ML022630217
| ML022630217 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 09/13/2002 |
| From: | Robert Davis Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| +adjud/ruledam200506, -RFPFR, 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-521, RAS 4860 | |
| Download: ML022630217 (104) | |
Text
ER~sqg~o Official Transcript of Proceegings NUCLEAR REGULATORY COMMISSib%
2IO2 SEPJI9 ANI:2
~TIL C tH SLRETARY ADJUOICATIONS STAFF 1,Title:
Tennessee Valley Authority Docket Number:
Location:
j 50-390-CivP et al.
Rockville, Maryland-I I,
IIiI Date:
Friday, September 13, 2002
-I Work Order No.:
NRC-521 Pages 5653-5754 49 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D?.C. 20005 (202) 234-4433 I
5EC~I -Oa2
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
TENNESSEE VALLEY AUTHORITY (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3)
- Docket Nos. 50-390-CivP
- 50-327-CivP; 50-328-CivP
- 50-259-CivP; 50-260-CivP
- 50-296-CivP
- ASLPB No. 01-791-01-CivP
- EA 99-234
______-x__
X Nuclear Regulatory Commission One White Flint North 11545 Rockville Pike Rockville, Maryland Friday, September 13, 2002 The above-entitled matter came on for hearing, pursuant to notice, at 9:00 a.m.
BEFORE:
CHARLES BECHHOEFER, Chairman ANN MARSHALL YOUNG, Administrative Judge RICHARD F. COLE, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES:
2 On Behalf of the Nuclear Regulatory Commission:
3 DENNIS C. DAMBLY, ESQ.
4 JENNIFER M. EUCHNER, ESQ.
5 Office of General Counsel 6
U.S. Nuclear Regulatory Commission 7
Washington, D.C. 20555 8
-and-9 NICHOLAS HILTON, Enforcement Specialist 10 Office of Enforcement 11 U.S. Nuclear Regulatory Commission 12 Washington, D.C. 20555 13 14 On Behalf of the Tennessee Valley Authority:
15 BRENT MARQUAND, ESQ.
16 JOHN SLATER, ESQ.
17 Tennessee Valley Authority 18 400 West Summit Hill Drive 19 Knoxville, Tennessee 37902 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I-N-D-E-X E-X-H-I-B-I-T-S Document Exhibit Nos.
Joint 9
2-92 N!
Marked Rec'd SRB Minutes 5708 TVA 57 70 112 118 121 Staff 55 128 166 Memo Re: Fiser DOL Complaint NSRB Meeting Minutes Bench Memo Page from Fiser Planner, 6-30-94 Page from Fiser Planner, 6-29-94 5709 5710 5719 5720 5720 HRIS Printout Re: Grover Head Count Numbers for 1996 Record of Interview, Kathy Welch NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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P-R-O-C-E-E-D-I-N-G-S 2
9:00 a.m.
3 CHAIRMAN BECHHOEFER: Good morning, ladies 4
and gentlemen.
I note two matters for the record.
5 First, that today is Friday the 13th for whatever that 6
is worth. But, second, we will start the session this 7
morning sitting as a quorum.
Judge Young had a flat a
tire and has not been able to make it in to the office 9
yet. And we will sit as a quorum until she gets here.
10 So it's my understanding that this morning 11 we first should --
we're going to try to complete the 12 record on various documents, but I understand there's 13 been some discussions about submitting copies of 14 certain documents with personal information redacted.
15 MR. MARQUAND: We had a discussion, Judge, 16 before you came in the room with Counsel and Judge 17 Cole and with respect to those lengthy documents that 18 were offered yesterday and rejected, 83 through 92, 95 19 and 96, 109 and 110.
They have a lot of privacy 20 information in them, and we thought we had a possible 21 solution we'd like to suggest and make sure 22 everybody's agreeable to. And that is yesterday when 23 we first talked about them, the Board suggested that 24 we offer --
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would have taken a lot of time.
2 What I would suggest is we have a set of 3
those and we can go through them and count up the 4
numbers and simply offer a document for --
a one-page 5
document in lieu of a big stack of documents in each 6
particular case. For example, we'd offer one page for 7
TVA Exhibit 83, and that one-page Exhibit 83, if the 8
numbers would bear it out, would say something that 9
involved 55 employee retention registers and employees 10 who were RIF'd or received service notices.
And 11 that's all that that document would have and wouldn't 12 have anybody's names or Social Security numbers but 13 just simply a number of employees that were covered by 14 that document, and we would simply substitute that 15 summary page in lieu of the large number of individual 16 notices and retention registers. And we --
17 JUDGE YOUNG:
Is there any objection to 18 that?
19 MR. DAMBLY:
No.
As a matter of fact, I 20 wouldn't even object to admitting a one-page document 21 for Exhibit 83 that says whatever it is, how many 22 people at Watts Bar or Browns Ferry were covered.
23 JUDGE YOUNG: Then it does not appear you 24 need to make any argument about it.
25 MR. MARQUAND:
Well, I'm just saying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that's that what we --
we weren't arguing, we were 2
saying we could do that and substitute that for the 3
exhibits so we wouldn't have to deal with the privacy 4
issues of going through every single page --
5 JUDGE YOUNG:
I understand that.
6 MR. MARQUAND: Okay. And if everybody --
7 JUDGE YOUNG: And there's no objection, so 8
I see no problem.
9 CHAIRMAN BECHHOEFER:
I see no problem.
10 MR. MARQUAND: Okay. Well, we'll do that.
11 CHAIRMAN BECHHOEFER: By the way, let the 12 record reflect that Judge Young was able to make it to 13 the office, notwithstanding her flat tire.
