ML021710329
| ML021710329 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 06/13/2002 |
| From: | Warren W Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| Shared Package | |
| ML021770404 | List: |
| 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-420, RAS 4545 | |
| Download: ML021710329 (156) | |
Text
--R,45 /5~415 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 Location: Chattanooga, Tennessee C-
-rr V-4
> 1n C,)
a;=Z:
Date: Thursday, June 13, 2002 co)
Ca)
Work Order No.: NRC-420 Pages 3046-3338 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 t'emp logA -- S 03A YE ec 4.oa,.
Page 3046 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 Chickamauga Room Read House Hotel 827 Broad Street Chattanooga, Tennessee Thursday, June 13, 2002 The above entitled matter came on for hearing pursuant to Notice at 9:11 a.m.
BEFORE:
CHARLES BECHHOEFER, Chairman ANN MARSHALL YOUNG, Administrative Judge RICHARD F. COLE, Administrative Judge PAGES 3046 THROUGH 3338
Page 3047 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 3048 IN DE X WITNESSES: DIRECT CROSS REDIRECT RECROSS Charles E. Kent, Jr. 3 04 9 3 183 3 295 3 297 David Voeller 3 303 3 32 6 3 33 5 3 33 6 EXHIBITS: FOR IDENTIFICATION IN EVIDENCE Joint:
25 Premarked 3182 36 Premarked 3 32 5 Staf f:
70 through 74 Premarked 3 182 13 5 Premarked 3 182 TVA:
12 P remarked 3 285 80 Premarked 3 244 13 1 186 131~3 332 000
Page 3049 P R O C E E D I N G S 2 CHAIRMAN BECHHOEFER: Good morning, ladies and 3 X gentlemen. Before we resume the testimony of Mr. Kent --
4 good morning, Mr. Kent.
5 MR. KENT: Good morning.
6 CHAIRMAN BECHHOEFER: -- are there any preliminary 7 S matters that the parties wish to raise?
8 MR. DAMBLY: None for the staff, Your Honor.
9 MR. MARQUAND: No, Your Honor.
10 CHAIRMAN BECHHOEFER: Well, Mr. Dambly.
11 MR. DAMBLY: All right.
12 Whereupon, 13 CHARLES E. KENT, JR.
14 RESUMED his status as a witness herein and was examined and 15 testified further as follows:
16 DIRECT EXAMINATION (continued) 17 BY MR. DAMBLY:
18 Q Mr. Kent, you recall yesterday when we talked 19 about some statements that it was alleged you had made 20 concerning some bird falling out of the nest and a hornet's 21 nest; do you remember that discussion?
22 A Yes, I remember that discussion.
23 Q If you would turn to Joint Exhibit 27, please.
24 And on page 76 in that exhibit. Do you see on page 76, 25 about halfway down it says:
Page 3050 1 "Kent: He talked to other folks." and then 2 Fiser says "Pardon my back."
3 And then there's a statement "Kent: That 4 would say hey it doesn't matter where he's going 5 to be dead meat. I'm not kidding you, it's like 6 i throwing a rock in a hornet's nest. I'm trying to 7 be honest with you, they came out of the 8 woodworks, comments came out the woodwork."
9 "Fiser: Who did?"
10 "Kent: I don't know, I don't really know, 11 but I know several people called Fenech and I 12 asked Wilson to not let anyone talk to Fenech 13 until I get back with him, but several people 14 talked to Fenech so Bob and I talked and decided 15 not to be fair to you -- I now that sounds 16 strange, but it'd be like a baby bird had fell out 17 of the nest and putting it back in the nest, the 18 mamma bird would pick you to death, and I think 19 you were doomed from the start."
20 Do you recall having a conversation like that with 21 Mr. Fiser?
22 l A I don't recall -- what is this document?
23 Q This is an exhibit that Mr. Fiser put together of 24 his transcriptions of conversations that were recorded.
25 A I'm not -- I can't remember this conversation. Is
Page 3051 1 l this one of the conversations we would have discussed 2 yesterday?
3 Q Would have discussed?
4 A Yes.
5
- Q Well, this is a -- I asked you yesterday whether 6 you made these statements to Mr. Fiser and you didn't recall 7 making these statements. So yes, we discussed it.
8 A So this is -- it looks like from the way this is 9 laid out that on July 9, I would have talked with him and 10 this is the transcript of our conversation?
11 Q This is Mr. Fiser's transcription of what he 12 recorded, what he could hear that he recorded. This is one 13 of those taped conversations. Remember we talked about 14 taped conversations?
15 l A Yes, I'm aware of that. I don't remember 16 , specifically making these statements.
17 ! Q Okay. At this point, I'd like to play for you the 18 conversation.
19 (Whereupon, a tape recording was played.)
20 1 Q Does that help you recall the conversation?
21 A No, it doesn't.
22 1 Q It doesn't. Did you recognize yourself on the 23 tape?
24 1 A I assume it's my voice on the tape, but it's a 25 very poor quality recording.
Page 3052 1 Q Did you have any trouble hearing the bird's nest 2 and the hornet's nest?
3 A I did hear that comment, yeah.
4 Q Do you recall -- whether you recall the words or 5 not, do you recall that in fact the message you got back was 6 i there was a very severe reaction to putting Mr. Fiser in 7 that position?
8 A What I recall of that time period was I made the 9 phone call to Mr. Wilson McArthur at Gary's request and 10 Wilson called me back within a few days and told me that he 11 didn't think -- he told me that there were comments that 12 he'd gotten back from individuals he didn't name and they 13 indicated a lack of confidence in Gary's management 14 abilities.
15 I did relay that to Gary in a conversation within 16 a few days of Wilson's call to me. At that time period, 17 there was an issue with Fenech and people calling Fenech 18 that I remember, because I had talked to Bob Fenech about 19 the possibility of bringing Gary back out to the plant and 20 Bob had said that was fine with him, go ahead, and you can 21 discuss the issue with him, determine his interest, that 22 kind of thing. So I did that. Fenech asked me to talk to 23 McArthur and see if he had a problem with me pursuing that 24 line. I did talk to McArthur and McArthur said I'll be glad 25 to support you in that. That was prior to me having the
Page 3053 1 first conversation with Gary about the possibility of coming 2 back out to the plant.
3 About -- within a day or so of that conversation 4 with Wilson, Fenech got several phone calls from corporate.
5 I know he called Wilson McArthur back and -- at least I 6 believe he called Wilson McArthur back because Bob addressed 7 the issue to me one morning that he had gotten negative 8 feedback from Wilson and that -- about bringing Fiser out 9 there and that I had told him that Wilson would support it, 10 and he kind of felt like I was setting him up.
11 l And I told him, no, that's not the case. Let's 12 l get on the phone with Wilson right now and so we did, we 13 called Wilson from Fenech's office and had a follow up 14 conversation with Wilson on it.
15 So I guess there was some negative - I know there 16 was some negative feedback coming to Bob about it. I don't 17 know who it was coming from. He had talked with Wilson, I 18 don't know what Wilson had told him but Bob's impression was 19 that Wilson didn't think it would be that good an idea.
20 Just prior to that, Wilson had told me he thought it would 21 be fine and he'd support me in doing that.
22 So, you know, there was some disconnect there 23 somewhere and we did try to correct that with a conversation 24 that Fenech and I had with Wilson. That's really the only 25 conversations that I'm aware of at the time.
Page 3054 1 MR. MARQUAND: Excuse me. What happened in the 2 follow up conversation that you and Fenech had with Wilson?
3 MR. DAMBLY: Objection, I'm asking the questions.
4 JUDGE YOUNG: You can clarify.
5 MR. MARQUAND: It just seemed to make sense to 6 have it in this same sequence instead of referring back to 7 it several hours from now. I'm sorry.
8 JUDGE YOUNG: It would make sense, Mr. Dambly, if 9 you wanted to ask him that.
10 I MR. DAMBLY: I thought he just told us what he did 11 in the follow up conversation with Wilson. They called him 12 on the phone, he and Fenech; is that correct?
13 THE WITNESS: Yes, that's correct. And to clarify 14 that, in the conversation that Bob Fenech and I had with 15 Wilson, Wilson did confirm that -- and I can't remember if 16 this was before or after I talked to Gary the first time, I 17 believe this was before I talked to Gary the first time --
18 Wilson confirmed that he would support whatever we wanted to 19 do at the site. And that's what he had basically told me 20 before and that's what I had communicated to Fenech and so I 21 was afraid that Fenech thought I had lied to him because, 22 you know, he had gotten some negative feedback too, 23 supposedly from the same guy giving me positive feedback.
24 BY MR. DAMBLY:
25 Q Did you ever ask Mr. Fenech who he was getting the
Page 3055 1 feedback from in corporate that Fiser was a no-go?
2 l A No, I kind of assumed who it might have been, I 3 could surmise who it might have been because there were a 4 lot of people in corporate that would have liked to -- that 5 wanted to direct what was going on at the site at that time.
6 So we got a lot of feedback from a lot of different people 7 at corporate. So, you know, I could probably surmise who it 8 may have been, but I don't really know, didn't ask.
JUDGE YOUNG: When you say wanted to direct, you 10 mean just generally wanted to have control or influence?
11 THE WITNESS: Influence, yes.
12 t JUDGE YOUNG: Okay.
13 BY MR. DAMBLY:
14 Q You were getting more help than you wanted.
15 i A Yes, getting more help than I wanted, that's true.
16 Q Probably not unusual.
17 A That's not unusual, no, especially in times -- at 18 this time in the life of Sequoyah, performance was not good.
19 We were in a pretty poor performing plant condition, we had 20 I think maybe both units shut down for an extended outage.
21 We had a steam leak on the secondary side on one unit, it 22 was shut down for an extended outage. There were lots of 23 issues related to erosion, corrosion and that kind of thing 24 1on the secondary plant and so, you know, there was a lot of 25 lchange needed to be made in the way we were doing business
Page 3056 1 and there was a really major effort to restructure, refocus 2 and restart the units. So we were getting a tremendous 3 amount of support from all sides.
4 Q Now going back to the organization when you were 5 the radcon manager at Sequoyah.
6 A Uh-huh.
7 Q And Mr. Fiser was the chemistry superintendent.
8 Your position was a PG-10 or 11, is that correct?
9 A Eleven, yes.
10 Q Eleven. And his was a 9?
11 A Yes, I believe that's correct.
12 Q And when you combined radcon and chemistry and you 13 became radcon chemistry manager, you became a PG-senior?
14 A Senior, yes.
15 Q What level was -- PG level was the radcon manager 16 in the new organization?
17 A In the new organization, it went to a 10.
18 Q It went down to a 10, okay.
19 Now if we look at the org chart for the new -- I 20 think it's Staff Exhibit 12 --
21 JUDGE YOUNG: Twelve, did you say?
22 MR. DAMBLY: Twelve.
23 BY MR. DAMBLY:
24 Q I guess we need to compare that with 58, Joint 25 Exhibit 58.
Page 3057 1 A Fifty-eight, did you say?
2 Q Yes, Staff Exhibit -- sorry -- Joint Exhibit 58 3 and Staff Exhibit 12. Joint is the one you were just in.
4 fNow referring to Joint Exhibit 58, the interim 5 organization you proposed --
6 A Yes.
7 Q -- prior to your becoming -- this says radcon 8 tmanager but it was actually radcon chem manager?
9 A I had both responsibilities, we hadn't changed the 10 title of my position yet as part of this transition.
11 Q Okay, so prior to combining the two organizations, 12 Mr. Fiser as the chemistry superintendent would have had 13 responsibility for what's under Mr. Ritchie, Ms. Bodine and 14 i Mr. Adams and part of Mr. Osborne?
15 A That's correct.
16 Q And you would have had responsibility for what's 17 under Mr. Vincelli and Mr. Palmer or Ms. Palmer, whatever.
18 A And the rest of Mr. Osborne.
19 3 Q And the rest of Mr. Osborne.
20 A Yes.
21 JUDGE YOUNG: And who would have had the rad 22 responsibility, did you say?
23 THE WITNESS: I had responsibility for a good part 24 of the function under Mr. Osborne, all of Mr. Vincelli's 25 area as shown here and all of Mr. Palmer's area.
Page 3058 1 JUDGE YOUNG: You're talking about prior to this.
22 THE WITNESS: Prior to this, yes.
3 BY MR. DAMBLY:
4 Q And your position was two grades higher than Mr.
5 1 Fiser's, is that correct?
6 ! A Yes, that's correct.
7 Q Would it be fair to say that the radcon program is 8 a higher priority or considered more important than the 9 chemistry program?
10 A No, I don't think that would be fair to say.
11 Q You don't think so. When it comes to budget time, 12 what gets cut first, radcon or chemistry?
13 A Well, I can't tell you about prior to 1993, I can 14 tell you about since 1993. Since 1993, both programs are 15 pretty much equal. We don't really -- you know, we have 16 adequate budget to do what we need to do and even in times 17 when budgets are extremely tight, as they are this year, we 18 still have resources that we need to do everything that's 19 required in both program areas.
20 Q Do you know who Pat Lydon is?
21 1 A I know the name, I have met Pat. He was at 22 Sequoyah I believe just prior to my coming to Sequoyah in 23 '89 and he may have been there for some period after.
24 If I could make a comment about the grade level 25 discrepancy or difference, one of the differences -- this is
I Page 3059 1 my perception -- one of the differences in the way jobs are 2 graded out in the two organizations is really a function of 3 how much management support that group is already getting 4 from other places. And in the case of the chemistry 5 l organization, chemistry reported to operations and it was 6 expected that the operations manager would provide a degree 7 of support to the chemistry program so that the chemistry 8 superintendent wouldn't be wholly responsible for 9 everything, as an example.
10 In my case, I was a direct report to the plant 11 I manager, there was no other support resource for the 12 program, so that's the reason I think the grades were 13 $ different, not level of importance.
14 Q Okay. And I believe yesterday you said you 15 thought Mr. Fiser needed to have been more aggressive in 16 seeking money for the problems in the chemistry program.
17 A Yes, I do believe -- I don't know if I made that 18 ¢specific comment yesterday, but I feel that way. I feel 19 like the chemistry program needed extra support, maybe not 20 money, but direction and focus and emphasis. They may have 21 had adequate budget.
22 Q I'm not sure you have it up there, TVA Exhibit 23 122, it's a fax to Jim Vorse from Gary Fiser dated 11/14/95.
24 A I don't think I have anything --
25 Q I'm not sure that it's in any of the books or that
Page 3060 1 they brought it back up there.
2 On the last page, this is one of those TVA OIG 3 i interviews, it's an interview of Pat Lydon.
4 JUDGE YOUNG: Mr. Dambly, what number exhibit 5 again?
6 MR. DAMBLY: This is TVA Exhibit 122, it's one not 7 in their books. I'll just read to you the last paragraph on 8 page 3 of the interview:
9 "When questioned about the chemistry use 10 program (CUP), Lydon advised CUP was set up to 11 identify, label and control chemicals that came 12 into the plant. This program was designed to 13 ensure the clear usage of chemicals in the plant.
14 There were problems getting in place the final 15 procedures and management wanted to show a 30-16 minute videotape to the employees to show that TVA 17 had met the training requirement. Lydon stated 18 Beecken was a master at quick fixes. Lydon 19 believed the program was unacceptable, although 20 Lydon was responsible for the CUP budget, he and 21 his line managers completed a detailed budget 22 which Bynum 'slashed to hell'. Bynum and Beecken 23 were always asking him to do more with less."
24 Now Mr. Lydon at that point was Mr. Fiser's 25 supervisor, correct?
Page 3061 1 A I don't know who would have been his supervisor.
2 Q He was the ops manager.
3 A Then he would have been his supervisor, that's 4 icorrect. There is a -- can I clarify something on this 5 thing?
6 Q Sure.
7 A We have two programs at the plant and have for a 8 long time. The chemistry upgrade project, CUP, is a 9 different issue than chemical traffic control. And it 10 appears that those were mixed up in that.
11 The chemistry upgrade project was something I got 12 1 involved in very early on in '93 and what had -- chemistry 13 instruments, operability of chemistry instruments, was a 14 major issue during that time interval and I think, if I 15 recall the numbers correctly, 40 to 60 percent of on line 16 chemistry instruments were in operable. They couldn't be 17 maintained, they were obsolete, that kind of thing. A 18 chemistry upgrade project had been developed by the 19 chemistry staff and had been proposed to management and it 20 was like a $22 to $24 million project. We could not afford 21 ! $22 to $24 million, it was a Cadillac, definitely. The 22 l project that had been proposed was truly a Cadillac 23 monitoring system, not only for what was needed day to day, 24 ! but you could do research with it. I mean it was that kind 25 of chemistry upgrade program.
Page 3062 1 However, there was a real problem and the real 2 problem was we didn't have enough operable instruments to 3 tell what we really -- you know, we were doing a lot of 4 graph sampling because the on line instruments weren't 5 available. As soon as we took over the chemistry program 6 and we laid out our chemistry improvement plan, which we 7 presented to management on April 1 of '93, and it was 8 immediately approved and endorsed and we went forward with, 9 part of that was to resize CUP to be what we needed, not 10 what everybody maybe would have wanted. And we did that and 11 it was approved and it was implemented and it was about $9 12 to $10 million.
13 So there was -- I mean I could see the response of 14 l many levels of management to a $22 to $24 million Cadillac 15 system when it wasn't needed and we didn't have the money to 16 do it. They were very responsive to the proposal that we 17 made for the chemistry upgrade project on the scale of $9 to 18 $10 million, and we did fully implement that.
19 Q Mr. Fiser has testified that he had major problems 20 with the computers, his computers weren't working and I 21 guess the instrumentation that you're talking about, and he 22 l tried to get money for those and that got slashed as well.
23 If they proposed a $22 million budget and only needed 9 or 24 10, do you just deny the whole thing and not give him what's 25 necessary?
Page 3063 1 JUDGE YOUNG: Excuse me. I would like to ask both 2 of you to get a little closer to your microphones because 3 you tend to fuzz out on some words.
4i THE WITNESS: Sorry.
5 Can I approach that question this way?
6 MR. DAMBLY: Sure.
7 THE WITNESS: I've always believed it was my 8 responsibility and would have been everybody's, every 9 manager at my level in the organization's responsibility to 10 help upper management understand what's the right thing to 11 do, and to do it. If I've been successful in my career, 12 1 it's because of my ability to do that.
13 If I am not successful at doing that, it's my 14 problem, it's not necessarily my upper management's problem, 15 it's my problem. If I can't convince them of the right 16 thing to do and show them where we need to invest resources, 17 then that's my issue, not theirs, because that's my job.
18 1 I'm the technical expert, I'm responsible for the program, 19 I'm responsible for convincing them that they need to 20 support me. And if I had proposed a $24 million Cadillac 21 system to management, I would have expected the same 22 response.
23 1 BY MR. DAMBLY 24 Q You would have expected them to deny the whole 25 l thing?
Page 3064 1 A I would have expected them to tell me to go back 2 to the drawing board and come up with something reasonable.
3 Q And do you know how many years Mr. Lydon and Mr.
4 1 Fiser proposed additions to the budget that were slashed?
5 A No, I do not.
6 Q Going back to Mr. -- picking up where we left off 7 yesterday with Mr. Fiser's surplussing or RIF in '93, you 8 were aware that he filed a DOL complaint on that issue?
9 A Ultimately, yes, I was aware of that.
10 Q And how did you become aware?
11 A Probably when I was interviewed by the IG or some 12 internal review in TVA would have been probably the first 13 inkling I would have had, I'm not sure.
14 Q To the best of your knowledge, were Dr. McArthur 15 1and Mr. McGrath involved in that complaint at all?
16 JUDGE YOUNG: In that what?
17 MR. DAMBLY: Complaint, the DOL complaint.
18i JUDGE YOUNG: I missed one word there, in that 19 complaint what?
20 MR. DAMBLY: Complaint, that's all.
21 MR. MARQUAND: Objection, lack of foundation.
22 There's not even been a discussion yet as to whether Mr.
23 Kent saw the '93 complaint.
24 MR. DAMBLY: I'm not talking about the specific 25 document which Mr. Marquand would like to dwell on. I'm
Page 3065 1 talking about the complaint as the process, the DOL 2 investigation, IG investigation, all the issues surrounding 3 Mr. Fiser's complaint in 1993 about his surplussing.
4 THE WITNESS: I don't know that in '93 -- I cannot 5 recall in '93 knowing who in upper management would have 6 been involved or a subject of that complaint.
7 l BY MR. DAMBLY 8 t Q Do you know how the complaint got resolved?
9 A I believe Mr. Fiser was given a position in the 10 corporate organization as a result of that complaint.
11 Q Did you have any interactions with him after he 12 returned to the corporate chemistry organization?
13 A Yes, I did.
14 Q How often?
15 A Occasionally. I mean he was in our corporate 16 f staff, so he would provide support to the site over -- you 17 now, on different issues, so I would have an occasion to 18 interface with him from time to time, primarily his 19 interface would have been with my chemistry manager.
20 Q And that was who?
21 A Mr. Rich.
22 Q Rich, Gordon Rich?
23 A Yes.
24 Q In the '95-'96 time frame, which of the three 25 corporate chemistry managers -- Mr. Fiser, Mr. Harvey or Mr.
Page 3066 1 Chandrasekaran -- worked most closely with Sequoyah?
2 A You're talking '95-'96 time frame?
3 Q Right.
4 A Probably during that time frame it was Mr. Harvey 5 who was probably the most closely involved in issues that 6 were of interest to Sequoyah.
7 i Q Now when he was working with Sequoyah, was he 8 doing environmental work?
9 1 A No, most of the things that he was involved in 10 were helping us with corporate-wide contracts. One of the 11 Ithings we did in '93 when we laid out our chemistry 12 improvement plan, it was pretty comprehensive and it was 13 2 like a five-year duration plan. And one element of that 14 ' plan was to replace our on site makeup water plant with 15 vendor service water, because our makeup water plant was 16 2 difficult to maintain and the operators really didn't now 17 how to operate it that well, it wasn't that high a focus 18 area. So the performance wasn't that good and it was 19 providing chemical contaminant inputs to the system that we 20 1 wanted eliminated and the best way we knew of to do that in 21i a cost-effective manner was to go to vendor service water, 22 and so we were negotiating a major contract TVAN-wide, 23 nuclear-wide, for that service water and Mr. Harvey was an 24 integral part of that negotiation. So that was a major area 25 that he supported us in.
