansas we called it something else. I have to switch
Page 1021 1 back and forth here.
2 JUDGE YOUNG: P-O-R-C.
3 BY MS. EUCHNER:
4 Q Did you explain to Peterson and McGrath why the 5 trending couldn't be performed on a daily basis?
6 A Absolutely.
7 Q And why wasn't it practical to require that seven 8 days a week?
9 A Well, it -- it would involve a -- a tremendous 10 expenditure in overtime of staff positions, overtime that 11 was -- was very difficult to get approved, and it would 12 require me working staff positions essentially seven days a 13 week. And I -- I told him that -- plus the fact that if you 14 put it into procedure and your computer should hiccup for 15 any reason, you're in violation of your -- of your 16 procedure. So I said it's just no practical to do so.
17 Q During this meeting did you do anything to 18 demonstrate to Peterson and McGrath that the trending at 19 Sequoyah was adequate?
20 A Oh, yes. I -- I told them that as far as I knew 21 there was no plant in the United States or in the world that 22 was generating the number of trends that I was generating 23 already. And I offered to get on my speaker phone and tell 24 them listen as I called Institute of Nuclear Power, INPO, in 25 Atlanta, and verify this.
Page 1022 1 Q Did they take you up on that offer?
2 A They did not.
3 Q As the chemistry and environmental superintendent 4 at Sequoyah, how did you typically handle the adoption of 5 new procedures?
6 A We had had some problems at Sequoyah with -- with 7 all groups and procedure compliance. And some of the 8 procedures, which may be fine today, and revised tomorrow, 9 suddenly the person running the test could not follow the 10 procedure, so then you would have to go and implement 11 immediate changes. So I'd instituted a policy whereby 12 anybody that wrote a procedure had to take it to the person 13 who was going to run the procedure and have them walk it 14 down. In other words, the person that's going to run it, to 15 actually go through the test, run a test, a dry run through 16 to make sure that it was going to work. And the reason for 17 this is because I was taking so seriously procedural 18 violations. And to have somebody go in and revise and put 19 requirements into a procedure that could not be followed was 20 not acceptable to me.
21 Q When you talk about procedural violations, 22 practically speaking, what happens when there is a 23 . violation? Who has to be notified, what paperwork needs to 24 be done, that sort of thing?
25 A Well, there again, the names of the -- there is a
Page 1023 1 documented process, and there is a form, a SCAR, we call 2 them different things, so I can't remember. It's changed 3 too many times. That has to be filled out where you -- and 4 in -- and in many cases, you also have to -- to do a root 5 cause determination to find out what the problem was. And 6 then this information has to be submitted to PORC and 7 ultimately to regulatory authorities, et cetera. It's a 8 very serious matter.
9 Q What was McGrath and Peterson's response to your 10 refusal to implement a procedure that would cause Sequoyah 11 to have violations?
12 A As I recall, McGrath jumped up and made the 13 statement, "Well, there's no need for this meeting to 14 continue," and essentially stormed out of the room with 15 Peterson. Dr. McArthur was not present at that time.
16 CHAIRMAN BECHHOEFER: Who wasn't present?
17 THE WITNESS: Dr. McArthur had slipped out for a 18 phone call or something, so he was not present at the time 19 they stood up and said, "No use to continue," and stormed 20 out of the room.
21 BY MS. EUCHNER:
22 Q After this meeting, did McGrath or Peterson or any 23 other member of the NSRB follow up with you on the trending 24 issue?
25 i A That I recall, they did not.
Page 1024 1 tQ Did Sequoyah chemistry continue to perform the 2 trends as you had prior to this meeting with the NSRB?
3 A Oh, yes, they did.
4 Q Now, with relation to the request by Mr. Peterson 5 and Mr. McGrath, what specifically were you refusing to do?
6 A To actually put the requirement into procedure.
7 Because to do so would mean -- and to commit to do so would 8 mean that I was taking it upon myself to allocate manpower 9 over the weekends, to buy redundant computers. I mean, 10 there's a whole lot of things that would have to accompany a 11 an action such as that, to place that as a hard, fast 12 requirement in a procedure.
13 Q Were you refusing to perform the trending?
14 A Oh, no, I was not.
15 Q When you performed the trends, you said you got 16 them out Tuesday through Friday, I believe. Did you trend 17 the data that was collected on Saturday, Sunday, and Monday?
18 A Oh, yes. When we would come in on Monday morning 19 I had staff positions that would be pulling all this 20 information together. And, in addition to the information 21 on Saturday and on Sunday and then the new information that 22 was coming in on Monday, in order to get all of this data by 23 hand into the database, it took a whole day. So that's why 24 normally on Monday we did not get it out; or if we did, it 25 was very late.
Page 1025 1 Q How long did you remain as a Sequoyah chemistry 2 and environmental superintendent after this dispute with the 3 NSRB?
4 A I would guess maybe 90 days.
5 Q And what happened that caused you to no longer be 6 at Sequoyah?
7 A I was rotated to the position of corporate 8 chemistry manager, and the corporate chemistry manager was 9 rotated to Sequoyah.
10 Q Who was that corporate chemistry manager?
11 A It'd be Bill Jocher.
12 Q Who told you that you would be rotating to the 13 corporate position and Jocher would be rotating to the 14 Sequoyah position?
15 A Mr. Pat Lydon.
16 Q And when did he inform you of this?
17 A Oh, it was just -- it was in -- well, it must have 18 been in the March time frame.
19 Q Were you initially in favor of this rotation?
20 A Not really; no.
21 Q Why not?
22 A I felt like we still had a great deal of work to 23 do at Sequoyah, and I was comfortable in that position. And 24 I was -- of course, as I said before, originally the plan 25 was to manage both Unit 1 and Unit 2 Cycle 5 outages.
Page 1026 1 JUDGE YOUNG: I'm sorry. Originally the plan was 2 to manage both...
3 THE WITNESS: The plan was for me to rotate into 4 the Unit 1 and the Unit 2 outage management, whenever those 5 -- those outages started. So if you'll remember my 6 performance appraisal, it was to move me in to manage both 7 of those.
8 JUDGE YOUNG: And Unit 1 and 2 being the units at 9 Sequoyah?
10 THE WITNESS: Yes, ma'am.
11 JUDGE YOUNG: Okay.
12 BY MS. EUCHNER:
13 Q Did you discuss this rotation with any other 14 members of plant management at Sequoyah?
15 A Yes, I did.
.16 Q Who?
17 A I discussed it specifically with the plant 18 manager, Mr. Rob Beecken, and the plant vice-president, Mr.
19 Jack Wilson.
20 Q And what did Beecken and Wilson tell you about the 21 rotation?
22 A They told me that they felt like it was a good 23 thing, that...
24 MR. MARQUAND: Objection. Could we have some 25 foundation for this conversation before we start talking
Page 1027 1 about what, in fact, was said? For instance, could we 2 establish when and where -- when it happened and where it 3 was, what the circumstances surrounding it were? I mean, if 4 we're going to hear about it, we ought to know -- get the 5 basic foundation requirements laid.
6 MS. EUCHNER: I have no problem with that, Your 7 Honors.
8 BY MS. EUCHNER:
9 Q Approximately when did this conversation with 10 Beecken and Wilson take place?
11 A Oh, that would be in -- would be mid to late March 12 of 1992.
13 Q Okay. Who initiated the conversation?
14 A I did.
15 Q And where did the conversation take place?
16 A As I recall, it was in a stairwell at the 17 administration building there at Sequoyah Nuclear Plant.
18 Q And when you initiated the conversation, what did 19 you say to Beecken and Wilson?
20 A I just wanted to talk to them about it and get 21 their feedback. I was wanting to make sure that -- that 22 they were not upset with me in any way. If they were, I 23 wanted to know it. If there was something I needed to do, 24 that I needed to correct, if they had any perceptions of 25 mismanagement, whatever.
Page 1028 1 Q Okay. And what feedback did they give you?
2 A Extremely positive. Go for it. Look at it as an 3 opportunity. You've done well. We're proud of you. Go 4 downtown, broaden your horizon base.
5 Q Okay. About how long was your rotation to 6 corporate chemistry suppose to last?
7 A One year.
8Q Were you supposed to return to Sequoyah at the end 9 of the rotation?
10 A Yes, I was.
11 Q I'm showing you Joint Exhibit 43. Do you 12 recognize this document?
13 A Yes, I do.
14 Q What is it?
15 CHAIRMAN BECHHOEFER: Hold the line till we get 16 there. Okay, we're there.
17 Q Okay. Would you please identify what the document 18 is.
19 A The document title is "Temporary Transfer 20 Agreement Between Operation Services Managers and Gary L.
21 Fiser."
22 Q What's the date on this document?
23 A It's signed by apparently Mr. Joe Bynum March the 24 1 16th, 1992.
25 Q Is this the same Joe Bynum who was later banned
Page 1029 1 from nuclear power for discrimination?
2 A Yes, it is.
3 MR. MARQUAND: Objection; lack of foundation. And 4 it's really irrelevant to this case.
5 MS. EUCHNER: Was merely asking the question 6 whether it was the same person that Mr. Dambly asked Mr.
7 McGrath about.
8 MR. MARQUAND: I'm objecting. I know she said it 9 again. I've got an objection pending that it's irrelevant, 10 and also certainly prejudicial. It's got no bearing on this 11 case. And for counsel to keep dragging it in here, I don't 12 know why they would do that, unless they want to prejudice 13 this case.
14 JUDGE YOUNG: You made -- you made a reference to 15 this having come up earlier.
16 MS. EUCHNER: In McGrath's testimony, I believe, 17 Mr. Dambly questioned him about it. And the reason why it's 18 relevant is that one of the reasons that the staff did not 19 give TVA credit for corrective action is that there is a 20 pervasive environment of hostility towards whistle blowers, 21 and Mr. Bynum is an example of that, and he clearly was 22 involved here by signing this document. That's the only 23 point I'm making, is that there was an environment there 24 that was hostile to whistle blowers.
25 MR. MARQUAND: Now, if staff is going to start
Page 1030 1 raising a new contention, that's something that wasn't in 2 the NOV, it's not in interrogatory answers, that there is, 3 quote, "a pervasive atmosphere that's hostile towards 4 whistle blowers." I think we're going to have to restart 5 this hearing. I don't know where we're going with this.
6 This is something that's entirely new.
7 MS. EUCHNER: Your Honor, it's not going anywhere, 8 other than I was making a simple point. And it is relevant 9 to the extent that when we were determining the civil 10 penalty, we didn't give credit for corrective action based, 11 in part, on TVA's history of discriminating against whistle 12 blowers. I don't intend to go into any great detail about 13 it. I was merely identifying who Mr. Bynum was, for the 14 record.
15 MR. MARQUAND: If -- Mr. Leuhman was here. He 16 testified about the fact there was -- that staff considered 17 -- that wasn't a factor he stated. Now, when counsel says 18 that was a factor we considered, if counsel's going to get 19 up here and tell us about the factors that counsel was 20 involved in considering, that's a different issue, and it's 21 certainly never been involved in any document that's been 22 provided to us. It's not in the notice of violation, it's 23 not in the transmittal letters, it's not in their 24 contentions. This is something new that counsel is raising 25 for the first time this morning. I think it's totally
Page 1031 1 irrelevant. I think it's totally prejudicial. And it's 2 outside the bounds of this proceeding.
3 MS. EUCHNER: Your Honor, as Mr. Leuhman did state 4 in his testimony, that they did -- the staff did consider 5 that in the past there had been discrimination cases against 6 TVA and they took very basic remedial actions, and that that 7 was one of the considerations the staff gave in declining to 8 give TVA credit for corrective action. So he did say it.
9 Maybe not in the language that I said it, but he did testify 10 as to it.
11 MR. MARQUAND: That's a -- the language counsel 12 has used is a specific issue in discrimination cases, as to 13 whether there is a hostile environment. That is way beyond 14 the bounds of what Mr. Leuhman testified to. What Mr.
15 Leuhman testified was that the corrective action TVA had 16 taken in the past had apparently not worked because they 17 thought that Mr. Fiser had been discriminated against here.
18 19 The fact that maybe in some other case the 20 corrective action may not have prevented something in the 21 future is not a pervasive atmosphere of hostility towards 22 whistle blowers. That's a totally different issue, that's a 23 totally different cause of action. That's irrelevant, 24 that's prejudicial, and it's beyond the bounds of this case.
25 (The Judges confer.)
Page 1032 1 CHAIRMAN BECHHOEFER: We'll sustain the objection 2 insofar as it seems to discuss Mr. Bynum's involvement or 3 > non-involvement. I don't think we have as a matter of 4 record anything that says he was involved. But you may 5 later wish to build a record to show that.
6 But we're sustaining the objection only to the 7 question.
8 MS. EUCHNER: Okay.
9 BY MS. EUCHNER:
10 Q To go back to Joint Exhibit 43, which you had just 11 identified for the record, does this agreement entitle you 12 to return to Sequoyah at the end of your rotation as 13 corporate chemistry manager?
14 A Yes, it does.
15 Q And by when does it specify that you are entitled 16 to return to Sequoyah?
17 A It says on or before the employment ending date of 18 March 4, 1993.
19 MS. EUCHNER: Your Honors, I would move to have 20 Joint Exhibit 43 entered into evidence.
21 MR. MARQUAND: No objection.
22 CHAIRMAN BECHHOEFER: Without objection, Joint 23 Exhibit 43 will be admitted.
24 (The document, heretofore marked as 25 Joint Exhibit Number 43, was
Page 1033 1 received in evidence.)
2 JUDGE YOUNG: I just want to add one thing on the 3 last ruling. I'm not sure that I agree that we want to 4 invite you to do anything with regard to Mr. Bynum.
5 Obviously, whatever you do or do not do would be subject to 6 objection at any such time, but I don't concur in inviting 7 you to do anything on that.
8 MS. EUCHNER: Yes, Your Honor.
9 JUDGE YOUNG: That's up to you.
10 CHAIRMAN BECHHOEFER: Let me ask one question 11 derived from Joint Exhibit 43. And that's the last 12 paragraph. What does permanently imply, that the position 13 was a temporary position or that the assignment was 14 temporary?
15 MS. EUCHNER: I'll let Mr. Fiser answer that 16 question.
17 THE WITNESS: The original intent was for a 18 temporary assignment lasting one year. There was a 19 ' possibility that they may want me to stay in perhaps the 20 chemistry manager's position for corporate chemistry, and 21 what this is saying is if that is the case, it's going to be 22 agreed to by all the people mentioned here.
23 In other words, for it to be permanent for me to 24 stay downtown, they wanted all these guys to say okay.
25 CHAIRMAN BECHHOEFER: For you to stay in
Page 1034 1 corporate?
2 THE WITNESS: Right. Should things change, and 3 they decide that they would like to make it permanent, then 4 what they're saying is it's not going to be just a decision 5 from the site or from downtown, it would be both, because 6 these guys, as I see here, are both employees from the 7 corporate organization, as well as the site organization.
8 JUDGE YOUNG: So my understanding -- just to 9 clarify -- am I understanding you correctly that you 10 understood this to give you the right to go back at the end 11 of the year if you wanted to, but if they wanted you to stay 12 longer at corporate, that would be your choice? Am I 13 understanding that right or --
14 THE WITNESS: That is essentially right, except I 15 would add apparently if they wanted me to stay there 16 permanently -- in other words for it to no longer be a 17 temporary assignment, but to become a permanent assignment, 18 they wanted everybody to shake hands and nod heads.
19 JUDGE YOUNG: But that would be -- if that's what 20 they decided they wanted, that would be at your option or 21 their option?
22 THE WITNESS: I assume that would be at the option 23 of all of us, me included.
24 JUDGE YOUNG: So that would be something that you 25 would discuss again and --
Page 1035 1 THE WITNESS: Yes, ma'am, as I understand it, 2 that's correct.
3 CHAIRMAN BECHHOEFER: Proceed.
4 BY MS. EUCHNER:
5 Q When you initially rotated to the corporate 6 chemistry manager position, did you experience any 7 difficulties with your subordinates?
8 A Yes, I did.
9 Q Why?
10 A According to Dr. McArthur, who met with me in 11 November, he had expressed some concern that at least one of 12 the employees had approached him saying, you know, that --
13 well, expressing allegiance to Bill on the part of Dr.
14 Chandrasekaran and on Sam Harvey as well.
15 JUDGE YOUNG: I'm sorry, repeat that. Expressing 16 X -
17 THE WITNESS: Allegiance to Bill Jocher. In other 18 words, they were now working for me downtown, they were 19 accustomed to working for Bill. He had hired them to come 20 to TVA. Now they were no longer working with him and were 21 at the sites and they were not entirely happy about that.
22 JUDGE YOUNG: And then you made reference to two 23 other people's names -- Harvey was one and there was another 24 one?
25 THE WITNESS: That would be Dr. Chandrasekaran --
Page 1036 1 we'll just say Chandra for short.
2 JUDGE YOUNG: And what were you saying about 3 Chandra and Harvey?
4 THE WITNESS: They had apparently gone to Wilson 5 and expressed some concerns about my management style or 6 lack of direction of the group or something like that. His 7 feedback to me was he felt like they were in essence 8 expressing their loyalty to Bill Jocher and felt like --
9 JUDGE YOUNG: He was Mr. McArthur?
10 THE WITNESS: Yes, he was Dr. McArthur, that's 11 correct.
12 JUDGE YOUNG: Wilson McArthur.
13 THE WITNESS: That's correct.
14 JUDGE YOUNG: And in making reference to Chandra 15 and Harvey, they are the persons who you're identifying as 16 your subordinates?
17 THE WITNESS: Yes, ma'am.
18 JUDGE YOUNG: In that new position.
19 THE WITNESS: That's correct.
20 JUDGE YOUNG: Thanks.
21 CHAIRMAN BECHHOEFER: Now at the time of the 22 transfer, to clarify my understanding, Mr. Jocher had gone 23 to Sequoyah to replace your former position -- fill your 24 former position.
25 THE WITNESS: That's correct.
Page 1037 1 CHAIRMAN BECHHOEFER: While you were gone, and the 2 theory was to bring him back to corporate and move you back 3 to Sequoyah, is that correct?
4 THE WITNESS: That's correct.
5 CHAIRMAN BECHHOEFER: I just wanted to make sure 6 because we've got a lot of people moving around here.
7 THE WITNESS: I understand.
8 MS. EUCHNER: Your Honors, I think I'm at a good 9 breaking point, if we need to take a 10 minute break.
10 CHAIRMAN BECHHOEFER: Yeah, that's a good idea, 11 why don't we take a 10 minute break.
12 (A short recess was taken.)
13 BY MS. EUCHNER:
14 Q I believe you have in front of you Joint Exhibit 15 33.
16 CHAIRMAN BECHHOEFER: 33?
17 MS. EUCHNER: 33.
18 BY MS. EUCHNER:
19 Q Do you recognize this document?
20 A Yes, I do.
21 Q What is it?
22 A It's an employee appraisal again.
23 Q Did you sign this appraisal?
24 A Yes, I did.
25 Q On what date?
Page 1038 1 A September 8, 1992.
2 Q And on the first page of this appraisal, there 3 appears a list of experiences. Would you please read that 4 list?
5 A Are you referring to where I should start with the 6 summary statement of employee's performance and potential?
7 Q Underneath there, where there are a number of 8 bullets, if you could just read the bullets.
9 A Okay. The heading over the bullets goes "One must 10 consider both his experience at Sequoyah outage management 11 team and his experience as a manager, corporate chemistry, 12 to fully assess his contribution to TVA. Some specifics 13 are:"
14 Bullet number 1, "Spent about nine months on the 15 Unit 1 cycle 5 outage management team at Sequoyah."
16 Bullet 2, "Installation of nozzle dams during Unit 17 2 cycle 5.
18 "Recently accepted a rotational assignment with 19 the corporate chem manager.