14 JUDGE YOUNG: I was told it was Friday the 15 13th, so I don't know what that has to do with it.
16 CHAIRMAN BECHHOEFER:
We started the 17 record that way.
18 MR. MARQUAND:
I hope that's the worst 19 thing that happens.
20 JUDGE YOUNG: I hope so.
I hope I can get 21 it fixed.
Has anything else been raised?
22 MR. MARQUAND:
No.
23 JUDGE YOUNG:
Okay.
Have we gotten the 24 exhibits marked since yesterday --
from yesterday?
25 Okay.
Are there any other preliminary matters?
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5659 CHAIRMAN BECHHOEFER: I don't know if it's preliminary but we have to set schedules for filing proposed findings.
JUDGE YOUNG:
Judge Bechhoefer is saying that we need to proposed findings of fact and conclusions of law, and I don't see any reason not to do that at this point and deal with the exhibits later.
One thing that I would say is that I want everyone to be very clear that you need to cite to pages and lines of exhibits and transcripts on every fact that you propose us to adopt, and also address the legal issues that we've discussed earlier on, and I don't think there's any need to repeat those, is there?
MR. MARQUAND:
No.
JUDGE YOUNG:
They'll be in the transcript.
MR. MARQUAND: But in terms of format, do you wish to have this in terms of concluded findings and fact and conclusions of law in a brief or separately or how would you --
how does the Panel want MR. DAMBLY: The Staff --
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them filed, we'll file them.
We intend to file a 2
separate post-hearing brief like you would find at DOL 3
or MSPB or the EEOC when you're dealing with 4
credibility and who did what to who.
This is not a 5
normal licensing case where you just trunk out a bunch 6
of facts.
So we'll end up filing two briefs if you 7
insist on --
8 JUDGE YOUNG: The normal way to do this is 9
it doesn't make any difference to me whether you 10 include your brief in your proposed conclusions of 11 law, which is done very often, but I think that you do 12 need to tell us what facts you want us to find, and 13 you do need to cite to the record for those facts, 14 because a brief arguing the law with no facts to 15 support is not going to be very helpful to us.
16 MR. DAMBLY:
I'm sorry.
I wasn't clear.
17 When I say post-hearing brief, I don't mean just the 18 legal issues.
A post-hearing brief that one would 19 file in front of the Department of Labor, in front of 20 the Merit Systems Protection Board --
21 JUDGE YOUNG:
You're talking semantics 22 then, in other words.
23 MR. DAMBLY:
deals with all the facts, 24 and he said this and she said that, and this happened, 25 and there's this document and whatever --
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JUDGE YOUNG:
Whatever you want to call 2
it.
I think the issue is you need to propose to us 3
what facts you think we should find, and you need to 4
cite to the record for that, and you need to make all 5
your legal arguments. You can entitle it whatever you 6
want to entitle it.
7 MR. DAMBLY: Well, but it's not a proposed 8
issue of a proposed findings of fact.
I mean 9
that's a separate kind of --
very stilted document.
10 If that's what you want, we'll file one of those, but 11 we're also going to file a separate one.
12 JUDGE YOUNG:
Call it whatever you want.
13 Address facts and law.
14 CHAIRMAN BECHHOEFER:
Right.
Now, the 15 Staff --
as I understand the rules, the Staff files 16 first a --
in fact, you should file a proposed 17 decision, spell out everything that you want us to 18 find, and the rules say 30 days from the close of the 19 record.
I assume that you will need somewhat more 20 time for that, and I would like some suggestions. And 21 we'll assume for purposes of calculating times that 22 the record will be closed today.
Whether or not it 23 will be because of the documents, that's beside the 24 point. But assume -- calculate from today 60 days, is 25 that a --
I mean I'm not --
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MR. DAMBLY: Actually, we were thinking 90 2
would be adequate, given this record and what it's 3
going to take to put together the proposed findings 4
and the brief.
5 JUDGE YOUNG: Which puts us again over the 6
holiday season working on your order. I think 60 days 7
would be reasonable.
8 MR. DAMBLY: Well, since they're going to 9
file after we do, it won't put you anywhere.
10 CHAIRMAN BECHHOEFER: No.
They will file 11 12 JUDGE YOUNG:
I don't see any reason not 13 to file simultaneously.
14 CHAIRMAN BECHHOEFER:
I do, I do, I do.
15 I think that simultaneous too many things get off in 16 the wind and you have to guess what the parties' 17 positions are.
18 JUDGE COLE:
With simultaneous filings, 19 sometimes you get ships passing in the night.
20 CHAIRMAN BECHHOEFER:
Yes.
21 MR. DAMBLY:
We normally handle that by 22 replying --
23 CHAIRMAN BECHHOEFER:
Well, you get that 24 too, but the Staff will have, we think --
some period 25 after the Staff files, the TVA will file its own NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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proposed findings, and I might say to the extent TVA 2
doesn't disagree with particular factual findings, 3
findings of fact, numbered findings of fact, we would 4
appreciate your stating, well, both the ones you 5
disagree with and the ones you agree with. Because if 6
there are proposed findings that one party proposes 7
and the other party doesn't disagree with, we may well 8
just adopt that as a finding of fact.
And I would 9
think that type of thing would apply to the timing of 10 the hearing, the noticing of various matters.
Of 11 course, if there's any disagreement to those, TVA 12 should so state.
13 JUDGE YOUNG: I just want to state for the 14
- record, I've had very good experience having 15 simultaneous filings and then replies to each other's 16 filings.