Page 3067 1 Q Do you recall if anybody from corporate provided 2 environmental support to Sequoyah in the '95-'96 time frame?
3 A There was a gentleman in corporate, I can't recall 4 the exact time frame, but it was -- I think it was in that 5 time frame, his name was David Sorrell, he was on the 6 j corporate staff and he was sort of our environmental expert 7 on the corporate staff during his tenure there. Sometime 8 probably in the '96 to '98 time frame, he left our corporate 9 organization and took a position in Muscle Shoals, Alabama.
10 Q Were you happy with the work Mr. Harvey was doing 11 1for you at the site?
12 A Pretty much.
13 Q Do you think he had strong technical capabilities?
14 A I really don't know that much about his technical 15 1 abilities, I really wasn't day-to-day involved with him on 16 technical issues. He did have or did appear to have a 17 certain amount of knowledge in how to get contracts 18 coordinated and negotiated and he did appear to have a 19 i certain amount of knowledge in resin performance issues, 20 such as would be used in demin systems and things like that.
21 Those were both important issues to us, so in that regard, 22 you know, I was aware of his -- some of his technical 23 abilities. Other than that, I wouldn't really know.
24 Q Did he do steam generator work for Sequoyah, 25 issues related to the steam generators?
Page 3068 1 A Well, all of these issues are related to the steam 2 generators that -- every -- almost everything we were doing, 3 every problem we had in that time period was focused on 4 improving chemistry performance to lengthen the life of our 5 steam generator. So I would say yes, you know, everything 6 everybody was working on was related to steam generators.
7f Q Okay. What kind of contracts was he negotiating 8 related to steam generators?
9 A The makeup water contract. That was -- that was 10 of major importance to us. Because what we tried to do was 11 eliminate the source of contaminants getting to the steam 12 I generators. And we had really three major sources. One was 13 the makeup water, which we dealt with by implementing vendor 14 service water; one was our condensate polishers, which we 15 l dealt with by...
16 ,JUDGE YOUNG: Your what polishers?
17 THE WITNESS: Condensate polishers. In the 18 primary -- in the secondary system of the plant, when the 19 steam comes through the turbine it condenses.
20 JUDGE YOUNG: Condensate? Condensate?
21 THE WITNESS: Condensation; yes.
22 JUDGE YOUNG: All right.
23 I A It condenses in a -- in a condenser that basically 24 cools it off, returns it to a water state, and then it is 25 processed and cleaned up by some manner and reinjected into I
Page 3069 1 the feed water system, which goes back into the steam 2 generators to make more steam in that cycle.
3 l Our second biggest source was -- well, not in 4 scale of source, but our second area of focus was improving 5 or mitigating the contaminants that are put into the system 6 by operation of the condensate polishers. They're 7 demineralizer beds, and they throw contaminations of 8 different types because of the process you have to go 9 through to regenerate the resin to make it -- to renew its 10 ability to absorb...
11 JUDGE YOUNG: Regenerate the what?
12 g THE WITNESS: Resin.
13 JUDGE YOUNG: That's what I thought you said.
14 A So that was a major issue, and he was involved in 15 that.
16 And then the -- the third issue that was most 17 pressing for us was our condenser. We -- we had a brass 18 condenser -- condenser tubes, which is largely copper.
19 Brass condensers have a tendency to leak. They are -- they 20 can be attacked by all kinds of corrosion mechanisms, and 21 the tubes tend to have a -- a tendency to leak. So the leak 22 leaks raw water into the plant system, which is a source of 23 contaminants. And -- and then also, the condensers being 24 copper, you -- you have to maintain your Ph in a secondary 25 system fairly low or you will erode the copper away and
Page 3070 1 deposit it in your steam generators, which causes another 2 problem with copper deposits. So there were three major 3 areas we were focused on. Sam was probably involved, to some 4 degree, in most of those.
5 Q Okay. Now, you're aware in 1996 there was a 6 reorganization of the corporate rad con chemistry arena?
7 A Yes, I am.
8 Q When did you first learn about it?
9 A I can't remember the date I learned about it. I 10 mean, I was aware of it probably from discussions with 11 Wilson McArthur and others. We were made aware that -- that 12 there was a proposal -- there were -- we were reorganizing 13 and restructuring at the sites and in corporate, so there 14 was -- there was a lot of change taking place everywhere. I 15 can't really recall exactly when I would have first become 16 aware of that.
17 Q It was prior to the implementation of the 18 reorganization?
19 A Oh, yes. Yeah, it would have been prior to.
20 Q Were you aware that the three chemistry manager 21 Empositions were going to go down to two positions?
22 A Ultimately I was, because I ultimately sat on the 23 board that participated in the selection. I think initially 24 there was a lot of talk that they may eliminate one of the 25 three positions, but up until the really -- the proposal was
Page 3071 1 finalized by corporate management and -- and they really 2 understood what their long-term needs were going to be, I 3 think there was a -- there was a long period there of maybe 4 anticipation without any real hard proposals.
5 i Q Okay. And during that time frame, did you 6 initiate any action concerning transferring Mr. Harvey to 7 Sequoyah?
8 A I would -- I did discuss the possibility of 9 transferring Mr. Harvey to Sequoyah. I wouldn't really say 10 I initiated the action. I don't know that that's correct 11 characterize it (sic). Mr. Harvey, as we've discussed, was 12 one of the -- of one of the corporate staff, he was 13 ! primarily assigned responsibility for providing support on a 14 day-to-day, as-needed basis to Sequoyah. What had happened 15 over the two or three years, say '95 to '96 time period, was 16 instead of having all of the corporate staff support all the 17 sites in different functional areas, the corporate staff 18 decided that it would be best if they sort of focused a 19 M person on each site. Because truly the needs of each site 20 1 were somewhat different, and they thought it would be better 21 if they had a focused person for each site. And that would 22 improve -- they thought that would improve that interface 23 between the site and corporate, also, improve communications 24 and interface and support.
25 So Mr. Harvey had been assigned to Sequoyah. And
Page 3072 1 the way that transpired was, there were -- you know, I guess 2 when I first found out, that may have been how I first found 3 out about the possibility of a corporate reorganization, was 4 ! that my chemistry manager, which was Mr. Rich at the time, 5 approached me and told me that there was a proposal that 6 there would be a corporate reorganization, and that Mr.
7 Harvey expressed an interest in coming to Sequoyah, if we 8 could effect that. So that's probably how I first learned 9 about it.
10 Q And did you then make an effort to bring Mr.
11 Harvey to Sequoyah?
12 A Well, as I recall, you know, Mr. Rich really -- he 13 wanted me to do that. He wanted me to pursue that. I 14 really didn't have any strong feelings one way or another, 15 because I don't believe at that time the corporate 16 organization had really been defined as to what it was going 17 to be, you know. Sam may have felt he was going to lose his 18 job or -- or whatever. But I don't think that was really a 19 definite.
20 There were a lot of transitions in the 21 organization at the site, also. So, you know, I really 22 wasn't extremely hot about pursuing anything along those 23 lines, but, as I recall, to -- to really accommodate my 24 chemistry manager, I did tell him that I would discuss it 25 with them.
Page 3073 1 And shortly after that conversation, Mr. Grover, 2 Ron Grover, who was the corporate, I think, chemistry lead 3 at that time, was on site. And as I recall, Mr. Grover was 4 walking across the campus and -- and I met him on a 5 1sidewalk, and he asked me if I had talked with Gordon about 6 the possibility of bringing Sam to the site, and I told him 7 that I had. And he asked me what I thought about it. And I 8 told him, "Well, you know, if you guys can transfer him out 9 here, that would be fine." I -- you know, we would be glad 10 to have him. Because he was doing a pretty good job for us.
11 12 Q Did you ask your staff whether or not they wanted 13 Mr. Harvey, any of the subordinate people below Mr. Rich?
14 A Yes, I did.
15 Q What kind of feedback did you get?
16 i A I discussed with -- with some of the technical 17 staff, and the -- the response I got -- well, really, if --
18 I was -- I was trying to figure out how -- you know, if we 19 were to bring him out to the plant, what we would do with 20 him, you know. Because we didn't really have a -- a 21 position that was -- you know, I didn't know what position 22 he would go in.
23 So I did discuss the possibility of bringing him 24 out with my technical staff, and whether or not he would fit 25 in that group. And I got some negative feedback from the
Page 3074 staff on bringing him out in a role like that such as a 2 technical program supervisor or something like that. I got 3 some negative feedback related to his, I guess, management, 4 interpersonal skills.
5 Q But you pursued the -- the issue, anyway?
6 A Well, I -- as far as I talked to Mr. Grover on the 7 sidewalk, you know, on that day. That was my pursuit.
8 Q Okay, if you would, go to the Staff Exhibits 9 Volume 4. Staff Exhibit 70.
10 CHAIRMAN BECHHOEFER: 7-0?
11 MR. DAMBLY: 7-0.
12 Q This is another TVA OIG record interview from 13 August 1 5 th, 1996. On Page 9 and 10. Okay.
14 A I must have the -- did you say 70?
15 Q 7-0. Right.
16 JUDGE YOUNG: 70 only has three pages.
17 MR. DAMBLY: Yes, I'm sorry. Page 1.
18 THE WITNESS: Okay, Page 1.
19 BY MR. DAMBLY:
20 Q At the bottom of that page, the last paragraph 21 says, "Kent said that Harvey was assigned to corporate, 22 spent much of his time working at SQN. Kent was familiar 23 with Harvey's qualifications and work skills, and he wanted 24 to retain Harvey at SQN. Kent said that he and Gordon Rich, 25 SQN, initiated a verbal request from Tom McGrath, corporate
I Page 3075 1 senior manager over chemistry, requesting that corporate 2 i transfer Sam Harvey's position to Sequoyah -- to SQN," I'm 3 sorry, "because they had a vacancy at SQN."
4 tDid you initiate the request?
5 A No, I did not really initiate the request. This 6 is, as is typical of our IG's reports, a synopsis of a 7 conversation that we would have had, and this is the IG 8 1 investigator's perspective on -- on that conversation. You 9 know, it's -- in total, it's probably not in error, but 10 specifically I never talked with Mr. McGrath about Mr.
11 Harvey, personally. I never spoke with Mr. McGrath about 12 bringing Mr. Harvey to the site. That was done, as I said, 13 through Mr. Grover.
14 And probably the statement here about Mr. Harvey's 15 qualifications and work skills, you know, I -- I would have 16 -- I'm assuming that I would have been responding to a 17 question, "Are you familiar with Mr. Harvey and his 18 qualifications," and I would have said, "Yes, I am somewhat 19 familiar with Mr. Harvey and his qualifications." That 20 would have been -- because I really don't know Mr. Harvey's 21 background. I've probably never seen his resume.
22 Q If you'd turn to Staff 72.
23 A Same book?
24 Q Same book. And we'll go to 72 through 74, 25 actually. Do you recognize what is Staff 72 as a
Page 3076 1 statement...
2 A Yes.
3 Q ...signed by you in the DOL proceeding?
4 l A Yes, I recognize this.
5 Q Okay.
6 A This is Stripling; yes.
7 Q And you signed it at the end; correct?
8 A Yes. This -- this is not my handwriting.
9 Q Right.
10 A You understand that; right?
11 Q I understand it's not your handwriting.
12 A This is -- this is Mr. Stripling's notes of our 13 conversation.
14 Q And right above your signature it says, "I have 15 read this statement and it is correct." Is that what it 16 says?
17 A Yes, that's what it says. And, you know, for the 18 most part I think it is. I mean...
19 l Q Would you normally sign things that are for the 20 most part correct in legal proceedings?
21 A I would say I -- I always attempt to sign things 22 that I believe are mostly correct.
23 Q But when you signed it, was there something you 24 knew was wrong in it?
25 A Well, when I signed it, you know, there are
I Page 3077 1 grammatical errors in it, there are a number of things in it 2 that I didn't like when I signed it. However, you know, 3 j this is not up to the standards normally I would prepare a 4 statement. However, I, in fact, did sign off on it because 5 I think for the most part it portrays a fairly accurate 6 picture of what was going on.
7 Q I appreciate the -- the grammatical problems, et 8 cetera. But when you signed off, were you aware of any 9 l factual inaccuracies in this?
10 A Well, I haven't read this. I would say...
11 Q You read it when you signed it?
12 A I read it when I signed it. I would say no, I 13 would not be -- have been unaware -- I would -- would not 14 1 have known there were factual inaccuracies in it and -- and 15 signed it. I did, as you can see, change a few things in it 16 that I thought maybe were not exactly right. Like on the 17 third page. And, you know, there's a few strike-throughs.
18 I know I did those strike-throughs.
19 Q Okay. And -- and the start of this statement 20 deals with the transfer issue of Mr. Harvey at Sequoyah; 21 right? That's what the first part of this is about?
22 A Yes. And it -- and it says there the end result 23 was that a request was made that corporate would give a 24 1 directed transfer from corporate to Sequoyah.
25 1 Q And that you would needAto advertise the position
Page 3078 1 of technical support supervisor -- supervisor?
2 A Well, I'm not -- I'm not an expert on personnel 3 lissues, but I don't think a direct transfer and advertising 4 I a position doesn't really go together. I mean, you don't 5 have to advertise a position if it's a -- I would think, if 6 it's a directed transfer of one individual from one site to 7 another. Then there's no advertisement of a position.
8 s Q But that would be what we talked about yesterday 9 as a lateral transfer, a person of the same grade just moves 10 from one place to another?
11 A Well, I really don't -- I really don't know 12 whether it would have been a lateral or what. But if -- my 13 perception would be that if there were a directed transfer, 14 then that means the person and the function is moving from 15 lone organization to another, or -- or there's a vacant 16 position and at one site -- that another site in the 17 organization in the same competitive area, there's a 18 reduction taking place. And you might ask for volunteers to 19 transfer, you might direct somebody to transfer. I don't --
20 you know, like I said, I'm not an HR expert. But I don't 21 think that you would have to advertise a position in order 22 for a person to be directed to transfer.
23 Q Okay. Toward the bottom of the first page it 24 says, "During the time I talked with the Inspector General 25 Office we had a vacancy where we lost a chemistry person at
Page 3079 1 SQN a while back, and we had not filled that position.
2 Position I had in mind for Harvey was technical support 3 supervisor, which now is presently filled with," I guess 4 that's, "R. Ritchie." Rob Ritchie? Is that the name?
5 A Yes, that would probably be right.
6 Q "The extra vacancy we had, we lost it. I made a 7 request to Ron Grover about the possibility of Harvey 8 transferring to Sequoyah."
9 I A Yes.
10 Q Okay. You initiated the conversation with Mr.
11 Grover? And you had a vacancy at the time?
12 A Well, let me -- let me address the -- the issue of 13 whether or not I had a vacancy at the time. Our 14 organization, just like corporate's organization in '96, was 15 undergoing a lot of review and rethinking and of how we were 16 going to be structured and that kind of thing. And as I 17 recall, in late '94, maybe early '95---I can't recall the 18 date---I had an individual that -- that worked for us. He 19 was the technical program supervisor in chemistry. He --
20 that individual left the organization and went to work for 21 CP&L. So in my mind, there was a vacant position there.
22 I believe what was transpiring in the company was 23 there was a major review of all positions at all 24 organizational sites. You know, as we just talked, there 25 was some restructuring ongoing at corporate. I believe we
i Page 3080 1 t were doing the same thing. I know in the '96 time frame we 2 l were -- we were negotiating on what our long-term 3 organization structure at the three nuclear sites would --
4 would be. We were really trying to standardize everything.
5 There was a lot of discussions about how far in the 6 organization, how down -- how far down you had to go in 7 terms of standardization, what exactly the same meant and 8 l all those kind of things.
9 So I believe that I -- I did have a position. It 10 was -- it was occupied by a gentleman who left and went to 11 CP&L. I viewed that as a vacancy. Whether or not the org 12 structure that was on the books at the time showed a vacancy 13 or not, I don't -- I don't recall. But I -- I also was 14 looking forward to a long-term organization which would have 15 had that position in it. And so it was my way of thinking, 16 I could have had a position.
17 On the first page of this document it talks about 18 that I didn't want to advertise a position because we were 19 going through a reorganization and -- due to corporate 20 wanting to standardize the organization at all three sites.
21 Q Okay. Now, if we continue with the rest of the --
22 it says, "The response that we got back from Grover was that 23 McGrath didn't want to just transfer Harvey out of 24 corporate. My reason for soliciting Harvey for SQN site is 25 because he had a lot of expertise in secondary chemistry. I
Page 3081 1 wanted his expertise," and I can't read this, "our -- on 2 site, because we needed to make improvement in our secondary 3 chemistry program."
4 Does this indicate that you solicited Harvey to 5 come to the site, as a matter of fact?
6 A No. No. Only in the context of I did -- I did 7 agree with Mr. Rich that I would pursue talking with Mr.
8 Harvey's management, an opportunity to transfer him to 9 Sequoyah. I did meet with his supervisor on the sidewalk, 10 as we talked about, and we did discuss it on the sidewalk.
11 And I did get feedback from Mr. Grover that he had talked 12 with Mr. McGrath, and Mr. McGrath had expressed to him that 13 I he didn't think it was appropriate for us to direct transfer 14 or whatever mechanism you would use, terms you would use to 15 move Mr. Harvey from corporate to the site. That if we 16 wanted to hire Mr. Harvey, we should post a vacancy and hire 17 1 him.
18 Q Okay. Also, if you would turn to Staff Exhibit 19 71. And this is a -- a transcript. TVA's IG's office 20 provided us their tape recordings of certain of the records 21 of interviews. We didn't get tapes for all of them. The 22 ones we got, we had transcribed.
23 MR. DAMBLY: And for the board's clarification, on 24 the second page of this document this was transcribed by the 25 -- your contracted court reporters, and I guess they assumed
Page 3082 1 it was an OI interview, because it was an interview. It's 2 actually an OIG for TVA. You can see the Special Agent 3 l Vanbocker. And I think on all of the ones we had 4 transcribed they put OI instead of -- but if you turn to 5 Page 9.
6 THE WITNESS: Okay, I have it.
7 MR. MARQUAND: Your Honors, before we ask Mr. Kent 8 any questions about this document, I'm going to voice an 9 objection. I previously voiced an objection about this 10 manner of examining witnesses about things, and this is 11 particularly egregious here, and let me explain why. First, 12 before counsel even elicited Mr. Kent's views about any 13 conversations with Mr. Grover, he turned to Staff Exhibit 14 70, which Mr. Kent correctly identified as the OIG's notes 15 of a conversation. And he said, "Oh, here's the notes of 16 this conversation. Isn't this what happened?"
17 Now we're going to...
18 JUDGE YOUNG: Excuse me, I think he did mention 19 l the -- asked him about the discussion with Grover prior to 20 doing that.
21 MR. MARQUAND: Correct. And -- and he said -- and 22 he didn't -- he didn't say, "I don't..." -- yes, he did do 23 that. And Mr. Kent didn't purport to say, "I don't recall 24 it." And then there was no impeachment with respect to 25 Exhibit 70.
Page 3083 1 Now, the problem I've got is, Exhibit 71, which 2 l counsel has now put before him, is a purported transcript of 3 1 this same conversation. And counsel has put a document in 4 front of the man and said, "Here's what happened," and asked 5 him to adopt it. Now he's going to try to come back with a 6 transcript and try to impeach him with his -- with a 7 different document regarding the same conversation.
8 j And maybe, even under your relaxed rules, you 9 tallow him to refresh recollections with respect to a 10 document. But now, to play this little game and say, "Well, 11 here's a second document regarding the same conversation,"
12 smacks me in the face as being patently unfair to this 13 witness.
14 MR. DAMBLY: Well, to the extent you want to 15 respond to that, first of all, I asked him who initiated the 16 transfer, and he said it wasn't him. Now, we have a whole 17 series of documents to go through in the form of 18 impeachment, because Mr. Kent's told about four or five 19 different stories on that subject, and the same holds true 20 for whether he had a vacancy or not, who initiated the 21 transfer request, whether he had a vacancy, whether he was 22 told he couldn't transfer somebody. It's all -- he's 23 already been asked about it. And he brought up the fact, 24 well, Staff Exhibit 70 is a -- the agent's recollection of 25 l what they wanted to put in, and called into question the
Page 3084 1 validity of -- of the TVA OIG report; 71's a transcript.
2 l JUDGE YOUNG: Why didn't you just go directly to 3 the transcript and ask him about what he said then?
4 1 MR. DAMBLY: Well, TVA relies on 70. This is just 5 - I'm only going to 71 because he -- he denied what was in 6 -- there's not an inconsistency between 70 and 71 that I'm 7 aware of. He just doesn't like 70, so I'm showing language 8 in 71.
9 JUDGE YOUNG: Well, I think it might be more 10 efficient to go straight to the -- to the actual transcript, 11 without going through the other one first and -- and get to 12 ! it a little more quickly.
13 CHAIRMAN BECHHOEFER: I would not think that. I 14 think that would be less efficient. But I think the witness 15 should have a chance to read the document. I think -- I'm 16 sorry. I think the witness should be -- should have an 17 opportunity,.before he's asked questions about it, to read 18 the particular document, or at least the portion of the 19 document that's pertinent.
20 MR. DAMBLY: Well, I mean, if you want to take a 21 i break and let him read the 23 pages of Staff Exhibit 71, 22 that's fine with me. I only have one -- one question.
23 MR. MARQUAND: It's a very short document.
24 CHAIRMAN BECHHOEFER: Oh.
25 JUDGE COLE: Could you identify the page, and show I
Page 3085 1 him the page you're going to be referring to, if it's only 2 going to be...
3 1 MR. DAMBLY: Sure. I was only going to ask him 4 about Page 9. On Page 9 there's a -- a statement at the 5 bottom that says, Special Agent Vanbocker, "Okay, so you and 6 then Rich made a -- you initiated a request?"
7 Mr. Kent: "Right. We initiated the request to 8 transfer him." Then that's consistent with -- with what was 9 in Staff Exhibit 70, that he initiated the request, and 10 inconsistent with what he said when I asked him the 11 question.
12 THE WITNESS: If I could comment on that.
13 t MR. DAMBLY: Well, do you want to read the whole 14 document?