20 "During the recent INPO assist trip, no issues 21 were identified."
22 JUDGE COLE: No items.
23 THE WITNESS: I'm sorry, "no items were identified 24 that had not already been assigned action to resolve.
25 'IThere have been no chemistry-related findings by
Page 1039 1 INPO for Sequoyah. This is a record for Sequoyah.
2 "Corporate chemistry is heavily involved in 3 support activities, spending significant time and funds to 4 support training of personnel at the sites.
5 "Corporate chemistry, along with projects, has 6 taken the lead for TVA's zero mussel mitigation program, set 7 up the first ever NRC Region II chemistry manager's meeting, 8 has taken the lead for TVA for getting a zinc injection 9 initiated at a PWR.
10 And the last one is "Implemented a comprehensive 11 primary shutdown regime during Unit 2 cycle 5."
12 BY MS. EUCHNER:
13 Q Who is the supervisor who signed this appraisal?
14 A That would be Wilson McArthur.
15 Q And had he been your supervisor throughout the 16 entirety of fiscal year 1992?
17 A No, he had not.
18 Q Who had been your supervisor during the early part 19 of that year?
20 A Again, that would have been Pat Lydon, depending 21 on -- to answer your question -- fiscal year. I'm trying to 22 remember exactly when the fiscal year started. Most likely 23 part of it was Bill Lagergren, part of it was Pat Lydon and 24 part of it was Wilson McArthur. Again, it depends on when 25 the fiscal year started up. I don't recall.
Page 1040 1 But there could have been as many as three 2 managers involved in this assessment period.
3 Q Do you know whether Dr. McArthur received input 4 from your prior supervisors or whether he did this appraisal 5 on his own?
6 A I am fairly certain that he had talked to Mr.
7 Lagergren, I do not know whether he ever had any 8 conversation regarding this appraisal with Mr. Lydon, but 9 again, I have worked with Mr. Lydon for at most a few weeks.
10 Q Does this performance appraisal indicate anywhere 11 that McArthur was aware that you were having some 12 difficulties with some of the employees under your 13 supervision?
14 A As I recall, it does, yes. Let me take a look at 15 it here just a minute.
16 (Brief pause.)
17 A If you will look at the introductory paragraph on 18 page 1, you'll see these comments. "There was difficulties 19 expected in the rotation in that the loyalties of some 20 chemistry staff members were to the individual that rotated 21 to Sequoyah and some owed their allegiance to Gary. This 22 paradox led to some difficulties which some efforts have 23 improved to a degree."
24 MS. EUCHNER: Your Honors, I'd move to have Joint 25 Exhibit 33 entered into evidence.
Page 1041 1 tMR. MARQUAND: Same objection.
2 CHAIRMAN BECHHOEFER: Again, we'll overrule the 3 objection and admit the exhibit.
4 (The document, heretofore marked as 5 Joint Exhibit Number 33, was 6 received in evidence.)
7 BY MS. EUCHNER:
8 Q At some point during your rotation as corporate 9 chemistry manager, did Dr. McArthur indicate to you that 10 things were not going well?
11 A Yes, he did.
12 Q When did he first mention that to you?
13 A Well, the first real indication that I had from 14 him that something was awry led to his writing of this 15 personnel appraisal. As I recall, he was down at the 16 Amberley Suites in Decatur, Alabama with other management 17 personnel where they were reviewing candidates for 18 performance increases or bonuses or whatever. And, of 19 course, I was one of his direct reports at that time, so 20 therefore, he was evaluating my performance.
21 And what I was told was he had our names on a 22 board where he was trying to see where his various direct 23 reports -- I don't recall how many, six, eight, I don't know 24 but he was evaluating where I fit in with his list of 25 direct reports. His statement to me was that --
Page 1042 1 JUDGE YOUNG: His being Dr. McArthur?
2 THE WITNESS: His being Dr. McArthur. And also I 3 might add, Ben Easley was involved in this, Ben Easley was 4 my personnel manager when I was downtown. He was at the 5 Amberley Suites, as I recall. And they were reviewing our 6 performance and trying to come up with a picture of where I 7 fit in with the organization. And he had me rated very 8 high. What's very high? I was told I was like in two top 9 two or three, performance-wise. In other words, he was very 10 pleased with my performance. And it was at that time that 11 his boss, Dan Keuter, happened into the room, took a look at 12 the board and said -- basically challenged him and said oh, 13 why is he rated up here. And Dr. McArthur, you know, gave 14 him his reasoning, based upon my past record for the year, 15 what I had done. Some of the things are listed here.
16 JUDGE YOUNG: What was the last thing you said, 17 what you had done?
18 I THE WITNESS: Some of the reasoning for rating me 19 very high are listed right here on this accomplishments --
20 these accomplishments I just read just a moment ago.
21 Basically feedback from Dan Keuter was no, you put 22 him down here, he's going to get no increase. And McArthur 23 challenged him, as he told me, and he said why, what has he 24 done? You know, he started through it again and Keuter just 25 essentially stopped him and said no increase, put him down
Page 1043 1 here, essentially no discussion, left the room.
2 JUDGE YOUNG: No increase, no discussion and what 3 was the last word you said?
4 THE WITNESS: And he left the room, as I recall.
5 JUDGE YOUNG: Mr. Keuter left the room.
6 THE WITNESS: Mr. Keuter did, yes.
7 BY MS. EUCHNER:
8 Q And who told you this information?
9 A I got this information directly from Mr. Ben 10 Easley and also from Dr. McArthur both, they were at that 11 time very upset about it, visibly upset about it, and could 12 not understand the reasoning behind it or the rationale, and 13 were quite, quite bewildered by it.
14 JUDGE COLE: And exactly who is Dan Kaiser?
15 THE WITNESS: Dan Keuter was the vice president 16 that Wilson McArthur reported to. I think you spell it K-e-17 u-t-e-r, I'm not sure, but It's pronounced kiter.
18 JUDGE COLE: Thank you.
19 CHAIRMAN BECHHOEFER: You were saying Mr. Easley 20 took what position, he agreed with Dr. McArthur or --
21 THE WITNESS: He was in personnel.
22 CHAIRMAN BECHHOEFER: Pardon?
23 THE WITNESS: He was in personnel, he was a 24 personnel manager, personnel representative and he was 25 present during this period of time that they were doing the
Page 1044 1 ratings, as I recall.
2 So what I just read to you, what we just went 3 over, was Dr. McArthur's -- this -- you call it number 33.
4 MS. EUCHNER: That's Joint Exhibit 33.
5 THE WITNESS: Joint Exhibit 33 is Dr. McArthur's 6 attempt to justify the fact that I was given no rate 7 increase. And as you can tell by looking at it, he was 8 having trouble coming up with a reason --
9 MR. MARQUAND: Objection, Your Honor, to getting 10 the witness' conclusions and speculation about what this 11 document meant or what somebody else was saying, not what's 12 in the document or not what he was told.
13 MS. EUCHNER: That's fine, Your Honor.
14 THE WITNESS: I would just say that it looks 15 pretty good to me.
16 JUDGE YOUNG: Hold on.
17 (The Judges confer.)
18 CHAIRMAN BECHHOEFER: We'll sustain the objection 19 because the document does speak for itself.
20 THE WITNESS: I might also add --
21 MR. MARQUAND: Objection, there's no question 22 pending.. I don't think we need little summarizations and 23 diatribes from the witness.
24 CHAIRMAN BECHHOEFER: Are you supplementing your 25 Iearlier answer you gave?
Page 1045 1 THE WITNESS: I misunderstood your question.
2 CHAIRMAN BECHHOEFER: Are you trying to supplement 3 the earlier answer you gave?
4 THE WITNESS: Yes, I am.
5 JUDGE YOUNG: We gave some leeway yesterday -- or 6 last week -- on allowing Mr. McGrath to give explanations, 7 so if that's what it is, I think we should give the same 8 kind of leeway. I'm not sure exactly what was being said.
9 CHAIRMAN BECHHOEFER: Let's hear what you want to 10 supplement.
11 THE WITNESS: Yeah, just reading from the summary 12 statement again, it says "Gary was brought here from 13 Sequoyah to the corporate manager of chemistry position for 14 12 months." And then you see the statement, "Sequoyah needs 15 a different approach to solving problems in chemistry and 16 the rotation was initiated to face that issue."
17 This is new information.
18 BY MS EUCHNER:
19 Q New to you.
20 A I was dumbfounded when I saw that.
21 Q And why were you dumbfounded when you saw that?
22 A Because it's completely contrary to everything I 23 was told, to everything from the vice president on down --
24 or at least the vice president being Jack Wilson on down.
25 This is new. I read that for the first time completely
Page 1046 1 bewildered. I saw it as his attempt to justify.
2 MR. MARQUAND: Objection, Your Honor, to again 3 speculating about what somebody might have been doing.
4 CHAIRMAN BECHHOEFER: I think this is his 5 reaction.
6 THE WITNESS: That's all it was.
7 (The Judges confer.)
8 CHAIRMAN BECHHOEFER: I think we will permit the 9 witness to answer that, I think it goes to his state of mind 10 at the time.
11 JUDGE YOUNG: We'll consider it on the issue of 12 his state of mind and only that.
13 BY MS. EUCHNER:
14 Q Did you have anything else that you wanted to say 15 about that?
16 A Not about that, no. Do you want to go ahead and 17 go through some more of the appraisal?
18 Q No, we're done with Joint Exhibit 33.
19 A Okay.
20 Q Did you ever have a discussion with anyone where 21 it was suggested that you be demoted to a program manager 22 position?
23 A Yes, I did.
24 Q With whom did you have that conversation?
25 A I had that conversation with Dr. McArthur.
Page 1047 1 Q Around what time did you have that conversation?
2 A It would have been within the first couple of 3 weeks of November 1992.
4 Q Okay. Who suggested that you should be demoted?
5 A Dr. McArthur.
6 Q And in discussing it with you, did Dr. McArthur 7 state why he was suggesting to demote you?
8 A Yes, he indicated that he was getting a lot of 9 pressure from Joe Bynum to make this happen.
10 Q Was anyone else pressuring him to make it happen?
11 JUDGE YOUNG: From whom?
12 THE WITNESS: From Joe Bynum.
13 JUDGE YOUNG: Okay.
14 CHAIRMAN BECHHOEFER: At the time, who was he?
15 THE WITNESS: Well, he was -- I do not know his 16 title. I guess you would have to say he was the number two 17 man in charge of TVA's nuclear power program. He was a 18 direct report to Mr. Oliver Kingsley, who is the CEO of 19 TVA's nuclear -- was the CEO of TVA's nuclear power program.
20 Again, don't hold me to these titles, but I think that's 21 correct.
22 JUDGE COLE: He was earlier identified as a vice 23 president.
24 THE WITNESS: Yes.
25 JUDGE COLE: So we don't know whether he was a
Page 1048 1 vice president at that time or not.
2 THE WITNESS: At that time, he was, yes.
3 JUDGE COLE: He was a vice president?
4 THE WITNESS: Yes, he was.
5 BY MS. EUCHNER:
6 Q Did Dr. McArthur tell you why Bynum was pressuring 7 him to demote you?
8 A Again, he was completely at a loss to explain it 9 and was grasping essentially at straws trying to come up 10 with a reason. And finally after I pressed him time and 11 time again, he just --
12 JUDGE YOUNG: Finally after you questioned?
13 THE WITNESS: After I pressed --
14 JUDGE YOUNG: Pressed? Okay.
15 THE WITNESS: For a reason as to why they were 16 taking this action, he just said well, if you want my frank 17 opinion, based on nothing -- I think those were his exact 18 words, we have it documented -- my opinion, based on 19 nothing, would be that Gary Fiser is getting blamed for the 20 problems in chemistry at Sequoyah.
21 BY MS. EUCHNER:
22 Q Did there come a time when you learned that you 23 would not be going back to Sequoyah at the end of your 24 rotation?
25 A Yes, that is correct.
Page 1049 1 Q Who told you that?
2 A Dr. McArthur and also the Sequoyah vice president, 3 Jack Wilson, and the Sequoyah plant manager, Rob Beecken.
4 ! CHAIRMAN BECHHOEFER: What was the name? I didn't 5 hear the name.
6 i JUDGE YOUNG: Rob Beecken.
7 CHAIRMAN BECHHOEFER: Rob Beecken?
8 THE WITNESS: Rob Beecken was the plant manager at 9 Sequoyah. And also Jack Wilson was the vice president at 10 Sequoyah, and of course Wilson McArthur who was my manager.
11 BY MS. EUCHNER:
12 Q Who first informed you of that?
13 A Dr. Wilson McArthur.
14 Q Did he state who told him that you would not be 15 going back to Sequoyah?
16 A Yes, he did.
17 Q Who?
18 , A He stated that he had had a discussion with plant 19 manager, Rob Beecken, and that Rob had very matter of factly 20 just told him that I was not going back out there.
21 Q Did McArthur tell you Beecken's reason for not 22 wanting you to return to Sequoyah?
23 A As I recall, he used the term "ineffective," he 24 felt like the program at Sequoyah had been ineffectively 25 managed.
Page 1050 1 Q During this time period, did you begin tape 2 recording conversations with your coworkers?
3 A Yes, I did.
4 Q Why?
5 A Well, after reading this personnel appraisal and 6 being totally surprised by this information, I began to 7 suspect something was awry, I didn't know what, and I began 8 to try to take good notes and it began very innocently. I 9 was intending to just tape record some information, go back, 10 transcribe it, get some good notes and then just tape over.
11 That's how it began.
12 JUDGE YOUNG: And then just what?
13 THE WITNESS: I would just tape over that tape.
14 As soon as I got the information and wrote it down in my 15 notebook, my intention was to just use that same tape and 16 just tape over it. I saw no need to keep it.
17 JUDGE YOUNG: Oh, tape over it.
18 THE WITNESS: That's how I began doing this.
19 BY MS. EUCHNER:
20 Q And did something change your mind about taping 21 over those conversations?
22 A Well, after the first one, I think the 23 conversation with Wilson McArthur in November was the first 24 time I ever taped a conversation, I took that recording home 25 and listened to it and I let my wife listen to it. And I
Page 1051 1 said, you know, this guy is completely bewildered, he has no 2 justification for what he is being required to do.
3 Something is going on that does not -- is not readily 4 apparent. And she looked at me and she said basically, you 5 know, you've got to hold on to these tapes until we get to 6 the bottom of this, because there was some pretty 7 incriminating information on those tapes that could be 8 easily denied later on. So I decided to hang onto them.
9 Q After you had the tapes, what did you do with 10 them?
11 A Well, of course, I kept them in a safe deposit 12 box, I think I kept them at home for a little while until I 13 built up several and then I put them in a safe deposit box 14 and eventually I decided that they were important enough 15 that I needed to transcribe that information. I bought a 16 I computer and I entered everything that I could hear 17 distinctly, I entered that into a database.
18 Q I'd like you to turn to Joint Exhibit 27. Do you 19 recognize this document?
20 A Yes, I do.
21 Q What is it?
22 A It's what I referred to, what I titled as the 23 sequence of events and that would be the sequence of events 24 leading up to the initial Department of Labor complaint that 25 I filed back in 1993.
Page 1052 1 , Q And on the first few pages of this, there are a 2 number of notes under certain dates, how did you come to 3 write these notes?
4 A Some of these were from memory or perhaps a 5 cryptic note in my day planner.
6 Q Other than notes, are there any other matters in 7 here, other than your personal notes?
8 A Yes, this would also be my transcription of the 9 conversations that I had on tape.
10 Q When did you compile the information that is in 11 this sequence of events?
12 A Well, it was an ongoing project in some cases by 13 hand. I actually started entering the data into a computer 14 I bought a computer just for this purpose, and that would 15 have been in 1993.
16 Q The information that's contained in here, your 17 notes and transcripts, were they done in 1993 or were they 18 done contemporaneously?
19 A They were done contemporaneously but again, I did 20 not buy the computer until early I think in 1993 and that's 21 when I really in earnest started -- unless I started on 22 another computer at work, I can't recall that. I don't 23 think so. I think this was done on my personal computer at 24 home. So that would have been early in 1993 that I started 25 transcribing the tapes.
Page 1053 1 -MS. EUCHNER: Your Honors, I would offer Joint 2 Exhibit 27 into evidence.
3 MR. MARQUAND: I'd like to voir dire.
4 CHAIRMAN BECHHOEFER: Pardon?
5 MR. MARQUAND: I would like to voir dire.
6 JUDGE YOUNG: Go ahead.
7 CHAIRMAN BECHHOEFER: Fine, go ahead.
8 VOIR DIRE EXAMINATION 9 BY MR. MARQUAND:
10 Q Mr. Fiser, is -- you said this is a compilation of 11 notes and memory and transcription of tape recordings?
12 A That's correct.
13 Q Where is the first point in this document that 14 includes a transcription? Is that on page 6 -- bottom of 15 page 6, for the November 16, '92 entry?
16 (The witness reviews a document.)
17 A That does appear to be the case, yes.
18 Q And so the entries prior to November 16, '92 in 19 this, were based simply on your notes and on your memory?
20 A Well, for example --
21 Q Did you understand my question? I said are the 22 notes entered in this prior to November 16, '92 based only 23 on your notes and on your memory?
24 A For example --
25 Q Could you answer my question?
Page 1054 1 JUDGE YOUNG: First answer yes or no and then 2 explain.
3 THE WITNESS: Oh, I'm sorry. Repeat that 4 question.
5 BY MR. MARQUAND:
6 Q The entries in this sequence of events prior to 7 November 16, '92, is it correct that those entries are based 8 on your notes and on your memory only and not the 9 transcription of the tapes?
10 A Oh, that's correct. I'm sorry, I misunderstood.
11 Q Do you remember when I took your deposition and we 12 sent you a subpoena requesting your notes?
13 A Uh-huh; I do, yes, sir.
14 Q And when you came to the deposition, you didn't 15 bring any notes did you?
16 A Yes, I did.
17 Q No, you did not. I had to send you home to bring 18 them back the next day, isn't that correct?
19 A That is incorrect. I brought a whole bunch of 20 notes and you had asked for some additional notes. It was 21 my understanding that this was dealing with the second case, 22 not the .first case.
23 Q You didn't bring any notes initially related to 24 1991 or '92, did you?
25 A That is correct.
- Page 1055 1 Q And when I sent you back to bring back notes, you 2 didn't bring back any notes for 1991, did you?
3 A That I do not recall. I think I did.
4 Q The deposition shows that the earliest notes that 5 you produced were 1992. Would you disagree?
6 A The deposition says what?
7 Q That the earliest notes you produced were from 8 1992.
9 MS. EUCHNER: Your Honor, if Mr. Marquand would 10 like to refresh his recollection, he can show him the 11 deposition, it is an exhibit, he doesn't have to ask him 12 t after he's already stated that he doesn't recall.
13 JUDGE YOUNG: Do you --
14 MR. MARQUAND: I've got the deposition --
15 MS. EUCHNER: I believe it's Staff Exhibit 40.
16 MR. MARQUAND: -- I think it's very clear in the 17 deposition that all he brought, after we sent him home for 18 the notes, was from 1992.
19 BY MR. MARQUAND; 20 Q Mr. Fiser, I'm going to show you page 2 of the 21 second day of your deposition, December 12, 2001, and it 22 lists Franklin Planner excerpts from 1992, '93, '94, '95 and 23 '96; doesn't it?
24 A Yes, it does.
25 Q Doesn't list any 1991 notes?
Page 1056 1 A It does not list that, no.
2 MS. EUCHNER: Your Honor, I'm going to object to 3 that because just because Mr. Marquand didn't photocopy any 4 pages of exhibits from 1991 does not automatically mean that 5 Mr. Fiser didn't bring any notes from 1991.