The manner in which we're proposing to 17 proceed at this point is going to take quite a long 18 period of time and not be terribly efficient.
If 19 that's what the majority of the Board wants to do, 20 then certainly we can do that, but I think that the 21 Commission has recommended the use of simultaneous 22 filings whenever possible.
I find it to be a very 23 efficient way of handling things, and it gets things 24 resolved much more quickly.
25 MR.
MARQUAND:
Let me ask, I mean NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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apparently there is some sort of constriction here or 2
restriction with respect to the timing for the Panel 3
to issue a decision; is that right?
4 JUDGE YOUNG:
We normally try to do our 5
orders within 60 days of the final filing.
6 MR.
MARQUAND:
So we're
- talking, 7
basically, two months.
Counsel mentioned that he 8
would like to have 90 days to file his initial filing, 9
whatever it might be, and if we --
let's explore the 10 possibilities if we did simultaneous filings, say 90 11 days, and then there was another 45 to 60 days to file 12 replies, I think that -- and then --
that would put us 13 well beyond the holidays for the Panel to even begin 14 having to sift things out.
15 JUDGE YOUNG:
Well, the holidays are 16 obviously a
consideration just in terms of 17 accommodating personal schedules, but they're not the 18 main thing. I think that if you don't do simultaneous 19 filings, you're talking about three periods of time, 20 and then possibly after that there will be another 21 effort by TVA to --
22 MR. MARQUAND:
Understand.
23 JUDGE YOUNG: --
respond to the response, 24 and so --
25 MR.
MARQUAND:
We certainly want an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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opportunity --
I don't disagree with simultaneous 2
filings, and I think if the parties each had 90 days 3
to do --
somewhere in that neighborhood to do their 4
initial filing, and then there was a 45-to 60-day 5
response time to respond to the initial briefs, I 6
think that would be --
that would suit our needs.
I 7
don't know about Staff's.
8 MR. DAMBLY:
It's fine with us.
9 CHAIRMAN BECHHOEFER:
Well, I think the 10 Board's efforts would be, I won't say easier, but it 11 would assist us in preparing a decision if we had 12 consecutive filings, as the rules state. They're not 13 binding, but I think that to the extent there are 14 many, many formal type findings, formalistic type 15 findings, we could start with that, and it would be 16 useful for us to know then whether -- later on whether 17 TVA agrees or disagrees.
If you agree, it's likely 18 we'll make that finding.
19 JUDGE YOUNG:
They can do that in their 20 responses.
21 MR. DAMBLY:
I would just note for the 22 record too exactly who files when is not all that 23 clear in the rules, because the rules are written for 24 licensing proceedings and not enforcement.
And it 25 says the Staff files X number of days after the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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licensee also.
2 CHAIRMAN BECHHOEFER:
Correct.
3 MR. DAMBLY:
So I mean it's --
which is 4
not going to be the case here, and I'm not suggesting 5
it.
But it's nothing --
6 CHAIRMAN BECHHOEFER:
Well, those rules 7
are incorporated by reference in Subpart B of Part 2, 8
so they do apply to --
9 MR. DAMBLY: No, I know they apply to this 10 proceeding, I'm just saying the way it's set up would 11 be normally the Applicant files --
and it says 12 specifically the Staff files X number of days after 13 everybody else. Now, in this case, the Staff happens 14 to have the burden, so it doesn't fit in the rule, and 15 I understand we should either go simultaneously or we 16 go first, but it's not abundant, and my only point is 17 Part 2, as it pertains to this proceeding, is not all 18 that clear.
19 MR. MARQUAND:
And as Judge Young has 20 noted, the Staff goes first and then we file our main 21 brief, and then Staff files a reply.
TVA would want 22 to have the opportunity to file a response, and going 23 consecutively, I'm not sure I see an end to that 24 briefing. Filing simultaneously seems to me to solve 25 that problem.
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MR. DAMBLY:
And I'm sure, given that we 2
would have the burden to prove, we always get to file 3
last at some point, so if they wanted to reply our 4
reply, we'd probably want to reply to their reply.
5 JUDGE YOUNG:
We could probably extend 6
this all the way through the end of 2003 if you really 7
want to do that.
8 MR.
DAMBLY:
November of 2003 is fine for 9
me.
10 JUDGE YOUNG:
I think it would be most 11 appropriate to have 60 days as a deadline for both 12 parties to file their initial filings, and then if you 13 want 45 to 60 days after that, that would be the most 14 efficient way to handle it.
If you really think you 15 need 90 days, I don't have any problem with that, but 16 I think that --
17 JUDGE COLE:
One thing we might consider 18 if more time is needed is we might not close the 19 record today until the documents come in. That would 20 give you a little additional time.
21 MR. MARQUAND:
The other thing is we 22 obviously aren't going to have all the transcripts 23 until they're all on ADAMS, and the last time it took 24 a good 30 days or 45 days to get all those transcripts 25 on there.
So we'll be at a disadvantage until that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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happens.
2 JUDGE YOUNG:
I think there's maybe an 3
accommodation that could be made for electronic 4
copies.
5 CHAIRMAN BECHHOEFER:
Well, I think the 6
parties should serve their proposed findings, both 7
electronically and --
8 MR.
MARQUAND:
Certainly.
9 CHAIRMAN BECHHOEFER:
paper copies are 10 still required under the rules.
11 MR. MARQUAND:
In fact, we --
maybe the 12 easiest thing to do since they're going to be so 13 voluminous would be to give you a CD with them on 14 them, I don't know.
15 JUDGE YOUNG:
The proposed findings?