15 THE WITNESS: No, I don't think I need to. I 16 mean...
17 l CHAIRMAN BECHHOEFER: Well, read as much as you 18 think you need to read to understand the context.
19 JUDGE YOUNG: I think he's ready to make a 20 comment.
21 CHAIRMAN BECHHOEFER: Right.
22 1 MR. MARQUAND: Well, I mean, I think it's 23 appropriate, since counsel's made an argument already and --
24 and made representations about what's consistent and what's 25 not, to let the witness respond to that.
i Page 3086 1 lJUDGE YOUNG: That's what I was suggesting. Go 2 ahead.
3 THE WITNESS: Your Honors, I don't really see 4 these as being inconsistent, and I would not in any way 5 timply that the other document that was a report of the IG, 6 the IG's report was inaccurate in whole. You know, I was 7 tjust trying to make a comment that that was not a transcript 8 of what I had said, that was his words. I was responding to 9 a question. I did not know what the question was. All I 10 could see is what they reported that I had communicated to 11 them.
12 And in fact, you know, in this case, you know, the 13 - the agent asked me, "Okay, so you and Rich made a 14 ! request, you and -- you know, you initiated a request." I 15 mean, I did talk to Mr. Grover about it. You know, is that 16 -- I don't think the agent had in his heart or intent to 17 trick me into saying I initiated a request. That's the way 18 he phrased the question and, you know, in -- in whole, I did 19 talk to Mr. Grover about Mr. Harvey coming to the site, you 20 know. So, I mean, on the big picture, that's not inaccurate 21 to say I did -- I did pursue that.
22 Now, whether or not it was at my own initiative in 23 the very beginning that I went searching for Mr. Grover to 24 discuss it with him? No, I did not. Did I -- did I go to 25 Mr. McGrath to discuss it? No, I did not. It happened just
Page 3087 1 as I described. I really did it to accommodate my chemistry 2 manager. He was concerned about the program a lot more than 3 I was. He was concerned about Mr. Harvey a lot more than I 4 was. He felt Mr. Harvey thought he was not going to --
5 going to have a position when the reorganization smoke and 6 dust settled, a lot more than I was.
7 So I was really -- I had already made up my own 8 1mind, I think, at this time, as -- as we have discussed, 9 that I had discussed with my staff the possibility of -- of 10 where he might fit, got some negative feedback about his 11 interpersonal skills, so I really wasn't interested in 12 putting him in a position like a chemistry technical support 13 manager's job. So, the bottom line is, I was willing to 14 accept Mr. Harvey in -- at the site if there was a mechanism 15 to transfer him out there.
16 JUDGE YOUNG: Do we really need to spend a whole 17 lot more time on this particular point, which is not --
18 doesn't appear to be all that central?
19 MR. DAMBLY: I think it -- it is central.
20 JUDGE YOUNG: Whether he initiated it or not.
21 MR. DAMBLY: And whether he had a vacancy or not, 22 and why it was stopped.
23 JUDGE YOUNG: Well, I'm talking about whether --
24 who initiated it and why it was initiated and how it 25 happened.
Page 3088 1 MR. DAMBLY: Well, yeah, I think, Your Honor, it 2 makes a big difference if -- I mean, again, Mr. Kent is one 3 of the people that's on the SRB. He's one of the rating 4 people. If he's initiating a request to get Mr. Harvey out 5 to his site because he wants him, I think that's relevant to 6 the rest of the questions in this case.
7 *JUDGE YOUNG: Do you have many more questions 8 about it?
9 MR. DAMBLY: Well, yeah, I'd like to go through 10 the -- there's six or seven different statements he's made, 11 sometimes saying he initiated it, sometimes saying Grover 12 initiated it. I think it goes to his credibility, as well.
13 MR. MARQUAND: Your Honor, I think Mr. Kent's 14 already explained that how you characterize this...
15 JUDGE YOUNG: Go ahead.
16 l MR. MARQUAND: Your Honor, I think Mr. Kent's 17 explained that how you characterize it, whether you call it 18 initiation or not is really irrelevant. He said the fact is 19 that his chemistry manager asked him to look at it, and he 20 said he ran into Grover on the sidewalk and they had a 21 discussion. He says, "I've explained the facts of it." He 22 says, "How you want to characterize it, you can characterize 23 it any way you want to." Says, "That's the fact."
24 JUDGE YOUNG: I think we understand, and I think 25 the -- the majority wants to -- to continue. So move on.
Page 3089 1 Go ahead, Mr. Dambly.
2 MR. DAMBLY: Thank you.
3 BY MR. DAMBLY:
4 Q If you would turn to Staff Exhibit 73.
5 A Seventy-three?
6 Q Right. Which is the OI interview you gave with 7 Ms. Benson on October 22, 1998.
8 A Yes, I have that.
9 Q If you would turn to page 15, please, and starting 10 on line 9, question:
11 "And did you attempt at any time during this 12 ' time frame after you heard about the downsizing to 13 l request that Mr. Harvey be transferred out to 14 Sequoyah?"
15 Answer: "Yes, I did. When it was brought to 16 my attention that they were going to do downsizing 17 l in corporate and they probably would only have two 18 positions remaining of the three and since Mr.
19 Harvey was essentially full time support to 20 Sequoyah, I did approach his supervision and asked 21 that, you know, why don't you just transfer him to 22 Sequoyah and that'll solve the problem of your 23 head count in corporate. I've got a vacancy and 24 1 I'll just pick him up."
25 Do you recall making that statement to Ms. Benson?
Page 3090 1 MR. MARQUAND: Excuse me. What was the date of 2 this interview?
3 MR. DAMBLY: It's on the front, you can read it.
4 JUDGE BECHHOEFER: It was identified, October 22, 5 1 '98.
6 MR. MARQUAND: 1998.
7 JUDGE BECHHOEFER: October 22, 1998.
8 MR. MARQUAND: Thank you, Your Honor.
9 JUDGE BECHHOEFER: Assuming the title page is 10 accurate.
11 1 BY MR. DAMBLY:
12 Q Do you recall having that discussion with Ms.
13 Benson?
14 A I do recall the conversation with Ms. Benson.
15 Q And you indicated (1) that you sought to have him 16 brought out to the site and you had a vacancy.
17 A I did. I don't remember these exact words, I 18 can't remember that conversation, but this is a transcript, 19 so I would assume it is accurate.
20 Q You were under oath at the time?
21 A Do what?
22 Q You were placed under oath for this statement?
23 A Yes, I'm sure I was. And, you know, when I said 24 to her -- when I answered her question, did you attempt at 25 any time to request Mr. Harvey transfer to Sequoyah, yes, I
Page 3091 1 did attempt to do that.
2 Q Okay.
3 A And I think that's consistent with the other 4 comments I made about it. I did attempt to do that.
5 JUDGE BECHHOEFER: Well, when you said, "I've got 6 a vacancy", were you referring to a technical position 7 vacancy or just lack of the person who had left or absence 8 of the person who had left?
9 THE WITNESS: Well, you know, this was in 1998 --
10 what was the time frame on this -- October of '98?
11 JUDGE BECHHOEFER: Yes.
12 THE WITNESS: You know, it's really difficult for 13 me to recall, you know, from October '98 to now exactly what 14 I was thinking, you know, on October of '98, especially 15 about events that happened in '96.
16 I've got a couple of foggy periods in my memory 17 because of health problems and so I'm not sure of the 18 accuracy of my recollection for a couple of periods, but I 19 know that in late '94, early '95, I lost an individual who 20 went to CP&L. That left an opening in my organization at 21 that time. Also, at that time, there was a lot of 22 restructuring going on and I believe that there was an 23 interim organization that was basically issued to the sites 24 for my department and that organization I don't think had 25 that position in it. The other sites, I believe at that
Page 3092 1 time, did not have a position like that in their 2 organization. We were negotiating with upper management 3 during that entire time interval on what our long-term 4 organization would be and we had agreed with our upper 5 management that -- we had agreement on what our long-term 6 organization was going to be and on a time frame for moving 7 toward that. In that long term organization, which we began 8 i implementing in '96 through maybe '98 at the three sites, 9 that position -- an equivalent position to the one I had had 10 that was vacated by the individual who went to CP&L, was in 11 that long-term organization.
12 JUDGE BECHHOEFER: I see, okay.
13 THE WITNESS: So in my mind, you know, there's a 14 position at my site. I may have had a technician vacancy at 15 gthe time and I may have had a vacant position somewhere else 16 1 in my organization at that time and, you know, my thinking 17 could have been, you know, I've got the head count. But 18 really, the fact is, it didn't really matter and just like 19 today, it didn't really matter if I had a slot in my 20 organization or not, there is a process you've got to go 21 through to get approval to fill any position and if I had 22 wanted to have hired Mr. Harvey, to post a vacancy 23 announcement and hire Mr. Harvey, I would have had to gone 24 through that process of getting approval to do that.
25 And for whatever reason in 1996 after it became
Page 3093 1 obvious that corporate did not want to simply transfer Mr.
2 Harvey to the site, that if I wanted him, I needed to post a 3 Svacancy, I decided not to post the vacancy, probably because 4 of the organizational change that was taking place and the 5 difficulty it would have been to have gotten management 6 approval all the way up the line to bring a person into the 7 organization without that -- you know, the final structure 8 and everything being approved. They're not going to let you 9 hire a person into a position if it may go away due to a 10 pending reorganization, that wouldn't be fair to anybody 11 either.
12 JUDGE BECHHOEFER: Thank you.
13 BY MR. DAMBLY:
14 Q All right, now if I could get a different book for 15 you, book 7 of the staff exhibits.
16 JUDGE YOUNG: Did you say Volume 7?
17 MR. DAMBLY: Yes.
18 I JUDGE BECHHOEFER: What exhibit?
19 MR. DAMBLY: 135.
20 THE WITNESS: Okay.
21 BY MR. DAMBLY:
22 Q And 135 is the predecisional enforcement 23 conference in this case, December 10, 1999.
24 i JUDGE YOUNG: Before we go on, could you just 25 explain what a predecisional enforcement conference is and
Page 3094 1 who did it?
2 MR. DAMBLY: A predecisional enforcement 3 jconference is -- when the staff is proposing or thinks there 4 might be a violation and is considering taking enforcement 5 action, it offers the licensee an opportunity to come in and 6 provide its views on the subject. It's a transcribed 7 }conference.
8 JUDGE YOUNG: So it's not like a mini-hearing, 9 it's just a conference.
10 MR. DAMBLY: No, it's a conference. It's an 11 opportunity for the licensee to come and explain why they 12 didn't do what we think they did.
13 JUDGE BECHHOEFER: At the time, is it not true, 14 these were not public hearings?
15 MR. DAMBLY: It depends on the issue. For an 16 issue of discrimination, which would involve individuals, 17 Ithey're closed.
18 JUDGE BECHHOEFER: Yeah.
19 MR. DAMBLY: If it was a technical issue, they'd 20 be an open conference.
21 l JUDGE BECHHOEFER: Even back in those days?
22 MR. DAMBLY: Of course by that day, we don't have 23 many conferences on technical issues any more because the 24 new revised reactor oversight program normally doesn't 25 result in enforcement, traditionally.
Page 3095 1 MR. MARQUAND: Whether or not this conference was 2 closed to the public, Mr. Fiser was invited and allowed to 3 attend. So he was present, he heard everything that was 4 said, he made his own response.
5 JUDGE BECHHOEFER: I see, thank you.
6 1 BY MR. DAMBLY:
7 Q If you'd turn to page 106 -- actually I guess we 8 could start on 105 if you want to read from the bottom of 9 I 105, it says:
10 "Mr. Kent: Let me give you the details of 11 that scenario about Harvey being transferred to 12 Sequoyah."
13 "Mr. Stein: Please."
14 "Mr. Kent:" And then it goes through a 15 discussion, "My chemistry manager and I think 16 Keith probably had been talking with Sam and Sam 17 Harvey thought he was probably going to lose his 18 job at corporate and was interested. Since Sam 19 was providing support directly to Sequoyah and was 20 interested in coming to Sequoyah, Ron Grover 21 approached me one day while he was visiting the 22 site and asked me if I would consider hiring Sam 23 at Sequoyah and I told Ron that if -- I believe I 24 1 told him I didn't have a position. But if 25 corporate would transfer him to Sequoyah, yes, I'd
Page 3096 1 jbe glad to take him."
2 Now is that consistent with what you told Ms.
3 Benson when you said you had a position and you approached 4 Mr. Grover?
5 A Well, as I said in this, I believe, I told them 6 that I didn't have a position.
7 Q Did you believe you had one when you told Ms.
8 Benson you had one?
9 A Obviously I did.
10 Q So what led you to change your mind in the your 11 between the OI interview and the predecisional enforcement 12 conference about whether you had a vacancy or not?
13 A Well, I'm not sure. I mean, you know, there's a 14 lot of things. As I mentioned, you know, there were a lot 15 of transitions taking place between '96 and the '98 time 16 frame. The site organization was being restructured and in 17 I think early '96 we had agreement from our upper management 18 to implement a standard organization which included a 19 technical program, two program manager positions, one of 20 which would have been equivalent to the one that had been 21 vacated by the gentleman who went to CP&L. So it depends on 22 the timing and the way I was looking at the situation then, 23 you know, at that time. I don't -- there's nothing -- no 24 one told me you don't have a position, you didn't have a 25 position, there were a lot of transitions. I do believe
I Page 3097 1 there was an organization chart on the books in that time 2 interval between '95 and '96 that didn't show a position on 3 it. You know, so it could have been that I went back and 4 looked at the organizational chart and sure enough found, 5 hey, there's not a slot on this chart. There was before and 6 there was after, but there wasn't maybe one on the day that 7 I talked to them. So I really don't know what would have 8 made me do that.
9 I attempted at the time of each interview to 10 recall the facts as I saw them and accurately answer the 11 questions I was asked.
12 Q So when you gave this statement to the DOL 13 investigator and you signed it, you knew that was an 14 official government investigation into Mr. Fiser's 15 complaint.
16 A I knew it was an official government 17 investigation, I did not know very much, had no experience 18 with DOL complaints at that time, I did not know what the 19 outcome or the use of that document would be. Certainly I 20 didn't know I was going to see it 47 times in the future and 21 be impugned on every statement and word that was in it. Had 22 f I, I would have made sure it was accurate. I did not have a 23 good relationship with Mr. Stripling when he interviewed me, 24 it was a difficult conversation. I answered his questions, 25 he pushed in front of me a poorly worded document, and not
Page 3098 1 grealizing the, maybe ultimate end and use of that document 2 many, many times over, it probably was poor judgment on my 3 part to sign it unless I was 100 percent satisfied with it, 4 >but I did.
5 Q And when you did sign it, you said you had a 6 vacancy but you didn't want to post it.
7 A Yes. My intent was if I could explain, had I been 8 lwilling to go to my management and appeal for the 9 opportunity to post a vacancy, whether it was on my 10 organization chart or not, I always have that option I 11 1 guess. I would have had the option to have gone to my site 12 management and said we need this person in our organization, 13 we need this expertise in our organization, we need to 14 change our organization to accommodate some future need. I 15 1 did not pursue doing that, I did not pursue doing it at my 16 own wishes. No one asked me not to pursue it, no one 17 directed me not to pursue it, it was my own will not to 18 pursue it.
19 Q And you then told Ms. Benson that "I've got a 20 I vacancy and I'll just pick him up."
21 A At that time, that was my recollection with Mr.
22 Grover, yes. And I may very well have said those words when 23 1 I first talked to Grover about it and it may have been that 24 II talked to my staff between when I talked to Mr. Grover 25 about it and when he finally came back to me and gave me the
Page 3099 1 answer, and I was not willing to put Mr. Harvey in the only 2 position that I believe I felt I had that he could fit into 3 the organization, which was that technical support 4 supervisor's job. I wasn't willing to put him in there 5 because of feedback I had gotten from the staff.
6 So if I felt like I had a vacancy when I first 7 talked to Grover and I talked to my staff about it and I golat 8 negative feedback on his interpersonal skills and I decided 9 that I'm not going to do that, that wouldn't be the right 10 thing to do, and when Grover came back to me and he said we 11 can't transfer him, then I dropped it right there.
12 Q Now you just said you didn't want to put him in 13 the technical program manager position because of what your 14 staff told you about his I guess interpersonal skills.
15 A Yes, I believe that's correct.
16 Q But you told Mr. Grover and you told Ms. Benson 17 and you told.DOL people you had a vacancy and that was the 18 vacancy you were talking about. Did you have another 19 vacancy?
20 A No, I don't think so. I'm not sure, I don't know 21 what my organization looked like exactly at that time 22 period, but --
23 Q Well, you would have known in '96 when you were 24 talking to the DOL investigator?
25 A Was that '96? If that was, I would have probably
Page 3100 1 known in '96.
2 Q It was '97.
3 A '97. I don't know, it's possible that I would 4 have known exactly what my organization looked like in '96 5 during a period of transition. I mean over a period of 6 months, things were changing so I would have had a better 7 recollection in '97 than I do today.
8 Q You're saying now that you only were interested in 9 Mr. Harvey because corporate approached you, somebody, 10 Grover, and said hey, will you take Sam if we transfer him?
11 A No, no, I'm not saying that. I'm saying that with 12 regard to Mr. Harvey, Mr. Harvey had been talking with my 13 1 chemistry manager, Mr. Rich. Mr. Rich approached me and 14 told me that Sam felt like he was going to lose his job in 15 corporate, would we be willing to bring him to the site and 16 we discussed it, he was providing support to us, he was 17 providing what we thought would be good support to us at the 18 time, we could have used him, and whether -- as I recall the 19 conversation with Grover, it was on the sidewalk on site.
20 Had I not met him on the sidewalk on site, I'm not saying I 21 wouldn't have called him, I mean I probably would have 22 1 because I'd already told Mr. Rich that I would discuss it 23 with corporate. So, you know, it was fortuitous that we met 24 on the sidewalk. I'm not going to argue and say that if I 25 hadn't met him on the sidewalk, I would never have called
Page 3101 1 2 and asked about the possibility of transferring him, because 2 I probably would have. I told Mr. Rich that I would have, I 3 was going to pursue it.
4Q When you met him on the sidewalk, did you ask Mr.
5 Grover -- did you initiate the conversation concerning the 6 transfer or did Mr. Grover come up to you and say hey, will 7 you take Harvey if we sent him out to you?
8 2 A As I recall that conversation, he was walking from 9 one building toward the plant office building and I was 10 walking away from the plant office building and there is a 11 sidewalk that runs along the road there and I saw him coming 12 and I was on that sidewalk, we just stopped and we started 13 talking. In the course of that conversation -- and it was 14 just a few minutes -- he said he'd been out talking to 15 Gordon and I can't recall specifically whether Grover said 16 to me "I've been talking to Gordon about Harvey" --
17 JUDGE COLE: That's Gordon Rich?
18 THE WITNESS: Gordon Rich, yes.
19 JUDGE COLE: Okay, that's your chemistry man.
20 THE WITNESS: Yes, sir.
21 I believe that's the way it transpired that Mr.
22 l Grover told me he'd been talking with Gordon, asked me if 23 Gordon had talked to me about Sam, I think I would have said 24 -- I think I said yes, he has, you know, and we're willing 25 2 to do that if you guys can transfer him out here.
Page 3102 Now I'm not going to argue over whether I 21 initiated it or Grover initiated it, because I don't recall 3 the details of that conversation enough -- I mean in the 4 context of everything, I didn't avoid Grover knowing he was 5 going to talk to me about it. I had already promised Gordon 6 Rich that I would follow up on it. Had I not met Grover on 7 the sidewalk, I would have sometime within the next few 8 days, I'm sure, called Grover in Chattanooga and asked him 9 about it.
10 So in that case, I mean my intent was to have the 11 conversation with Grover, whether I started it or he started 12 it I think is irrelevant really.
13 Q Did you tell Mr. Grover, as you told Ms. Benson 14 you did, that you had a vacancy and you'd just pick him up?
15 A I thought -- you know, I can't recall the details 16 of that conversation with Mr. Grover, to that extent. I 17 mean, I may have said I've got a slot on my org right now, 18 ito Grover.
19 Q And so when you talked to Ms. Benson, you just --
20 A I believe that's what I told him at that time, 21 yeah, that's the way I recalled it at that time.
22 Q And that's what you told the DOL person, that's 23 what you told TVA's IG, that you had a vacancy.
24 A It appears so, as recorded in all these documents, 25 yes.
I
Page 3103 1 - Q And then when you got to the predecisional 2 enforcement conference, you didn't have a vacancy.
3 A Well, let's look at that part, I don't remember 4 what I said at the predecisional conference.
5 Q It's right there in front of you, it's on 106.
6 A It's on page 106.
7 Q And 107. In the middle of 106, 8 "I believe I told him I didn't have a 9 , position."
10 And then on the top of 107, Ms. Boland asked you, 11 "So you did not have a vacancy?"
12 "Kent: I did not and I did not pursue 13 ' getting approval to fill a vacancy, I just dropped 14 it."
15 A That is true, I did not pursue filling the 16 vacancy.
17 Q Is it true you didn't have one, the one that you 18 told the other three investigators you had?
19 A Well, as I've tried to portray, this was in '99, 20 the end result of my conversations with Mr. Grover about it 21 1 could very well have been that he and I met initially and we 22 talked about it and I thought I had a position I could put 23 him in. I followed up with him and we discussed it and I 24 told him that I didn't have a position I was willing to put 25 him in. And that is the fact, I did not have a position --
Page 3104 1 whether there was a vacancy on my org chart or not at that 2 l time, I did not have a vacancy that I was willing in 1996 to 3 put him in. Now if somebody were to ask me did you have a 4 vacancy on your org chart, and I believed at that time that 5 I did have a position that would have been available, then I 6 would have answered yes. But in fact, when Mr. Grover told 7 me that corporate was not willing to just transfer him out, 8 J head count and all, I was not willing to pursue anything 9 beyond that in terms of getting Mr. Grover (sic).
10 Now apparently in 1999 when we had the 11 predecisional conference, I made a statement or this might 12 ,have been as a result of Ms. Boland's interview, I don't 13 really remember, but I made a statement that I actually 14 didn't have a vacancy and that could have very well been 15 true, because I don't have the three org charts in front of 16 me right now, the one that existed before '95, the one that 17 existed in '95 and the one that existed in '96 and beyond.