6 MR. MARQUAND: If counsel would like to show us 7 any 1991 notes or assert that he did, let her testify, but 8 he didn't.
9 MS. EUCHNER: I'm not representing that he did, 10 I'm representing that what was pointed out does not 11 demonstrate that he didn't bring in any notes from 1991. It 12 merely demonstrates that he photocopied pages from 1992 and 13 i thereon.
14 MR. MARQUAND: I will represent to the Court we 15 , photocopied the pages that were given to us from the various 16 planners that were brought. If counsel wants to make an 17 issue, we can go off the record, we can go through here, 18 through the hundred and eighty some odd pages and we can ask 19 him about his notes. But he didn't bring any 1991 notes to 20 his deposition, although he'd been subpoenaed to bring the 21 notes with him.
22 JUDGE YOUNG: Did looking at that refresh your 23 memory enough to say with any certainty whether you recall 24 bringing any notes for 1991 or not?
25 THE WITNESS: As I recall, I did bring my 1991
Page 1057 1 notes.
2 JUDGE YOUNG: Did or did not?
3 THE WITNESS: I did; yes, ma'am. As I recall, I 4 brought.
5 JUDGE YOUNG: I don't if you don't mind -- I 6 don't see any reason for this to hold us up at this point.
7 Obviously both of you can look at that later.
8 MS. EUCHNER: Quite honestly, Your Honor, I don't 9 know that that really makes any difference. He could have 10 made all these 1991 notes from his memory, it makes no 11 difference whether or not he had notes and I'm not entirely 12 sure I understand the relevance of this voir dire 13 questioning at this point.
14 MR. MARQUAND: Well, if we're going to accept this 15 in evidence, some document that somebody typed up, as to 16 what they think happened. I mean first of all, it's not his 17 if he's testifying this is what happened, I think we're 18 entitled to know the basis of how this information got into 19 this document.
20 MS. EUCHNER: I believe I asked him that.
21 MR. MARQUAND: Well, I'm trying to elicit 22 information from him about what the basis for specific 23 periods of time that are covered here.
24 JUDGE YOUNG: We haven't seen the deposition --
25 MR. MARQUAND: I understand.
Page 1058 1 JUDGE YOUNG: -- so we can't tell exactly what was 2 said. If you want in the break to look at it further and 3 bring out further parts of it, you're certainly free to do 4 that.
5 BY MR. MARQUAND:
6 Q Mr. Fiser, have you ever had anyone listen to the 7 tapes to certify and certify the accuracy of the 8 transcriptions you performed?
9 A No, I have not.
10 Q And have you gone back yourself and listened to 11 any of the tapes themselves to determine whether or not 12 you've accurately transcribed them?
13 A Many times.
14 Q Have you captured everything that was on the 15 tapes?
16 A No, there are things in listening to them over and 17 over again that you can pick out, that I did not initially.
18 Some of them have a considerable amount of background noise.
19 Q There's a lot of background noise and there's a 20 lot of omissions throughout this, aren't there?
21 A Yes, there are.
22 Q And when you put down, for example, beginning with 23 the very first transcription on page 6, there are omissions 24 through that transcript almost at every single entry, aren't 25 there?
Page 1059 1 A I can't say every single entry, but -- no, I could 2 not answer that in the affirmative just from a cursory 3 glance at the first page here. Any time I had something I 4 could not quite understand, I would always, rather than 5 guess, I would put three little dots which meant something's 6 going on that I can't quite pull out. I don't see that on 7 page 6. Certainly in answer to your question, there are 8 numerous entries in here.
9 JUDGE YOUNG: I want to just clarify something.
10 Before the hearing, there was discussion about the actual 11 tapes and about enhanced tapes and transcripts of those.
12 MR. MARQUAND: Yes.
13 JUDGE YOUNG: And the staff was to supply those 14 immediately as you got them back.
15 MS. EUCHNER: I have supplied all the ones that we 16 are using. Some of them were never enhanced, so everything 17 that we had enhanced, we immediately provided to TVA.
18 JUDGE YOUNG: The reason I'm asking that -
19 I CHAIRMAN BECHHOEFER: Does TVA have the original 20 tapes, the unenhanced tapes, as well?
21 MS. EUCHNER: We didn't enhance those other tapes, 22 they do have --
23 CHAIRMAN BECHHOEFER: I know, but do they have 24 copies of --
25 MS. EUCHNER: -- because they actually provided
Page 1060 1 copies of them to us in discovery.
2 CHAIRMAN BECHHOEFER: Oh, I see. Okay.
3 JUDGE YOUNG: The reason I'm asking this is 4 because if you've got the other material and TVA's had an 5 opportunity to compare the NRC prepared transcripts to the 6 actual tapes and to the enhanced tapes, is there a way to 7 sort of cut through --
8 MR. MARQUAND: Your Honor, here's the problem 9 we've got. What Mr. Fiser put in this sequence of events in 10 1993 is not consistent with the sequence of events that he 11 Bclaimed happened in 1996 or it's not consistent with the 12 rationale. What I'm saying is in 1993 in his complaint, he 13 claims something happened to him for certain reasons. In 14 1996, he went back and recharacterized what had happened to 15 him and the reasons and who did it to him for a totally 16 different story. And this sequence of events which he 17 offered with his 1993 complaint is pertinent to show the 18 basis that he was claiming happened to him in 1993.
19 JUDGE YOUNG: This sequence of events meaning this 20 --
21 MR. MARQUAND: This is inconsistent with what he 22 claimed later happened.
23 JUDGE YOUNG: So are you wanting to object to its 24 Ibeing entered at this point?
25 MR. MARQUAND: Here's the problem we've got with
Page 1061 1 it. Mr. Fiser's transcription of these tapes is not 2 accurate. I'm not saying it's deliberately slanted, he just 3 omits a ton of stuff, there's a ton of omissions in it.
4 The staff's version of the transcripts has similar 5 problems and it doesn't necessarily -- it's not necessarily 6 slanted, it's not necessarily -- I'm not saying they did it 7 on purpose, it's just that the quality of those recording is 8 so bad, unenhanced or enhanced, that you can't really make 9 out the sense of a conversation. You can catch little bits 10 and pieces and yeah, you could go back and fill stuff in as 11 you think well, here's what must have happened, but you 12 cannot listen to those recordings and say oh, yeah, I see 13 this, this is what happened. This is just hypothesis.
14 CHAIRMAN BECHHOEFER: What if it from the 15 individual preparing that description, would he not perhaps 16 have a better recollection of what was on the tapes?
17 MR. MARQUAND: Well, I don't see that anybody is 18 going to have that kind of memory to recall and say here is 19 the specific language that was said in these conversations.
20 I think that's going to test anybody's memory to say here --
21 you know, I can tell you what was on the tapes and I can 22 fill in these holes. I've got a problem with accepting this 23 for its face value, but it does show what he was contending 24 in 1993.
25 JUDGE YOUNG: What I'm trying to understand is if
Page 1062 1 there are other transcripts, which at least the NRC says are 2 more accurate and you've had a chance to compare with 3 enhanced tapes, you're shaking your head.
4 MS. EUCHNER: No, we are not using the transcripts 5 that we prepared, we do not plan on introducing those for 6 any purpose.
7 JUDGE YOUNG: Do you?
8 ,MR. MARQUAND: No, I don't think any transcript is 9 accurate of these conversations. And you could listen to 10 them and you would sit there and you would say "I missed 11 that", "oh, I missed that." Well, I have to back up and you 12 listen to it again and you hear something totally different.
13 Yes, you can pick out some words and phrases and some 14 sentences, but they're talking back and forth over each 15 other. You've got to remember, this was not a professional 16 tape recording job, this was --
17 JUDGE YOUNG: Right, we understand.
18 MR. MARQUAND: -- a little hand held recorder 19 stuck in the guy's breast pocket.
20 JUDGE YOUNG: Are you going to be offering the 21 tapes?
22 MS. EUCHNER: We're going to be offering the 23 I enhanced CD of the tapes, yes. And contrary to Mr.
24 Marquand's argument, they are audible in large part. Yes, 25 there are sections that are difficult to understand;
Page 1063 1 however, there are certain extremely relevant excerpts that 2 are both in the transcript and that are very audible on the 3 tapes. And as I understood when we dealt with the motion in 4 limine on this, Your Honors said you would listen to the CDs 5 and take them for what they were worth, that if they weren't 6 audible, then okay, and you wouldn't give them any weight, 7 but to the extent that they were audible, you would.
8 JUDGE YOUNG: And that the transcripts, any 9 transcripts offered would only be used for guidance and not 10 as direct evidence, that the tapes themselves would be the 11 direct evidence. I think that's what our ruling was.
12 MR. MARQUAND: I think that's correct.
13 MS. EUCHNER: I was under the impression, and 14 maybe Your Honors can correct me, but the transcripts you're 15 referring to are the ones staff made, not the ones that Mr.
16 . Fiser made himself and submitted to the NRC in the 1993 17 case, because as Judge Bechhoefer pointed out, he did 18 transcribe these soon after the conversations occurred. And 19 so he is in a special situation where he could pick out 20 pieces of the conversation that maybe an independent person 21 couldn't.
22 JUDGE YOUNG: Why should we treat them any 23 differently than any other transcript, just as guidance?
24 MS. EUCHNER: Well, this is part of his case. As 25 Mr. Marquand has already pointed out, he wants to use it to
Page 1064 1 show that Mr. Fiser has changed his story. First of all, 2 whether Mr. Fiser changed his story is not relevant here, 3 because this is not Fiser versus TVA, it's the staff versus 4 TVA. Although if he'd like to question him about it on 5 cross examination, that's fine.
6 Second of all, these are his notes and his memory 7 and his transcriptions, which are directly relevant to what 8 he was thinking at the time and what did lead to the 1993 9 case. And it doesn't just include transcripts, it does 10 include his notes and his personal thoughts.
11 And the document as a whole should be admitted, 12 Your Honors.
13 JUDGE YOUNG: For what purpose or purposes?
14 MS. EUCHNER: Well basically for two things --
15 one, his state of mind as to what was going on; and two, to 16 prove what he heard specifically from Dr. McArthur. Those 17 are the two CDs that we're going to be introducing into 18 evidence, that what Dr. McArthur told him led him to file 19 his DOL complaint and specifically implicated Mr. McGrath, 20 because there are very audible parts of that CD which are 21 going to implicate Mr. McGrath.
22 MR. MARQUAND: Your Honors, I have a couple more 23 questions for Mr. Fiser before we have to cross the bridge 24 about what to do with this transcript.
25 JUDGE YOUNG: Okay, go ahead.
Page 1065 1 BY MR. MARQUAND:
2 Q Mr. Fiser, when did you buy this computer, you 3 said 1993?
4 A That's correct.
5 Q What month?
6 A I don't recall.
7 Q Pardon me?
8 A I do not recall.
9 Q Well, was it in the spring or the summer after you 10 received your RIF notice or your surplus notice?
11 A As I recall, that's correct.
12 Q So it would have been sometime after April of '93?
13 A That's correct.
14 Q And that's when you began to start transcribing 15 these tapes?
16 A That's correct.
17 Q So for example, with respect to this conversation 18 with Dr. McArthur that supposedly happened in November of 19 '92, you didn't start transcribing it until sometime after 20 April 5, as I recall.
21 A That would be correct.
22 Q Pardon me?
23 A That would be correct.
24 Q Some at least five months later.
25 A That would be correct.
Page 1066 1 Q And you're not purporting to tell us that you five 2 months later remembered this conversation in sufficient 3 detail that you were able to accurately flesh out all the 4 details of this conversation that stretches from page 6 to 5 gpage 35 of your sequence of events.
6 A Could you repeat that question?
7 Q The conversation with Dr. McArthur is depicted on 8 November 16, 1992 as extending from page 6 to page 35 in 9 your sequence of events; do you see that?
10 A Yes, I do.
11 Q You're not telling us that in April of '93 when 12 you began transcribing it that you recalled that 13 conversation word-for-word such that you could fill in all 14 the gaps yourself, is that correct?
15 A I'm telling you that I filled in no gaps, I only 16 put in here what I could hear.
17 Q Okay, so you didn't attempt to supplement the 18 tapes, you only put down what you actually thought you could 19 hear --
20 A That's correct, what you have here is what I could 21 actually hear.
22 Q Is that true with respect to the other 23 conversations in here as well?
24 A Is that true with what?
25 Q You have other conversations transcribed beginning
Page 1067 1 at page 35, a conversation with Jack Wilson on November 21, 2 1992.
3 A Correct.
4 Q Did you attempt to supplement that conversation 5 from your memory or is that conversation, as it appears 6 here, based only on what you could hear on the tape?
7 A As I recall, it was based only on what I could 8 pick out of the tape.
9 Q Is that true with respect to all the other 10 conversations which you tried to transcribe?
11 A Yes, I tried to be very careful and not guess, and 12 if you ever see, like the three dots in a row, that means 13 that I was not sufficiently comfortable with what I heard to 14 be able to type that information into the computer. I would 15 rather not have it in here than to guess. That was my 16 sincere attempt.
17 CHAIRMAN BECHHOEFER: Did you leave out any 18 portions that went to the substance of what you remembered?
19 THE WITNESS: If I could not hear it, I left it 20 'I out.
21 BY MR. MARQUAND:
22 Q And in fact, there are portions that you left out 23 of the conversations -- I believe I have found in here 24 places where you made a notation that there wasn't anything 25 else pertinent and you just stopped transcribing the
Page 1068 1 conversation as well, didn't you?
2 A That's correct, and I wanted to make a note of 3 that, so it would be clear there was other stuff that is 4 still on there, but it was not pertinent to the 5 conversation.
6 Q In your view, it wasn't pertinent, correct?
7 A That is correct.
8 MR. MARQUAND: Okay. Your Honors, I don't know 9 how to deal with this, but I do believe Joint Exhibit 27 has 10 to come into evidence for the purpose of showing what he was 11 contending happened to him in 1993. I'm not sure it's 12 admissible to show exactly what happened in those 13 conversations, but it certainly is pertinent to show what he 14 is contending happened in 1993.
15 , (The Judges confer.)
16 MS. EUCHNER: Your Honors, if I could point 17 something out. Joint Exhibit 27 is already part of Staff 18 Exhibit -- what number is that -- 177 that we put in this 19 morning.
20 MR. MARQUAND: Your Honors, we're not objecting to 21 it, I'm just saying it needs to come in for a certain 22 purpose..
23 (The Judges confer.)
24 CHAIRMAN BECHHOEFER: We'll just discuss it over 25 lunch -- it's a good time to break for lunch, for what
Page 1069 1 purposes or for every purpose that we would allow the tapes 2 to be -- at least the transcript of the tapes to be used.
3 MR. MARQUAND: Could I throw one more issue out so 4 that you all can mull this over during lunch?
5 CHAIRMAN BECHHOEFER: Sure.
6 MR. MARQUAND: Staff has said they want to bring 7 in the tapes Mr Fiser made with Wilson McArthur. The 8 sequence of events mentions a discussion he had with Jack 9 Wilson and Rob Beecken, who he's mentioned already, told him 10 why they didn't want him to come back to Sequoyah. The 11 staff hasn't given us an enhanced compact disc of those 12 discussions, but those discussions were particularly 13 pertinent. Even in the sequence of events, those gentlemen 14 told him why they didn't want him to come back to Sequoyah.
15 We're going to ask that the staff provide us their copies of 16 those enhanced compact disc. They are very pertinent in 17 this case and the reasons that those gentlemen told him.
18 Even the versions that Mr. Fiser had show that they had 19 problems with the chemistry program at Sequoyah and the 20 problems of ineffective management. And if the staff wants 21 to put some of the tapes in, fine; I think that they have a 22 responsibility to be fair about this and provide the other 23 CDs which might reflect the reasons he was told by senior 24 management why they didn't want him to come back to 25 Sequoyah.
Page 1070 1 So if they want to put some of the CDs in, we're 2 going to ask that they provide us with these other CDs and 3 transcriptions, or whatever they've got with respect to 4 those conversations.
5 JUDGE YOUNG: Do you have any objection to doing 6 that?
7 MS. EUCHNER: First of all, Your Honors, as I told 8 Mr. Marquand on more than one occasion, we did not end up 9 having all of the tapes enhanced into CDs. I have provided 10 him with a copy of every CD that the staff has. We were 11 limited by time essentially. The individual who we 12 contracted to have them done was only able to get I believe 13 it was four tapes worth done and we chose which ones we 14 thought were the most pertinent to our case. The fact that 15 the ones we didn't choose were --
16 JUDGE YOUNG: Okay --
17 MS. EUCHNER: Also, I'd like to point out that 18 he's saying how unfair this is. First of all, he got the 19 tapes. OGC got the tapes, despite the fact that OIG had 20 told Mr. Fiser that they weren't going to provide them to 21 anyone else. And they've had them for eight years. They 22 very well could have enhanced them themselves if they were 23 that pertinent to their case.
24 JUDGE YOUNG: What's the dispute here?
25 MR. MARQUAND: She's now saying she doesn't have
Page 1071 1 I them.
2 MS. EUCHNER: I don't have them.
3 JUDGE YOUNG: Do each of you have a complete set 4 of tapes?
5 MR. MARQUAND: I've got a cassette recording of 6 the tapes. If they don't have the CDs, if they selectively 7 went through and decided what they wanted to do, then we 8 will provide you with copies of the cassettes of the other 9 conversations.
10 MS. EUCHNER: That's within their right. They 11 can't dictate to us what we put on in our case. But if they 12 choose to play those tapes as part of their case, that's 13 fine.
14 JUDGE YOUNG: All the tapes can come in, I think 15 we've agreed on that. All the tapes, all the CDs and --
16 CHAIRMAN BECHHOEFER: And I might say, we could 17 admit -- for the portions that weren't enhanced, we could 18 admit the originals, if they're intelligible.
19 MR. MARQUAND: I think Mr. Fiser may still have 20 the originals in his safe deposit box.
21 MS. EUCHNER: Actually, the originals are 22 currently in transit from our contractor back to the staff, 23 so we can return them to Mr. Fiser.
24 JUDGE YOUNG: Obviously everyone is keeping copies 25 in case anything happened to the original.
Page 1072 1 (The Judges confer.)
2 JUDGE YOUNG: You all are in agreement that all 3 the tapes will be provided by one or the other of you, 4 right?
5 MR. MARQUAND: I think there's a lot of tapes in 6 there that are just co-employees that I don't think either 7 of us is making any issue about.
8 MS. EUCHNER: Right.
9 JUDGE YOUNG: Okay, all the tapes that either of 10 you want into the record --
11 MR. MARQUAND: We'll dump into the record?
12 JUDGE YOUNG: -- neither of you have any objection 13 to the other one putting them into the record, correct?
14 MS. EUCHNER: No objection.
15 JUDGE YOUNG: So there's no dispute here.
16 i MR. MARQUAND: No, Your Honors need to listen to 17 them to determine I think whether they're even -- how 18 audible or discernible they are. I mean you're the fact-19 finders, you have to make that call.
20 JUDGE YOUNG: Right.
21 MR. MARQUAND: And I hate to burden you with it, 22 but --
23 JUDGE YOUNG: But in terms of the tapes, there's 24 no disagreement, you'll both put in what you want us to hear 25 and the only ruling we have yet to make and which we will
Page 1073 1 make after lunch is for what purposes we'll allow in the 2 sequence of events.
3 (The Judges confer.)