16 MR. DAMBLY:
Yes.
I would assume they 17 will be quite large, could be several hundred pages.
18 And I'm not sure what the limitation on e-mail 19 transmittals around here size-wise is.
20 JUDGE COLE:
Did we put a limitation on 21 the proposals?
22 MR. DAMBLY:
Five hundred pages?
23 (Laughter.)
24 JUDGE COLE:
You mean pounds.
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I think that you all are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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perfectly capable of keeping this under 100 pages, 2
well under 100 pages.
3 MR.
MARQUAND:
I don't think the findings 4
will be.
5 MR. DAMBLY:
I don't think there's any way 6
in the world to keep this under 100 pages.
7 MR.
DAMBLY:
No, I don't believe so.
8 MS. EUCHNER: And, Your Honor, one of the 9
reasons for that is if you do want it in the format of 10 the proposed findings, pretty much every sentence has 11 to be its own numbered paragraph.
12 JUDGE YOUNG:
Not necessarily.
13 MR. MARQUAND:
No, I think you could have 14 paragraphs with proposed findings and citations of 15 record, but I think by the time you deal with all the 16 facts and the credibility issues you talked about, as 17 well as the legal issues, it's going to run upwards of 18 200 pages.
I have had experience in this several 19 times in the last several years.
20 JUDGE YOUNG:
I have also, and it's not 21 necessary, but if you all feel the need to do that, 22 again, go right ahead.
But I think that we need to 23 encourage conciseness to the degree possible, and I 24 would ask the parties to be cognizant of that.
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of finding of fact.
You can do it in paragraphs as 2
long as you cite to the record.
Try to be as concise 3
as you can be.
4 CHAIRMAN BECHHOEFER:
Each sentence may 5
need separate citations, however, of a paragraph.
6 MR. MARQUAND: Right. But we're not paid 7
by the hour, so we're not going to be padding this.
8 MR. DAMBLY: You're not going to have Dave 9
help you?
10 (Laughter.)
11 MR.
MARQUAND:
And, Your Honors, to 12 express my opinion, we would request simultaneous 13 briefing, initial simultaneous brief, whether it's 14 findings of briefs, followed by simultaneous replies.
15 I don't think there's any secret what the legal issues 16 or factual issues in this case are.
17 (Judges consult.)
18 JUDGE COLE: So neither the Staff nor TVA, 19 both of them would be in favor of simultaneous 20 filings?
21 MR. DAMBLY:
Yes, Your Honor.
22 MR. MARQUAND:
Yes, sir.
23 JUDGE YOUNG:
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things, indicate your disagreement and indicate why.
2 And if you want to cite to other parts of the record, 3
you need to do that as well.
4 MR. MARQUAND:
Let me suggest, and maybe 5
we can consider how this is done, but, for instance, 6
in many federal courts when you're dealing with 7
summary judgment, they require a document --
they 8
require several documents.
One of the documents on 9
summary judgment is sort of a findings kind of thing 10 that states undisputed facts.
And then when the 11 opponent to the movement has to respond to that, they 12 file a brief, but they also file a separate document 13 which addresses serially the undisputed facts asserted 14 by the movement.
15 And it sounds to me like what Judge 16 Bechhoefer is saying, that he wants a document that 17 specifically addresses the findings.
I'll tell you 18 what, if we got into that, then we would -- supposed 19 we, TVA, had 100 pages of numbered findings and 20 paragraphs.
That would require almost the same sort 21 of --
unless --
almost the same sort of document in 22 response by the Staff then to address each of those 23 separate findings and say why those findings were --
24 why they disagreed with a particular finding.
That 25 could even run longer than the original document.
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JUDGE COLE:
Yes.
I bet you're right.
2 JUDGE YOUNG:
I think that it's possible 3
to do these things in single documents and to try to 4
be as concise as possible.
I've done a lot of 5
personnel cases like this.
I know it's possible.
I 6
encourage the parties to be as concise as possible and 7
to address what you disagree with.
If you want to do 8
it in separate documents, I have no objection.
You 9
can file whatever you want, but I think it's more 10 efficient to try to be as concise as possible.
11 MR. MARQUAND: The separate documents, in 12 my opinion, turn out to be simply formalities that 13 nobody --
14 JUDGE YOUNG:
Exactly.
I think you're 15 exactly right.
16 MR.
MARQUAND:
really pays any 17 attention to.
18 JUDGE YOUNG:
It's a matter of semantics 19 and formalities. Whatever you call them, whether you 20 do them in single or multiple documents, the idea is 21 to try to be as concise as possible, be direct, cite 22 to the record, give your legal arguments concisely and 23 give us authority for all legal arguments that you 24 make.
It's pretty straightforward.
25 MR. MARQUAND:
I'm not sure that I see a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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way to --
I agree with you, Judge Young, but I'm not 2
sure I understand how to deal with Judge Bechhoefer's 3
request to deal with every specific finding in a 4
response and say whether we agree or disagree and why 5
we don't agree with the specific finding while still 6
keeping the document tight.
7 JUDGE YOUNG:
Well, obviously, depending 8
upon what you get, you would need to respond to it.
9 And if you get a long document, you would have a 10 longer response, at least with regard to the findings.
11 But that's --
12 CHAIRMAN BECHHOEFER:
Well, I think the 13 Board needs to know where the parties which 14 proposed findings that the parties have no dispute 15 over or, to the contrary, ones that they do dispute.