18 So I really can't tell you what was technically on the books 19 at that time.
20 Q Now the statement you signed for the DOL 21 investigator, Staff Exhibit 72, we talked about that before 22 on the second page, "My reason for soliciting Harvey for SQN 23 site is because he had a lot of expertise in secondary 24 chemistry, I wanted his expertise for our site because we 25 needed to make improvement in our secondary chemistry
Page 3105 1 program."
2 Now you wanted his expertise, you solicited it, 3 but you weren't willing to put him in your vacancy, is that 4 what you're telling us?
5 A Where is that on 72?
6 , Q 72, second page. First full paragraph, starting 7 about in the middle of that paragraph, "My reason for 8 soliciting Harvey". You wanted his expertise, but now 9 you're telling us you weren't willing to put him in the 10 position you had.
11 A Well, and I think those are compatible statements.
12 As I said, this is Mr. Stripling's notes of our 13 conversation.
14 Q That you signed.
15 A That I signed. I've already admitted I signed it, 16 you know.
17 Q Which you represented as true and accurate.
18 A Good, bad or ugly, yeah. And I think for the most 19 1 part, this is a fairly true statement. I mean at this time 20 when I talked to Mr. Stripling -- and this was in '97, when 21 I talked to Mr. Stripling, I feel like -- and he asked me a 22 bunch of questions and I was responding to his questions and 23 at the time, I would have remembered what the question was.
24 Right now, I can't remember what the question was Mr.
25 Stripling asked me, but if he asked me did I talk to Grover
Page 3106 1 about the possibility of transferring Sam Harvey to the 2 site; yes, I did. And then he presents me with a statement 3 that says I made a request. I did make a request, I don't 4 see that as being a hanging point in terms of whether or not 5 I initiated some request. The response that I got back from 6 Grover -- this is fairly accurate -- is that McGrath did not 7 want to just transfer Harvey out to the site. If I wanted 8 him, I should post a position and hire him that way. And my 9 reason -- if I was asked why did you -- why were you 10 iinterested in Mr. Harvey coming to Sequoyah, my reason was 11 Mr. Harvey had expertise in secondary chemistry, we had 12 secondary chemistry problems. That's true. I wanted his 13 expertise at the site. That's true. I mean if he hadn't had 14 expertise that would have contributed to my program, why 15 would I have been interested in him at all? You know, he 16 would have been a burden for me in terms of payroll if he 17 hadn't had expertise that would have contributed to my 18 program. So yes, I'm sure he had expertise that I felt like 19 would contribute to the chemistry program at Sequoyah.
20 Q Okay and in 1996 when you talked to the TVA OIG 21 and in 1997 when you signed the DOL statement and in 1998 22 } when you were interviewed by Ms. Benson, you had a vacancy, 23 ! and in 1999 when you went to the enforcement conference, the 24 vacancy vanished.
25 E MR. MARQUAND: Your Honors, I'm going to object.
Page 3107 1 Counsel -- I've objected previously about confronting this 2 witness and not giving him an opportunity to review these 3 documents and counsel keeps saying well you said here you 4 had a vacancy and there you said you didn't. And he pointed 5 to one particular line on the predecisional enforcement 6 conference and he hasn't given the witness an opportunity to 7 review the document, he hasn't pointed him to all the stuff.
8 The rules say that whatever is in there that is 9 inconsistent, he has to balance with what is consistent, or 10 at least let the witness have an opportunity to do it. And 11 at the predecisional enforcement conference, Mr. Dambly 12 asked him the same question at page 110 and the witness 13 explained it, and he said "I was wrong, I went back and I 14 looked at the documents." That is what Mr. Kent has been 15 telling him all morning. If you put those documents in 16 tfront of me, he said, let me look at the org charts, I can 17 tell you whether I was wrong there or whether I was wrong, 18 and he explained at the predecisional enforcement conference 19 and he's trying to plow this into something that it's not.
20 Because he explained it at the predecisional enforcement 21 conference, that apparent inconsistency, and he explained 22 what was going on and what he had looked at. And we're 23 getting a lot of distortion here that's not appropriate.
24 1 MR. DAMBLY: I certainly disagree with that 25 entirely and I would object to Mr. Marquand trying to coach
Page 3108 1 the witness in how he should answer questions, but beyond 2 that, I believe I'm entitled to ask him about the various 3 inconsistent statements and I'm not required to accept that 4 l he decided to make up another story sometime later. And 5 we'll get to his next story in a moment, but if you'd like 6 to take a break for him to read his PEC transcript, that's 7 fine.
8i JUDGE BECHHOEFER: Well, I had asked before 9 whether he had had a chance -- whether, Mr. Kent, you had 10 had a chance to read the context of the entire relevant 11 l portions of the document and I still -- I think you said you 12 needed to just look over that page.
13 MR. DAMBLY: And let me make it clear that Mr.
14 Kent was deposed in this case and we'll be getting to the 15 deposition and all of these documents were gone over with 16 him at that time and if he hasn't read them, it's his 17 counsel's fault because we discussed each one we've talked 18 about so far in detail in his deposition.
19 JUDGE BECHHOEFER: Well, nonetheless, I think the 20 witness should be familiar with the document and its context 21 before having to answer particular questions. I think 22 1that's fair and whether he should have been told to look it 23 over earlier or not, that's not for me to judge, but I think 24 before me today, I would like the witness to be familiar 25 enough to know whether the question is coming out of context I
Page 3109 1 or an answer is coming out of context. I think he should be 2 able to rely on the entire gist of the conversation.
3 MR. DAMBLY: If you want to take a break at this 4 point, it's fine with me.
5 JUDGE YOUNG: I think that would be appropriate.
6 And I just want to add just for myself possibly, but I do 7 find the discussion at length about the degree to which what 8 Mr. Kent did with regard to having Mr. Harvey come out to 9 Sequoyah, the degree to which that was him initiating it or 10 him responding to something is quite collateral and 11 peripheral to the issue of whether Mr. Fiser was 12 discriminated against or retaliated against because of the 13 filing of a DOL complaint, and I think that it would be 14 good, especially in view of the time that we have, for all 15 the witnesses that we need to hear, to try to get as soon as 16 possible without preventing you from presenting your case, 17 to try to get to the actual issues that we're here on and 18 I'm personally finding it a little difficult to make the 19 connection between the nature of Mr. Kent's discussion about 20 Mr. Harvey coming out to Sequoyah and its relationship to 21 alleged retaliation against Mr. Fiser for filing a DOL 22 complaint.
23 MR. DAMBLY: Well, to the extent you'd like me to 24 address that, I'll be happy to.
25 We had Mr. Grover testify that Mr. McGrath
Page 3110 1 specifically blocked the transfer because he wanted to keep 2 Mr. Harvey in headquarters for the PWR position, which is 3 central to this case.
4 JUDGE YOUNG: Right, that is.
5 MR. DAMBLY: Mr. Kent was on the selection review 6 board and obviously, as the staff is concerned, had made up 7 his mind. He went to significant efforts to get Mr. Harvey 8 transferred out to that site because he wanted him there 9 just before the selection.
10 JUDGE YOUNG: But that would have helped Mr.
11 Fiser, would it not have?
12 MR. DAMBLY: Yeah. It shows his bias for Harvey's 13 favor. He's on the SRB. It also shows that corporate 14 wouldn't let that happen because they wanted Fiser out, they 15 wanted Harvey in headquarters. If Harvey went out, we 16 wouldn't even be here, if Harvey had been transferred to 17 Sequoyah. We've heard all kind of stories about he didn't 18 have a vacancy, he did have a vacancy. The story changes 19 constantly to fit whatever forum we're talking about now, as 20 to whether they could have just lateraled him out there.
21 There was a vacancy, he could have picked him up, that's 22 what he said, and it was blocked. And he wanted him.
23 JUDGE YOUNG: The difficulty I'm having, and this 24 is just to assist you in whatever way it may, is if Mr.
25 McGrath or someone at corporate wanted to block the
Page 3111 1 transfer, I could see that as being relevant, but the nature 2 of how the idea to transfer Harvey out there was initiated, 3 whether it came full blown from Mr. Kent or from Mr. Rich or 4 from Mr. Grover, it seems to be undisputed that Mr. Kent 5 made some effort to get Mr. Harvey out to Sequoyah, which 6 would obviously have helped Mr. Fiser, and however the 7 people at corporate may or may not have or whatever 8 intention they may or may not have had with regard to 9 blocking that, allegedly blocking that, I'm just finding it 10 difficult to make a connection between the nature of Mr.
11 Kent's effort and whether corporate may have blocked that or 12 not.
13 You know, you take it for what it's worth, but 14 you've spent an awful lot of time on that small issue, which 15 is somewhat peripheral to all the other central ones, in my 16 mind at this point. So I'm offering that so if we can 17 proceed a little bit more efficiently and quickly, I think 18 it would be good for all concerned.
19 MR. DAMBLY: I think we'll tie it up for you in 20 the post-hearing brief, but I think again, it's fairly 21 clear.
22 First of all, he sat on the SRB shortly after --
23 Mr. Cox, we heard from Mr. McGrath, was excused because he 24 expressed a preference for Mr. Fiser. This man tried to 25 bring out one of the people to the site, solicited him
Page 3112 1 coming to the site, was the initiator according to most of 2 his statements, said he had a vacancy, they blocked it; then 3 he sat on the panel and rated guess who, better than Mr.
4 Fiser.
5 JUDGE YOUNG: Would that have been for the purpose 6 of discriminating against Mr. Fiser?
7 MR. DAMBLY: Yeah, I think so. We've already 8 cited you plenty of case law that if there's pre-selection, 9 that's sufficient.
10 JUDGE YOUNG: But if he wanted Mr. Harvey --
11 MR. DAMBLY: If the whole process is skewed in one 12 direction, that can be pretext, yes.
13 JUDGE YOUNG: Okay. We probably don't need to get 14 too far into this, but the purpose for my offering my 15 individual comments to you is to see if we can move along 16 and talk about the SRB and talk about all the things where 17 you alleging the discrimination could have taken place. If 18 we're going to spend this much time on each step in the 19 process, we're going to be here a long time.
20 MR. DAMBLY: I think that's fairly obvious, we're 21 going to be here a long time anyway, but beyond that, it 22 also goes to his credibility and how many different stories 23 he's told and we'll hear from other witnesses who have told 24 us numerous different stories. I keep hearing from Mr.
25 Marquand about the staff changing its position. Mr. Kent
Page 3113 1 has already changed it at least once or twice and we'll get 2 to some more. And they're not consistent and they can't 3 reconciled by well, on a certain day I thought I did this 4 and later I thought I did something different. The story 5 changes to fit the forum and I'm entitled to show that.
6 MR. MARQUAND: Your Honors, counsel made a big 7 speech about all this and the fact of the matter is he has 8 been approached on this several times, people have asked him 9 off the top of his head years afterwards what was the 10 situation, did you have a vacancy or not; yeah, at some 11 point in time he had a vacancy. Could he fill it? He said 12 I don't know if I could fill it, I never asked my upper 13 management. I wasn't even willing to do that, I wasn't even 14 willing to go to upper management to try to fill it.
15 Now whether or not he made a big effort to try to 16 transfer Harvey out, which is a completely different 17 mechanism than having a vacancy and posting it and going 18 through a selection process -- whether he made an effort to 19 have him transferred, he said yeah, I asked Grover one time 20 could he see about transferring him. He came back and said 21 no, management says that's not the appropriate process to 22 follow, the appropriate process is if you've got a vacancy, 23 seek approval to fill it and post it.
24 You're right, this is a collateral issue. It 25 doesn't show any predisposition, it doesn't show that he is
I Page 3114 1 prevaricating about this. All it simply means is every time 2 [somebody has asked him about it off the top of his head, 3 nobody has been willing to sit down, as counsel hasn't, to 4 show him org charts and say what was the situation in your 5 lorganization in '95 or '96, did you or did you not have a 6 lvacancy which you sought to post. And nobody has gone back 7 and looked to see did you in fact fill any vacancies.
8 JUDGE BECHHOEFER: Mr. Marquand, I would disagree 9 myself with the off the top of his head analogy. These were 10 under oath, many of them, and that's not off the top of your 11 head, I hope.
12 MR. MARQUAND: Well, my point was nobody said 13 would you look at your documents, can you consult your 14 organizational charts, can you look at your postings, did 15 you post a vacancy, did you attempt to fill a vacancy. That 16 has never happened. Nobody has asked him to go back and 17 research any of these documents.
18 JUDGE BECHHOEFER: Not knowing all the history, I 19 can't tell you.
20 MR. MARQUAND: Well, I think it's pretty apparent 21 that that's the case. Nobody has asked him today if that's 22 the case.
23 JUDGE BECHHOEFER: Right.
24 MR. DAMBLY: Let me ask one question of Mr. Kent 25 before we take the break then.
Page 3115 1 JUDGE BECHHOEFER: Okay.
2 BY MR. DAMBLY:
3 Q Prior to the predecisional enforcement conference, 4 in preparing for the conference, did your counsel provide 5 you, did you look up your org charts and all the rest of 6 that and decide you didn't have a position?
7 A I can't recall. I don't remember if we did any 8 kind of review at that time or not.
9 MR. DAMBLY: Can we take a break?
10 JUDGE BECHHOEFER: Okay, let's break until 11:20.
11 (A short recess was taken.)
12 CHAIRMAN BECHHOEFER: Back on the record. Mr.
13 Dambly, Judge Young would ask -- like you to make an 14 explanation. Why don't you explain it.
15 JUDGE YOUNG: Well, let me -- let me say what I'd 16 like. If you could give us a concise summary of where 17 you're going with the questioning about the -- who -- how 18 the effort to bring Harvey to Sequoyah was initiated, and 19 whether or not there was a vacancy, if you could give me a 20 concise summary of where you're going with that, I think 21 that would be helpful.
22 MR. DAMBLY: Well, I'll be glad to do that, but 23 I'm about done with it. But where we're going, and I think 24 it's laid out in our response to the motion for summary 25 judgement.
Page 3116 1 JUDGE YOUNG: Well, just summarize it for us.
2 MR. DAMBLY: Mr. -- Mr. Harvey---and we'll get to 3 it with Mr. Voeller---told Mr. Voeller that he was being 4 preselected basically for the PWR position. Earlier, Mr.
5 Kent had, as it says in these statements, solicited 6 headquarters, corporate, to have Mr. Harvey come out. He 7 wanted his expertise, he needed him at the plant, he had a 8 vacancy. He told that to DOL, he told that to TVA IG, he 9 told that to NRC OI.
10 They get to the enforcement conference, and 11 suddenly they didn't have a vacancy because that doesn't fit 12 in anymore and there's a problem with it, as -- as is going 13 to be clear with Mr. Boyles and others on a lot of these 14 things. This story changes when people have come up and 15 said, "Well, that's not going to fly."
16 We also heard from Mr. McGrath that Mr. Cox 17 shouldn't sit on the board because he's expressed a 18 preference for Mr. Fiser, and in fact, he said there was 19 some conflict, and he shouldn't be allowed to sit because he 20 was biased. We've got a man who, shortly before, made 21 efforts, significant efforts to have Mr. Harvey and his 22 expertise kept and put in his vacant position, and that was 23 blocked by Mr. McGrath, who indicated to Mr. Grover he 24 blocked it because he wanted Harvey in headquarters, and he 25 wanted him in the PWR position.
I Page 3117 1 It all gets back to everything was set up to put 2 Harvey in and get Fiser out. And it goes to Mr. Kent's 3 credibility, as well, and to his bias in sitting on the 4 selection review board. He didn't want Mr. McArthur -- or 5 Dr. McArthur to participate because there might be some 6 question because of a DOL complaint. We'll get into -- Mr.
7 Kent obviously was involved in the earlier DOL complaint.
8 But also had, just before sitting on the board, tried to get 9 one of the people that he was reviewing transferred to him 10 and working for him.
11 And that goes to bias in the whole selection 12 process that Mr. Fiser talked about. It was a setup from 13 the beginning. And that's what it all deals with. And it 14 also deals with credibility and the constant changing 15 stories to fit whatever forum you're talking to, we change 16 our story so, you know -- it's inconvenient to have had a 17 vacancy, and it's more convenient not to have had a vacancy, 18 because then you could say you have to transfer the whole 19 budget from headquarters, and then you got into the whole 20 discussion by Mr. McGrath about you can't just transfer one 21 person from a corporate function, you'd have to transfer the 22 whole function.
23 Well, that's just, as far as I'm -- smoke and 24 mirrors. There was a vacancy, and they didn't have to 25 transfer budget or anything else. And he wanted him there.
Page 3118 1 And then he came out later this morning and said but --
2 yeah, I wanted him, I solicited, but I didn't want him 3 enough to actually put him in the job I said I had, because 4 some of my people didn't like him. That's -- that's what it 5 all has to do with.
6 And I'm, quite frankly, done with it. In large 7 part. I mean, I'm going to skip the stuff in the 8 deposition, and we'll just ask him if he wants to comment on 9 what was in the PEC. But I would remind the board that the 10 last time we were together everybody kept telling me if 11 there's inconsistent statements, please point them out. I'm 12 trying to point them out, and it's taking too much time. So 13 I won't point them out. We'll just put all this stuff, 14 which we were going to put in, in the record anyway. But if 15 he wants to comment on the PEC, having read it now, I 16 assume, I'll be glad to give him an opportunity.
17 JUDGE YOUNG: Well, let me just clarify one thing.
18 I don't know -- when you say everybody was telling you that 19 if there were inconsistent statements, to point them out. I 20 don't know to what you were referring, and if you're 21 referring to the board. But obviously any party has the 22 right to point out inconsistent statements.
23 My question to you was the relevance of the -- of 24 who - of how the effort to get Harvey out there was 25 initiated, and the relevance of the vacancy or not. And --
Page 3119 1 and I think that -- that your point of view on it is all 2 clear. And proceed. But don't feel -- don't feel hindered 3 in trying to point out inconsistent statements, if they're 4 relevant, and make whatever argument you want to make on why 5 they're relevant.
6 MR. MARQUAND: Counsel's made a little speech, and 7 I think I...
8 COURT REPORTER: Excuse me. Turn the microphone 9 on.
10 MR. MARQUAND: I would like to make a response to 11 that. About the effort to...
12 JUDGE YOUNG: Well, I'm not sure that you need to 13 make a very long...
14 MR. MARQUAND: It's not -- it won't be as long.
15 About the effort to get Sam Harvey transferred out to 16 Sequoyah. There's no question there was a -- that there was 17 an issue about can he be transferred out there. First of 18 all, counsel's conflating the issue or the mechanisms. Cne 19 is transfer; another is posting of a vacancy. Whether 20 there's a vacancy is irrelevant to the issue of transfer.
21 But, apart from that, you raised the question 22 about relevance of who initiated what with respect to the 23 issue of transfer. And as it's become very apparent, during 24 the '96 reorganization everybody was scurrying around trying 25 to find a job. And it's very clear that Mr. Harvey was
l Page 3120 1 concerned about a job, and Mr. Grover was concerned, for 2 whatever reason, about getting Sam transferred out to 3 Sequoyah. And that simply consistent (sic) with the fact 4 that everybody knew it was coming, and there was all sorts 5 of shell games going on, where do we put people to avoid 6 head count problems at corporate.
7 And as Mr. Kent explained, he was having his own 8 head count problems, they were going through their own 9 reorganizations, and whether or not he could get approval 10 from his management to fill what appeared to be an empty box 11 on the org chart, a vacancy, whether they would approve him 12 to fill a job and then -- which they knew they'd have to 13 turn around themselves and reduce in force in a 14 reorganization is another issue.
15 Aside from that, counsel made a representation to 16 you that Sam Harvey told Dave Voeller he was being 17 preselected. That is counsel's statement. Sam Harvey 18 didn't tell Dave Voeller that; Dave Voeller doesn't say 19 that. That is counsel's statement. That is clearly not the 20 case.
21 He also said that McGrath said Cox shouldn't sit 22 on the board because he was biased. That is not what 23 McGrath said. McGrath...
24 JUDGE YOUNG: Well,...
25 MR. MARQUAND: I mean, counsel's made a lot of...
I Page 3121 1 JUDGE YOUNG: ...you don't need to recount all the 2 -- I mean, we know...
3 MR. MARQUAND: I understand that.
4 tJUDGE YOUNG: ...not to take statements of counsel 5 as evidence, so...
6 MR. MARQUAND: And with respect to whether there's 7 changing stories or not, you know, the witness hasn't ever 8 been asked does he have an explanation, what was the story 9 here. He hasn't -- you know, I would assume that, as Mr.
10 Dambly says, he's ready to ask him that question. We may 11 hear an explanation or not.
12 JUDGE YOUNG: Okay, if that's all, proceed.
13 CHAIRMAN BECHHOEFER: And -- and, of course, you 14 may on cross...
15 MR. MARQUAND: I understand, Your Honor.
16 CHAIRMAN BECHHOEFER: ... ask him for an 17 explanation, as well.
18 BY MR. DAMBLY:
19 Q You've had a chance to review the predecision 20 enforcement conference transcript now; is that correct?
21 A Yes. Yes, I did look at a few pages of that 22 transcript.
23 Q Is -- is there anything you wanted to add after 24 reviewing that?
25 A Well, yes, if I could. On Page 110---and this is
Page 3122 1 a few pages further than what we've been talking about---I 2 did clarify, in the previous -- in the preenforcement 3 conference, that I had been confused about the issue of 4 whether or not there was a vacancy, and that I had gone back 5 and -- and looked at the actual head count during that time 6 linterval, and in fact there was not a vacancy on the books 7 at the time of this issue with Harvey. And I -- and I 8 admit, I -- and I said so in this document, it's on Page 110 9 and 111, that I had -- I had been confused about the 10 position and whether or not that vacancy existed on the 11 books at that time. So I had attempted to clarify that in 12 response to a question from Mr. Danby in this -- in the 13 preenforcement conference.
14 And as I mentioned earlier, I did have a couple of 15 foggy periods. And I'll explain a little bit what that was, 16 so, you know, you understand. Every -- every time I've been 17 interviewed, and I've been interviewed many times over the 18 period of '93, '94, to date, I have not gone back and 19 researched everything I've said in the past, and I don't 20 have -- I may not have the transcripts of all those 21 conversations, and in some cases I may choose not to 22 because, you know, it's confusing to go back and research 23 all those documents. Plus I have a full-time job doing 24 something else.