4 JUDGE YOUNG: Are you asking that we order NRC to 5 enhance tapes that they have not enhanced?
6 MR. MARQUAND: No, I assumed, based on their 7 discussions, since they had some of the early tapes -- they 8 gave me transcripts or they gave me CDs of some of the 9 earlier tapes --
10 JUDGE YOUNG: You thought there might have been 11 other enhanced ones.
12 MR. MARQUAND: -- and then they gave me some CDs 13 for some of the later ones, I was sitting there thinking 14 well, surely they must have done them in sequence because 15 that's the way they were recorded and I didn't know how 16 , selectively they had looked at them and decided whether to 17 ignore some 18 t JUDGE YOUNG: But you're not asking --
19 MR. MARQUAND: No, no.
20 JUDGE YOUNG: There's no dispute.
21 CHAIRMAN BECHHOEFER: Okay. As long as we weren't 22 requiring the staff to enhance portions that it hadn't done 23 so.
24 MR. DAMBLY: Just so the record is clear, we 25 intended to enhance all of them and had a contractor to
Page 1074 1 enhance all of them. But as of the end of last week, all 2 that had been enhanced were the -- we did tell them the 3 order we were interested in, and at that point, since we 4 were already in the middle of the hearing and he had some 5 delay and couldn't get back to it, we said well, forget the 6 rest of it and we'll just deal with the ones we have. It 7 wasn't our intention to just pick two and say -- no, we 8 actually had a contract for all of them.
9 (The Judges confer.)
10 JUDGE YOUNG: I suggest we break for lunch and 11 come back at quarter after.
12 CHAIRMAN BECHHOEFER: Let's break for lunch and be 13 back at 1:15.
14 (Whereupon, a luncheon recess was taken at 15 12:11 p.m., to hearing to resume at 1:15 p.m., the 16 same day.)
Page 1075 1 AFTERNOON SESSION 2 CHAIRMAN BECHHOEFER: Back on the record.
3 The Board has considered the question arising 4 about Joint Exhibit 27, which I guess is being offered by 5 the staff at this time. The Board has decided to accept the 6 tape -- accept the exhibit, which is the sequence of events 7 and transcripts. We will, of course, give greater weight to 8 the tapes themselves or the CDs. And confirm my 9 understanding that we will have offered into evidence either 10 the entire set of tapes or the entire set of enhanced CDs.
11 MS. EUCHNER: Staff is only planning on 12 introducing those CDs that it was going to have Mr. Fiser 13 testify to. We certainly can introduce all the other ones, 14 but the staff didn't feel that they contained relevant 15 conversations and we wanted to limit ourselves to the 16 conversations that we thought were relevant.
17 CHAIRMAN BECHHOEFER: Well, relevancy is one of 18 3 the NRC criteria.
19 JUDGE YOUNG: I think, Mr. Marquand, you said you 20 were going to introduce all those that you wanted in the 21 record that the staff did not --
22 MR. MARQUAND: Yes, Your Honor.
23 CHAIRMAN BECHHOEFER: So we will admit Joint 24 Exhibit 27, but we will note that we will give much greater 25 weight to what we can hear and understand and if the tapes
Page 1076 l or CDs prove to be unintelligible, they won't be entitled to 2 very much weight, in my mind anyway.
3 Do you want to add to that?
4 JUDGE YOUNG: Yes, I would just add that I would 5 go along with our previous ruling on the motion in limine 6 with regard to the tapes and that is that I would consider 7 the tapes and/or the CDs to be evidence and the transcripts 8 only to be used as guidance, and consider the whole of the 9 exhibit on Mr. Fiser's state of mind, except to the degree 10 obviously that he adopts any of the statements therein, in 11 his testimony today. I'm not sure that that would lead to 12 great practical difference, but that's what I would base my 13 ruling on.
14 (The document, heretofore marked as 15 Joint Exhibit Number 27, was 16 received in evidence.)
17 MS. EUCHNER: Your Honors, before we got started, 18 did you want to discuss TVA Exhibit 103, which was the 19 excerpts from the staff's interrogatory responses, or did 20 you want to deal with that issue at the end of the day?
21 JUDGE YOUNG: Is there a reason you would want to 22 do it now? Whichever is --
23 MS. EUCHNER: I don't care whether we do it now, 24 other than to say that the staff does not find them 25 acceptable in the form that it is now. So if you'd prefer
Page 1077 1 to continue with Mr. Fiser's testimony and then deal with it 2 >at the end of the day, that would be fine with me.
3 (The Judges confer.)
4 CHAIRMAN BECHHOEFER: I think we'll deal with that 5 at the end of the day and continue with the questioning of 6 Mr. Fiser. If we don't get through then, we can continue 7 the discussion tomorrow morning first thing.
8 You'll decide how much time we need at that point.
9 tMS. EUCHNER: Yes, Your Honor.
10 We are now going to get to the compact discs, so 11 I'm going to have the speakers moved up a little closer to 12 you, so that way you can hear them adequately when we play 13 them.
14 JUDGE YOUNG: So just understand, you're going to 15 play them and then enter the actual disc into evidence?
16 MS. EUCHNER: I'm going to have Mr. Fiser identify 17 them first. I was not planning on playing the first one in 18 its entirety because it's one hour long, approximately. So I 19 was going to play what we considered to be the relevant 20 portions, and then of course, Your Honors can listen to the 21 entire thing, or if Mr. Marquand wants to have the entire 22 thing played.
23 JUDGE YOUNG: Or other parts.
24 MS. EUCHNER: Yes. And I'm going to have this 25 marked as Staff Exhibit 168.
Page 1078 1 CHAIRMAN BECHHOEFER: 168?
2 MS. EUCHNER: Yes.
3 JUDGE COLE: Is this associated with certain pages 4 of the transcript?
5 MS. EUCHNER: Yes, it is and I'm going to have Mr.
6 Fiser state that as we go along.
7 JUDGE COLE: Thank you.
8 MS. EUCHNER: And just for the record, in case it 9 couldn't be heard when Mr. Marquand asked, this is an 10 enhancement of tape A, side A, section 2.
11 JUDGE YOUNG: Staff Exhibit 168, is that what you 12 said?
13 MS. EUCHNER: Yes.
14 MR. MARQUAND: And does this correspond with the 15 designation of the tapEes on page 82 of the sequence of 16 events, Exhibit 27?
17 MS. EUCHNER: Eighty two, you said?
18 MR. MARQUAND: 82.
19 MS. EUCHNER: I don't know.
20 Whereupon, 21 GARY FISER 22 RESUMED his status as a witness herein, and was examined and 23 testified further as follows:
24 DIRECT EXAMINATION (continued) 25 BY MS. EUCHNER:
Page 1079 1 Q Mr. Fiser, have you had the opportunity to listen 2 to the conversation recorded on the compact disc?
3 A Yes, I have.
4 Q And after listening to it, is it an accurate 5 reflection of the conversation that you recorded, or one of 6 the conversations that you recorded?
7 A Yes, it is.
8 Q What does this recording contain?
9 A This contains a recording of a conversation I had 10 with Dr. Wilson McArthur.
11 Q Do you know the date of that conversation?
12 A Yes, I do, let me look -- November 16, 1992.
13 Q Did you transcribe this conversation in your 14 sequence of events on Joint Exhibit 27?
15 A Yes, I did.
16 Q What pages of the sequence of events corresponds 17 to this conversation?
18 A It begins on page 6 and ends on page 26.
19 MS. EUCHNER: All right. I'm going to start 20 playing the CD. The first thing I'd like to do is just play 21 maybe 15 or 20 seconds and then stop it so that Mr. Fiser 22 can identify the voices on the CD and then we'll start 23 playing it so that you can listen for content. I'll start 24 at the beginning.
25 (Whereupon, a compact disc was played.)
Page 1080 1 BY MS. EUCHNER:
2 Q Mr. Fiser, can you identify that voice?
3 A That was Dr. Wilson McArthur.
4 MS. EUCHNER: Continue playing it.
5 (Whereupon, playing of the compact disc 6 continued.)
7 BY MS. EUCHNER:
8 Q Mr. Fiser, what pages in the sequence of events 9 did that section of the conversation correspond to?
10 A It started out on page 6 and -- let's see, I'm 11 looking for the end of it here -- it looks like it ends on 12 page 7.
13 Q And was that the conversation that you referred to 14 in your earlier testimony when you talked about Dr. McArthur 15 stating that Rob Beecken told him he didn't want you back 16 out at Sequoyah?
17 A That's correct.
18 CHAIRMAN BECHHOEFER: Pardon me. Was there not 19 some additional material which I don't see in Joint Exhibit 20 27?
21 MS. EUCHNER: I believe that there were some beeps 22 in there, I don't know whether they were walking through 23 there and you couldn't here that section and then it picked 24 up again with the transcript I believe with Dr. McArthur 25 saying "Well, I guess I could put him back in outage
Page 1081 1 management." So in between those two lines --
2 MR. DAMBLY: I think what you're referring to, 3 Judge Bechhoefer -- this is the enhanced version. This is 4 not what Mr. Fiser transcribed. You will hear things that 5 he was unable to hear on the version he had, but they're not 6 in his notes.
7 CHAIRMAN BECHHOEFER: I see, okay. No, I did hear 8 some things.
9 MS. EUCHNER: The next section of Joint Exhibit 27 10 that we're going to be listening to starts on -- it will 11 either be the bottom of 14 or the top of page 15 of the 12 sequence of events.
13 JUDGE YOUNG: Let me just ask a question, how far 14 onto page 7 were you saying the last segment went?
15 MS. EUCHNER: The last one that I took a note of, 16 and I don't know whether we went further than that, was 17 where Mr. Fiser says, "Well, okay, so Rob has made that kind 18 of a statement." I basically was listening for that, so 19 that I could tell Mr. Hilton to stop the recording. So it 20 may have gone a little bit further than that.
21 JUDGE YOUNG: Okay.
22 MR. MARQUAND: Rather than have staff pick bits 23 and pieces of this and then us have to come back and say 24 okay, let's pick out the parts that we need to put this in 25 context, I suggest that they tell us -- we go off the record
Page 1082 1 and they can tell us which portions now that they intend to 2 offer and then we can save time and say okay, you need 3 either back up a little more or go a little further, so we 4 can put it in context, so you don't have to listen to this 5 thing twice.
6 MS. EUCHNER: I have no objection to arranging 7 that.
8 CHAIRMAN BECHHOEFER: So you have no problem with 9 doing that?
10 MS. EUCHNER: No, not at all. I mean anything 11 that'll expedite the process would be -- because I know it's 12 kind of difficult to pick and choose.
13 CHAIRMAN BECHHOEFER: Do you have it sort of laid 14 , out so you can show it to Mr. Marquand?
is MS. EUCHNER: We have the times on the recording 16 that we are going to go to, along with the page numbers that 17 we noted were corresponding.
18 CHAIRMAN BECHHOEFER: I take it you're offering 19 the entire set of discs and/or tapes.
20 MS. EUCHNER: We're offering this entire disc.
21 We're only playing selected portions of it now. Like I 22 said, you can listen to the whole conversation. We are 23 merely highlighting those sections that relate to what Mr.
24 Fiser testified to earlier this morning.
25 JUDGE YOUNG: So what you were suggesting was, for
Page 1083 1 example --
2 MR. MARQUAND: If they're going to highlight 3 1 portions -- for example, they stopped midway down page 7 4 where it says "Okay, Rob made that kind of statement," I 5 think we need to go on to where Dr. McArthur explains to him 6 the problems in chemistry were being blamed on Gary Fiser.
7 All I'm saying is let's go off the record for her to show me 8 how far she's planning on going with this so I can say okay, 9 we need to add a couple more lines here or a couple more 10 lines at the beginning or whatever, so you don't have to go 11 back and relisten to this whole thing.
12 JUDGE YOUNG: Right. So what I was going to say 13 is we know how far we've gotten and we know that they want 14 to start back up somewhere on page 14, so are there any 15 parts between --
16 MR. MARQUAND: I don't know, I'll have to look and 17 I can do that real quick if we could take 10 minutes and let 18 t her --
19 JUDGE YOUNG: Yeah, that's a good idea, if that 20 would save time in the long run. Do you agree?
21 CHAIRMAN BECHHOEFER: I think that's a good idea.
22 MR. DAMBLY: The entire CD from this conversation 23 I believe is 52 minutes long.
24 MR. MARQUAND: Very long, I listened to it the 25 other night on the way back to Knoxville and it's hard to
Page 1084 1 understand and I'd rather only have to do it once.
2 JUDGE YOUNG: Okay, I think that would help.
3 MS. EUCHNER: Do you want to take a break?
4 >CHAIRMAN BECHHOEFER: That's okay with us.
5 (A short recess was taken.)
6 CHAIRMAN BECHHOEFER: Back on the record.
7 MS. EUCHNER: We're going to go back to the first 8 conversation that we played to catch a little bit more of 9 that conversation. We're going to go to page 7 of Joint 10 Exhibit 27 and I believe the CD is queued up to start right 11 around where Dr. McArthur says, "And in the same vein, I was 12 out talking to Rob Beecken."
13 (Whereupon, the compact disc was played.)
14 MS. EUCHNER: Your Honors, for the record, we 15 stopped the CD at 5 minutes 5 seconds, so if you want to go 16 back and listen to it again, you know where to find it.
17 BY MS. EUCHNER:
18 Q Mr. Fiser, where were you when you recorded that 19 portion of the conversation?
20 A I was in an automobile with Dr. McArthur.
21 Q The next section we're going to play is going to 22 be minut.e 24 and 20 seconds and I believe it's going to 23 start on page 15 of Joint Exhibit 27, but after he plays a 24 line or two, we'll have him pause it so we can make sure 25 we're all in the right place in the transcript.
Page 1085 1 JUDGE YOUNG: How may minutes did you say?
2 MS. EUCHNER: I'm sorry?
3 JUDGE YOUNG: What minute marker?
4 MS. EUCHNER: Oh, it is 24 minutes and 20 seconds.
5 (Whereupon, the compact disc was played.)
6 MS. EUCHNER: Okay, 23, 48 is on page 15, starting 7 with Dr. McArthur's statement, "Well, I know one thing I'm 8 going to do," and that's where we're going to start it.
9 (Whereupon, playing of the compact disc 10 continued.)
11 MS. EUCHNER: For the record, that conversation 12 ended at 31 minutes, 31 seconds.
13 CHAIRMAN BECHHOEFER: One clarifying question, who 14 is a person named Sabados?
15 MS. EUCHNER: Why don't you go ahead and answer 16 that.
17 CHAIRMAN BECHHOEFER: Mr. Fiser, can you identify 18 that person?
19 1 THE WITNESS: Yes, sir, that's John Sabados, John 20 was the chemistry manager at Browns Ferry Nuclear Plant.
21 E CHAIRMAN BECHHOEFER: Thank you.
22 1 MS. EUCHNER: Okay, the next section we're going 23 to play starts on page 20 of Joint Exhibit 27 and I'm going 24 1 to have Mr. Hilton play about 30 seconds of it, so we can 25 . all get our bearings and then we'll start all over again and
Page 1086 1 we'll note the minute and seconds for the record.
2 (Whereupon, the compact disc was played.)
3 MS. EUCHNER: The statement you just heard is 4 about a third of the way down page 20, Mr. Fiser saying, "I 5 don't know what the shrink was talking about."
6 (Whereupon, playing of the compact disc 7 continued.)
8 MS. EUCHNER: For the record, we stopped at 49 9 minutes, 30 seconds.
10 i Now we're going to try and catch the last part of 11 the conversation, which appears on the top of page 26 of 12 Joint Exhibit 27.
13 CHAIRMAN BECHHOEFER: Did you give us the timing 14 of when that previous section started? You gave us the end.
15 MS. EUCHNER: I believe it was 39 minutes -- or it 16 might have been 28 minutes, 45 seconds that we started that 17 one at.
18 JUDGE YOUNG: 31 minutes, 31 seconds, at the 19 bottom of page 17, is what she told us.
20 MS. EUCHNER: We're going to try and find the spot 21 that's going to start at the top of page 26, it's probably 22 about the last minute, so I'm going to have him play about 23 15 seconds, so we can locate our spot and then we'll go 24 ahead and play the whole conversation.
25 (Whereupon, playing of the compact disc
Page 1087 1 continued.)
2 MS. EUCHNER: We're having a hard time finding the 3 section. Your Honor, I believe the CD we had in there stops 4 on the middle of page 24, there's a notation on there that 5 says B-23-A and that probably means that it's a different 6 CD. So we can't play the top of page 26 because we don't 7 have it.
8 JUDGE YOUNG: You don't have the next CD?
9 MS. EUCHNER: I don't know that we have it with 10 us, we may have it back at our hotel, but we don't have it 11 for the end of the conversation because we weren't planning 12 on playing that portion of the conversation. We can 13 certainly bring that with us the next time Mr. Fiser 14 testifies and play that portion.
15 CHAIRMAN BECHHOEFER: So we have not heard 16 anything from page 26?
17 1 MS. EUCHNER: That's correct. We heard until the 18 bottom of page 23, was the last thing that we heard.
19 BY MS. EUCHNER:
20 Q Mr. Fiser, after listening to these excerpts of 21 the conversations, are those excerpts an accurate reflection 22 of what you and Dr. McArthur discussed on November 16, 1992?
23 A Yes, they are.
24 MS. EUCHNER: Your Honors, I'd move to have Staff 25 Exhibit 168 entered into evidence.
Page 1088 1 CHAIRMAN BECHHOEFER: 168?
2 MS. EUCHNER: 168.
3 CHAIRMAN BECHHOEFER: Now is that just a single CD 4 or is that--
5 MS. EUCHNER: That is just that single CD.
6 MR. MARQUAND: May I voir dire, Your Honor?
7 JUDGE YOUNG: Go ahead, 8 VOIR DIRE EXAMINATION 9 BY MR. MARQUAND; 10 Q Mr. Fiser, you tape recorded that conversation, is 11 that correct?
12 A That's correct.
13 Q That CD doesn't contain the whole conversation, is 14 that right, apparently?
15 A Apparently not.
16 Q You tape recorded that without Dr. Wilson 17 McArthur's knowledge or permission, is that right?
18 A That's correct.
19 MR. MARQUAND: Your Honors, I think it's pretty 20 reprehensible, but aside from that, if we're going to put 21 part of the conversation in, I think it's incumbent upon 22 counsel-to have the whole thing here, to offer the whole 23 thing at once.
24 JUDGE YOUNG: She's offered to bring it back.
25 MR. MARQUAND: I understand that and I think it
Page 1089 1 needs to be part of this same offer -- this same exhibit 2 needs to be one exhibit all at the same time.
3 MS. EUCHNER: Your Honor, we have no problem 4 providing copies of the rest of the conversation. We were 5 not intending on playing any portion of that conversation.
6 The only reason why went back to page 26 was because Mr.
7 Marquand requested me to.
8 JUDGE YOUNG: Well, tomorrow, just bring all the -
9 10 CHAIRMAN BECHHOEFER: Not tomorrow, it'll be 11 several days from now.
12 MS. EUCHNER: If we're going to play the 13 conversation, we would probably want to do it the next time 14 Mr. Fiser was on the stand, so that way we could question 15 him about what the conversation was.
16 CHAIRMAN BECHHOEFER: So that'll be Thursday or 17 Friday?
18 MS. EUCHNER: Not of this week. We have other 19 witnesses scheduled for this week that are under subpoena.
20 JUDGE YOUNG: Have you provided -- Mr. Marquand, 21 do you have all the CDs and tapes?
22 MR. MARQUAND: I have heard this portion on a CD.
23 I listened to another CD and I couldn't for the life of me 24 figure out what it was about, pin it to any particular date 25 in time.
Page 1090 1 JUDGE YOUNG: Then why don't. you -- during this 2 week sometime, if you don't mind, you all get together and 3 make sure that you're clear on what's on each CD so that 4 both of you understand and are on the same page on that.