16 And just submitting us different bottom line results 17 isn't going to help. I mean it's not going to really 18 tell us --
19 MR. DAMBLY:
But in the reply briefs or 20 reply findings or whatever we're going to call those, 21 we could easily have in the first page, "The following 22 proposed findings by TVA are not disputed by the 23 Staff," and just list them without --
24 MR. MARQUAND:
If they were listed, that 25 would be the way --
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MR. DAMBLY:
That would be one paragraph 2
that lists however many findings we don't contest, and 3
they could put the same thing in theirs, and that 4
ought to tell you what we don't contest.
Anything 5
that's not in that paragraph is contested.
6 JUDGE YOUNG: And you'll give reasons for 7
why you contest it?
8 MR. MARQUAND: Well, I'm not sure we would 9
individually address each one.
I think your own 10 findings --
it's not like we're going to be like this.
11 I think those findings are implicitly going to --
12 JUDGE YOUNG:
I think you're right.
We 13 don't need to make this more complicated than it needs 14 to be.
15 CHAIRMAN BECHHOEFER: Well, but we do want 16 to make it clear so that the Board can try to come up 17 with a decision within 60 days. I don't know if we'll 18 make it but within 60 days of the final proposed 19 findings, conclusions, et cetera.
So it's not --
20 JUDGE YOUNG:
Have we set deadlines? Or 21 have we set 90 days and 60 days for responses?
Is 22 that what the parties feel you need?
23 MR. MARQUAND: That's suitable to us, and 24 we start the 90 days from the date that we --
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dates.
2 JUDGE COLE:
Do you want to finish your 3
sentence there?
4 MR. MARQUAND:
I was going to suggest --
5 I mean somebody mentioned that TVA was going to submit 6
the summary documents in lieu of 83 through 92 and 95 7
and 96, and once we submit that and if nobody's got 8
any problem with that and the way we've tallied up the 9
numbers, then the record would close and then we'd 10 start the briefing at that point?
11 JUDGE COLE: Do you have any idea how long 12 that will take?
13 MR. MARQUAND: Probably a week to ten days 14 for us to get it done and get it to Counsel to make 15 sure they don't have --
let them check our numbers.
16 JUDGE COLE:
Okay.
17 MR. DAMBLY: I think we won't be checking 18 those numbers, so you can just submit them.
I mean 19 they're big numbers.
Whatever they are, they're 20 numbers.
21 CHAIRMAN BECHHOEFER:
But make sure that 22 if questions were asked about the full document in 23 relation to particular pages of that document, that 24 perhaps a summary would not be appropriate for those 25 particular documents. And I think there was only one NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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or two of the --
2 MR.
MARQUAND:
I think transcript 3
adequately reflects the questions that were there.
4 MR. DAMBLY:
I don't see the need for --
5 I mean the only questions that were asked on I think 6
it was, 83 was is this a retention register and who's 7
name on it and is he on the next page, which was the 8
preliminary one, and how did that work out.
And I 9
think the testimony is self-contained; it doesn't 10 require the document.
11 MR. MARQUAND:
I agree.
12 CHAIRMAN BECHHOEFER:
I just didn't want 13 disputes to arise.
14 JUDGE YOUNG:
I think Mr. Dambly said he 15 had no dispute.
16 CHAIRMAN BECHHOEFER:
Yes.
17 MR. DAMBLY:
I agreed to not even object 18 to putting in the summary page as Exhibit 83.
19 CHAIRMAN BECHHOEFER: Well, what about 93?
20 MR. DAMBLY:
Well, 93 and 94 have been 21 admitted.
They're going to have to redact those. We 22 didn't object to those being admitted in total, so 23 somebody's going to have to redact. They've got to go 24 through all the Social Security numbers and whatever 25 on those.
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MR. MARQUAND:
What we suggested was we 2
have our copy of those exhibits. We'll make it --
I 3
guess we should withdraw from the record the first 4
page of that that has the stamp on it.
5 JUDGE YOUNG: The first page of which one 6
are you talking about?
7 MR. MARQUAND:
Ninety-three and four.
8 CHAIRMAN BECHHOEFER: Ninety-three and 94.
9 JUDGE YOUNG:
Okay.
So back on 109 and 10 110, you're going to combine those into --
11 MR. MARQUAND: Each of those exhibits will 12 have a one-page summary document.
13 JUDGE YOUNG:
Substituted with the same 14 numbers on them?
15 MR. MARQUAND:
Yes.
16 JUDGE YOUNG:
Okay.
What was the 17 reference to 83?
18 MR. DAMBLY: That was the first document.
19 MR. MARQUAND:
Eighty-three through 92 20 will have a one-page -- and 95 and 96 and 109 and 110 21 will have a one-page summary document for each of 22 those exhibits.
23 JUDGE COLE:
As replacements.
24 MR. MARQUAND:
As replacements.
25 CHAIRMAN BECHHOEFER:
Okay.
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MR. MARQUAND:
And 93 and 94, which were 2
admitted into the record, we will simply withdraw the 3
first page so that we can --
and it doesn't have any 4
personal identification on it.
We'll withdraw the 5
first page, and then we have copies of the rest of 6
that, and we will go through and redact out the 7
privacy information and send that back in, three sets 8
of it, to replace the ones you have so that they can 9
go into ADAMS or wherever you need to put them.
10 JUDGE YOUNG: Well, there need to be three 11 official copies and then three copies for us.
That 12 makes six.
13 MR. MARQUAND:
Okay, six copies.
Okay.
14 MR. DAMBLY:
But your copies you don't 15 care if it has a Social Security number on it.