25 But I will -- I will say that in late '94 I know I
Page 3123 1 was going through a period of foggy recollection because of 2 health reasons. And in April of '94, April the 30th, '94, I 3 had a massive heart attack. I had had two heart attacks. I 4 had angioplasty in -- in early May of '94. And for a period 5 of months, six months to a year after that, you know, as I 6 get further away from that period, I could see that -- and 7 my staff have told me, you know, there's -- I would ask them 8 things, and I'd turn around and ask them the same thing 9 again.
10 Your priorities change, you know, when you're in a 11 situation of trauma like that. That same thing happened in 12 April of '98, on my four-year anniversary, as a matter of 13 fact, I had quadruple bypass surgery for a heart problem 14 again. So in -- in the period of -- of April, for a few 15 months after that, maybe six, and a period of '98 and '94, 16 there are some foggy periods there. And while I've not gone 17 back, and maybe I'm remiss in not going back and trying to 18 review ten, 12, 13 years worth of transcripts that may or 19 may not be available, when I was interviewed by the DOL, you 20 know, I didn't -- didn't understand that he was going to ask 21 me about an organization I would have had sometime in the 22 past, so I didn't have an opportunity to go review that 23 beforehand.
24 Same thing with the IG. You know, I wouldn't have 25 known that -- to prepare and to review that information. So
Page 3124 1 I -- I did not make comments and I do not make comments off 2 the top of my head in response to questions from anyone in a 3 proceeding like this. But I have done my best over the 4 years, to the best of my recollection, to state the facts as 5 I saw them and as I know them. But clearly in -- in this 6 preenforcement conference I did correct that I had reviewed 7 the org structure and the org charts at the time, and in 8 fact I had -- I was confused and there was not a vacancy on 9 the books at that time.
10 Q All right. Now, since you just said that, if you 11 would go to Staff Exhibit 74, which is your deposition.
12 A Yes, I have it.
13 Q And this was after the enforcement conference; 14 correct?
15 A This was my interview with you in November of last 16 year. Yes, this was after.
17 Q Okay. We'll just skip to the -- to the end on 18 Page 196.
19 A 196?
20 Q 196. Well, actually, if you want to take a second 21 to look at 1 -- let's see, 193 through the end, through to 22 the -- in order to put in context. What I'm interested is 23 at the bottom of 196 it says, "If asked did I have a vacancy 24 at Sequoyah, I obviously answered yes, I have a vacancy, and 25 that is a position that he possibly could have filled. I
Page 3125 1 made no effort to put in in that vacancy, and had no intent 2 to put him in the vacancy, and I think IG notes there, I 3 think, are consistent with that. Because if you read it, it 4 says I had a position I could have put him in, that is true.
5 I had a position I could have put him in, if I'd been 6 willing to do whatever it took to make that happen. I did 7 not attempt to do that at all." And it goes on. If you 8 want to read whatever context before that.
9 A Is this the IG from -- what time period that we're 10 talking about here, do you know?
121 Q Well, the same one we've talked about. I think 12 this would had to have been the '96 IG interview.
13 A Okay.
14 Q You -- you wouldn't have been talking in the '93 15 or '94 context because it didn't happen.
16 (The witness reviews certain material.)
17 A Is this the IG report that we had a transcript of 18 earlier that we were looking at, do you know?
19 Q I assume it is.
20 A Because all of them we didn't have transcripts 21 for; right?
22 Q Right. And we didn't have a transcript of it at 23 that time, as a matter of fact.
24 A Do we have it now? I mean, you know, for me to 25 understand what I was responding to here...
Page 3126 1 Q It should be 71.
2 A 71?
3 Q I believe that's the number. It's Staff Exhibit 4 71.
5 A Okay, in looking at this, these statements in the 6 Exhibit #71, when I was being interviewed by Agent 7 Vanbrocken, and this is in -- this is in '96, and I don't 8 remember exactly the date of when we ultimately put I 9 believe Mr. Ritchie in this position, in the position of.the 10 program manager, technical support group manager, whatever 11 we would have called it at that time, that happened, I 12 believe, in '96. But apparently at this time, when I was 13 talking to Mr. Vanbrocken, that was in August of '96, we had 14 not made that -- that change at that time.
15 And I said to Mr. Vanbrocken, I talked to him and 16 he asked me about the conversation regarding Mr. Harvey.
17 And, you know, I -- what I expressed to him was that Mr.
18 Harvey was in corporate, he was providing support to our 19 site, you know, we thought he was doing a good job. He had 20 expertise that we didn't want to see gone from the company, 21 so I made an effort to pick him up permanently at Sequoyah.
22 That's -- I've already said we did that.
23 And at this time I also made a statement that we 24 needed and we still need some extra management support in 25 our group, and I think that's because we really needed a
Page 3127 1 person over technical at that time, and a person over the 2 operational piece of the organization. And we had a 3 tremendous amount of -- this was a lot of change going on, 4 the five-year chemistry upgrade program that -- that we had 5 implemented was -- was being implemented. My other key 6 resource management person was heavily involved in special 7 projects at that time, so I probably did need support there.
8 And I said I had a slot that I was looking at putting him 9 in, that we hadn't filled. And that was the one from Mr.
10 Fender who had left and gone back to CP&L.
11 I also said -- I told -- told Mr. Vanbrocken that 12 after Mr. Fender had left---and I discussed that position 13 with Mr. Vanbrocken---that the position had been vacant and 14 not refilled for some time because there's a lot of pressure 15 to go to a standard organization with the other sites. The 16 other sites did not have that position filled in their 17 organizations. And then I explained it was really kind of 18 complicated. There was a lot of transition taking place.
19 But to explain a little bit about the standard org, the rad 20 chem across the company we were trying to standardize, and 21 we had been working for two or three years to implement a 22 standard organization, because our upper management--- and 23 I'm talking really upper management---in the company wanted 24 to go to standard org structures across the site -- all 25 three sites. We were working toward that.
Page 3128 1 We had had a position that Mr. Fender had occupied 2 that was a position in the org structure as approved by Mr.
3 !Bynum in early '93.
4 JUDGE YOUNG: Now, who -- Mr. Fender, did you say?
5 THE WITNESS: Bruce Fender; yes. Mr. Fender. He 6 was hired in '93.
7 JUDGE YOUNG: Oh, he's who you referred to?
8 THE WITNESS: Right. He's the person I referred 9 to as leaving to go to CP&L. He had -- he had come from 10 CP&L, and his family decided they really wanted to move back 11 to North Carolina, so he relocated back to North Carolina.
12 JUDGE YOUNG: Right.
13 BY THE WITNESS:
14 A But Mr. Bynum, in '93, the organization he 15 approved, had three direct reports in the chemistry area.
16 One of those was over technical functions; one was over 17 operational functions; and I forget what the other one was, 18 but I believe there were three. It's in the record. The 19 org chart's in the record.
20 The other two sites did not fully implement that 21 organization. They partially implemented it, but they did 22 not fully implement the organization. In the time period of 23 '95 and '96 there were a lot of reviews going on within the 24 company of organizations across the company to look at 25 standardization, to look at how it can be more efficient, to
Page 3129 1 look at reduction of levels of management. I mean, all that 2 stuff was -- was continuing to go on. And in this time 3 period, when I talked to Mr. Vanbrocken, I had not filled --
4 I hadn't posted the Bruce Fender position or hadn't --
5 hadn't filled it, up until August -- at least August of '96, 6 because of that ongoing organizational review and 7 transition. And I believe -- and I -- as I stated in the 8 preenforcement conference, when I actually went back and 9 looked at what we had on the books in the org manual for the 10 -- for my organization at the time, that position wasn't 11 there. I did not have it there. Now, I had had it before.
12 It was in the April organization structure that Bynum had 13 signed, and I had it also showing up in the organizational 14 plan that had been approved by Mr. Zeringue in probably late 15 '96 for us -- the one we finally agreed to, this is the way 16 we're going as a team. But I actually did not have a 17 vacancy on the books at -- at the time we were having this 18 discussion.
19 CHAIRMAN BECHHOEFER: Just a clarification. Mr.
20 Kent, does the term on Page 197, Line 13, "directed 21 transfer," is that -- does that equate with the description 22 on the previous page, Line 21, 2, 3, a directed transfer?
23 Does that always include the function and the budget, or 24 does it -- can a directed transfer just be you -- you show 25 up for work and -- at the site, individually, and the
Page 3130 1 site'll assume the dollar cost, et cetera? I'm trying to 2 know what your -- what the words mean.
3 THE WITNESS: To me. I'll tell you what they mean 4 to me.
5 CHAIRMAN BECHHOEFER: Well, yeah, it's your 6 statement, so...
7 THE WITNESS: Functionally, I'll tell you what 8 they mean to me. You know, not being an HR expert, I don't 9 try to talk in HR legalese. It was my understanding that 10 when we were talking about the transfer of Mr. Harvey to the 11 site, we were talking about transfer of head count, budget, 12 everything.
13 CHAIRMAN BECHHOEFER: I see.
14 THE WITNESS: The whole -- the whole ball of wax.
15 Function, head count, budget. Primarily because I didn't 16 want to go have to defend to my management why we wanted to 17 add that much budget impact to the site.
18 Now, if corporate had the function and corporate 19 was willing to give up the function, which was the support 20 to Sequoyah, and transfer it to me, then certainly we were 21 willing to accept that.
22 CHAIRMAN BECHHOEFER: But would the person then be 23 acting as a corporate employee or as a site employee?
24 THE WITNESS: Well, we would have had -- he would 25 have been acting...
Page 3131 1 CHAIRMAN BECHHOEFER: How does that work?
2 THE WITNESS: ...as a site employee. We would 3 have had to worked out, you know, I'm sure, some kind of 4 agreement as to what his function would actually be once he 5 got to the site, because he was still doing things that 6 supported all three sites. You know, in the context of --
7 of technical support for Sequoyah, he was doing that. But 8 I'm sure during that time period, if we were negotiating a 9 contract---and -- and Mr. Harvey did a lot of that, they.
10 were company-wide contracts---he would have been also in 11 that sense providing support to the three sites. So, you 12 know, there would have been a hybrid function, I think, for 13 that position, had it come to Sequoyah.
14 CHAIRMAN BECHHOEFER: I see. Thank you.
15 BY MR. DAMBLY:
16 Q Now, Mr. Kent, the question I asked you, and I --
17 you just testified a moment ago that before the PEC you went 18 back and you looked and you found you didn't have a 19 position, and that's why you told us during the enforcement 20 conference you didn't have one.
21 Now, on Page 197, when I was taking your 22 deposition, it says, in the middle on -- or starting on Line 23 7, "Because if you read it, it says I had a position I could 24 have put him in. That is true." Now, this was a statement 25 taken after the enforcement conference. Now, what did you
Page 3132 1 review between the enforcement conference and your 2 deposition that changed your mind that you did have a 3 position?
4 A Well, in this case I was responding to -- I 5 believe I was responding to you and your questions about 6 what I had told Mr. Vanbrocken, and I was trying to talk in 7 context of the time that I had spoken with Mr. Vanbrocken.
8 I believe that's correct. And when I -- when I reviewed the 9 statement I gave Mr. Vanbrocken, I talked to him about that 10 position. And so, you know, I...
11 Q And that position was Mr. Fender's position?
12 A It would have been an equivalent one to -- to the 13 one Mr. Fender would have had; yes.
14 Q And it was vacant at the time of your discussions 15 with Mr. Harvey, and it's still on your organization chart 16 and somebody occupies it today; correct?
17 A It was -- there was no position. Actually, I 18 believe there was no position on my org chart at the time I 19 was talking to Mr. Harvey. If you look -- if you go back 20 and research---and I did when we went to the PEC---go back 21 and research to see what we actually had on the books, and 22 at that time I did not have a vacant position. I don't even 23 know that I was aware that that organization chart was in 24 the book. I mean, I'm -- I'm working from what was approved 25 by Bynum, what we were going to long-term. There was an
Page 3133 1 interim org chart. We were not satisfied with it. No one 2 in rad chem at any of the three sites were satisfied with 3 it. We had tacit approval from our senior management not to 4 implement it because we were working to transition to this 5 long-term permanent thing. And, you know, I don't -- I 6 don't know what I was thinking at that time. I -- I'm -- I 7 believe I was looking more at the long-term, whether or not 8 the position would be there, not what was actually on the 9 books at the time. And I -- I tried to explain that in the 10 PEC.
11 Q Again, Page 197 of your deposition,...
12 A Yes, this is to you.
13 Q ... Line 7, if you read it, it says, "I had a 14 position that I could have put him in. That is true." What 15 did you mean by "that's true"?
16 A Well, I'm responding to a question you asked me 17 about you told the IG you had a -- that you wanted Harvey 18 and you were concerned about it and you had a vacant 19 position that he could have filled, and you go on to explain 20 why you didn't, why it didn't come about. I was responding 21 to that question.
22 Q You respond -- well, when you said, "That is 23 true," are you saying that you didn't mean to indicate that 24 you had a position -- the statement that you had a position 25 you could have put him in was true?
Page 3134 1 A At the time that I was being deposed by you?
2 Q Yeah.
3 A We were discussing this. I believed at the time I 4 Italked with the IG that I had a position that I could have 5 put him in. And that's what I said. And that's how I 6 responded to you. In that context.
7 I mean, I'm -- I'm not trying to play a shell game 8 with positions. There are periods in all organizations 9 where you go through a lot of flux. And over the -- since 10 '96 time period, you know, seven years -- six, seven years 11 or so, I don't know how many times I've been interviewed 12 about this. But I did not, in any case, prior to the 13 interview, go back and look at the org chart that I had 14 available to me in 1994. The one that was on the books.
15 The only time I did that was prior to the PEC. I did not go 16 back and look at my statement that I made to the PEC before 17 Mr. Danby deposed me.
18 So there are periods of time in that six-year 19 intervals where obviously, you know, if you asked me a 20 question a certain way, I responded the best I could to the 21 question that I was asked. I didn't -- I didn't go back and 22 try to review all that material. Had I done that before Mr.
23 Danby deposed me, I would have probably at this point 24 explained, as I did in the PEC conference, that I had been 25 mistaken when I talked with the IG, and that I actually did
Page 3135 1 not have a position.
2 Now, that doesn't mean -- just because I didn't 3 have a position on the books doesn't mean I couldn't have 4 gone to my management and asked for a special dispensation 5 anyway to bring Mr. Harvey out there. But I chose not to do 6 that. Not because anybody told me not to do it, not because 7 anybody asked me not to do it. I chose not to do it because 8 -- simply because the response I got from Mr. McGrath was he 9 didn't think it was the appropriate thing just to transfer 10 him to Sequoyah, and his function. We were undergoing a lot 11 of organizational change at the site, anyway, and I didn't 12 think it was appropriate to do -- an appropriate thing to 13 do, to go try to run the gauntlet with my management to get 14 approval to add a position to my organization. And I -- I 15 will confess, and -- and did in the PEC, I have been 16 confused about the issue of exactly when and when I didn't 17 have a position on the org chart over the years.
18 Q And after the PEC?
19 A Even -- and after the PEC, obviously. Possibly.
20 Q I mean, you -- you didn't say in response, "Well, 21 I thought at the time I talked to the IG person I had a 22 vacancy. That's not true." You said, "That's true, I had a 23 position I could have put him in." You didn't qualify that 24 with that's what you thought back then; that's what you told 25 me. That you had a position you could have put him in. And
Page 3136 1 that's subsequent to the PEC; is that not true?
2 A Yes, it is subsequent to the PEC. And if I 3 remember this conversation, you were pressing me really hard 4 on this issue, as you have today, and obviously I made that 5 statement that you're -- this is a transcript. I believe it 6 to be accurate. Exactly how I was -- what I was responding 7 to at this particular time, I don't know. But, Mr. Danby, 8 if you look at the PEC, all of us are subject to make 9 mistakes. You also made a mistake on Page 110 of the PEC, 10 when you said it was Mr. Fiser we were trying to put in the 11 position instead of Mr. Harvey. And had Mr. Boyles from TVA 12 not corrected you on that, that would have been in the 13 record, sir. It would have been in the record, and it would 14 have been wrong. But Mr. Boyles from TVA corrected that 15 statement, and therefore you benefit from that. I didn't 16 have anybody coaching me on nine years worth of statements.
17 Q Oh, really? You never talked to Mr. Marquand at 18 all the various statements he represented you in?
19 A I have talked to Mr. Marquand from time to time.
20 Q And you didn't prepare for the PEC before you went 21 into it?
22 A I obviously did prepare at least one element of 23 the PEC. I looked back at my organization. I didn't 24 prepare for this interview to any significant degree. I 25 mean...
Page 3137 1 Q Did anybody tell you you were not allowed to 2 prepare yourself?
3 A No.
4 JUDGE YOUNG: Let me see if I can just clarify for 5 my own understanding. You were willing at one point to take 6 Mr. Harvey out at Sequoyah. Then, through whatever 7 channels, you heard that Mr. McGrath did not think that 8 would be appropriate. You thought that -- you understood 9 that if you were going to do that, you would have to go 10 through posting a position and allowing competition for it 11 and so forth. And you decided not to do that as a result of 12 what you heard Mr. McGrath had directed; correct?
13 THE WITNESS: That is -- that is, for the most 14 part, correct. Mr. -- I -- I did approach Mr. Harvey's 15 supervision and discuss with them the possibility of moving 16 Sam to the site.
17 JUDGE YOUNG: Right. You were willing to do that 18 at one point?
19 THE WITNESS: I was willing to do that.
20 JUDGE YOUNG: And then -- and then you heard that 21 Mr. McGrath had said you could not do it in the way you were 22 thinking about doing it?
23 THE WITNESS: That's correct.
24 JUDGE YOUNG: And you decided not to do it in the 25 only way you understood that you could have done it?
Page 3138 1 THE WITNESS: Well, the only way Mr. McGrath would 2 have wanted me to do it or would have -- he was not willing 3 to transfer the function and the head count, you know, and 4 i the budget, and I understand -- I understand that now. I 5 mean, Mr. -- that's been discussed that that would have 6 really been inappropriate. So I understand that. And I 7 understand Mr. McGrath's position, because I think he -- he 8 counseled with HR.
9 JUDGE YOUNG: But -- but not getting into his 10 position, your testimony is that the reason you didn't 11 transfer him was because you heard, through whatever 12 channels, that Mr. McGrath said you could not do it that 13 way, and you chose not to do it the only way you understood 14 you would be permitted to do it?
15 THE WITNESS: Which was posting a vacancy.
16 JUDGE YOUNG: Right.
17 THE WITNESS: That is correct.
18 JUDGE YOUNG: Okay.
19 THE WITNESS: I chose personally and solely, 20 without input from anybody else, not to pursue it any 21 further, because I didn't want to go through the process of 22 requesting permission to post a vacancy. And there was no 23 one that coached me on that, there was no one that said, 24 "Don't do this," you know, "You don't really want to do 25 this." I got -- I simply got back in one conversation from
Page 3139 1 Mr. Grover a comment from Mr. McGrath that said he didn't 2 think that was the appropriate way for you -- for us to move 3 a person from corporate to the site. If you really want 4 Harvey, you should post a vacancy. And I didn't want him 5 that bad.
6 JUDGE YOUNG: Okay.
7 THE WITNESS: I didn't want him enough to post a 8 vacancy.
9 CHAIRMAN BECHHOEFER: Mr. Kent, is there any 10 procedure within TVA where you could designate a particular 11 person as having certain unique competence and have -- in 12 waiving the -- the advertising procedures or publication 13 procedures, saying Mr. Harvey has unique competence in this 14 area, unique professional expertise and we need this person, 15 and advertising is not practicable?
16 THE WITNESS: Well, I'm -- like I said, I'm not an 17 expert on those -- on those -- I've not done that, and so I 18 really would not be familiar with whether that's possible or 19 not. You know, that -- that would be, I guess -- if I had a 20 desire to do something like that, I would approach our HR 21 organization and -- and get them to advise me on the proper 22 process. Whether or not there is a possibility to do that 23 or not, I wouldn't be familiar.
24 CHAIRMAN BECHHOEFER: I see. Thank you.
25 MR. DAMBLY: Would this be an appropriate time to
Page 3140 1 break for lunch?
2 CHAIRMAN BECHHOEFER: Is it a good breaking point?
3 MR. DAMBLY: Yeah. I'm going to go to the 4 selection review board at this point.
5 CHAIRMAN BECHHOEFER: Oh, okay. Okay, why 6 don't...
7 JUDGE COLE: Why don't we start at 1:15.
8 CHAIRMAN BECHHOEFER: 1:15 sounds good.
9 MR. DAMBLY: Thank you.
10 (Whereupon, a luncheon recess was taken at 11 12:06 p.m., the hearing to resume at 1:15 p.m.,
12 the same day.)
13 14 15 16 17 18 19 20 21 22 23 24 25
Page 3141 1 AFTERNOON SESSION 2 CHAIRMAN BECHHOEFER: Back on the record.
3 I BY MR. DAMBLY:
4 Q Mr. Kent, are you familiar with the selection 5 review board policy at TVA?
6 A I'm familiar with it functionally. I have served 7 on the selection review board.
8 Q Okay. And functionally what do you understand how 9 it's supposed to work?
10 A Well, I understand that in the selection review 11 board process, the selecting manager, responsible supervisor 12 for the position, would look throughout the organization and 13 select people to be on the selection review board that would 14 have technical or managerial ability to evaluate candidates 15 and that they would basically outline the way the interviews 16 were supposed to go, develop a protocol for questioning and 17 that kind of thing, and then the selection review board 18 would go through the process of interviewing the candidates 19 and make a recommendation to the selecting manager.
20 Q Now many SRBs have you served on?
21 A I really don't know, I can't recall. More than 22 one, maybe more than 10, I don't know.
23 Q More than five?
24 A I really don't know. I have made myself available 25 as needed over the 24 years or so I've been with the company
Page 3142 1 and I really don't have any idea how many there could have 2 0been. Less than 20 or 30.