5 MR. MARQUAND: I think that's a good idea.
6 MS. EUCHNER: That's fine, Your Honor.
7 Are you done with your voir dire?
8 MR. MARQUAND: Yes.
9 MS. EUCHNER: Your Honors, are you reserving 10 ruling on admission of Exhibit 168 or are we entering that 11 CD into evidence? Because whatever we do with it, it will 12 be an additional CD that will be given an additional exhibit 13 number, it's going to be a separate CD.
14 JUDGE YOUNG: Mr. Marquand?
15 MR. MARQUAND: With that understanding, they'll 16 bring it and make it available the next time Mr. Fiser's 17 here, that's fine.
18 CHAIRMAN BECHHOEFER: Okay, the Board will admit 19 Staff Exhibit 168 with the understanding that other CDs will 20 be brought in.
21 MS. EUCHNER: Thank you, Your Honor.
22 i (The document referred to was 23 marked as Staff Exhibit Number 168, 24 and received in evidence.)
25 CHAIRMAN BECHHOEFER: And I might say, the last
Page 1091 1 conversation, I was not able to make very much of.
2 MS. EUCHNER: The section we were listening to 3 trying to find --
4 CHAIRMAN BECHHOEFER: The very last section you 5 played.
6 MS. EUCHNER: Yes.
7 CHAIRMAN BECHHOEFER: And I don't know whether 8 enhancing it or replaying it with the final portion of the 9 conversation will help things.
10 MR. MARQUAND: Your Honor, I would note, I would 11 not recommend listening to these in the car trying to drive 12 anywhere, it would probably be dangerous.
13 (Laughter.)
14 BY MS. EUCHNER:
15 Q Was the conversation that we just listened to 16 excerpts of the first time that you learned that Rob Beecken 17 did not want you to return to Sequoyah?
18 A Yes, it is.
19 MR. MARQUAND: Objection, leading.
20 Q When was the first time that you learned that Mr.
21 Beecken did not want you at Sequoyah?
22 A During the conversation that just took place on I 23 think it was November 16.
24 Q And after you learned that information from Dr.
25 McArthur, what did you do?
Page 1092 1 A As I recall, I remember eventually trying to talk 2 to my previous manager, Mr. Bill Lagergren. I also went out 3 to Sequoyah and arranged to have a meeting with the vice 4 president, Mr. Jack Wilson, and also the Sequoyah plant 5 manager, Mr. Rob Beecken.
6Q Were you successful in getting meetings with Mr.
7 Wilson and Mr. Beecken?
8 A Eventually.
9 Q Let's start with Mr. Beecken, what did you discuss 10 with Mr. Beecken?
11 JUDGE YOUNG: Would you tell us when you're 12 talking about?
13 MS. EUCHNER: We're talking about after the 14 November 16, 1992 conversation. I don't believe he gave us 15 an exact date.
16 A Yeah, I think it was December 9 that I finally was 17 able to secure a meeting with the plant manager, Mr.
18 Beecken. As far as Jack Wilson, I have in my sequence of 19 events that I spoke with him on November 21 of 1992.
20 BY MS. EUCHNER:
21 Q What did you discuss with Mr. Beecken when you met 22 with him on December 9?
23 A As I recall, my first question to him was what's 24 wrong, Rob?
25 0 And what was his response?
Page 1093 1 A Well, it was varied. It started out, his first 2 response was, as I recall, and I don't have my sequence of 3 events, that he had wanted a perfect INPO evaluation.
4 Q Did what Mr. Beecken told you contradict the 5 conversation you had with him prior to your rotation as 6 corporate chemistry manager?
7 A Yes, it did.
8 MR. MARQUAND: Objection, that calls for a 9 conclusion, what was talked about, what was said. His 10 conclusions are argumentative statements about whether in 11 Mr. Fiser's opinion something contradicted something.
12 MS. EUCHNER: I am about to ask him the basis for 13 that conclusion, Your Honor.
14 JUDGE YOUNG: Why don't you start with that.
15 MS. EUCHNER: Okay.
16 BY MS. EUCHNER:
17 Q What did Mr. Beecken state to you about your 18 rotation to corporate chemistry manager during that 19 conversation?
20 A During which conversation are you referring to?
21 Q During the December 9 conversation.
22 A During my December 9 conversation, again, the 23 topic was varied, it lasted approximately an hour --
24 JUDGE YOUNG: I'm sorry, the topic was --
25 THE WITNESS: The topic again was, I went out to
Page 1094 1 find out directly from the plant manager at Sequoyah why it 2 was I was getting this feedback that he did not want me back 3 at Sequoyah. And the conversation lasted approximately not 4 quite an hour, as I recall.
5 And the first thing out of his mouth was that he 6 had wanted a perfect INPO evaluation and he was referring to 7 the fact that while I was gone, INPO came in and had 8 basically I think three findings, I don't recall exactly the 9 number of findings, with the chemistry program at Sequoyah.
10 And he was very upset about that.
11 BY MS. EUCHNER:
12 Q Did this conversation with Mr. Beecken differ in 13 any way from the conversation you had with him prior to 14 rotating to the corporate chemistry manager position?
15 A Yes, it did.
16 Q How so?
17 A Well, it was diametrically opposed to the one that 18 we had had in the stairwell in the presence of the vice 19 president, Mr. Jack Wilson, and Rob Beecken, where they were 20 essentially expressing great approval for me and for the job 21 I had done when I was out there and wishing me well on this 22 rotational assignment in corporate chemistry.
23 Q And you mentioned you also had a discussion with 24 Jack Wilson.
25 A That's correct.
Page 1095 1 Q What did you discuss with Mr. Wilson?
2 A Well, I had a very similar conversation with Mr.
3 Jack Wilson. As I recall, he was in the process of packing 4 his personal effects from his office because he was moving 5 out, but I did have a few minutes, I would say approximately 6 20-30 minutes with him, something like that. And I just 7 wanted to get feedback from him as well, because these were 8 the same two guys that originally had expressed appreciation 9 and approval for the job I had done, that now purportedly 10 did not want me back at Sequoyah.
11 Q Now the recorded conversation that we just 12 listened to, during that, there was a discussion regarding 13 the potential for you being demoted.
14 A That's correct.
15 Q After this conversation with Dr. McArthur, were 16 you demoted?
17 A Yes, I was.
18 Q We're going to book 5 of staff exhibits. I'd 19 like you to turn to Staff Exhibit 90.
20 CHAIRMAN BECHHOEFER: 9-0?
21 MS. EUCHNER: 9-0.
22 (Brief pause.)
23 BY MS. EUCHNER:
24 Q Do you recognize this document?
25 A Yes, I do.
Page 1096 1 Q What is it?
2 A It's a document that was I guess written by Wilson 3 McArthur wherein he stated that effective Monday, November 4 23, Sam Harvey would be assigned as the acting corporate 5 chemistry manager and Gary Fiser will be assigned to the 6 position of program manager in corporate chemistry.
7 Q And what is the date on this document?
8 A November 18, 1992.
9 Q How many days after your conversation that we just 10 listened to the CD of is this document?
11 A I've got my dates confused, it was a few days.
12 MS. EUCHNER: Your Honors, I'd like to enter Staff 13 Exhibit 90 into evidence.
14 MR. MARQUAND: No objection.
15 CHAIRMAN BECHHOEFER: Staff Exhibit 90 will be 16 admitted.
17 (The document, heretofore marked as 18 Staff Exhibit Number 90, was 19 received in evidence.)
20 BY MS. EUCHNER:
21 Q At the end of your rotation as corporate chemistry 22 managerr were you rotated back to Sequoyah?
23 A No, I was not.
24 Q Why not?
25 A I was given a letter placing me in the employee
Page 1097 1 transition program.
2 Q At the end of the -- Mr. Jocher rotated back to 3 corporate chemistry?
4 A Yes, he was.
5 Q By the terms of your transfer agreement, were you 6 entitled to return to Sequoyah chemistry?
7 A Yes, I was.
8 , Q Did TVA honor that agreement?
9 , A No, they did not.
10 Q I'm going into the staff's volume of joint 11 exhibits. Going to Joint Exhibit 59.
12 CHAIRMAN BECHHOEFER: Wait one second.
13 JUDGE YOUNG: I'm not finding my copy of that.
14 I've looked at both of those. Somebody has accidentally 15 picked up my copy of that. Somehow I can't find it.
16 BY MS. EUCHNER:
17 Q Do you recognize the document?
18 A Yes, I do.
19 Q What is it?
20 A It's the document I was just referring to wherein 21 I was transferred to the employee transition program.
22 Q What is the date on this document?
23 A April the 2nd, 1993.
24 Q According to this document, what position were you 25 surplused from?
Page 1098 1 A I was surplused from the position of chemistry 2 manager, PT-9, Sequoyah Nuclear Plant.
3 Q Were you currently in that position?
4 A No, I was not.
5 Q What position were you in?
6 A I was in a program manager position in corporate 7 chemistry.
8 Q Who handled the surplus in terms of personnel?
9 Was it corporate human resources or Sequoyah human 10 resources?
11 A It was corporate.
12 Q And who signed your surplus notice?
13 A Joe Bynum.
14 Q To your knowledge, was there a Sequoyah chemistry 15 position at the time that you were surplused?
16 A Yes, there was.
17 MS. EUCHNER: Your Honors, I would move to have 18 Joint Exhibit 59 entered into evidence.
19 MR. MARQUAND: No objection.
20 CHAIRMAN BECHHOEFER: Joint Exhibit 59 will be 21 admitted 22 (The documents, heretofore marked 23 as Joint Exhibit #59, were received 24 in evidence.)
25 BY MS. EUCHNER:
Page 1099 1 Q Did you ever have any conversations with Dr.
2 McArthur about the existence or non-existence of a chemistry 3 manager position at Sequoyah?
4 A Yes, I did.
5 Q And what did Dr. McArthur tell you about that?
6 A There was some...
7 MR. MARQUAND: Objection. Could we have some 8 foundation? When, where, who was present? Instead of just 9 what somebody's saying at some unknown point of time.
10 Q Do you know approximately what time you had this 11 conversation with Dr. McArthur?
12 A It would have been at various -- various times in 13 the spring of 1993.
14 Q Okay. Did you have these conversations with 15 anyone other than Dr. McArthur?
16 A Yes, I did.
17 Q With whom?
18 i A I had them with Mr. Bill Jocher, who was both --
19 at times when he was in his position at Sequoyah, and also 20 when he rotated back downtown as the corporate chemistry 21 manager, and with others.
22 Q What did Dr. McArthur tell you about the existence 23 or non-existence of a chemistry manager position at 24 Sequoyah?
25 A Well, there was going to be a position at
Page 1100 1 . Sequoyah. At one time there was some discussion as to 2 whether it would report to a combined chemistry/radio 3 chemistry manager, or leave it like it was with the outage 4 manager. That, as I understand, was up in the air to some 5 extent, exactly where the position would report. But not 6 that there would be one.
7 Oh, I do think there were discussions that said, 8 you know, perhaps we can do away with the position 9 altogether and just have my direct reports go to the new 10 manager." There were a lot of ideas being kicked around.
11 MS. EUCHNER: Your Honors, I'm at a good breaking 12 point if we could maybe take a ten minute break.
13 CHAIRMAN BECHHOEFER: That's fine.
14 MS. EUCHNER: Thank you.
15 CHAIRMAN BECHHOEFER: 3:15.
16 (Brief recess.)
17 BY MS. EUCHNER:
18 Q In Joint Exhibit 59, which was the notice sending 19 you to the employee transition program, would you please 20 identify what is the employee transition program.
21 A It was a program for -- which gave people an 22 opportunity to find employment, to help them find other 23 employment, either outside of TVA, within TVA. Give them a 24 little time, a buffer zone between the time they lost their 25 job, and to give them time to find another job.
1 Page 1101 1Q Once you were sent to the ETP as a result of this 2 notice, did you pursue any jobs within TVA?
3 A Oh, yes, I did.
4 Q What jobs?
5 A Well, there were -- there were several jobs. I do 6 not have a list of them that I applied on. But one job in 7 particular was my -- my old job at Sequoyah.
8 < Q Do you know -- well, first of all, who was the 9 supervisor for that chemistry job at Sequoyah?
10 A That was Charles Kent.
11 Q And what was his position?
12 A He was that combined rad chem manager. Radiation 13 protection and chemistry were combined. And I think he was 14 called the rad chem manager.
15 JUDGE YOUNG: Charles who?
16 THE WITNESS: Charles Kent.
17 JUDGE YOUNG: Kent. Thank you.
18 Q Do you know whether Mr. Kent was pursuing 19 individuals to fill the chemistry manager position?
20 A Yes, I do.
21 Q Any particular individuals that you knew he was 22 pursuing?
23 A Other than me, and also I think at one time Gordon 24 Rich. And I know that he made a phone call to INPO and 25 talked to the chemistry folks at INPO, just to see if they
Page 1102 1 knew of anybody that might be available or might be 2 interested in going to Sequoyah.
3 Q You mentioned Gordon Rich. Was he someone who 4 already worked for TVA at that time?
5 A No, he was not.
6 Q Where did he work?
7 A It's my understanding at that time he worked for 8 the Trojan Nuclear Station in I guess that would be 9 Washington or Oregon. Somewhere out in the Northwest.
10 , CHAIRMAN BECHHOEFER: Which station?
11 THE WITNESS: Trojan Nuclear Station.
12 CHAIRMAN BECHHOEFER: I just didn't hear you.
13 THE WITNESS: Okay.
14 Q Did you hear from Charles Kent about you applying 15 for the chemistry manager position?
16 A Yes, I did.
17 Q When?
18 A In early July of 1993.
19 Q And how did that come about?
20 A I still had my pager from my chemistry manager 21 position, and he paged me on a weekend, as I recall, and I 22 returned the phone call. And he wanted to set up a -- a 23 meeting for me to go out to Sequoyah to interview for my old 24 1 job.
25 Q Did you set up such a meeting?
Page 1103 1 A Yes, we did.
2 Q What happened during that meeting?
3 A Well, during -- during that meeting it started off 4 with Charles Kent and me, alone. And we talked for a while 5 about the things that had happened, about perceptions, about 6 the way he felt like -- his feelings about the way I had 7 been treated before. And that he was of the opinion that it 8 had been wrong, and he was wanting to offer me that job back 9 and wanting me to come out, talk to him, make sure 10 everything was okay with me, that it was okay with Charles.
11 And then he called in the meeting -- at one time he called 12 in the new Sequoyah plant manager---I think his name was Mr.
13 Ken Powers---to interview me, talk to me as well. And so 14 the three of us together were out at Sequoyah discussing the 15 prospects of me going back out there into the chemistry 16 manager's position.
17 CHAIRMAN BECHHOEFER: What was the name of that 18 person? The new -- new manager.
19 THE WITNESS: Of the new manager?
20 CHAIRMAN BECHHOEFER: Yeah. I just didn't hear 21 you.
22 THE WITNESS: Okay. Ken Powers.
23 CHAIRMAN BECHHOEFER: Powers?
24 THE WITNESS: Powers. Yes, sir.
25 BY MS. EUCHNER:
Page 1104 1 Q During that meeting, did Mr. Kent offer you the 2 position?
3 A Yes, at one point Mr. Powers looked at Charles and 4 said, after we had talked and established a bit of a rapport 5 for just a -- a few minutes, perhaps ten minutes, Mr. Powers 6 got up and said he was pleased and he wanted Charles to go 7 ahead and make it happen. And then he left the room.
8 Q Did Mr. Kent quote you any information about the 9 position?
10 A Yes, he did. In fact, he quoted me a -- a salary.
11 And it was like it was 81,000 or maybe 81,500 or something 12 like that. But -- but he had quoted me a salary. He said 13 it was now a PG-10. It had been upgraded to a PG-10 14 position. And -- and he also stated that he wanted me to be 15 out at the plant site the following Thursday morning, as I 16 recall, which was a couple of days -- I think I was out 17 there on a Tuesday or something like that. And he said, "I 18 just want you to show up out here, I want you to have your 19 tie on, I want you to be ready to go to work. And we're 20 going to make this thing happen. And I want you to just be 21 quiet about it, let me take care of it. I'll talk to the 22 right people or have Wilson talk to the right people, one of 23 the two, and we're just going to make this happen and get 24 you out here before anybody has any chance to even raise an 25 objection."
Page 1105 1 Q Okay. Now, during...
2 A That's paraphrased, but that's essentially what I 3 was told.
4 Q Okay. During your answer, you just mentioned 5 Wilson. Are we talking about Jack Wilson or Wilson 6 McArthur?
7 A I'm sorry. We are -- Wilson McArthur. I'm sorry 8
9 Q Do you know whether Mr. Kent did talk to Dr.
10 McArthur about hiring you?
11 A I know -- I know for a fact he did.
12 Q Okay. To your knowledge...
13 JUDGE YOUNG: You know for a fact he did or did 14 not?
15 THE WITNESS: He did. Yes, ma'am, he talked -- he 16 talked to Dr. McArthur.
17 Q What did Dr. McArthur do in response to Mr. Kent's 18 inquiries?
19 MR. MARQUAND: Objection; lack of foundation. He 20 can only testify about it if he knows.
21 THE WITNESS: I know.
22 MR. MARQUAND: By personal knowledge.
23 THE WITNESS: I have personal knowledge.
24 JUDGE YOUNG: What's the basis of your knowledge?
25 THE WITNESS: I -- I went out and talked to Wilson
Page 1106 1 -- Dr. Wilson McArthur personally about it and got his 2 direct feedback. And he basically said, and it's documented 3 in here, but he basically said that he talked to Joe Bynum, 4 perhaps I think I recall he might have even talked to maybe 5 even Mr. Dan Keuter. I'm not sure of that. Would have to 6 refer to the notes.
7 BY MS. EUCHNER:
8 Q Were you concerned that Dr. McArthur had talked to 9 Dr. -- or to Mr. Bynum?
10 MR. MARQUAND: Objection; leading. What you want 11 him to say? Yes, he concerned about it. Gee, let's ask the 12 witness what his answer is.
13 MS. EUCHNER: I can't ask him why he was 14 concerned. I'll rephrase the question.
15 BY MS. EUCHNER:
16 Q What reaction did you have to Dr. McArthur telling 17 you that?
18 A I was profoundly concerned about the fact that he 19 had talked to Mr. Joe Bynum about the possibility of me 20 going back to Sequoyah.
21 Q And why did that concern you?
22 A This is the same man who had lied to me in writing 23 repeatedly stating I would have a one-year transition.
24 JUDGE YOUNG: Stating what?
25 THE WITNESS: Stating that I would have the one-
Page 1107 1 year temporary transition to corporate chemistry. Stating 2 that after the one year I would return to my position at 3 Sequoyah. Stating that I was being placed in the ETP 4 program because my position that I was out there 5 interviewing for had been determined to be surplus. So, 6 yeah, I was very concerned about the fact that he was 7 talking to this man who had, on several occasions, lied to 8 me in writing.
9 Q Now, you mentioned earlier that...
10 CHAIRMAN BECHHOEFER: Well, pardon me. Would Mr.
11 Bynum have known about the potential transition of the 12 position or the abolishment of the position at the time he 13 first talked to you about going -- transitioning for a year 14 rotating for a year, I guess the right word is? Would he 15 have even known about what the position would be on your 16 return, or that there would be a position on your return?
17 I'm trying to figure out whether it was a lie or just a 18 statement of the facts as he knew them then.
19 THE WITNESS: The reason I state so forthrightly 20 that it was, was because of the fact that not only was a 21 position still there when it was time for me to rotate back 22 but indeed, it had been upgraded. So, and he -- he was one 23 of the people that was directing the structure of the 24 organization. Yes, sir, I think he would have been well 25 aware.
Page 1108 1 CHAIRMAN BECHHOEFER: I see. Thank you.