16 JUDGE YOUNG: Well, I think it's better to 17 have the same thing.
18 MR. MARQUAND: That's not a problem. Once 19 we redact one, we'll just xerox five copies from that.
20 CHAIRMAN BECHHOEFER: Okay. I mean I have 21 no preference at all about --
I'm not going to reveal 22 anybody's Social Security number personally, so --
23 MR. MARQUAND: We will need some guidance 24 in what needs to be redacted, what types of things 25 need to be redacted.
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utensils that need to be used to do that redaction, 2
which I understood from Counsel yesterday a magic 3
marker or whatever is not adequate --
4 JUDGE YOUNG:
Is there anything besides 5
Social Security number and home addresses?
6 MS. EUCHNER:
Social Security numbers, 7
home addresses and phone numbers and dates of birth.
8 JUDGE YOUNG:
You can tell him the right 9
kind of pencils to get?
10 MR. MARQUAND:
Well, what if we black it 11 out on an original and then they could xerox?
It's 12 not going to show through then.
13 MS. EUCHNER: With a black marker we tried 14 that.
You can actually read the typewritten number 15 through the black marker when you photocopy it, so it 16 does have to be marked out with a special pencil.
17 Because that was the first thing we tried and when we 18 went and photocopied, you could read right through the 19 marker.
20 JUDGE COLE:
So how do we identify the 21 kind of marker that has to be used? Do you have that 22 information?
23 MS. EUCHNER:
I have one.
I can show it 24 to them so they can see.
You should be able to get 25 them at any office supply store.
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them.
I had our administrator order them from like 2
Staples or something.
3 JUDGE COLE: Can you provide them with an 4
example of that?
5 MR. MARQUAND: Why don't you just give us 6
one of them? Why don't you just give us one and we'll 7
tell our administrator.
8 MR. DAMBLY: Basic grease pencil. This is 9
the official redaction tool.
10 CHAIRMAN BECHHOEFER:
Can we requisition 11 one from the supply room?
12 MS. EUCHNER: They don't carry them in the 13 supply room, so you'd have to have them ordered, but 14 it should be a problem ordering them if you explain 15 what you need them for.
That's how I got mine.
16 JUDGE COLE:
How many of those do you 17 have?
18 MS. EUCHNER: I have three additional ones 19 other than the one I just gave to TVA. If Your Honors 20 each would like one just for your own use --
21 JUDGE COLE:
Why don't you give them all 22 to TVA?
They're going to need them.
23 (Laughter.)
24 MR. DAMBLY:
Yes.
They're going to need 25 more than that.
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MS. EUCHNER: Oh, yes.
These things go a 2
lot quicker than they look.
3 MR.
MARQUAND:
How long --
okay. So would 4
we do 90 days from the date that 83 through 110 are 5
submitted and then we get all the exhibits back in the 6
record?
7 CHAIRMAN BECHHOEFER:
Can we set a
8 particular date so we don't hit Sundays or Saturdays?
9 MR.
DAMBLY:
How about Friday the 13th of 10 December?
11 CHAIRMAN BECHHOEFER:
What day is that?
12 MR.
DAMBLY:
A Friday.
13 CHAIRMAN BECHHOEFER:
Is that a Friday?
14 Oh, yes.
15 JUDGE COLE:
I thought we were going to 16 close the record when the documents come in, so it 17 would --
18 MR.
DAMBLY:
Well, we could set a date 19 now.
I mean --
20 CHAIRMAN BECHHOEFER:
Well, how about 21 Christmas Day?
22 MR.
MARQUAND:
You sound like a former 23 supervisor I used to have.
24 MR.
DAMBLY:
If you want the Friday before 25 Christmas, I guess the 20th, it doesn't matter to me.
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JUDGE COLE:
Is that okay with you?
2 MR. MARQUAND:
We can live with that?
3 JUDGE COLE:
December 20?
4 MR. MARQUAND:
I think we can live with 5
that.
6 CHAIRMAN BECHHOEFER:
For the initial 7
brief.
8 JUDGE YOUNG:
And then February 19?
9 CHAIRMAN BECHHOEFER:
Wait a minute.
10 Let's --
there's a holiday around there sometime.
I 11 don't know when it is.
12 MR. DAMBLY:
Which holiday is that?
13 MS. EUCHNER:
Probably that weekend.
14 MR. MARQUAND:
Why don't we make it 15 February 28.
We know there's not a holiday, and it's 16 a Friday, so it's easy.
Because we're all going to 17 lose ten days from December 20 to the 1st of the year.
18 MR. DAMBLY:
I'm sure we'll be working 19 after Christmas.
20 JUDGE YOUNG:
So December 18 --
or 20th?
21 JUDGE COLE:
December 20 and Friday, 22 February 28 for the reply brief.
23 JUDGE YOUNG:
Twenty-eighth?
24 JUDGE COLE:
Twenty-eighth.
25 JUDGE YOUNG: What about the 21st because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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it's 60 days?
2 MR. MARQUAND:
Well, Judge, we just said 3
we would lose ten days between the 20th and the 1st of 4
January.
And also there's a holiday in there 5
somewhere.
6 CHAIRMAN BECHHOEFER:
Yes.
There's a --
7 I guess President's Day it's called now, something 8
like that.
9 MS. EUCHNER:
Probably the 17th.
10 CHAIRMAN BECHHOEFER: Given the fact that 11 we like these filings to be helpful for us to --
12 MR. DAMBLY:
Gives you more time to --
13 JUDGE YOUNG:
Pare them down, yes.
14 MR. DAMBLY:
We use time to make them 15 shorter.
16 CHAIRMAN BECHHOEFER:
No.