3 Q You're not unfamiliar with the process?
4 A No.
5 Q And you've also been a selecting official?
6 A Yes, I have.
7 Q And what would your function in a posted vacancy 8 be as a selecting official?
9 A Well, in a position that had an SRB? Or in 10 general?
11 Q A selecting official where you had a posted job 12 and have an SRB.
13 A Okay, and have an SRB. Well, as a selecting 14 official, I would be responsible for, of course, looking at 15 the needs of the group, defining the needs of the position, 16 having the vacancy announcement posted that described the 17 needs and requirements of the position. This is of course 18 all working through our HR organization. And then selecting 19 the members, contacting the members that I wanted on the 20 SRB, based on their ability to contribute and availability.
21 Notifying -- I think HR would probably notify the candidates 22 of the meeting of the SRB. As selecting manager, I would 23 probably design the questions that I wanted the SRB to ask 24 the candidates and then be involved in the SRB process.
25 Then after that, as a selecting supervisor, I
Page 3143 1 would be responsible for taking input from the SRB along 2 with other inputs, you know, such as performance reviews 3 from the individual, complete work history type information, 4 1 and making a decision and then going to HR with my 5 recommendation on which candidate we propose to select, and 6 why. And then that would be evaluated by HR. We would come 7 to agreement and they would proceed with making an offer.
8 Q Did you understand that as a selecting official, 9 you were supposed to or required to take whatever the SRB 10 gave you or were you supposed to do something beyond that?
11 A As selecting official, I think the SRB is an input 12 to the selection process, it is not the selection process.
13 I believe it to be responsible manager's role to take that 14 as an input and evaluate it, but not -- that wasn't the 15 process as a whole. The SRB did not have the final say on 16 who got what position or anything else.
17 Q When you prepare the selecting official questions 18 for a SRB to ask, what do you look at to determine what 19 questions you want asked?
20 A I would look at the nature of the position and 21 what we desired to have in terms of knowledge, managerial 22 skills, ability to communicate, a number of factors. And we 23 would design questions that would basically give us an 24 opportunity to evaluate all the candidates on those 25 attributes.
Page 3144 1 Q Can an SRB member add a question to the list 2 provided them by the selecting official?
3 A Yes, I think so. I mean I don't believe the list 4 of questions is that rigid, you know, and I've been involved 5 in SRBs where the members would review the questions and 6 make a suggestion, you know, that we edit the wording of a 7 question to make it more clear for the candidates that you 8 were going to interview, things like that. So I believe you 9 could do that.
10 Q As an SRB member, how do you rate the candidates 11 in response to a question?
12 A Well, I think from my past experience, we would 13 look at -- it depends on the question, you know. If it's a 14 technical question of course, you're rating the candidate on 15 his technical knowledge and there may be technical questions 16 that are intended to determine if a candidate knows some 17 fact or process or really understands something and you 18 know, that could be pretty involved. You would try to rate 19 the candidate on his technical knowledge of that particular 20 issue. And you sort of develop your own scale of what, you 21 know, is a good answer and what is not a good answer. Part 22 of the rating process would I think have -- for a management 23 position in particular, would look at and I would consider 24 the person's ability to communicate ideas and concepts.
25 That's critical to management positions.
Page 3145 1 Q Would the chemistry program manager position that 2 Mr. Fiser and Mr. Harvey and Mr. Chandra -- the PWR position 3 -- applied on be considered a management position?
4 A Yes, it was.
5 Q It was?
6 A Yes.
7 Q So you use management not just over people, but 8 over programs?
9 A Right, technical areas, and the roles that those 10 positions were designed to have, they would be interfacing 11 with all the sites, you know, on a number of issues and it 12 would be very important that in that position, they would 13 communicate to the sites what they felt was the best 14 practice, what they'd observed from their interface with 15 industry groups and that kind of thing and solicit 16 cooperation and change at the sites in effecting, you know, 17 needed improvements to the program.
18 Q And interpersonal skills would be important in 19 that position?
20 A Yes.
21 Q Now in terms of just numerically, how do you score 22 a candidate? Do you use a 1 to 10 scale?
23 A Typically, yeah, I would say we try to do it on a 24 10 to 10 scale.
25 Q Is there any meeting of board members beforehand
I Page 3146 1 or the board members and the manager to develop criteria for 2 what's a 2, what's a 5, what's a 7, what's a 10 answer to a 3 question?
4 A I don't think that's required. There may be, 5 there may not be. I think it depends upon the selecting 6 manager and how much, you know, how much input he may want 7 1 to have to the board. On the positions you're talking about 8 in particular, there was no meeting beforehand to discuss, 9 you know, scale and what was good, what wasn't good, that 10 kind of thing.
11 Q So each SRB member for the position we're talking 12 about, the chemistry program manager PWR position, both 13 yourself and Mr. Corey and Mr. Rogers -- that's the SRB 14 members, correct?
15 A Uh-huh.
16 Q You were free to each have -- one person could say 17 we asked question X and the person answered the question we 18 asked and that's a 7, he gave me the right answer because I 19 wanted him to go beyond that. The next person could say he 20 went beyond that and I only wanted him to answer what he was 21 asked and so I'm going to give him a lower score. Y'all 22 could have had totally inconsistent rating criteria.
23 A That's true. Like I said, there was no discussion 24 up front on what a good answer would be, what would be an 25 unacceptable response. So there could have been a large
Page 3147 1 discrepancy in the grading for responses to individual 2 questions, I mean that's possible.
3 Q And when you ask questions to individuals, if you 4 wanted more or a broader response than you got or would have 5 given a higher grade is somebody had gone beyond the 6 question, did you ask follow up questions like what would 7 you do about that problem, instead of just tell me what the 8 problem is?
9 A Yes, the SRB members, you know, generally and in 10 I this particular case, it was decided up front who on the SRB 11 l would ask specific questions, and we had the latitude, any 12 1 of us really, if we thought the question wasn't understood 13 or the individual maybe had more knowledge than they 14 communicated, a follow up could have been asked by. anybody 15 to elicit that.
16 Q Do you recall that being done on this particular 17 SRB?
18 A I mean I would assume so, it's sort of a natural 19 thing. I would be surprised if there weren't follow up 20 questions.
21 Q And the reason I'm asking, yesterday Mr. Corey 22 told us I think in response to a question what is denting 23 that he wanted individuals to discuss not just want is 24 denting but how you would take care of the problem, solve it 25 or prevent it or whatever.
Page 3148 1 If an individual answered the question what is 2 denting with an explanation that was correct as to what 3 1 denting is, but didn't go any farther, would you or did you 4 or Mr. Corey or somebody else say well, what would you do 5 about it or how would you fix it or prevent it?
6 A That's possible. I don't recall in this 7 particular case, you know, how far we pursued any candidate 8 lon that particular question. I just don't recall the 9 details of the interview that well.
10 Q Is it possible -- I'm sorry, permissible or 11 acceptable for an SRB member to take into account their 12 personal knowledge of a candidate during a board meeting, 13 during the interview process? If an individual gives you an 14 answer that you know they know more information --
15 A Well, I think you'd have to be careful about that 16 because you would need to make sure that you're being fair 17 with all the candidates and if you -- for instance, on a 18 given question, if you feel like it takes a follow up 19 question to get the full information from an individual, I 20 would think you would want to try to do that with all the 21 individuals, so that you're basically giving them all of 22 them the same opportunity.
23 Q And if somebody -- you ask a question, tell me 24 three projects that you've worked on, I think was one of the 25 questions. And you knew that-the individual, shall we say,
Page 3149 1 puffed and misrepresented his involvement in a given 2 process, said I was the team leader and he was really a 3 iminor player -- can you share that with the rest of the 4 board or would you share that with the rest of the board or 5 would you accept their answer at face value?
6 A Well, just from a personal perspective, I think if 7 I ask a question about something that an individual -- ask 8 them to state something that they had done and outline a 9 project that they were responsible for and that they had a 10 key role in, and if that was a question, regardless of who 11 asked it, and the individual made a statement that I knew 12 was in error, I cannot believe that I would not factor that 13 into my rating of that individual, but I don't believe it 14 would be appropriate for me to express that to everybody 15 else on the board. I probably wouldn't do that.
16 CHAIRMAN BECHHOEFER: Would you cross examine the 17 individual after he gave an answer, he or she gave an answer 18 that you knew was incorrect or not completely correct?
19 THE WITNESS: Well, in the example we're 20 discussing here where somebody grossly inflated their role.
21 If it was a minor misstatement of what their involvement 22 would have been, I think you'd just blow it off as everybody 23 feels like they're more important than they generally are, 24 and that kind of thing you would put aside. But if it was 25 really a gross overstatement, then you might. If you
I Page 3150 1 thought they were communicating something that was so 2 grossly in error to the whole board, then yeah, I might 3 follow up with a question to probe a little bit further to 4 get them to either rescope their involvement or show the 5 limit of their knowledge to a certain -- to the subject. I 6 think that would be fair.
7 Q And if they didn't rescope their knowledge and 8 continued to represent that they were a lot more important 9 or had a much more key role than they did, you wouldn't 10 share that with the other people, but you'd take that into 11 account in your rating?
12 A Well, we're speculating, of course, but I would 13 say probably I would -- I mean, I don't know how I could 14 avoid maybe taking that into account. If we've asked a 15 specific question and we've gotten a grossly erroneous 16 answer from a person, I would think it would be very hard 17 for me as an individual to totally disregard all that 18 information and give the person a high rating when I knew 19 they didn't deserve it. I don't think -- and we did not in 20 this SRB or in any other SRB that I can recall -- ask a 21 question and then at any time either during the interview 22 process or after, share with the other board members any 23 information that would influence them to change their grade 24 on a given question.
25 Q And conversely, if you asked say a technical
Page 3151 1 question and the individual failed open, as was discussed 2 yesterday, but you knew -- you had worked with that person, 3 you'd worked with him on a project on a specific topic and 4 you knew they were really sharp and knew it, they just had a 5 lbad day; would you take that into account as well in your 6 rating?
7 A Well, I think you would definitely factor in the 8 fact that they failed open. I mean for most management 9 positions, part of responsibility of the position and one of 10 the key elements of being in a supervisory or management 11 l position is the be able to communicate. And if you can't 12 communicate your thoughts and ideas, then you can't be very 13 effective in any role. And so I would think that would be 14 factored into my rating of the individual.
15 I suspect the individual would be rated down 16 because they failed open.
17 Q When did you first get notified you were going to 18 be on this SRB?
19 A I don't really recall the exact date that I was 20 notified, but I believe it to have been approximately maybe 21 four weeks before the SRB. We have peer team meetings 22 approximately once a month and I believe that at the 23 previous peer team meeting, it was discussed that they were 24 going to have an SRB and would we be willing to serve on it, 25 and my recollection is that we talked about it briefly and
i Page 3152 1 1 agreed that it would be on the day of our next peer team 2 meeting, so all of us could be together at the same time.
3 So I think it was probably about four weeks.
4 Q And when you say peer team, you're speaking of the 5 lrad chem managers at the sites?
6 A Yes, the three rad chem managers at the sites.
7 Q You and Mr. Cox and Mr. Corey?
8 1 A Yes, that's correct.
9 Q And was that your understanding that originally 10 was going to be the SRB, was the three of you?
11 A I really don't know that I ever really knew who 12 all would make up the SRB, I only understood that the three 13 of us were requested to be a part of that. It could have 14 been, you know, five people, it could have been seven 15 people, it's whatever the selecting supervisor wanted, but I 16 I thought at least we were going to be a part of that.
17 Q When did you learn Mr. Cox would not be part of 18 that?
19 A I believe it was the morning of the SRB in our 20 peer team meeting or just following our peer team meeting, I 21 I think he informed us -- myself, Mr. Corey, and you know, Mr.
22 McArthur was there -- that he would not be able to stay, 23 that he had a commitment in the afternoon and he wouldn't be 24 able to stay. That was the first.
25 Q Did he say anything else about any of the
Page 3153 1 candidates?
2 A He made a comment about one of the candidates, 3 about Mr. Fiser, he said for what it's worth, you know, Mr.
4 Fiser has done a good job at Watts Bar, and you know, he 5 just wanted to provide that to us for what it's worth.
6 Q Did he tell you he had preselected Mr. Fiser for 7 the position?
8 A No. He did not communicate to us in any way that 9 he was predisposed toward Mr. Fiser. He was not the 10 selecting person, so he couldn't have preselected him 11 anyway, it would have been Mr. McArthur's responsibility.
12 Q Okay, did he indicate that he would have rated Mr.
13 Fiser first for the PWR position because that's who he 14 wanted to put in that position?
15 A No, he did not.
16 Q He just made a statement, "Gary's done a fine job 17 for us."
18 A Yes.
19 Q For what it's worth.
20 A For what it's worth. And that's just the way we 21 took it, for what it's worth.
22 Q Basically in the SRB process, it was worth 23 nothing.
24 A It was worth nothing, that's true.
25 Q Now following the peer team meeting, but before
Page 3154 1 the SRB commenced, did you make any statements about Mr.
2 Fiser's DOL complaints or activity in any way?
3 A Yes, I did.
4 Q What did you do or say?
5 A Well, the setting was like this, we were -- Mr.
6 Corey, Mr. Cox and myself, Mr. McArthur -- were standing in 7 the hallway and we were chatting. Jack Cox had informed us 8 that he was not going to be able to participate and we were 9 jus chatting. We had been in the meeting all morning, so we 10 were just chatting. And I addressed to Wilson McArthur an 11 issue, and it just occurred to me while we were standing 12 there, knowing that we were going to be on the SRB, I 13 addressed a comment to Mr. McArthur that since there was 14 this issue, the DOL issue that Fiser had raised, that I 15 thought it would be best if he did not actively participate 16 in the SRB.
17 Q Okay, and what did you understand and when you 18 said this DOL activity or complaint or issue, what issue 19 were you talking about?
20 A Mr. Fiser had informed me, you know, prior to this 21 meeting, just he made a comment to me that he had filed a 22 complaint because Mr. McArthur had posted what Fiser called 23 was his job. And that was the complaint that had been 24 filed, and I thought it would be best for the process and 25 really only looking at the integrity of the process of the
Page 3155 1 SRB, if there was a complaint against posting the job, which 2 McArthur obviously had to be a part of that decision, that 3 he not actively participate in the SRB for these positions.
4 CHAIRMAN BECHHOEFER: So this was the 1996 DOL 5 complaint?
6 THE WITNESS: Yes.
7 CHAIRMAN BECHHOEFER: Thank you.
8 JUDGE YOUNG: How was it that Mr. Fiser came to 9 tell you about that and what were the circumstances?
10 THE WITNESS: He informed me that he had filed a 11 complaint.
12 JUDGE YOUNG: Where were you and what was the 13 context?
14 THE WITNESS: Well, it was sometime before the 15 SRB, I don't really know how many weeks or days before the 16 SRB, but it was before the SRB and I was in the corporate 17 office on business and as I tried to do when I was down 18 there, I would visit several of the individuals that 19 provided support to the sites, both in the radcon group and 20 in the chemistry group, you know, just to say hi, maybe talk 21 to them about a little bit of business or something like 22 that. And so I was sort of making my rounds, you know, 23 talking to a few of those folks, and Mr. Fiser came up to me 24 -- you know, I was in the hallway, he walked up to me and we 25 1 stood there and chatted for a minute and he informed me that
Page 3156 1 he had filed a complaint about it.
2 1 JUDGE YOUNG: And what did he say?
3 THE WITNESS: He just said -- I don't remember the 4 exact words, but something to the effect that, you know, I 5 filed a complaint about them posting my position. And that 6 was the gist of it.
7 JUDGE YOUNG: Did you have any further 8 conversation about that?
9 THE WITNESS: No.
10 JUDGE YOUNG: You just said see you around or 11 whatever?
12 THE WITNESS: Yeah, I didn't have anything to do 13 with the decision to post the position one way or the other, 14 so I mean there was nothing I could add. And he didn't 15 really seem inclined to want to have a long discussion about 16 it, it was just sort of oh, by the way, you know, I did file 17 a complaint about them posting my position.
18 JUDGE YOUNG: And so that was all that you knew 19 about the DOL complaint when you talked to Mr. McArthur?
20 THE WITNESS: That's correct.
21 JUDGE YOUNG: Thanks.
22 CHAIRMAN BECHHOEFER: But did Mr. Fiser in his 23 comments specifically mention that Dr. McArthur had been 24 responsible for posting?
25 THE WITNESS: No, I don't think he said -- well,
Page 3157 1 he may have said that he had filed a complaint because 2 Wilson posted the job. I don't recall him specifically 3 singling Wilson out. Wilson McArthur was though the 4 1responsible supervisor, so ultimately he would have been 5 responsible for posting the job.
6 }CHAIRMAN BECHHOEFER: Oh, I see. Okay.
7 BY MR. DAMBLY:
8 Q And ultimately he would have been responsible for 9 selecting the individual in that position.
10 A That's correct.
11 Q And your concern was that if Dr. McArthur asked 12 questions at the SRB interviews, that that would somehow 13 taint the SRB process?
14 A Well, I really wasn't concerned that it would 15 actually taint the SRB because, you know, my personal 16 feeling was we're all professionals, we can conduct 17 ourselves in a professional manner and objectively evaluate 18 candidates based on their answers. However, I thought it 19 would potentially remove any perception of a problem from 20 that process if he didn't. It was really a perception 21 thing. If he didn't participate, then no one could ever 22 say, hey, you really influenced the SRB by the way you asked 23 questions, you know; by the way you followed up on 24 questions, you led certain people to do certain things, you 25 know. It would just make it cleaner if he didn't play. And
Page 3158-1 he agreed to do that. He probably had already made up his 2 mind to do that, but I didn't know that.
3 Q He'd already made up his mind not to participate?
4 A Not to participate.
5 Q Okay. And he was in fact the one who prepared the 6 questions.
7 A Yes, I believe that to be correct.
8 Q So his questions would have been part of the SRB 9 process.
10 A Yes.
- 11. Q And he was going to be the one making the 12 selection after the process.
13 A That's true.
14 Q So I'm a little confused as to what perception it 15 is that was going to be avoided by him just being quite for 16 half an hour.
17 A The perception was on my part and it was of the 18 part of the process that I was involved in.
19 Q And why did you feel the need to mention this 20 before -- Mr. Fiser was the first interview, right?
21 A I don't remember the order. There were a lot of 22 candidates interviewed that day and I don't remember the 23 order of the interviews. He may have been first, he may 24 have been 12th.
25 Q And did Mr. Corey overhear your statements about
Page 3159 1 l DOL issues with Mr. Fiser?
2 A He may have, I mean I know now that he did, but I 3 1 didn't -- I really wasn't addressing the comment to him, I 4 didn't know that he had overheard it at the time.
5 Q And you consider it appropriate before going into 6 an SRB to rate people for a position to bring up that one of 7 them has a DOL complaint?
8 A I would consider it probably inappropriate for --
9 to bring up the issue to the SRB that an individual has 10 filed a complaint. I did not consider it inappropriate for 11 me to discuss that issue with Wilson because Wilson was the 12 selecting supervisor, he was involved in all of the 13 decisions related to that position and I assumed he 14 certainly knew about the DOL complaint. As a matter of 15 fact, I assumed everybody knew about it. Gary had told me 16 about it just nonchalantly, I would have been surprised that 17 anybody didn't know about it. It wasn't like it was a 18 secret.
19 Q But do you know if Mr. Rogers knew about it?
20 A I don't know if he knew about it or not. He 21 wasn't there.
22 Q Do you know if Mr. Corey knew about it before you 23 mentioned it?
24 A No.
25 Q Do you know if Mr. Cox knew about it?
Page 3160 1 A No.
2 Q Now did you add any questions to the list Dr.
3 McArthur provided to the SRB?
4 A I think once we went inside the room and looked --
5 we were all handed a notebook that had a series of questions 6 in it, and we picked which questions we were going to ask 7 out of the series of questions. There may have been 15 or 8 so questions on the list. We picked 9 or 10 of those and I 9 suggested that we ask one additional question of the PWR 10 candidates about molar ratio control.
11 Q Okay. Why did you add that one?
12 A Molar ratio control issues were a significant 13 issue to PWR plants at that time and I thought it would be 14 good -- it would be a good opportunity to ask the question, 15 get the candidates to express themselves on that particular 16 issue, the importance in the industry, the effects molar 17 ratio could have on steam generator longevity and those kind 18 of things. I thought it was an appropriate question to ask 19 of PWR chemists.
20 Q Is there a relationship between molar ratio 21 control and denting?
22 A Not specifically. Molar ratio control is more of 23 a corrosion inhibiting process, not directly related to 24 denting.
25 Q Would you have expected a candidate to discuss
Page 3161 1 molar ratio control as one way to help alleviate denting 2 lissues?
3 A Well, I'm not a chemist, but I would not have 4 expected a person to necessarily talk about molar ratio 5 control and denting. Denting is a problem that makes -- in 6 steam generators, that really makes molar ratio control a 7 more important issue because denting instills in those tubes 8 tstresses and in those stress regions intergranular stress 9 corrosion tracking can occur and because of that phenomenon, 10 molar ratio control is more important.
11 Q Now with respect to actually scoring the 12 candidates, when you asked an individual a question, when 13 they responded, did you write down a number at the end of 14 that question?
15 A Yes.
16 Q Did you go back and revisit those or when you 17 finished rating the candidate on the 10 questions, you just 18 turned in your score sheet?
19 A When we -- each of us would ask the question or 20 listen to the question asked by the individual who had 21 responsibility for it, observe the candidate's response, 22 rate the candidate. Generally there was no discussion other 23 than a follow up -- I would say not just generally, there 24 was no discussion other than a follow up question maybe by 25 one of the members of the SRB. We would then provide a
Page 3162 1 numerical ranking on that candidate's response to that 2 1question. When we finished with that candidate, we would 3 turn in our rating sheets to the HR representative that was 4 there and move on to the next candidate. There was really 5 no discussion of how we rated the candidates on different 6 things, there was no discussion of that.
7 Q Okay, so you and Mr. Corey and Mr. Rogers didn't 8 get together with -- I guess Ms. Westbrook was there also?
9 A Yes, Ms. Westbrook was there.
10 Q -- and Dr. McArthur, after a candidate finished 11 responding to all the questions, you didn't sit around and 12 go how did you rank him on number 3 because this is what I 13 had, or anything like that?
14 A No, I don't recall that at all.
15 Q Basically how did you personally determine what 16 kind of a score you would give what kind of an answer, how 17 did you set your 1 to 10 scale?