2 BY MS. EUCHNER:
3 Q You mentioned in your earlier testimony that Mr.
4 Kent told you to show up for work a few days later. Did you 5 show up for work a day...
6 A No, I didn't. No, I did not.
7 Q Why not?
8 A Well, at that time I did not know, but he just 9 said there were some other details that needed to be worked 10 out. And then eventually, a few days later, I got a phone 11 call from him asking me to go back to...
12 JUDGE YOUNG: Excuse me. Who is "he," now?
13 THE WITNESS: The "he" is Charles Kent.
14 JUDGE YOUNG: So you're saying that Charles Kent 15 told you not to come in because there were details to be 16 worked out?
17 THE WITNESS: That's correct.
18 JUDGE YOUNG: Okay. And then go on.
19 THE WITNESS: Okay. I'm sorry.
20 BY THE WITNESS:
21 A So I remember -- okay, let's go back. I was told 22 to report out there on I think it was Thursday morning with 23 my tie on, ready to go to work. Well, Wednesday evening I 24 had not heard anything. And so I had...
25 JUDGE YOUNG: And excuse me for interrupting you
Page 1109 1 again, but now are we talking about the second report-in 2 date or are we back on the first report-in date.
3 THE WITNESS: We're on the second report-in date 4 where I was...
5 JUDGE YOUNG: So the first one was Monday and the 6 tsecond one was the following Thursday?
7 THE WITNESS: Yeah. As I recall, I had the 8 interview with Charles Kent and Ken Powers on a Tuesday. It 9- may have been a Monday. I'm not sure. But I was told then 10 to be out at the plant on a Thursday with my tie on, ready 11 to go to work, because these two guys had decided to offer 12 me the job on the spot.
13 JUDGE YOUNG: So that's the first report-in date 14 that you were given, was this Thursday that you're talking 15 about now? And that's the one you did not show up for 16 Nbecause Mr. Kent said there were details to be worked out?
17 THE WITNESS: That's correct, Your Honor.
18 JUDGE YOUNG: Okay.
19 BY THE WITNESS:
20 , A So the -- that Wednesday evening I had not heard 21 anything, and I was a little concerned about whether I 22 should just show up. So I -- I called or left a message or 23 paged or something, and was told not to show up, to wait.
24 Charles Kent told me that. Said that there were a few 25 details that needed to be worked out.
Page 1110 1 And so I waited. And then it was not very long 2 after that that I got a phone call from Charles saying 3 things...
4 JUDGE COLE: Charles who, sir?
5 THE WITNESS: Charles Kent.
6 JUDGE COLE: Oh, Kent.
7 A Saying that, "Looks like things are not going to 8 work out. I want you to come out here and we'll sit down 9 and we'll discuss it."
10 Q Were you able to go out and discuss this with Mr.
11 Kent?
12 A Yes, I was.
13 Q And what -- when was that?
14 A I don't have the exact date. It's -- it was 15 within a couple of days of when I was supposed to have 16 supported. It was shortly thereafter.
17 Q And what did you discuss when you met with Mr.
18 Kent?
19 A Well, I was just interested in -- in finding out 20 what had happened. This -- this position that he had 21 verbally offered was being coordinated through the employee 22 transition personnel, the folks that were in charge of the 23 employee transition program where I was working at the time.
24 And of course they were excited I was getting a job and were 25 trying to work out all the details. And then it fell
Page 1111 1 through, so I went out to find out what was going on.
2 And in talking to Charles, he said that he had 3 talked to Wilson McArthur. These -- this is another 4 transcription that I made, and those notes are in here, as 5 well. But I'll give you the gist of it. The gist of it was 6 that Wilson was to talk to the right people and make sure 7 the coast was clear or there was no opposition.
8 And Charles said something to the effect of, "You 9 might as well have thrown a rock at a hornet's nest." That 10 guys came out of the woodwork and were calling. I guess 11 they would have been Finnick, who was the -- I think he was 12 the vice-president of Sequoyah at the time. In opposition 13 to me going back out there and taking that position.
14 Q After you had that discussion with Mr. Kent, did 15 you have any discussions with anyone else about that offer?
16 A Yes, I did.
17 Q With whom?
18 A As I said before, the people in the employee 19 transition -- that were running the employee transition 20 program, their names were Mr. Ron Brock, Brock, and a Mr.
21 Mannis. I think his name was Ed Mannis. I'm not sure of 22 that.
23 JUDGE YOUNG: The last name, M-a...
24 THE WITNESS: N-n-i-s. M-a-n-n-i-s, I think.
25 A And they were very upset about this. And so they
Page 1112 1 decided they were going to call and find out what had 2 happened. Because, according to the -- the rules governing 3 personnel placed in the employee transition program, if 4 somebody in that program -- it was their understanding if a 5 job even closely resembling one they could handle came open, 6 they were supposed to be given preference for that job. If 7 it required some training, they would help them get the 8 training.
9 They were helping people find a job. So they 10 wanted to call out and find out what was going on, so they 11 called personnel, I think it was at Sequoyah, and talked to 12 a fellow by the name of Al Black in personnel. We were on a 13 speaker phone in one of the offices in the ETP complex.
14 Q Were you present for the speaker phone 15 conversation?
16 A I was present. And the question was asked, you 17 know, "What's going on? You know, we had this position 18 available. We had Mr. Fiser interview." I'm paraphrasing 19 now. "He was offered the job and it fell through."
20 And the response from Mr. Black was---again, 21 that's documented in here somewhere, at least the -- my 22 recollection of it is---that it was blocked at the highest 23 level. That they would have a chemistry manager, but it 24 would not be Gary Fiser.
25 MS. EUCHNER: Your Honors, we're going to be
Page 1113 1 getting ready to play the second compact disc which I would 2 like labeled as Staff Exhibit 169.
3 (The documents referred to were 4 marked for identification as Staff 5 Exhibit 4169.)
6 JUDGE YOUNG: Have you gone over this with Mr.
7 Marquand? Great.
8 MS. EUCHNER: Yes, Your Honor. And also we're 9 going to be referring to Joint Exhibit 27 again. The CD 10 that I've given you, Mr. Fiser, is Staff Exhibit 169. This 11 disc is an enhancement of a recording for Tape I, Section 2.
12 13 BY MS. EUCHNER:
14 Q Mr. Fiser, have you had the opportunity to listen 15 to the conversation recorded on this compact disc?
16 A Yes, I have.
17 Q Is this recording an accurate reflection of the 18 conversation that you recorded?
19 A Yes, it is.
20 Q What does this recording contain?
21 A It contains the conversation between Charles Kent 22 and me.
23 Q I think you have the wrong CD. That's -- I don't 24 even think we have the conversation with you and Mr. Kent.
25 JUDGE COLE: This is a continuation of the tape we
Page 1114 1 played earlier; right?
2 MS. EUCHNER: No, it is not. This is an entirely 3 new conversation.
4 JUDGE COLE: Tape 1, Side A, Section 1 and Section 5 -- Section 2?
6 CHAIRMAN BECHHOEFER: One of them is Tape A and 7 one of them is tape...
8 MS. EUCHNER: Yes.
9 CHAIRMAN BECHHOEFER: ... is that "I"?
10 MS. EUCHNER: This is Tape I.
11 CHAIRMAN BECHHOEFER: "I," rather than "1"?
12 MS. EUCHNER: Yes.
13 CHAIRMAN BECHHOEFER: Okay. Are there tapes 14 between...
15 MS. EUCHNER: Yes, there are.
16 CHAIRMAN BECHHOEFER: ... "A" and "I"?
17 MS. EUCHNER: Yes, there are. And just so Your 18 Honors can go to the right page, in Joint Exhibit 27 we're 19 on Page 78.
20 BY MS. EUCHNER:
21 Q What does this compact disc recording contain?
22 A Okay, this is the recording of -- that took place 23 on July the 14th, 1993, between Dr. Wilson McArthur and me.
24 Q Did you transcribe this conversation in your 25 sequence of events?
Page 1115 1 A Yes, I did.
2 Q What pages of the sequence of events correspond to 3 this conversation?
4 A It would start on Page 78, and it completes on 5 Page 81. MS. EUCHNER: Your Honors, I'm going to go 6 ahead and play the CD now. In the middle of the 7 conversation, a few minutes in, Dr. McArthur takes a phone 8 call unrelated to the conversation. So at that point we're 9 going to skip over those portions of the conversation 10 because Dr. McArthur is not speaking to Mr. Fiser. And that 11 portion is also not transcribed. So we're basically going 12 to skip over that, and then pick it up where the 13 transcription starts.
14 JUDGE YOUNG: Can you tell us where in here to 15 expect -- it's where the asterisks are?
16 MS. EUCHNER: Yes, on Page 79 there are three 17 asterisks about a third of the way down, and that's where 18 the missing conversation is. And again, just like we did 19 I with the last one, I'm going to have Mr. Hilton play 15 or 20 20 seconds of it, so that Mr. Fiser can identify who the 21 speakers are, and then we'll go ahead and continue playing 22 the rest of the conversation.
23 (Compact disc played.)
24 BY MS. EUCHNER:
25 Q So, Mr. Fiser, so far he just said, "I'm feeling
Page 1116 1 I fair for an old man"?
2 A That's Dr. McArthur.
3 Q And the other voice?
4 A Was my -- my voice.
5 Q Okay, go ahead.
6 A Before this surgery.
7 (Compact disc continued.)
8 MS. EUCHNER: At 2:30 we're going to stop it, and 9 then we are going to pick up again...
10 JUDGE YOUNG: Two minutes, 30 seconds?
11 MS. EUCHNER: Yes, Your Honor. We are going to 12 pick up again at 11 minutes, ten seconds.
13 (Compact disc continued.)
14 MS. EUCHNER: We're at 17 minutes, 17 seconds.
15 JUDGE YOUNG: Was that at the -- just 16 corresponding with the transcription somewhere around the 17 top of Page 81, is that where you are?
18 MS. EUCHNER: That's where I left off, Your Honor.
19 20 JUDGE COLE: We're at the top of 81 again?
21 MS. EUCHNER: At the very end of the first 22 sentence by Mr. Fiser, "Not until it gets a lot closer.
23 When it gets a lot closer than what it is right now." And I 24 would note that on Page 80, about two-thirds of the way 25 down, we had a fairly substantial break where there was
Page 1117 1 conversation that was not transcribed in here.
2 JUDGE YOUNG: And tell us again the minute and 3 second marker.
4 MS. EUCHNER: 17-17, I believe. Seventeen (17) 5 minutes, 17 seconds.
6 MR. MARQUAND: I would concur with counsel about 7 two-thirds of the way down this transcription that that tape 8 was just -- I couldn't make anything of it.
9 l MS. EUCHNER: I didn't say I couldn't make 10 anything out of it. I said that there was a gap in the 11 transcript that Mr. Fiser provided. And that was in the 12 middle of the statement by Mr. McArthur, "If you lose, in 13 fact, what I told Bill Jocher," towards the end of that 14 there was a fairly substantial portion of the conversation 15 that was not included in this sequence of events transcript.
16 17 CHAIRMAN BECHHOEFER: Well, in that one paragraph 18 is there a break?
19 MS. EUCHNER: Yes, where the three little dots 20 are, "That is a big decision you have to make," dot, dot, 21 dot, there was part of the conversation that we heard on the 22 CD that Mr. Fiser did not transcribe.
23 JUDGE COLE: That was the telephone conversation?
24 MS. EUCHNER: No, not the telephone conversation.
25 This is later than the telephone conversation on Page 80.
Page 1118 1 CHAIRMAN BECHHOEFER: I don't see any dots.
2 MS. EUCHNER: Page 80, about halfway to two-thirds 3 of the way down Dr. McArthur starts off with, "If you lose, 4 in fact, that is what I told Bill Jocher."
5 CHAIRMAN BECHHOEFER: Between...
6 MR. MARQUAND: There's only about six lines left 7 of the conversation. Why don't we just listen and...
8 'MS. EUCHNER: If you'd like. I think it goes on 9 for about actually another five minutes, so that's why I 10 wasn't playing it. I didn't think it had anything relevant.
11 12 JUDGE YOUNG: Did you want any additional portion 13 of that played?
14 MR. MARQUAND: Well, the board has the entire 15 disc. And I can examine Mr. Fiser about what he thinks he 16 heard on there. So, no, Your Honor, do not.
17 CHAIRMAN BECHHOEFER: Do the omissions leave out 18 - material that's unintelligible or not relevant?
19 MS. EUCHNER: You mean the portion at the end that 20 iwe didn't play?
21 CHAIRMAN BECHHOEFER: No, the portion in Dr.
22 McArthur's statement on Page 80, where there are deletions.
23 Is that relevant or is that just extraneous?
24 MS. EUCHNER: I believe that was material that, 25 when Mr. Fiser listens to the original, he couldn't
Page 1119 1 understand. But that, upon relistening to it, after we had 2 it enhanced, you could make more of it out than you could 3 >when he listened to his original conversation.
4 CHAIRMAN BECHHOEFER: I see.
5 MS. EUCHNER: And, Your Honors, I would move to 6 have Staff Exhibit 169 entered into evidence.
7 MR. MARQUAND: No objection.
8 CHAIRMAN BECHHOEFER: Without objection, Staff 169 9 will be admitted.
10 (The documents, heretofore marked 11 as Staff Exhibit #169, were 12 received in evidence.)
13 BY MS. EUCHNER:
14 Q After you were told by Mr. Kent that he was 15 withdrawing the offer of the Sequoyah chemistry position, 16 what happened?
17 A I basically reported back to the environmental 18 transition program and resumed my activities looking for a 19 job or a business or some way to provide for my family.
20 Q I'd like you to turn now to Joint Exhibit 60. Do 21 you recognize this document?
22 A Yes, I do.
23 Q What is it?
24 A It's a notice that regards the reduction in force, 25 specifically the elimination of your position of manager,
Page 1120 1 chemistry, PD-9, Sequoyah Nuclear Plant. "Because of a 2 reorganization, it will be necessary to terminate you from 3 your position effective October 15, '93." And then it goes 4 on to list -- you want me to read the whole thing?
5 Q No, just identify it. What's the date on this 6 document?
7 A August the 13th of 1993.
8 Q To your knowledge, was there a chemistry manager 9 position at Sequoyah at the time you received this letter?
10 A Yes, there was.
11 MS. EUCHNER: Your Honors, I would move Joint 12 Exhibit 60 into evidence.
13 MR. MARQUAND: No objection.
14 CHAIRMAN BECHHOEFER: Absent objection, Joint 15 Exhibit 60 will be admitted.
16 (The documents, heretofore marked 17 as Joint Exhibit #60, were received 18 in evidence.)
19 BY MS. EUCHNER:
20 Q Now, during this 1992-1993 time frame, how did you 21 view Dr. McArthur?
22 A For most of that time, I viewed him as a friend 23 who was trying to help me find a job, get employed.
24 Q Why did you feel that he was your friend?
25 A Because of his numerous offers to help me secure a
Page 1121 1 position either within his organization, within another 2 organization, inside TVA or outside TVA.
3 Q We're now going to go to Staff Exhibit 29, which 4 is in Book 2 of the staff's exhibits.
5 JUDGE YOUNG: Which exhibit?
6 CHAIRMAN BECHHOEFER: 29. 2-9.
7 Q Do you recognize Staff Exhibit 29?
8 A Yes, I do.
9 Q What is it?
10 A It's a letter to Senator James Sasser.
11 Q Who wrote this letter to Senator Sasser?
12 A It was a combined effort from three of us: Mr.
13 Bill Jocher, Dr. Don Matthews, and myself.
14 Q Why did you, Mr. Jocher, and Dr. Matthews decide 15 to send this letter?
16 A We were very concerned about the fact that it 17 appeared that since we were all engaged in the process of 18 finding and documenting problems in TVA, we were suffering 19 reprisals because of that.
20 Q Did you identify any problems in this letter?
21 A Yes, I did.
22 Q On what page of this letter are the problems that 23 you identified?
24 l A Let me see. I'm just about going to have to 25 reread them. Well, even in the first paragraph you will see
Page 1122 1 the statement that, "We wish to make you aware of a 2 repressive management structure within TVA's Nuclear Power 3 Agency." Part of that was due to things that -- that I had 4 found and reprisals I had suffered because of that.
5 -Hang on a second and let me look through this.
6 Part of it would be listed at the top of Page 3.
7 Q Top of Page 3 or top of page...
8 A Top of Page 3 where it mentions incorrect process 9 instrument set points, incorrect nuclear containment high 10 radiation set points necessitating an LER. Now, that was 11 people that were working for me, but...
12 Q Is there a list on Page 4 of problems that you've 13 identified?
14 A Right, yeah, we're -- we're getting there. I'm 15 sure there are other things even in here. If you'll look at 16 the -- closer to the bottom of Page 3, it says, "Mr. Fiser, 17 like Jocher, also reported documented safety related 18 problems in his capacity as chemistry and environmental 19 superintendent from '88 to '91 at Sequoyah. Fiser had also 20 worked with distinction," et cetera, et cetera.
21 Some of the problems identified were pass 22 equipment availability and design problems which limit use 23 of the equipment and contributed to job knowledge problem in 24 this area. Problems with the emergency diesel generator 25 seven-day storage tank. Recirculation system is finding --
Page 1123 1 rendered the emergency diesel generator inoperable and 2 placed both units at Sequoyah on LCO. Process equipment 3 availability being unacceptably low. Many times only 50 4 percent or less were available. Many of these instruments 5 could have been returned to service if management had not 6 directed personnel resources to be used elsewhere.
7 Money budgeted for -- to implement a comprehensive 8 cooling water treatment program to include corrosion and bio 9 fouling -- biological fouling of safety related equipment 10 was cut from the budget year after year. The ability of the 11 chemistry technicians to draw a cooling sample from pass 12 during an accident in under three hours for the purpose of 13 assessing reactor -- of assessing reactor vessel and fuel 14 conditions. So that would be a list of some of the things.
15 Q Okay. Did you send copies of this letter to 16 anyone other than Senator Sasser?
17 A Oh, as I recall, it was widely distributed. Not 18 necessarily by -- by me, but certainly by others of the 19 authors. And the fact that once Mr. Sasser Senator 20 Sasser got the letter, he assigned it to someone on his 21 staff, and they sent it back to TVA, where it was then 22 widely disseminated.
23 Q Does this letter reflect that anybody was cc'd on 24 this letter?
25 A Cc's, Dr. Ivan Sealand.
Page 1124 1 CHAIRMAN BECHHOEFER: Selan.
2 A Selan. Chairman of the United States Nuclear 3 Regulatory Commission. And Mr. Oscar de Murando, Office of 4 Allegations. And he also is with NRC.
5; Q Did anyone from TVA or the TVA Office of the 6 Inspector General ever discuss this letter with you?
7 A As I recall, yes.
8 Q Who?
9 A It seems like it was a lady by the name of Ms.
10 Beth Thomas.
11 JUDGE YOUNG: Of what?
12 THE WITNESS: Ms. Beth Thomas with TVA's -- I 13 think she was with the IG, TVA's IG.
14 ' MS. EUCHNER: Your Honors, I believe Staff Exhibit 15 29 is already entered into evidence, but in the event that 16 it's not, I'd like to offer it now.
17 JUDGE YOUNG: Any objection?
18 MR. MARQUAND: It's already in, is my 19 understanding.
20 JUDGE YOUNG: Do you...
21 MR. MARQUAND: It's my understanding it was 22 offered through Tom McGrath.
23 MS. EUCHNER: I thought so, as well. I just want 24 to insure that if it's not already in, that we put it in 25 now.
Page 1125 1 JUDGE YOUNG: Does anyone recall which number it 2 was?
3 MR. MARQUAND: It was always the same number it 4 is.
5 MS. EUCHNER: It's Staff 29.
6 MR. MARQUAND: It's Staff 29.
7 MR. DAMBLY: Yeah, that -- that was admitted on 8 the 23rd.
9 >JUDGE YOUNG: Oh, it was the same number?