I think --
17 MR. DAMBLY:
Use that "make it fit" 18 function on your word processor.
19 CHAIRMAN BECHHOEFER:
By the way, these 20 documents should be double-spaced and whatever the 21 standard margins are.
22 MR. MARQUAND: Since there's not a page --
23 we're not putting a page number on it, nobody's going 24 to try to cram a lot of type into a page, I don't 25 think.
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CHAIRMAN BECHHOEFER:
No, but it's a lot 2
harder to read --
3 MR. MARQUAND:
I understand that.
4 CHAIRMAN BECHHOEFER:
at least the 5
paper copies are harder to read if they're single-6 spaced.
7 MR. MARQUAND:
Understand.
8 CHAIRMAN BECHHOEFER:
Do we need to make 9
an exhibit out of this?
10 MR. MARQUAND:
Out of what?
11 CHAIRMAN BECHHOEFER:
Next year's 12 calendar.
13 MR. MARQUAND:
I thought we were talking 14 about 2004.
15 JUDGE COLE:
Yes.
We better say February 16 28, 2003.
17 CHAIRMAN BECHHOEFER: Now, what about the 18 various briefs that we were talking about? Would they 19 be filed with the initial filing since everybody's 20 doing it together?
21 JUDGE YOUNG:
That's part of it.
22 CHAIRMAN BECHHOEFER: So all the briefs on 23 the various questions that we've asked you to address 24 25 JUDGE YOUNG:
That's part of what they're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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filing both times.
2 CHAIRMAN BECHHOEFER: Okay. I guess we're 3
through with that. We will establish those particular 4
- dates, and I guess we're ready to proceed to 5
documents.
6 JUDGE YOUNG: I would suggest that we just 7
start and go through them one by one and just try to 8
move it along as quickly as possible.
And do it an 9
order like that I think will make more sense than 10 trying to do it in categories where we're all on 11 different pages in terms of how to do it.
If we go 12 through them one by one and just move it along, I 13 think that should be fairly efficient.
We can start 14 with TVA, the Staff or Joint.
15 MR. DAMBLY:
Well, the Joint is shorter.
16 CHAIRMAN BECHHOEFER:
Pardon?
17 MR. DAMBLY: Joint is shorter.
18 CHAIRMAN BECHHOEFER: Yes, but isn't that 19 a nice way to finish up? No, I'm just kidding.
Take 20 your pick. We should go through each number that has 21 been proffered or has been supplied to --
made 22 available to the Board and determine whether they have 23 been admitted or whether they should be formally 24 admitted or not as the case may be, or withdrawn.
25 JUDGE YOUNG: And to the degree I can help NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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5686 1
by use of this computer and doing searches for 2
exhibits, that might speed us up some too.
Judge 3
Bechhoefer, do you mind if I just start going through 4
them one by one?
5 CHAIRMAN BECHHOEFER:
No.
6 JUDGE YOUNG:
All right.
7 MS. EUCHNER: Your Honors? Before we get 8
started, would it be helpful as we do this to have the 9
set in front of us and we can pull out the documents 10 that we all agree have not been admitted or proffered?
11 JUDGE YOUNG:
Yes.
12 MS. EUCHNER:
So that way we're doing two 13 things at once.
14 JUDGE YOUNG:
Yes.
Yes.
15 MR. MARQUAND:
We're doing what now?
16 JUDGE YOUNG:
What I think we need to do 17 is we need to get all the copies so that someone has 18 a copy in front of them. We're going to through them 19 volume by volume, take out the ones that have not been 20 introduced.
If they have been introduced, the record 21 should show that or you should be aware of it or it 22 should be on the list.
If they have been proffered 23 and either admitted or rejected, they will stay in and 24 they would be marked to that effect. And if as we go 25 through you see any of the type of information that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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needs to be redacted and we can do that quickly on 2
short exhibits, I suggest we go ahead and do that 3
today.
There's enough --
there are three other --
we 4
can do it with our copies.
There are three other 5
copies that we need to do it with.
If we need to with 6
the official copy we may want to get --
7 MR. MARQUAND:
Well, I think as long as 8
we're all doing it simultaneously, we won't have --
it 9
doesn't matter who's going to be that one. As long as 10 everybody is on the same page with respect to the same 11 exhibit at the same time, I think it's fine.
12 CHAIRMAN BECHHOEFER:
Well, let's --
13 JUDGE YOUNG:
Let's go off the --
14 CHAIRMAN BECHHOEFER: -- start with, what, 15 Joint?
16 JUDGE YOUNG: Let's go off the record for 17 a second.
18 CHAIRMAN BECHHOEFER:
Well --
19 JUDGE YOUNG: I just want to ask the court 20 reporter something.
21 CHAIRMAN BECHHOEFER:
Oh, okay.
22 JUDGE YOUNG: And she can't answer while 23 she's doing it.
24 CHAIRMAN BECHHOEFER:
Right.
25 JUDGE YOUNG:
So let's go off the record NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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so we can talk to the court reporter about her 2
preferences.
3 (Whereupon, the foregoing matter went off 4
the record at 9:53 a.m. and went back on 5
the record at 10:11 a.m.)
6 JUDGE YOUNG: We're on the record. Okay.
7 What we're going to do with regard to the exhibits is 8
we have Law Clerk Susan Lynn here who is going to be 9
handling the official original copy.
We're going to 10 go through the exhibits one by one and make sure that 11 everyone's all on the same page in terms of whether 12 the exhibit was first proffered and then if proffered 13 whether it was admitted or rejected and to the degree 14 possible identify the dates and page numbers.