18 A Well, I just set it based on, you know, what the 19 question was, how the individual responded to the question.
20 Like I said, I was -- if it was a technical question, I'd be 21 looking for a good understanding of the technical issues, 22 maybe even an understanding that was better than mine 23 because I'm not a chemist, but I would be looking for that 24 person to be able to explain the technical issues related to 25 that question and then how they communicated, you know,
Page 3163 1 those kind of things also. And I had I guess an unwritten 2 scale that I ranked everybody on.
3 Q And there was no discussion between the three 4 board members of what their individual scales were, ahead of 5 time?
6 A That's correct.
7 Q Did you consider individuals' appraisals in any 8 way in the ratings that you gave?
9 A No, we did not.
10 Q You had a big notebook that was provided you
- 11. before the interviews?
12 A That's correct.
13 Q And that had a resume and other things in it, as I 14 recall?
15 A I believe it had a resume -- it had in it whatever 16 the individual would have submitted with their expression of 17 interest in the position. It could have included a resume, 18 it could have included a lot of things, but I think whatever 19 they submitted is what was in the package.
20 Q Did you review it ahead of time?
21 A The package?
22 Q Yes.
23 A No. We were given the package, we spent maybe I 24 don't know, a few minutes, 30 maybe max, at the beginning of 25 the SRB, with HR sort of going over the process, talking
Page 3164 1 about how many candidates there were to be interviewed for 2 which positions and that kind of thing and that was the gist 3 of the discussion we had. Other than that, it was pretty 4 new information. I mean we had approximately 30 minutes I 5 think before the first candidate came in and we could have 6 thumbed through the packages and looked at them and seen 7 what was in there and may have done that, but there was 8 really no discussion of that material or opportunity for 9 that kind of thing.
10 Q And with your understanding of how SRBs are 11 supposed to work, you wouldn't have been able to use the 12 information there any way in rating the candidates, correct?
13 A Well, I can't say you wouldn't be able to. I know 14 -- I mean I'm not familiar enough with if there's a protocol 15 for SRBs, a procedure that outlines in detail how SRBs are 16 supposed to function, I'm not that familiar with that 17 procedure if there is one. I wouldn't think there'd be a 18 prohibition against looking at what any candidate submitted 19 with their application. However, --
20 Q I'm not asking whether there was a prohibition, 21 but as I understood your answer before, or your answers, you 22 ask a question and you score the answer you get.
23 A That's true. Functionally, that's exactly what we 24 did. We asked the questions, we scored the candidates on 25 their response to that question, period.
I Page 3165 1 Q So it wouldn't matter if you looked at their 2 resume and it had 50 years of experience in XYZ, that didn't 3 1 come into play.
4 A That's true, that would not have been factored in.
5 Q So basically nothing that was in this package were 6 you supposed to use in rating the candidates, just their 7 responses.
8 A Functionally, that's exactly the way it worked.
9 We rated the candidates based on their responses to the 10 questions and any other material that was in there, you 11 know, may have been provided for background or whatever, but 12 it really didn't have anything to play with the way the 13 candidates were rated.
14 Q I think I asked and just to be clear, when you 15 finished the first interview, candidate number one, you 16 turned in the score sheet for candidate number one before 17 candidate number two came in.
18 A That's correct.
19 CHAIRMAN BECHHOEFER: Mr. Kent, could or would the 20 candidates' background and experience be factored into how 21 one would evaluate a particular answer to a question? Like 22 if a person had one background and then his answer might 23 well focus more on certain aspects of the problem than if he 24 had a different background, and would the SRB members take 25 that into account in coming up with a numerical grade for
Page 3166 1 i the answer to the question?
2 THE WITNESS: Well, I believe I can answer that 3 based on, you know, my personal --
4 CHAIRMAN BECHHOEFER: Yeah.
5 THE WITNESS: -- experience in this process.
6 CHAIRMAN BECHHOEFER: Right, I'm asking for your 7 experience, right.
8 THE WITNESS: I would say that generally the 9 questions should be designed, and I think were designed, to 10 solicit a specific type of information from an individual 11 and if they had that information and they communicated that 12 clearly, they would have been rated high. If they didn't 13 have it or didn't communicate it clearly, they would have 14 been rated lower. You know, an individual who doesn't know 15 anything about a subject or has limited knowledge on a 16 subject may try to put into their answer other things that 17 are peripheral and, you know, personally I would try to 18 discount that information more than factor it in.
19 If we wanted a certain thing, if I wanted to hear 20 a certain thing in a response, I'd be looking for that and 21 if the candidate didn't give me what I was looking for, 22 regardless of their background, you know, 50 years of 23 experience or Ph.D. with a thesis on whatever, I don't think 24 I would have taken that into much consideration than the 25 fact that they really didn't address the question that was
Page 3167 1 asked. Now what we might do in a circumstance like that 2 where a candidate really didn't address the question that 3 was asked, we might follow up with a question to see if they 4 had gotten off track in their response and they really knew 5 what we were looking for and just hadn't given it to us.
6 CHAIRMAN BECHHOEFER: What if you got a question 7 like -- and I'm just remembering this as one of them -- what 8 are the three most important problems facing TVA Nuclear, 9 TVAN, is the way I think the question was worded? Would 10 that answer depend in part on the candidate's background and 11 experience?
12 THE WITNESS: Well, that's a pretty broad scope 13 question.
14 CHAIRMAN BECHHOEFER: That was one of the 15 questions.
16 THE WITNESS: Yeah, that was a pretty broad scope 17 question and I think really if you're talking about it from 18 the perspective of the positions that you're looking at, 19 then I would have expected the candidate to understand the 20 kind of issues that were major, of major importance to 21 nuclear, to TVA Nuclear and how their position may relate to 22 those. That may or may not be the three major issues, you 23 know, that TVA Nuclear is facing, I mean it could be that 24 TVA Nuclear is facing an issue of competition and that's the 25 number one thing that Nuclear is focused on, is how to deal
Page 3168.
1 with open market competition. Well if the candidate didn't 2 tell us that open market competition is the number one 3 thing, you know, if he went down that road, I would probably 4 ask a follow up question, well, what's the most important 5 thing to chemistry, you know, that's related to the 6 chemistry program?
7 I don't know if I really answered your question or 8 not.
9 CHAIRMAN BECHHOEFER: Well, I was just wondering 10 whether the particular background of each individual, which 11 is going to be slightly different -- or it may not be 12 slightly different -- whether the particular background of 13 candidates -- and several that I recognize had similar 14 backgrounds, but I don't know that all of them did -- might 15 view questions like that in somewhat of a different 16 perspective from other candidates, for instance.
17 THE WITNESS: I would tend to believe that if 18 asked a question of a candidate and the candidate gave us 19 the response they wanted to give and if we needed to, we 20 would do a follow up to further probe that candidate's 21 response. Other than that, I think we would disregard -- I 22 would disregard any perspective of the candidates' 23 background, limited or vast as it may be in other areas, 24 knowing that all candidates are a little bit different. You 25 seldom have people that are exactly the same.
Page 3169 1 So I think in my case, I would have -- a person's 2 background would have not played a significant part in how I 3 rated the candidate on a given response.
4 CHAIRMAN BECHHOEFER: Thank you.
5 BY MR. DAMBLY:
6 Q And just one other question on that. If you asked 7 a question that you could give a complete answer to the 8 question like what is denting, and you could give a complete 9 answer to the question, but you really wanted them to go 10 beyond that and discuss ways to prevent it or to correct it, 11 would you have asked the individual that just answered the 12 question that was asked, the expand on causes and 13 preventions and whatever? If that's what you were looking 14 for for a better score or are they just supposed to be the 15 amazing Creskin and figure that out on their own?
16 A No, I think if we were -- you know, if the 17 question said what is denting, then I would think the full 18 credit answer would have been describe the process of 19 denting and what causes it and possibly its impacts. I 20 would not think that it would have been required for full 21 credit to have expanded on, you know, things you can do to 22 prevent it, you know, mitigating actions you can take to 23 minimize the impact of denting. I would not have thought 24 that would have been required for a full credit answer. If 25 someone had that information and they volunteered it, I
Page 3170 1 don't believe I would give them necessarily extra credit for 2 it. If I'd wanted it to start with, I think I would ask a 3 follow up question to see if they knew that.
4 Q Let me get you Joint Exhibit 23.
5 A Is that in one of the books I've already got?
6 JUDGE COLE: Mr. Dambly, what volume is that?
7 MR. DAMBLY: It's Joint Exhibit 23, it's a volume 8 unto itself. It may be Volume 6.
9 MR. MARQUAND: It's a black binder, Judge, it says 10 Volume 6 of 6, Exhibit 23.
11 MR. DAMBLY: Of the joint exhibits.
12 If you want to take a moment, Mr. Kent, I'll ask 13 you is this the package you were provided for the selection 14 review board that involved Fiser, Chandra, Harvey?
15 THE WITNESS: It appears to have some of the 16 information in it that I would have been provided. You 17 know, it's got rating sheets and notes and things like that 18 that wouldn't have been in the original package that we 19 would have been given. But it does look like it contains 20 some of the information we would have been given.
21 BY MR. DAMBLY:
22 Q And I guess it's three pages in, the 597 at the 23 bottom, preceded by five zeroes.
24 A 597, okay. I found it.
25 Q It's a scoring sheet for PWR and it looks like it
Page 3171 1 started to be Chandra but it says Harvey. Is that the one 2 you have?
3 A Yes.
4 Q Was this in there with all the individual scores 5 for all three candidates in the book you had?
6 A No, sir.
7 Q And if you go to 613.
8 A Okay, I have it.
9 Q PWR and BWR for Chandra. Is that your writing-10 under the comments?
11 A No, that's not my writing.
12 Q That's not your writing?
13 A No.
14 Q Maybe just to make sure, if we go back to page 15 596, which is the second page in this document --
16 A Yes.
17 Q -- it does have down at the bottom right, Charles 18 Kent, this is supposedly the book that was given to you, is 19 that correct?
20 A Which page are you on now?
21 Q 596, it would be the second page in the document.
22 A Yes, it does have Charles Kent. Yes, this page 23 has Charles Kent on it, that's all I can tell you about it.
24 This is not my -- I mean, some of these documents are my 25 writing, I could direct you to those pages if you'd like,
Page 3172 1 but an example of my writing so you can see, but for 2 instance if you flip over to the 598, I believe that to be 3 my writing, all except the notes on the bottom and the 4 summing of the scores is not my writing. But I believe that 5 is my writing, the notes and I would think in this case that 6 I wrote Sam H at the top of the page and the numbers would 7 have corresponded to the questions that we asked and my 8 notes that I made during the answering of the question and 9 then to the left of the numbers with circles, there would --
10 and it's not a very good copy, but in most cases I think 11 that would be the score that I gave the individual on that 12 question. But I did not make the notes at the bottom of 13 page, which look like they tried to do some sum up of the 14 scores, that would have been done by somebody else after.
15 Q And we just went to 613, if we go-to 615, which is 16 another I guess rating sheet for PWR, Gary Fiser, and this 17 one says review board member Melissa Westbrook. You didn't 18 have a sheet in your book when you had it or turned it in 19 that had Melissa Westbrook's ratings in it, did you?
20 A No, this appears to be comments that Melissa maybe 21 made during the course of the interview and then annotated 22 later with the rating of the individuals by the different 23 board members.
24 Q But it wasn't part of any package you had or 25 turned in?
Page 3173 1 A No. The package I had simply had in it the 2 questions that we were supposed to ask, a list of the 3 candidates that were going to be interviewed for each 4 position. There was a tab for each position and there would 5 have been a copy of any materials that the candidate would 6 have submitted with their expression of interest. That's 7 all that was in there, there were no pre-handwritten rating 8 sheets, summary sheets or anything like that in the package 9 Q Okay. And if you go to 617, which is a one-page 10 document about how Wilson McArthur I guess went from a i1 manager technical programs and what the similarities were 12 for that, to a different job, was that in your rating 13 package?
14 A No, that would not have been in the rating 15 package.
16 Q Do you know how many of these documents got into 17 the package that was supposedly yours?
18 A Well, I'm assuming that this package or a package 19 was used to compile information on all the candidates and 20 this information was put in there for some purpose that had 21 nothing to do with the selection of the candidates. Like, 22 for instance, responding to questions about how this process 23 evolved and what decisions were made and that kind of thing.
24 None of this kind of thing would have been in there.
25 If you flip to the next page, 618, that's the kind
Page 3174 1 of information that would have been in the package, 618 has 2 the questions that we would have selected from and in this 3 case, it looks like these were questions for BWR candidates 4 and probably some individual, I don't know whose package 5 this would have come from, but some individual would have 6 circled the questions 1 and 2 and 7 and 13, probably 7 indicating that they were going to ask those questions. But 8 this doesn't look like this was in my original package, my 9 personal copy of the notebook.
10 Q Well, this has been represented and was provided 11 by TVA as your notebook. We have a separate notebook for 12 the other three individuals that were there.
13 MR. MARQUAND: Your Honor, I'm going to object.
14 That is not exactly what was represented. We had a long 15 discussion with counsel, we discussed every single page as 16 to what was there, we documented to them in a letter which 17 they agreed to and said some of this was added to these --
18 this is a repository of the documentation of the whole 19 selection process and the HR people gathered these notebooks 20 up afterwards and it's apparent some things were added to 21 them and we had that discussion with counsel and there was 22 an agreement between counsel that that's what happened and 23 they know that. And for him now to represent to Mr. Kent 24 something different is not appropriate.
25 JUDGE YOUNG: Let me ask you a question. If
Page 3175 1 you'll look back at pages 598 and 598-A, 599, 600 and then 2 601, 602. To me, those appear to be Mr. Kent's notes and 3 scores on the questions that were asked to Sam Harvey, Mr.
4 Chandrasekaran and Mr. Fiser. Is there any dispute about 5 that, any reason not to just go straight to those?
6 MR. DAMBLY: I hadn't even planned to go to those.
7 JUDGE YOUNG: Okay.
8 THE WITNESS: I believe that is correct, Your 9 Honor. As a matter of fact, if I could make one comment.
10 MR. DAMBLY: Sure.
11 THE WITNESS: I may be able to clear up my 12 specific package. I believe that I have in my personal 13 possession my original package. I believe that when we went 14 to Region for a discussion on this issue, I along with the 15 other SRB members, were given our packages as a document 16 that we were going to be asked to discuss and I honestly 17 believe that I have in my possession -- now that was 18 probably, I don't know, years after the original interview 19 process, but I believe I still have that package and if I'm 20 not mistaken, it has my handwritten -- not copies of, but 21 actually my handwritten in pencil pages in it. I was not 22 asked to return it, we split up after the meeting was over 23 and I saved it and I think I've still got it thinking that 24 some day I may need it.
25 We're probably going to go through this some more,
Page 3176 1 so I'll just hang onto it.
2 MR. MARQUAND: Mr. Kent is partly correct. Prior 3 to the PEC, each of them was given their original notebooks 4 back, which had been retained by HR and the additional 5 documents that Mr. Dambly is stumbling over are documents, 6 some of them were added to these as the process went on, to 7 document the selection. I mean there's selection memos in 8 here that occurred in fact after the SRB. For example, at 9 page 619 is a selection memo that occurred sometime after 10 the SRB in which Dr. McArthur writes a memo on July 31 to 11 Ben Easley and said the candidates applied, we had an SRB 12 and here's the results of the SRB and who we recommend 13 selecting. So this was a repository, not just of the SRB's 14 documents, but also some additional documents that were 15 placed into this as a historical way to retain these things 16 by Human Resources, after the fact.
17 And it's not appropriate to suggest that these, 18 for whatever reason, were added inappropriately or anything, 19 it was just that was the process.
20 MR. DAMBLY: Just so it's clear, I have no idea 21 what agreement Mr. Marquand is talking about, that's the 22 first I've heard about it, but we specifically asked and 23 were given notebooks that were represented to be the 24 notebooks for the individuals. We have asked questions in 25 the past and we asked questions last time with Dr. McArthur,
I Page 3177 1 as I recall, why some stuff is in here that wouldn't appear 2 l to have been in the notebooks.
31 MR. MARQUAND: Ms. Euchner and I had a half a day 4 telephone conversation in which I went through page by page 5 all four notebooks and explained to her and then sent her a 6 letter documenting what pages were in the notebooks.
7 MS. EUCHNER: I recall that conversation and for 8 the record, that conversation was to ensure that the copies 9 of the notebooks that we had were the same and contained all 10 of the exact same pages as the copies that Mr. Marquand's 11 copies had. There was no part of that conversation where I 12 agreed to anything, saying that these were the original 13 notebooks and that we agree that those are the original 14 notebooks. I made no such stipulation to counsel.
15 JUDGE YOUNG: What's the real dispute here, what's 16 the real issue here that you're wanting to get to in terms 17 of what's in the book? If we've got the pages that Mr. Kent 18 wrote and even though they're bad copies, we might be able 19 to have him read what was there to the best of his ability 20 and then perhaps provide the note book that he has. But 21 what's the issue or dispute?
22 MR. DAMBLY: There's not necessarily a dispute, it 23 was to make clear -- Mr. Kent had indicated he didn't see 24 anybody else's scores or hadn't seen them, but they're 25 represented in the notebook with the summaries of I
Page 3178 1 everybody's scores and Ms. Westbrook's comments as if 2 they're in his notebook.
3 JUDGE YOUNG: And is there any dispute that that 4 would have been done afterwards?
5 MR. DAMBLY: Well, I don't know when it would have 6 been done, but as long as he's never seen them, that's fine 7 lwith me, that was my only question.
8 JUDGE YOUNG: Okay.
9 MR. MARQUAND: And we're going to call Ms.
10 Westbrook as a witness and she can explain how she 11 accumulated these scores.
12 THE WITNESS: And it is accurate, sir, that I had 13 never seen those summary scores or any other information 14 sheets from the other raters.
15 MR. DAMBLY: At this point, staff has no further 16 questions. We would, however, like to move in Staff Exhibit 17 70, 71, 72, 73 --
18 JUDGE YOUNG: Seventy through what?
19 MR. DAMBLY: Seventy through 74, Staff 135, which 20 was the predecisional enforcement conference we discussed 21 this morning, and Joint Exhibit 25, which was the '94 TVA 22 OIG report for Mr. Kent.
23 JUDGE YOUNG: Any objection to any of those?
24 MR. MARQUAND: To the extent that --
25 CHAIRMAN BECHHOEFER: The predecisional
Page 3179 1 enforcement conference, are you moving in only selected 2 pages?
3 MR. DAMBLY: Well, I was just going to put the 4 whole thing in.
5 CHAIRMAN BECHHOEFER: Oh, okay.
6 MR. MARQUAND: I'm not sure how appropriate it is 7 to put the whole thing in. To the extent that counsel 8 questioned the witness about certain entries in there, I 9 think it's appropriate to have those, but I don't think it's 10 appropriate for the Board to consider all those other 11 matters that -- and as we've talked, this is a hearing de 12 novo -- to consider all those other matters that are 13 contained in those statements, but to the extent he relied 14 on them, I don't object.
15 JUDGE YOUNG: Do you have any problem with 16 selecting out the pages that you relied on?
17 MR.. DAMBLY: Well, I would, yes, because Mr.
18 f Boyles is going to be in here, Mr. Reynolds is going to be 19 in here and various other people are going to be in here and 20 this is the position that they put forth to the staff as to 21 why they did it. It's relevant to the entire proceeding, it 22 was their position back in 19 -- whatever it was now -- '99, 23 which differed from a lot of the earlier positions. But it 24 is the TVA positions that they put forward and it's 25 different from the ones he said before and after. So I I
Page 3180 1 think the entire thing is relevant and will be used to 2 question other individuals.
3 MR. MARQUAND: Mr. Dambly has objected when we 4 attempted to suggest that the staff took another position, 5 he didn't want to hear about that and he didn't want to hear 6 about the investigation, he didn't want to hear about the 7 position they took in the letter regarding the notice of 8 violation. This is a hearing de novo and I think he ought 9 proceed with respect to the evidence he's put before the 10 witness.
11 (Whereupon, the Judges confer.)
12 MR. MARQUAND: Your Honors, maybe I could suggest 13 a solution.
14 CHAIRMAN BECHHOEFER: Okay.
15 MR. MARQUAND: It's been very apparent in the 16 record what pages counsel is relying upon when he questioned 17 the witness. And I don't have an objection to those 18 documents coming into evidence to be considered with respect 19 to specific pages he said he was relying upon and cited. We 20 i can put the whole document in and then I think it's 21 appropriate for the record then to be based upon the pages 22 that he specifically referred to. I think the whole 23 document can come in, but to be considered for what it is 24 that he has specifically requested and directed the Board's 25 attention be directed to.
Page 3181 1 CHAIRMAN BECHHOEFER: And that would apply to Mr.
2 Boyles' testimony I assume as well, which we are told is 3 much broader.
4l What I would like to have understood though is 5 that if the whole document were put in and I remember at 6 least two, three, four pages were discussed and there was at 7 least one page which I believe one of the witnesses referred 8 to that explained a previous answer. It may have been you, 9 Mr. Kent. That certainly should be included as part of what 10 was discussed today.
11 MR. MARQUAND: Yes.
12 CHAIRMAN BECHHOEFER: But I would want to have 13 anything that Mr. Boyles was questioned about included in 14 ! what we're admitting today, or at least included in pages 15 that could be utilized.
16 MR. MARQUAND: I agree and I think let's include 17 the whole document and then the Board in its deliberations 18 can consider the pages that Mr. Kent discusses or that Mr.
19 Boyles discusses. That way we don't have to clip the thing 20 i all to pieces, but let's just consider those pages.
21 JUDGE YOUNG: Good solution.
22 l CHAIRMAN BECHHOEFER: That's a good solution.
23 j JUDGE YOUNG: One thing that I would just add is 24 to the degree -- I would suggest that it might be a good 25 course to first ask the witnesses the questions you want to
I Page 3182 1 ask and then if you want to bring out a prior inconsistent 2 statement, then go to the document. It might get --
3 MR. DAMBLY: And if I might respond to that, 4 apparently nobody was listening this morning when I asked, 5 ! but I asked the questions first, got denials, different 6 i stories or I don't recalls, before I went to the documents.