10 MS. EUCHNER: Yes, same number. I just wanted to 11 i double-check and make sure it has been admitted.
12 CHAIRMAN BECHHOEFER: I'd like to ask Mr. Fiser 13 one follow-up question. That is concerning the statement, 14 if I can find it, which was reviewed by -- was the statement 15 that some of the -- let's see, the matters were brought to 16 the attention of the safety review board or the NSRB or...
17 THE WITNESS: In this document?
18 CHAIRMAN BECHHOEFER: Yeah.
19 THE WITNESS: Oh, I'm certain that once it came...
20 21 CHAIRMAN BECHHOEFER: Pardon?
22 THE WITNESS: I am certain that once the letter...
23 24 CHAIRMAN BECHHOEFER: No, I saw it here someplace.
25
Page 1126 1 MS. EUCHNER: Your Honor, could you repeat the 2 question, because I had a hard time hearing what you were 3 asking Mr. Fiser.
4 > CHAIRMAN BECHHOEFER: There's a statement on Page 5 3 of the document that a particular matter was identified to 6 NSRB. I assume that's the Nuclear Safety Review Board. A 7 material false statement made to NRC. And my question is, 8 Mr. Fiser: Was this one of the matters that you personally 9 had raised, or was it raised by the other -- one of the 10 other two before the -- before the NSRB?
11 THE WITNESS: As I recall, that was a -- in direct 12 response to an issue that was raised by Mr. Bill Jocher.
13 CHAIRMAN BECHHOEFER: Oh, okay.
14 CHAIRMAN BECHHOEFER: Okay, that -- that was my 15 inquiry.
16 BY MS. EUCHNER:
17 Q I'd like you to turn to Staff Exhibit 34. Do you 18 recognize this document?
19 A Yes, I do.
20 Q What is it?
21 A It's the complaint that I raised to the Department 22 of Labor following my -- in support of my 1993 case.
23 Q What's the date on this document?
24 A September the 23rd, 1993.
25 Q Why did you file this Department of Labor
Page 1127 1 complaint?
2 A Again, I felt like I was suffering from reprisals 3 for finding, documenting, using the corrective action 4 process. I would have to read the entire document to come 5 up with the...
6 JUDGE YOUNG: You would have to what?
7 THE WITNESS: I would have to read the document, 8 it's been so many years, to -- to answer any more 9 3specifically than that. But I felt like what was going on 10 at the time was that I was suffering reprisals from doing 11 the exact job I was hired to do, which was find, document, 12 and fix problems in the Sequoyah chemistry program.
13 CHAIRMAN BECHHOEFER: Mr. Fiser, if you need more 14 time to read it, please take it.
15 THE WITNESS: Okay.
16 MS. EUCHNER: And, Your Honor, I would request 17 that he does take a few minutes, because I do have some more 18 3specific questions.
19 JUDGE YOUNG: That's fine. That's fine; yes.
20 (The witness reviews certain material.)
21 CHAIRMAN BECHHOEFER: Ms. Euchner, I just want to 22 remind you that either you or Mr. Dambly wanted to reserve 23 some time at the end of the day to resolve another question, 24 and I don't know how close to the end of the day we should 25 approach it, but I just put you on notice that you wanted to
Page 1128 1 reserve some time. Just take that into account.
2 MS. EUCHNER: I do have quite a bit more to go, 3 but I think I'm coming up on a -- a convenient breaking 4 point. So when I get there, I'll let you know.
5 CHAIRMAN BECHHOEFER: I mean, we don't care if you 6 want to take up the thing first thing in the morning. It's 7 all right, also.
8 MS. EUCHNER: Well, I'm coming up -- I think I've 9 got one more subject after this one. And if that gets us to 10 end early enough to discuss this, fine. If not, we can do 11 it first thing in the morning.
12 JUDGE YOUNG: The thing that you wanted to resolve 13 had to do with the interrogatory responses?
14 MS. EUCHNER: Yes, Your Honor.
15 JUDGE YOUNG: And is that something that you -- it 16 would be helpful for you all to talk about before...
17 MR. MARQUAND: I think, rather than dealing with 18 it in the morning, if there was -- the resolution is to talk 19 about it, and then see how we -- where we are. I think it'd 20 be better to talk about it some tonight, to see what needs 21 to be considered.
22 JUDGE YOUNG: That's what I was trying to suggest.
23 24 MR. MARQUAND: Yes, I agree.
25 (Brief recess.)
Page 1129 1 MS. EUCHNER: What were the safety concerns...
2 CHAIRMAN BECHHOEFER: Okay, we're back on the 3 record, by the way.
4 IBY MS. EUCHNER:
5 Q What were the safety concerns which you talked 6 about as being in this complaint to DOL?
7 A Basically, there were -- there were several. The 8 fact that to use the corrective action procedure at Sequoyah 9 in documenting various issues would place you in a bad light 10 with -- with management. Also, the fact that we had found 11 and documented a problem with a radiation monitor set point, 12 there was basically an IE notice that came out back in 1982 13 stating that you needed to count for a vacuum in a noble gas 14 chamber or a flow transmitter. And we'd discovered that 15 personnel at TVA had not properly accounted for the vacuum 16 in a...
17 JUDGE YOUNG: "Vacuum," is that the word you used?
18 THE WITNESS: "Vacuum." Yes, Your Honor. In a 19 noble gas chamber. And, therefore, the monitor wasn't --
20 the reading on the gaseous monitor was not conservative.
21 BY THE WITNESS:
22 A This -- this problem happened, as I recall, fully 23 five years before I was employed by TVA. Nevertheless, I 24 was held accountable for the fact that it existed. And 25 instead of being rewarded for finding it, it was listed as
Page 1130 1 one of the contributing factors for his displeasure with me.
2 3 Q By "his displeasure," who are you talking about?
4 A Mr. Beecken's displeasure. You would think that 5 -- that that would be something that -- that you would cite 6 as a -- as a great accomplishment, but he was very upset 7 about the fact that this problem existed. I can only take 8 that to mean the fact that I found it, since I didn't 9 create...
10 MR. MARQUAND: Objection. That calls for 11 speculation, conjecture about what Mr. Beecken was thinking 12 < as opposed to what the events were.
13 MS. EUCHNER: He's stating his interpretation of 14 what Mr. Beecken said. It goes to his state of mind.
15 MR. MARQUAND: Well, his state of mind is not 16 what's relevant in this case. It's the TVA manager's state 17 of mind that's relevant.
18 JUDGE YOUNG: I think you should ask what Mr.
19 Beecken said.
20 CHAIRMAN BECHHOEFER: Well, what did Mr. Beecken 21 say?
22 THE WITNESS: Mr. Beecken was very upset about the 23 fact that we'd found this problem.
24 JUDGE YOUNG: When was this?
25 THE WITNESS: This was during the December 9th
Page 1131 1 conversation that I had with him in 1992.
2 JUDGE YOUNG: And you're saying he mentioned the 3 problem -- this particular problem as one of the problems 4 that he found in your performance?
5 THE WITNESS: Yes, ma'am, that is correct.
6 JUDGE YOUNG: And did -- did I understand you 7 correctly to say that -- that when you first started working 8 at TVA, you determined that there was a problem and then did 9 a corrective action?
10 THE WITNESS: I first started to work at TVA in 11 1987. This problem happened back in 1982, five years before 12 I ever started to work for TVA. All -- all we did was find 13 that they did an inadequate job five years before I ever 14 started to work for TVA. Yet this is one of the things he 15 listed for his displeasure towards me, and the fact that he 16 did not want me back at Sequoyah.
17 JUDGE YOUNG: But my question, I just wanted to 18 clarify. I thought I heard you talking about having issued 19 or done whatever you do with a corrective action.
20 THE WITNESS: Right.
21 JUDGE YOUNG: And that people who did -- what's 22 the verb you used with corrective action? Take? Issue?
23 MR. MARQUAND: Issue.
24 JUDGE YOUNG: Issue a corrective action. That 25 people who issued corrective actions were not looked upon
Page 1132 1 kindly. So did I read that into it, or -- or were you 2 actually saying that you issued a corrective action with 3 regard to this particular problem?
4 THE WITNESS: We issued a SCAR, or actually it was 5 my people who issued a SCAR, documented the fact that we had 6 found this problem.
7 JUDGE YOUNG: Significant corrective action 8 report?
9 >THE WITNESS: Significant corrective action 10 report.
11 MR. MARQUAND: Your Honor, I'm going to -- this is 12 -- I don't want to be unseemly, but your question to him 13 was, "Did you issue the corrective action document?" He 14 didn't answer your question. First he said, "We did," and 15 then he said, "My people did." But I think that's a 16 misrepresentation of -- and misleading the Court as to what 17 happened here. And I would request that he answer your 18 question: Did he issue it?
19 JUDGE YOUNG: Okay. Well, I -- I'm just trying to 20 clarify what I thought I understood you to be saying before, 21 and maybe I was reading too much into it. Did -- did you, 22 yourself, issue it?
23 THE WITNESS: No. That's why I said my people --
24 my -- the people that worked for me at Sequoyah when I was 25 out there were -- we were looking into this problem. As a
Page 1133 1 matter of fact, I had started looking into it even before or 2 while I was downtown and probing about it and asking 3 questions, and it was an ongoing effort that ultimately 4 resulted in finding a -- a significant problem with the set 5 point on this monitor.
6 JUDGE YOUNG: Well, and please feel free to 7 interject here, but since you've raised the issue, Mr.
8 Marquand, what's the -- what's the normal procedure for 9 issuing a corrective action, and who would normally do that?
10 At what level?
11 MR. MARQUAND: Whoever finds it.
12 THE WITNESS: The -- the person who finds it.
13 MR. MARQUAND: But my point was...
14 MS. EUCHNER: I think the witness can answer that 15 question.
16 MR. MARQUAND: ... my point was I don't believe 17 he's being forthright on this. He's told the Court he 18 initiated it and that his people did it, but according to 19 this and according to all the facts, it says here he 20 witnessed...
21 JUDGE YOUNG: You're reading from...
22 MR. MARQUAND: His -- the very exhibit that he has 23 in front of him, which is NRC -- Staff Exhibit 34 on Page 2.
24 On the second full paragraph, where he's talking about this, 25 and he is complaining that he...
Page 1134 1 JUDGE YOUNG: Hold on one second. I'm...
2 MR. MARQUAND: The second full...
3 CHAIRMAN BECHHOEFER: We've got to find -- we've 4 got to find the part you're looking at.
5 MR. MARQUAND: Page 2.
6 JUDGE YOUNG: Of the memorandum of understanding 7 or of the letter...
8 MR. MARQUAND: No, Staff Exhibit 34.
9 CHAIRMAN BECHHOEFER: Is that the paragraph that 10 starts, "In an interview..."
11 MR. MARQUAND: Yes, Your Honor.
12 CHAIRMAN BECHHOEFER: Okay.
13 MR. MARQUAND: And as I understand it from reading 14 this, if everybody's got it, what I'm referring to and what 15 I think is misleading about this testimony and I object to 16 is the portion in this paragraph between the dashes. Mr.
17 Fiser is disclaiming responsibility for the problem's 18 existence when he states he wasn't at Sequoyah in March of 19 '92, that he was downtown. And that management was upset 20 about the fact that the problem continued to exist and 21 continued to fester from '82 until '92.
22 And he's saying, "Well, it happened before I got 23 to Sequoyah and it didn't happen -- wasn't found on my 24 watch." That is what I think is misleading about his 25 testimony, when he suggests that it was found by his people
Page 1135 1 or "we found it." It was found by people who had worked for 2 him, but not at the time they -- it was found. And I think 3 that's misleading. It's a mischaracterization of the facts.
4 5 MS. EUCHNER: Your Honors, first of all, I 6 disagree with counsel's representation of this. And, second 7 of all, if he'd like to make that argument, he's more than 8 welcome to when he gets his opportunity to cross-examine Mr.
9 1Fiser. Right now I am seeking to elicit information from 10 Mr. Fiser on what he did do. And this document certainly 11 never states that, "I, Gary Fiser, wrote the SCAR." And he 12 did answer Your Honor's question as to who wrote it. He 13 said, "My people wrote it."
14 MR. MARQUAND: I agree, the first time he said, 15 "We wrote it." And then he suggested that, "My people wrote 16 it." But in here he says, "I was downtown. They weren't my 17 people at that time." You know, how he can say, "This is my 18 protected activity," or suggest to Your Honors I think is 19 misleading.
20 MS. EUCHNER: And, again, he is reading selected 21 portions of it...
22 CHAIRMAN BECHHOEFER: Who signed it? Who signed 23 it?
24 MS. EUCHNER: .. .that support his argument, and 25 ignoring those portions of it that state that he did engage
Page 1136 1 in protected activity.
2 CHAIRMAN BECHHOEFER: Who signed it?
3 THE WITNESS: Since it is not attached here, I 4 cannot...
5 CHAIRMAN BECHHOEFER: I'm -- I'm...
6 THE WITNESS: Since it is not attached here, I 7 cannot answer that question. I don't recall.
8 JUDGE YOUNG: Well, I think we understand your 9 argument. So with the time we have left, I would suggest 10 you go ahead and ask as -- depending upon the time we have, 11 and on cross-examination certainly it can be clarified 12 further. And if any of us have any clarifying questions, we 13 may ask, as well.
14 BY MS. EUCHNER:
15 Q Mr. Fiser, were you directly involved in 16 identifying this problem?
17 A I certainly had a part to play in it; yes.
18 Because I had already started the questioning process about 19 the way the -- the issue was resolved. And -- and there was 20 crossover here between my job at Sequoyah and my corporate 21 chemistry job downtown, and that's probably the reason for 22 the confusion when I say "I" and "we," because I still 23 sometimes look at myself as a part of them and as a part of 24 the corporate chemistry organization because one of my 25 functions down there, of course, is oversight. And that's
Page 1137 1 why it's in the dashes. I wanted to make sure that it was 2 not misunderstood that at this time I was, in fact, in this 3 temporary position downtown. I wanted to make it clear that 4 that's what was going on here. Nevertheless, that's one of 5 the reasons stated by Mr. Beecken that he did not want me 6 back.
7 CHAIRMAN BECHHOEFER: While you were in corporate 8 chemistry position, I guess...
9 THE WITNESS: Yes, sir.
10 CHAIRMAN BECHHOEFER: ... did you retain 11 responsibilities, officially, at least, for performance down 12 at Sequoyah?
13 THE WITNESS: No, sir, I did not.
14 CHAIRMAN BECHHOEFER: So how did the -- sort of 15 this carryover exercise of responsibility, how did -- was 16 that documented anywhere? Or was that just the way the 17 process worked? You can explain.
18 THE WITNESS: Well, it was -- it was documented, 19 yes. But only because it was in the initial phases and we 20 were in the process of raising the set point on this 21 monitor. And I kept repeatedly asking the question: How 22 did we handle the 1982 IE notice stating that have you got a 23 problem with the vacuum in this monitor. And I remember 24 quizzing Don Amos of my staff at Sequoyah to -- to come back 25 to me and tell me how he resolved this. And I only got a
Page 1138 1 piece of the puzzle. But I probably asked a half a dozen 2 times. And then I got transferred downtown. So there was 3 some -- some period of disconnect there. But the 4 investigation of -- continued on in my absence. It was --
5 it was incomplete. Really, it was only begun when I was 6 still the chemistry manager at Sequoyah.
7 JUDGE YOUNG: And what period were you the 8 chemistry manager at Sequoyah, again, before you went 9 downtown?
10 THE WITNESS: From May, I think it was, of 1988, 11 until, oh, I guess it was March of 1992.
12 JUDGE YOUNG: '92 or...
13 THE WITNESS: '92. That's correct.
14 JUDGE YOUNG: March '92 was when you went to the 15 corporate...
16 THE WITNESS: Corporate chemistry. One -- one 17 other thing in answering your question. Remember, there was 18 a period of, well, not quite a year.that I was transferred 19 into the outage management group, and at that time I pretty 20 well made a -- well, I made a clean break and left the 21 program in charge of Mr. Rob Richie and -- and Mr. Scott 22 Watson.
23 JUDGE YOUNG: When was the corrective action 24 issued, if you know? Do you know?
25 THE WITNESS: I don't recall. I don't recall.
Page 1139 1 That's a matter of record. We can certainly look it up.
2 CHAIRMAN BECHHOEFER: Is that one of the exhibits 3 that's going to be offered for the record, or not?
4 MS. EUCHNER: It's not one of the staff exhibits.
5 I don't know whether it's one of TVA's exhibits.
6 MR. MARQUAND: I found it the week before last, 7 Your Honors, and I will make copies and give them to staff 8 , tomorrow, and we'll offer it as an exhibit.
9 CHAIRMAN BECHHOEFER: I think for clarification of 10 the record, at least, that might be useful.
11 MR. MARQUAND: Yes, we'll be glad to bring it in.
12 BY MS. EUCHNER:
13 Q Are there any other issues mentioned in your 1993 14 DOL complaint regarding documentation or other problems?
15 A Yes, there were. There was a -- if you will look 16 at the bottom of Page 2, another reason cited by Mr. Beecken 17 for not wanting me back was the filter change-out scenario.
18 In this -- in this case, personnel may or may not have been 19 under my supervision. Again, that's when I was -- that's 20 when I was either out in outage management, or -- or rotated 21 downtown. I don't recall which. It was one of those two.
22 That's why I say may or may not have been.
23 I was on a temporary assignment at that time, 24 discovered that a containment radiation monitor had been 25 improperly aligned after sampling activities. And once the
Page 1140 1 problem was discovered, appropriate notifications were made, 2 as I had previously instructed them. And it was -- and the 3 incident was entered into the corrective action process 4 i using a SCAR. This action is required by Sequoyah 5 procedures as well as by federal law, as I recall.
6 Q Okay. I'd like to ask you a couple of questions 7 about that. First, what are the appropriate notifications 8 that you mentioned there?
9 A Well, you have to fill out a SCAR, do an 10 evaluation, and then, depending on the management, licensing 11 review, certain notifications have to be made, either to NRC 12 or going into a Sequoyah TROI, which is a -- a computerized 13 tracking database to track completion of an item that is 14 reported as being non-conforming for some reason or another.
15 And it could be a notice to NRC. It depends on how it falls 16 out, and I don't recall now how this one was documented and 17 reported.
18 Again, what happened, even -- I think this is -- I 19 think this is when I was in outage management at that time.
20 One of the guys in the chemistry lab misaligned a monitor 21 and did the right thing and owned up to his mistake, 22 notified management, filled out the proper forms, and 23 essentially turned himself in as having made a mistake. And 24 so he used a corrective action process to document a problem 25 that had happened. And that, according to Mr. Beecken, was
Page 1141 1 another one of the reasons he did not want me to come back 2 to Sequoyah.
3 Q And in the section of this you just read, you said 4 they made the appropriate notifications as you instructed.
5 A Yeah. I had -- I had made it very clear if -- if 6 we make a mistake, we document it. We don't just -- it 7 would have been very easy for him to have just ignored it 8 and gone on. No one would have ever -- they would have 9 never found it. He could have gone out there and -- and 10 sampled it the next time and just covered up his mistake.
11 But I did not feel like that was the way to do business, and 12 I wanted us to be honest, forthright, and just if we make a 13 mistake, go ahead and admit it and get the problem fixed.
14 Q Is there an issue in here related to post-accident 15 samplings?
16 A Oh, I think there is. Yes.
17 Q Okay. What did that issue involve?
18 A There was -- there was some question of -- as to 19 whether or not we could obtain a sample under simulated 20 post-accident conditions. Once the determination is made 21 and we are told to go get a sample, we have three hours to 22 have the sample collected and the analysis done, whether 23 it's a boron or -- or whatever. I don't recall exactly what 24 this -- but this one was boron in a post-accident scenario.
25
Page 1142 1 Q Was there some sort of dispute about this 2 requirement?
3 A There was some dispute about it. That dispute, as 4 I recall, was really between Bill Jocher and the site vice-5 president, Mr. Jack Wilson. And the dispute was about this 6 three-hour thing. There was some disagreement there between 7 Bill and -- and the site vice-president.
8 Q Now, in that disagreement, which side did you fall 9 on in the dispute?
10 A I was of the opinion that once the decision is 11 made to get a sample and we are instructed, the clock starts 12 now. Go get a reactor cooling sample and analyze it for 13 boror1. T.he clock starts then. Jack had a different 14 opini.on. I don't recall exactly when he thought the clock 15 start led, but there was a -- the difference of opinion was
.16 when does it start and how much time do you have.
17 Q And what position did Jack Wilson hold at the time 18 that you and Mr. Jocher were disagreeing with him on this?
19 A That would have been the site vice-president.
20 Q Did you and Mr. Jocher take any action in an 21 atten ipt to resolve this dispute?
22 A Yes, we did.
23 Q What action did you take?
24 A There were some equipment problems, as I recall, 25 and we had some issues to resolve. Those -- the system,
Page 1143 1 post-accident system is problematic, complicated, and there 2 is some components of it that were not working. We had to 3 get some outside help to get it -- repairs done. And then 4 we basically just set up a -- a training session where we 5 asked everybody to go get a sample and report the results.
6 Q Did you contact anyone to determine when the clock 7 should start running?
8 A Oh, yes. As a matter of fact, I -- I'm trying to 9 remember. I can't -- I do not think I was in on that 10 conversation. But as I recall, Mr. Jocher was trying to get 11 information from NRC to resolve the -- a dispute that 12 existed between he and Mr. Jack Wilson. And as I recall, he 13 went to licensing and got with a fellow in licensing by the 14 name of Sid. I don't recall his last name. I think it was 15 Sid Brain or Bane or something like that. And they did call 16 somebody with NRC to address the issue and get it resolved, 17 to see what -- what NRC's interpretation of the requirement 18 was.
19 MS. EUCHNER: Your Honors, I'd like to enter Staff 20 Exhibit 34 into evidence.
21 JUDGE YOUNG: Objection?
22 MR. MARQUAND: No, Your Honors, we don't object to 23 that. But we will be offering the complete complaint at a 24 later date. This is not the complete document.
25 MS. EUCHNER: Would you mind stating for the
Page 1144 1 record what the complete document is, because you provided 2 us this one, I think. It's got your Bates stamp number on 3 it.
4 MR. MARQUAND: No, this is not from us. This is a 5 copy of the redacted portion of the complaint that the NRC 6 staff read in its incomplete investigation.
7 MS. EUCHNER: First of all, I would object to his 8 referring to the NRC's investigation as incomplete. And the 9 only redaction that I see are the redactions that I made of 10 Mr. Fiser's home address at the top of this. If there is a 11 further part of the complaint, I would appreciate it if TVA 12 i would provide it to us.
13 JUDGE YOUNG: Why don't you -- why don't you 14 include that in your conversations.
15 MR. MARQUAND: All right.
16 CHAIRMAN BECHHOEFER: The board will accept the 17 exhibit, but it's subject to if you find the -- either some 18 enhancement or matters left out, other than personal 19 matters, please at least let us know.
20 (The document, heretofore marked as 21 Staff Exhibit Number 34, was 22 received in evidence.)
23 24 ,JUDGE YOUNG: Provide -- Mr. Marquand, if you 25 could just provide whatever it is you want to submit to her
Page 1145 1 and let her look at it first.
2 MR. MARQUAND: Well, would you want me to provide 3 the complete complaint that this time?
4 MS. EUCHNER: I'd like the opportunity to review 5 it.
6 JUDGE YOUNG: One thing, we're going to have to 7 leave soon, and if there's time, I'd like to ask Mr. Fiser 8 one clarifying question before we lose him for the week. As 9 I understand it, that's what's happening; right?
10 MS. EUCHNER: Yes, Your Honor.
11 JUDGE YOUNG: Since we're sort of on this subject, 12 if there's -- do you have any...
13 CHAIRMAN BECHHOEFER: I think that's a good idea.
14 JUDGE YOUNG: I understand you to have said in --
15 in your complaint and in your testimony, to some degree---
16 and this is what I want to clarify--- that Mr. Beecken had a 17 problem, expressed some displeasure at the corrective 18 actions that were issued, with the contacts with the NRC, 19 and that -- and that your perception was that Mr. Beecken 20 saw the problem being in reporting things. And what I 21 wanted to clarify was what do you recall him saying that led 22 you to conclude that? And when and -- I just wanted to get 23 some clarification on how that was -- how you came -- came 24 -- how you reached that perception that that's what his 25 . point of view was. I mean, did he say it directly, did
Page 1146 1 he...
2 THE WITNESS: He did not say it directly, Your 3 Honor. What I am -- what I am referring to is the fact that 4 -- may I give you an example? One of the things that I 5 found when I was at Sequoyah was the fact that their diesel 6 generator's seven-day tanks...
7 JUDGE YOUNG: Seven-day...
8 THE WITNESS: Seven-day storage tanks that supply 9 <their emergency diesel generators had not been researched 10 properly since the plant was constructed. There were --
11 there was an inadequate recirculation. I found this working 12 with my people, again, when I was at Sequoyah.
13 I reported it, filled out the SCAR, I think it was 14 called at that time, and we fixed the problem. Those 15 storage tanks were filled with sludge that could plug the 16 filter, that could starve the emergency diesel generators of 17 diesel fuel, and therefore you may not have emergency power, 18 electrical power under certain scenarios.
19 When we had finally fixed the problem and the SCAR 20 and the corrective actions went to PORC for review...
21 JUDGE YOUNG: Went to...
22 THE WITNESS: PORC, again. Plant Operating Review 23 Committee...
24 JUDGE YOUNG: Okay.
25 THE WITNESS: ... I think is correct. And they
Page 1147 1 discussed the problem, and the actions we took to make the 2 repairs and get the diesel generators declared operable 3 again.
4 Ron Fortenberry came to me after that meeting and 5 talked to me, and he said -- he was either in attendance or 6 on PORC or in the audience, one of the three. I don't 7 recall which. And he said, "Do you realize what they were 8 discussing after that meeting or during that meeting?"
9 And I said, "Well, no, I have no idea."
10 And he said, "At one point in time they were 11 discussing what appropriate disciplinary action should be 12 taken towards me."
13 ' And I said, "What in the world are they talking 14 about? All I did was find and report a problem."
15 And he said, "Well, at one point they were 16 actually considering disciplinary action against you. And 17 somebody finally raised their hand and said, 'Do you realize 18 what you're saying? You hired this guy to come in and to 19 find problems and to fix them. He's come in here, he has 20 found a significant problem with our plant that has existed 21 since Day One, and you want to take disciplinary action 22 against him. Do you hear what you're saying?'" You see 23 what I mean? The problems...
24 JUDGE YOUNG: Yes. And -- and I'm sorry to 25 interrupt you, but we have to be out of the building very
Page 1148 1 quickly.
2 THE WITNESS: Yeah.
3 JUDGE YOUNG: And so if I could ask you, to the 4 i degree possible, to direct your answer to clarifying what it 5 was that Mr. Beecken said to you that led you to conclude 6 that he was upset at your reporting, and with regard to the 7 three examples that you gave earlier.
8 THE WITNESS: Instead of offering a 9 congratulations and a thank you for a job well done for 10 finding a problem that existed five years before I took the 11 job, he cited that as one of the reasons he did not want me 12 back.
13 JUDGE YOUNG: And when you say he cited that, did 14 he cite the problem or did he cite -- what did he say? Did 15 he say that it was because of the problem that he didn't 16 want you back, or that it was because you found the problem 17 and resolved it that he didn't want you back? Do you recall 18 what he said that led you to conclude that it was your 19 finding and reporting the problem that...
20 THE WITNESS: The thing he stated was the fact 21 that there was a problem with the rad monitor set point 22 issue. Now,...
23 JUDGE YOUNG: So he made a general reference to 24 the problems?
25 THE WITNESS: Yes, he did.
Page 1149 1 JUDGE YOUNG: And -- and, based on your...
2 THE WITNESS: And it was a negative rather than a 3 positive, which it should have been a positive rather than a 4 negative.
5 JUDGE YOUNG: Okay. That helps me understand what 6 went on.
7 CHAIRMAN BECHHOEFER: Dr. Cole wants...
8 JUDGE COLE: Mr. Fiser, do you have Joint Exhibit 9 27 in front of you? That's your sequence of events. Just a 10 quick item on Page 2.
11 THE WITNESS: Page 2. Yes, sir.
12 JUDGE COLE: In the third paragraph on that page.
13 THE WITNESS: Yes.
14 JUDGE COLE: And the second sentence in that 15 paragraph. Do you mean Mr. McArthur rather than Mr. Wilson?
16 THE WITNESS: Let me -- let me take a look at...
17 You are correct. I think that should have been 18 Mr. McArthur.
19 JUDGE COLE: Dr. Wilson McArthur?
20 THE WITNESS: Yes, sir. I'm sorry. I think that 21 is correct. I was...
22 JUDGE COLE: It seemed to be out of context.
23 THE WITNESS: Exactly.
24 JUDGE COLE: Thank you.
25 MS. EUCHNER: I will break now. It's not a
Page 1150 1 problem.
2 JUDGE YOUNG: So on that -- on the addition, I 3 guess, you can just get together and show it to her and 4 present it tomorrow morning.
5 MR. MARQUAND: Yes, Your Honor. One other -- I 6 don't know if we're going to take all day with Mr. Easley at 7 all. His deposition didn't seem to me to take that long.
8 JUDGE YOUNG: Could we have Mr. Fiser available, 9 if -- if we have time?
10 MR. MARQUAND: That's what I was wondering, is if 11 he's -- there's no reason to have downtime if...
12 JUDGE YOUNG: Right.
13 MR. MARQUAND: ...we're -- have some time 14 available.
15 MR. DAMBLY: I have no problem. If Mr. Fiser 16 shows up tomorrow afternoon, we'll be ready to go, I guess, 17 since Mr. Easley will be here for the whole day. We will 18 have him here.
19 JUDGE YOUNG: Okay.
20 CHAIRMAN BECHHOEFER: I guess with that we'll...
21 MS. EUCHNER: Your Honor, we're checking with the 22 witness to make sure that he can be here tomorrow.
23 CHAIRMAN BECHHOEFER: Oh, okay. Okay.
24 THE WITNESS: I think so. I had arngd for a trip 25 to Atlanta, but I think I can put it off.
Page 1151 1 . JUDGE YOUNG: Is there another witness that we 2 could bring in earlier and move him?
3 MS. EUCHNER: I think we'll probably know by lunch 4 time whether we're going to need him in the afternoon.
5 Would that give you sufficient time to make your trip to 6 Atlanta or not?
7 THE WITNESS: No, it would not. I've got to check 8 with my wife because she's the one that's made the 9 arrangements with the sellers. Can I call you tonight?
10 MS. EUCHNER: Yes.
11 JUDGE YOUNG: However -- however you all can work 12 best together to have witnesses here so that we don't have 13 downtime, obviously we don't -- we want to try to avoid 14 that.
15 MS. EUCHNER: Yes, Your Honor.
16 CHAIRMAN BECHHOEFER: Yes, to the extent possible.
17 18 Do we have enough time left---and the answer's 19 probably no---to resolve the -- what the exhibit -- the 20 interrogatory question?
21 MR. DAMBLY: I think we have enough time -- time 22 to resolve that. The staff will not object, although we 23 still have reservations about any evidentiary value, to 24 putting in the staff's interrogatory responses, providing 25 they are the complete responses with all sets and all
Page 1152 1 supplementation, which still is not, even in the excerpts 2 that Mr. Marquand provided this morning, still didn't cover 3 all of our responses. So if they want to put together a 4 package that has all responses and all supplements, we would 5 not object to that, again, having not...
6 JUDGE YOUNG: Isn't this where we were yesterday?
7 MR. DAMBLY: No, he was going to cut out pieces of 8 certain ones that he thought maybe wouldn't have a problem.
9 JUDGE YOUNG: Right. But, and you're...
10 MR. DAMBLY: Before we were objecting, period.
11 Now, if they put together the whole thing, want to put it in 12 just to save time -- I mean, I don't think it has any value, 13 but we'll have problem. And the staff will likewise put in 14 their interrogatory responses.
15 JUDGE YOUNG: And I think -- I think you said that 16 earlier, and I think you had an objection to that, or did 17 you?
18 MR. MARQUAND: Your Honor, we are offering as --
19 you know, the staff couldn't offer their own interrogatory 20 responses into the record. That's simply self-serving.
21 They couldn't do that.
22 We're offering specific interrogatory responses to 23 show their position in this case, and we're not offering 24 others of them that simply are irrelevant or provide 25 1 information that is cumulative in this case. If they -- if
Page 1153 1 there are supplements that we've overlooked to some of the 2 interrogatory response, fine, let them point them out and 3 let's put them in. But...
4 JUDGE YOUNG: So this...
5 MR. MARQUAND: ... I don't think just because I 6 don't think this is a -- you know, I've never heard of an 7 evidentiary rule that says, well, if you put that in we're 8 entitled to put something else in. That's not the way it 9 works.
10 We've offered certain interrogatory responses, and 11 if he -- if he thinks any of those need to be supplemented, 12 if there are supplements that somehow we've missed, we'll be 13 glad to put those in. But just because we put 14 Interrogatories 1, 2, and 3 in doesn't mean 19 and 20 15 necessarily come in, or that...
16 JUDGE YOUNG: No, halt.
17 CHAIRMAN BECHHOEFER: Our ruling earlier was that 18 all interrogatories on the particular subject that you were 19 seeking to put them in the record for, that the responses 20 were complete. And if there were supplements going to those 21 particular interrogatories, they should be put in as well.
22 MR. MARQUAND: I made an attempt to do that, Your 23 Honor. And I -- if I've missed it, I'm sorry, and I'll be 24 glad to add those supplements. But I've got the first set, 25 the second set, and this -- I've never seen a letter
Page 1154 1 supplemening interrogatories, but I've got a letter here 2 supplementing interrogatories.
3 JUDGE YOUNG: Could I interrupt, please.
4 MR. MARQUAND: Yes.
5 JUDGE YOUNG: I asked you a real simple question.
6 You object to what he just proposed? And I'm...
7 MR. MARQUAND: Putting the whole thing in?
8 JUDGE YOUNG: Yes.
9 MR. MARQUAND: Yes. I don't need the whole thing.
10 11 JUDGE YOUNG: Right. And that's what I heard you 12 say last week. And so my point is we're back to Ground Zero 13 on it. Work together to try to -- to come up with an 14 agreement. If you can, so much the better. If not, we'll 15 make whatever rulings we need to make on how and the degree 16 to which it needs to be supplemented.
17 MR. DAMBLY: Well, let me just make one comment.
18 Last week he attempted to put in the whole thing, although 19 it wasn't the whole thing. Their exhibit, whatever it is, I 20 forget---103---purports to have all the answers. He's now 21 offering a totally different exhibit than what's in the 22 record.
23 JUDGE YOUNG: Just to recount, and if this does 24 not correctly recount what happened, feel free to correct 25 me. But my recollection of what happened was that
Page 1155 1 originally Mr. Marquand sought to have the entire set of 2 interrogatories and request for admissions admitted as an 3 exhibit. At some point during the discussion of that, you 4 said that -- you at some point said, "That's fine, but we 5 want to include all the attachments, all the things to which 6 we refer in our responses."
7 At that point, Mr. Marquand said, no, because that 8S would bring in a lot of stuff that shouldn't come in. And 9 at that point, as I recall, it was admitted subject to you 10 all getting together and figuring out if there's a way that 11 ' you could come up with an agreement on which portions came 12 . in and which portions came out.
13 Mr. Marquand then came in with a set of 14 interrogatories that had certain things redacted that he 15 didn't think were relevant. And he was, I think, indicating 16 agreement to allow in attachments that would have been 17 connected to the parts that TVA wanted in.
18 MR. MARQUAND: Actually, there are no attachments.
19 Nothing was attached to the responses we got.
20 JUDGE YOUNG: Okay.
21 MR. MARQUAND: It references some things. I'm not 22 in the position to go scurry around trying to find things 23 that it references. We wanted them for their contentions, 24 not for their evidentiary weight, anyway.
25 JUDGE YOUNG: Right. But the point is we don't
Page 1156 1 have agreement at this...
2 MR. DAMBLY: I'm not talking about putting in the 3 -- the references at this point. I'm talking...
4 CHAIRMAN BECHHOEFER: Pardon?
5 MR. DAMBLY: I am not talking about putting in the 6 references. They'll probably all come into this hearing 7 anyway.
8 CHAIRMAN BECHHOEFER: No, my understanding is you 9 were talking about supplementary responses to the particular 10 interrogatory. Whether the numbers are the same, the topics 11 were the same, and you supplemented your earlier answers. I 12 know we received several supplements. I have not tracked 13 down how the supplements...
14 MR. DAMBLY: And there was -- we're more than 15 happy to have them all go in, as long as all the stuff that 16 went -- I don't think he can put in a part of a record and 17 do what he accused Mr. Fiser of doing, trying to 18 misrepresent the staff's responses.
19 MR. MARQUAND: Well, if there's some other 20 supplements, please let me know.
21 JUDGE YOUNG: Can you talk to each other, show 22 each other what you're talking about, and then tomorrow 23 morning let us know whether you've reached an agreement.
24 And if not, what things you disagree on.
25 MR. MARQUAND: We will endeavor to do so, Your
Page 1157 1 Honor.
2 JUDGE YOUNG: With reference to specific 3 documents.
4 CHAIRMAN BECHHOEFER: Well, particularly if the 5 staff finds that certain responses were left out, I don't --
6 I don't think we have or Mr. Marquand wants to leave those 7 things out, and I would think that you could just report to 8 us that if there are any such documents, they will be 9 included in -- what is it, 103? Exhibit 103?
10 MR. MARQUAND: The redacted version is 113.
11 CHAIRMAN BECHHOEFER: Oh, 113. I'm sorry. All --
12 all we were trying to do is make sure that the -- the 13 response at any given point in time may not be very 14 meaningful. The response -- the collective response may or 15 may not be, but it should be under the commission's policy 16 which is set forth in one of the regulations, which I don't 17 have in front of me now, if -- I think it deals with 18 depositions, but I think it should appy equally to 19 interrogatories. To put those into evidence, you've got to 20 have a complete set that deals with at least the topic under 21 discussion. And that was the basis for my agreeing to the 22 exhibit.
23 And I -- as I say, I didn't think anybody 24 disagreed. So I didn't -- so if you find other -- if other 25 ,documents that should go in as well, under that exhibit, are
Page 1158 1 .found, we should just be so advised.
2 MR. MARQUAND: Yes, Your Honor.
3 CHAIRMAN BECHHOEFER: Since I guess we've admitted 4 the exhibit already. So...
5 JUDGE YOUNG: Let us know tomorrow morning what 6 you agree on and what you don't agree on.
7 MR. MARQUAND: Yes, Your Honor.
8 MS. EUCHNER: Yes, Your Honor.
9 JUDGE YOUNG: Okay? Thanks.
10 CHAIRMAN BECHHOEFER: I guess we're adjourned for 11 the day. We'll be back at 9:00 a.m. tomorrow.
12 (Whereupon, the hearing was adjourned at 5:01 13 p.m., to resume at 9:00 a.m., on Wednesday, May 1, 14 2002.)
15 16 17 18 19 20 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.
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