71 JUDGE YOUNG: Okay. Then we're all on the same 8 page it sounds like.
9 CHAIRMAN BECHHOEFER: Right. We will admit --
10 make sure I've got the right numbers now -- 70 through 74, 11 135 and Joint Exhibit 25. Is that correct?
12 MR. DAMBLY: That's correct.
13 CHAIRMAN BECHHOEFER: The first ones were staff 14 exhibits. We will admit those documents to be used -- the 15 portions of those documents to be used as they become 16 pertinent to questions asked the witnesses.
17 (The documents, heretofore marked 18 as Staff Exhibits 70 through 74, 19 135 and Joint Exhibit 25, were 20 received in evidence.)
21 I MR. DAMBLY: Now let me clarify that because I 22 understood Mr. Marquand was talking about the predecisional 23 enforcement conference. We've already visited the ground in 24 this hearing on at least three prior occasions about prior 25 depositions, statements to OI and OIG and they weren't
Page 3183 1 limited to whatever mention was made of them, they were 2 brought in under the rules, they're admissible and they're 3 prior inconsistent statements anyway.
4 The things other than Staff 135 are specifically 5 Mr. Kent's statements.
6 CHAIRMAN BECHHOEFER: Right.
7 MR. DAMBLY: 135 has a broad cast of characters in 8 it.
9 CHAIRMAN BECHHOEFER: Okay, well we'll limit the 10 qualification I guess to Staff Exhibit 135. Those documents 11 will be admitted.
12 MR. MARQUAND: Thank you, Your Honor.
13 CHAIRMAN BECHHOEFER: About ten minutes.
14 MR. MARQUAND: That would be fine.
15 (A brief recess was taken.)
16 CHAIRMAN BECHHOEFER: Mr. Marquand, do you need 17 some more time?
18 MR. MARQUAND: Give me about two or three minutes 19 here.
20 (A brief recess was taken.)
21 CHAIRMAN BECHHOEFER: Back on the record. Mr.
22 Marquand?
23 MR. MARQUAND: Thank you, Judge.
24 CROSS-EXAMINATION 25 BY MR. MARQUAND:
Page 3184 1 Q Good afternoon, Mr. Kent.
2 A Good afternoon.
3 I Q I believe you have Joint Exhibit 25 somewhere.
4 lJUDGE YOUNG: Which exhibit? 25?
5 MR. MARQUAND: I think it's Joint Exhibit 25.
6 JUDGE YOUNG: Yours or...
7 MR. MARQUAND: Joint.
8 CHAIRMAN BECHHOEFER: Joint.
9 JUDGE YOUNG: Joint. Okay. 23?
10 MR. MARQUAND: 25.
11 i CHAIRMAN BECHHOEFER: 25. The one we just 12 admitted. One of the ones we just admitted.
13 JUDGE YOUNG: Staff exhibits. Must be this one.
14 BY MR. MARQUAND:
15 Q And I believe this notebook also has in it Joint 16 Exhibit 35, which is -- Joint Exhibit 25 is a copy of the 17 record of interview, typewritten, by the Office of Inspector 18 General, of an interview of you on January 1 1th, '94. Joint 19 Exhibit 35 -- do I have the right one? No, I don't. Try 20 33. Joint Exhibit 33. Can't read my own writing. Sorry.
21 A Position description?
22 Q No, Joint Exhibit 33.
23 A It's a position description.
24 V Q No, it should be a service review.
25 A Oh, okay. Yes, it is.
Page 3185 1 l Q It's called employee appraisal.
2 A Yes.
3 Q Now, I'm going to direct your attention to 4 testimony -- to questions by counsel yesterday. He directed 5 your attention to Joint Exhibit 25, and I believe it's on --
6 beginning at the bottom of Page 3, he directed your 7 attention to the very last line that says, "Kent further 8 stated that the Institute of Nuclear Power Operations had a 9 finding against chemistry in '91, and from that point on 10 Fiser should have been more aggressive in finding and fixing 11 the problems." Counsel directed your attention to that.
12 And then he proceeded to show you Joint Exhibit 13 33, the service review for Mr. Fiser for fiscal year '92, in 14 which there's a statement that -- in the fourth bullet on 15 the first page, "During a recent INPO assist trip no items 16 were identified that had not already been assigned action to 17 resolve." Do you see that?
18 A Yes.
19 Q And the next one, "There have been no chemistry-20 related findings by INPO for Sequoyah, and this is a record 21 for Sequoyah." Do you see that?
22 A Yes.
23 Q And counsel showed those to you, apparently to 24 impeach the statement you gave to the IG, or to show you 25 didn't know what you were talking about.
Page 3186 1 MR. MARQUAND: I'm going to -- let's have this 2 marked as the next TVA exhibit. What is it?
3 COURT REPORTER: I'm sorry, I didn't hear you.
4 MR. MARQUAND: I'd like to -- I'm going to mark 5 this as TVA Exhibit #131.
6 3(The documents referred to were 7 2marked for identification as TVA 8 tExhibit #131.)
9 MR. MARQUAND: Mark as TVA Exhibit -- TVAX 131.
10 JUDGE YOUNG: And -- and what is it that you're 11 marking as 131?
12 MR. MARQUAND: I'm going to hand it to you in a 13 second.
14 JUDGE YOUNG: Okay.
15 BY MR. MARQUAND:
16 Q Now, to explain for the record what I've handed 17 you is, is basically the same thing as Joint Exhibit 25, two 18 copies of it. If you'll look in the lower right-hand 19 corner, it begins AJ344. Those are the Bates numbers that 20 we stamped on this when we produced it to the staff. And it 21 goes AJ344 to 350, and that's the first copy of this 22 document from the IG's files.
23 Then, beginning at AJ351 through 357 is a second 24 copy of the same document produced -- these two documents 25 were produced right directly together from the IG's files to
Page 3187 1 the NRC staff. The second copy of this document has some 2 handwriting and some interlineation on it. The same record 3 of interview with some handwriting -- some handwritten 4 corrections.
5 Mr. Kent, do you recognize the handwritten 6 interlineations and corrections beginning at Page AJ351 to 7 Page AJ357?
8 A Yes, I do.
9 Q Tell us whose those are.
10 A Those are my corrections to the document.
11 Q All right. Would you look at -- beginning at the 12 bottom of Page 3 and the top of Page 4. Did you make some 13 ! changes and some corrections to this document which counsel 14 did not ask you about?
15 A Yes, I did. I corrected to reflect what period of 16 time we were discussing in terms of problems at Sequoyah, 17 and corrected the date on the top of Page 4 that counsel 18 asked me about this morning.
19 Q Okay.
20 MR. MARQUAND: Your Honor, I'm going to tender TVA 21 Exhibit 131.
22 Q Does it show that you were not saying that there 23 1were INPO findings against chemistry in '91, but in fact 24 that they were earlier, Mr. Kent?
25 1 A Yes, that's correct. I believe that this would
Page 3188 1 have been corrected or -- or edited by me to reflect that 2 the INPO findings that we were discussing with the IG were 3 actually in 1998.
4 Q Okay.
5 JUDGE YOUNG: '98?
6 MR. MARQUAND: '88?
7 lTHE WITNESS: '88. Excuse me. '88.
8 CHAIRMAN BECHHOEFER: '88.
9 MR. DAMBLY: May I have voir dire?
10 CHAIRMAN BECHHOEFER: Yes. Yes.
11 VOIR DIRE EXAMINATION 12 BY MR. DAMBLY:
13 Q Mr. Kent, when did you make these changes?
14 A I would assume, sir, that these changes were made 15 shortly after the IG would have provided me this to review, 16 to validate that it was correct. That was sometimes their 17 practice, that they would -- they would come back to the 18 individual they interviewed and -- and show them the 19 - document and get you to make sure that it was accurate. And 20 ! if -- if not, to make whatever edits would have been 21 1appropriate. I think it would have been contemporary with 22 the time I was interviewed.
23 Q So, in point of fact, you had seen the IG 24 interview contemporaneously or close to it?
25 A Yes, I would think so.
I
Page 3189 1 Q And -- and it's your understanding you made this 2 at that time, and this was part of their official record?
3 A Yes, I believe so. I mean, I -- I hadn't seen 4 this particular edited document in many years. May not have 5 even been aware of it.
6 CROSS-EXAMINATION 7 BY MR. MARQUAND: (Cont.d) 8 Q Mr. Kent, if you'll at the very bottom of Page 9 AJ351 to 357, you'll see a telecopy legend. Do you know 10 whose telecopy number that was sent from and what the date 11 is that's reflected there?
12 A The date on the telecopy is 1994. And the 13 telecopy number is Area Code 615 number. I don't recognize 14 the 6060, but...
15 Q It indicates it's from the Sequoyah plant, doesn't 16 it?
17 A Yes, very possibly from Sequoyah plant.
18 Q It says SQN plant, doesn't it?
19 A Oh, yes, it does. Yeah, in the -- in the date 20 stamp it says, "9/22/94, 7:35, from Sequoyah plant."
21 JUDGE YOUNG: And so am I understanding you said 22 this was what was provided both copies?
23 MR. MARQUAND: Both -- this -- they asked for the 24 entire inspector general investigation. We gave them the 25 entire inspector general investigation. And what they do
I Page 3190 1 is, they make their original 0-2, which is 344 to 350. In 2 this case, they then sent that to Mr. Kent and asked him to 3 read through it and correct it. And what they do then, is 4 they call that a confirmed 0-2, just the same thing as the 5 FBI's practice. And then they include both of those in 6 their file, and we produced this entire thing to the NRC 7 staff, and that's why they're Bates stamped consecutively.
8 They're right there together. And I'm concerned about why 9 the staff would ask him about a document, knowing that 10 that's not what he had in fact -- the information he in fact 11 provided.
12 MR. DAMBLY: And just so it's clear, if you look 13 at staff exhibit -- what is it, 177, which is the --
14 1 admitted into evidence as the OI report of investigations, 15 i which -- for the '93 complaint of Mr. Fiser's, you would 16 1 find that, as represented by Joint Exhibit 25, this is the 17 official copy that -- that OI was provided by the IG, and 18 you will find no corrections nine months later by Mr. Kent 19 in there.
20 MR. MARQUAND: I can't help what -- I can't help 21 what OI puts in their records. And our problem all along --
22 and counsel didn't want to do this. Counsel didn't want to 23 talk about the OI investigation, they didn't want to go into 24 that. We had problems with the quality of OI's 25 investigation. If they want to go into the quality of OI's
Page 3191 1 investigation, we can. But we know what's in the OIG's 2 records, and I know that we produced this to the NRC staff.
3 JUDGE YOUNG: And you're disputing that?
4 MR. DAMBLY: I'm disputing that this is any part 5 of the official OIG records. As far as I know, OI got --
6 obtained and put in what's 177, the official OIG document.
7 We have got no OIG documents that were given to us as the 8 official records. He may have turned over something in 9 discovery with some handwriting on it, but it's -- it's not 10 part of the official record that was produced to OI by the 11 IG. I don't know what this is.
12 MR. MARQUAND: There is no discovery process 13 between the OI and OIG. The process is OI is free to come 14 and look and make copies of whatever our inspector general 15 has. And if they fail to copy everything, that's OI's 16 fault. And if OI failed to recognize everything that's 17 3 pertinent, that's OI's fault. There's no discovery process 18 between them. They share their files freely. They don't 19 copy everything, and that's part of the problem we've got 20 with the investigation here, is the investigation was very 21 slipshod.
22 JUDGE YOUNG: Well,...
23 MR. MARQUAND: But we did produce this entire 24 document to this gentleman and this lady during discovery, 25 l and then they proceeded to question Mr. Kent as though he
IV Page 3192 1 had made some gross misstatement. And all I'm saying is 2 3 here's the record, we produced it, and I'm -- I'm offering 3 it into the record.
4 JUDGE YOUNG: Well, then -- then let's -- let's 5 just start from where we are now. And it might be helpful 6 to have Mr. Kent read the -- the changes, because the copy I 7 have, anyway, is sort of hard to read. So maybe you could 8 help us out there.
9 THE WITNESS: Okay, on -- starting on Page 351, as 10 is marked -- my copy is not that great.
11 MR. MARQUAND: That's a function of the fact that 12 this is a copy of a telecopy.
13 JUDGE COLE: You need a magnifying glass, too.
14 THE WITNESS: Yeah, I need a magnifying glass.
15 JUDGE YOUNG: "Since Kent did not ..."
16 THE WITNESS: Looks like, "Kent did not believe 17 the..."
18 i JUDGE YOUNG: "... the old chemistry 19 1 organization..."
20 THE WITNESS: "... provided sufficient management 21 or technical resources, Kent began creating a new 22 organizational structure." And then at the bottom of the 23 page there in the last line, "Kent stated that it was his 24 1 decision to do away with the positions. Kent decided the 25 trend in the industry was to reduce layers of management."
Page 3193 1 That's "reduce layers of management."
2 $On the next page, in the first paragraph, it said, 3 "Kent felt that he could manage the six direct reports, but 4 needed more people with technical expertise in the chemistry 5 area.". And then in the fourth paragraph, "Prior to 6 lsubmission of the new position descriptions, Kent had 7 discussed them with Bill Lagergren, Wilson McArthur, the 8 I manager of operations services, and members of the Hay 9 1 Committee. However, with the exception of approving Kent's 10 I new position, the Hay Committee refused to approve the other 11 position descriptions pending corporate approval of the new 12 organization."
13 And then in the next line it said, "Vice 14 president, nuclear operations, wanted the site organizations 15 to be standardized." And then in the last full paragraph on 16 the page, or the -- I guess it's the second from the bottom 17 of the page it says, "In addition, McArthur was tasked with 18 coordination -- coordinating a standard -- standardized 19 organization."
20 JUDGE YOUNG: Does it just go back to the regular 21 print, "organizational structure"?
22 l THE WITNESS: Yes, "...a standardized 23 organizational structure. At the end of April, Bynum 24 l approved the standardized organization, and it was 25 i implemented at Sequoyah."
Page 3194 Then on Page 3, the top paragraph would -- reads, 2 "Kent admitted that the chemistry organization was in limbo 3 for several weeks." And then there's a sentence added to 4 the third paragraph that says...
5 MR. MARQUAND: "This was necessary...
6 THE WITNESS: "This was necessary..." Right.
7 "This was necessary to..."
8 JUDGE YOUNG: "Free"?
9 THE WITNESS: ". .. free up a position for the new 10 chemistry technical support manager." And then in the 11 fourth paragraph, "According to Kent, Fiser's old position, 12 i.e., chemistry superintendent, was the only.. ." I don't 13 know if the note...
14 MR. MARQUAND: Is that, "...chemistry position 15 eliminated..."?
16 THE WITNESS: "... was the only chemistry position 17 eliminated when the new organization was implemented." And 18 on the bottom of the page it said, "Kent has no personal 19 knowledge of Fiser's performance. However, he is aware that 20 Beecken did not consider Fiser to be a strong manager.
21 According to Kent, the Sequoyah chemistry program had 22 numerous problems when Fiser was the chemistry manager, and 23 even back to 1998 -- 1988," excuse me. "However, the 24 training issues became more widely known after Bill Jocher, 25 the corporate chemistry manager, became the Sequoyah
I Page 3195 1 chemistry manager on a temporary rotational assignment.
2 Kent stated that the training program was far from where it 3 should have been, and that it was reasonable to hold Fiser 4 and previous management accountable.'
5 And then the -- the last sentence in the beginning 6 of the next page is, "Kent further stated that the Institute 7 of Nuclear Power Operations had a finding against chemistry 8 5 in 1998," excuse me, "1988, and from that point on Fiser and 9 prior management should have been more aggressive at finding 10 and fixing the problems. This was not a new issue." And 11 then the next sentence is stricken. The third paragraph, 12 "When Kent became the rad chem manager in '93, Jocher was 13 still on loan to Sequoyah as the chemistry superintendent."
14 1 That's the title of position at that time.
15 5In the next paragraph it again corrects the 16 position title as chemistry superintendent, in two places.
17 And then there's a sentence added to the end of that 18 paragraph that says, "The new organization was discussed 19 l with Jocher and he supported what Kent had written," looks 20 like...
21 MR. MARQUAND: "Wanted to do"?
22 1 THE WITNESS: "... wanted to do." "... what Kent 23 had wanted to do." Then the next paragraph says that, "Once 24 it was agreed that the standardized rad chem organization 25 should have a chemistry manager position, Kent decided to I
Page 3196 1 make some changes to the position. Kent stated that the new 2 chemistry manager position description has more stringent 3 E experience and educational requirements than the old 4 chemistry superintendent position." Then another line down, 5 "However, Kent acknowledged that the new chemistry manager 6 position lacks some of the responsibility of the old 7 chemistry superintendent position because the environmental 8 program was removed from under chemistry. This was to 9 l provide additional focus on both plant chemistry and 10 environmental protection."
11 iThen on the page labeled 355, in the second
- 12. paragraph it reads, "In addition, Kent did not want to hire 13 Rich as the Sequoyah chemistry manager because he felt Rich 14 was not a driver, and that Rich was being pushed on him by 15 i Dan Keuter." The next paragraph reads, "By July '93, Kent 16 was receiving significant pressure from his management to 17 fill the chemistry manager position." And then the next 18 paragraph, "Kent stated that the three of them chatted about 19 five to ten minutes." That's regarding the interview or the 20 discussion that we had with Powers. And states that, "Kent 21 advised that Powers certainly did not interview Fiser."
22 And then in the last paragraph or the next-to-the-23 last one there, there's a sentence added that says, "Also 24 , during the July 6th, '93 meeting, Fiser told Kent that 25 hiring him could be a liability, and suggested that Kent
Page 3197 1 test it -- test it out with corporate. He didn't want to do 2 anything that would hurt the Sequoyah program." Then on 3 Page 356, in the third paragraph, there's a change there.
4 It says, "After Kent told McArthur of his consideration of 5 hiring Fiser," and in the last paragraph, "According to 6 Kent, Fennick felt like Kent had," originally it said, "lied 7 to," "misled," is what it was changed to, "...had misled 8 him." And then the last change is on the last page, and it 9 says, "Kent does not believe Fiser was RIF'd because of 10 filing safety concerns. Instead, believes Fiser was RIF'd 11 because he was not the right person for the chemistry 12 program which had numerous problems." I deleted 13 "performance."
14 I believe those are all my edits to this document.
15 JUDGE YOUNG: Thank you. So can we proceed? Did 16 you have something further? No?
17 MR. DAMBLY: Oh, I had no other question on that.
18 I -- I would object, because we still -- absent Ms. Thomas 19 or somebody verifying what's the official copy, I don't 20 know.
21 i VOIR DIRE EXAMINATION 22 BY MR. DAMBLY: (Cont.d) 23 Q I guess I would ask are these corrections that you 24 made because you think this is what you said and she got it 25 wrong, or these are corrections that you wish to have made
Page 3198 1 to your testimony that you gave to her?
2 A I believe that these corrections were made to 3 improve the accuracy of the document. That I -- she asked 4 questions. I answered the questions. I thought she hadn't 5 fully understood what I was trying to convey in the answer, 6 j and made these edits, and then faxed it back to her, it 7 j appears.
8 Q And how many times have you been given IG records 9 to correct?
10 A I would say it's -- it's -- well, probably -- I 11 don't know how many times. It's not uncommon for the IG to 12 do an interview, write up the results of the interview, send 13 it back to the individual they interviewed to verify that it 14 l was correct and accurate. And that's not uncommon. You 15 know, I would -- it could have been every time I've been 16 interviewed by the IG, although I do believe there have been 17 a few times when I wasn't provided that opportunity over the 18 years. I mean, this -- you know, we're talking about 20 19 years worth of -- plus work experience, so I can't say it 20 was done every time, but it's fairly common. And it may be 21 their -- their practice, their standard practice to do that.
22 23 MR. DAMBLY: Okay. We have no way of knowing, 24 absent somebody from the IG, what's the record copy and what 25 1isn't.
l Page 3199 1 MR. MARQUAND: They're both record copies.
2 JUDGE YOUNG: Well, do you dispute that he made 3 these changes back in 1994? Do you ...
4 MR. DAMBLY: I don't know.
5 JUDGE YOUNG: Do you -- are you disputing what he 6 is testifying regarding his having made these changes?
7 lMR. DAMBLY: Well, clearly he's testified he made 8 the changes. I don't know what the date that the changes 9 were made (sic). I mean, there's a fax thing on there but, 10 again -- and I don't know if that was -- became an official 11 part of the IG report or not.
12 JUDGE YOUNG: Well, in terms of this coming in as 13 an exhibit here to show what Mr. Kent intended to say at 14 that point, whether or not it was an official record, do you 15 have an objection to it being admitted into this record?
16 MR. DAMBLY: If I might ask one more question.
17 BY MR. DAMBLY:
18 Q Mr. Kent, as you made the changes, this document 19 is true and accurate, to the best of your recollection?
20 A Yes, I would say it's -- it represents --
21 obviously I was given an opportunity to have input, and I 22 had my input, and it -- it is accurate as -- to the best of 23 my recollection.
24 Q Okay.
25 CHAIRMAN BECHHOEFER: Okay. Mr. Kent, is this the
Page 3200 1 only edited version of this document that you worked on?
2 THE WITNESS: Sir, I would -- I would have to say 3 that generally my experience has been if you're given an 4 opportunity to make comments, you get one opportunity. I 5i don't recall ever making any other comments to this document 6 at any time, other than on this occasion. So, I guess, to 7 1answer your question, this -- as far as I know, I was given 8 an opportunity to make comments on the document. It was 9 about -- it was several months after the original interview, 10 and I did make those and provided them back to the IG, and 11 that's the only time I've made changes to the -- or 12 recommended changes to the document.
13 CHAIRMAN BECHHOEFER: The board will accept both 14 versions into evidence.
15 MR. MARQUAND: Thank you, Your Honor.
16 CHAIRMAN BECHHOEFER: And that's TVA Exhibit 131.
17 MR. MARQUAND: Yes, Your Honor.
18 CHAIRMAN BECHHOEFER: Which includes both 19 versions; correct?
20 MR. MARQUAND: Yes.
21 CHAIRMAN BECHHOEFER: Okay. Well, that's 22 admitted.
23 l (The documents, heretofore marked 24 l as TVA Exhibit #131, were received 25 in evidence.)