15 At the same time, TVA Counsel and Staff 16 Counsel are going to be handling the other two 17 official copies and doing the same thing.
Exhibits 18 that were not proffered are going to be taken out of 19 the books and placed in either recycling or a pile to 20 be burned if they have some kind of sensitive 21 information, such as Social Security numbers and so 22 forth.
If we come to small exhibits that have just a 23 relatively few things that need to have identifying 24 information redacted, we'll do that as we go.
If we 25 come to longer ones, we'll handle that on a case by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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case basis. And in this fashion, we're going to try 2
to get through all the exhibits including the volumes 3
that were originally provided to us on April 23 as 4
well as those that have been introduced separately 5
from that.
6 I also ask if either party had any 7
objection --
I'm going to be taking mine out as well.
8 I ask if either party had any objection to Judge Cole 9
and Judge Bechhoefer not taking the unproffered 10 exhibits out of their notebooks at this time --
11 CHAIRMAN BECHHOEFER:
At this
- time, 12 emphasize that.
13 JUDGE YOUNG: -- and they assured everyone 14 that they will do that later.
We also, when we were 15 off the record, several exhibits were identified as 16 having been introduced prior to this week that should 17 have been on the list and will be added to the list 18 that we'll place in the record that was prepared by 19 our office on exhibits.
Namely, on the TVA list, 20 Exhibits 56 and 132 were not included on that list and 21 should have been.
Both were introduced on June 18.
22 Fifty-six at Page 4014; 132 at Page 4062.
23 Then on the Joint Exhibit lists, Exhibits 24 28, 29, 33, 58 and 67 should have been on the list of 25 exhibits that were proffered and I believe all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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accepted into evidence prior to this week.
Twenty-2 eight was admitted on May 8 at Page 2369.
Exhibit 29 3
was admitted on May 8 at Page 2381.
Exhibit 33 was 4
admitted on April 30 at Page 1041.
Exhibit 58 was 5
admitted on June 12 at Page 3007.
And 67 again, did 6
you say?
7 JUDGE COLE:
Yes.
That was just 8
identified --
9 JUDGE YOUNG:
I'm sorry.
That --
10 JUDGE COLE:
-- on this list as missing.
11 I have copies, the record copies of Exhibit 67, along 12 with some others, which when we get to we'll insert 13 them in the official documents.
14 JUDGE YOUNG:
Okay.
And that was --
15 CHAIRMAN BECHHOEFER:
We're referring to 16 exhibits that the court reporters filed with us or 17 sent to us.
18 JUDGE YOUNG:
I don't see any need --
19 CHAIRMAN BECHHOEFER:
And which we 20 received I think just yesterday or the day before.
21 JUDGE YOUNG:
Does any party have any 22 preference on whether we do this on the record or off 23 the record?
It seems to me it would make more sense 24 to go off the record unless we get to a point where 25 something needs to be on the record.
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easier on the court reporter.
2 MR. DAMBLY:
Off the record's fine.
3 JUDGE YOUNG:
Okay.
So we're going to 4
start with --
5 CHAIRMAN BECHHOEFER:
TVA agree?
6 JUDGE YOUNG:
Joint Exhibits --
7 CHAIRMAN BECHHOEFER: Does TVA agree with 8
that?
9 MR. DAMBLY: Before we go off the record, 10 there's one other TVA exhibit, Exhibit 103, that we 11 have reflected that 103 was ID'd on 425 and also 12 admitted on 425, but it's not listed on --
13 MS. EUCHNER: Is that our interrogatories, 14 because I thought we replaced 103 with 113.
Well, I 15 believe we withdrew objections to 113, not to 103, 16 because 103, if I'm not mistaken, was incomplete. Or, 17 I'm sorry, no. I think 103 is the complete one and we 18 decided to only put in the ones that you were asking 19 about.
20 MR. SLATER: I think both 103 and 113 are 21 actually in.
22 MS. EUCHNER: You said 425?
23 JUDGE YOUNG:
Okay.
Mr. Marquand, you 24 tendered that on Page --
somewhere around Page 655 25 Dambly appears to have made an objection.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5692 MR. MARQUAND:
I think it took two days.
MR. DAMBLY:
My objection was not two days.
It was one of the shorter ones.
MR. MARQUAND: I think he objected for one day and the next day he said, "Well, it doesn't make any difference, I'll let it in."
JUDGE YOUNG:
There are a lot of references to it.
I'm trying to get to a place where oh, thanks, sorry.
Around Page 848 or 9 is where you tendered it formally.
MS. EUCHNER:
And, Your Honor, it looks like at the beginning of the next day we took up discussion of it again, and Mr. Marquand said where having prepared a
document that specifically identifies a cut and past of their answers to interrogatories.
JUDGE YOUNG:
What date are you looking at?
MS. EUCHNER:
I'm looking at April 2 JUDGE COLE:
What page?
MS. EUCHNER:
Page 870, it's the beginning of the day when we first got started.
JUDGE COLE:
Yes.
At 847, it's Marquand, "Your Honor, we talked at length about Exhibit 103," and that's on Page 847.
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very Mr.
TVA ss.com
5693 1
MR. MARQUAND:
Right.
Now, as I recall --
2 JUDGE COLE:
I think it's first identified 3
in the transcript at Page 844.
4 MR.
MARQUAND:
Right.
But then we --
5 JUDGE YOUNG:
First, actually, it was 6
identified well before that.
But there was a long 7
discussion in between, and I can go back to find --
8 what was the first page I gave you?
9 MS.
EUCHNER:
Six-fifty-five maybe.
10 MR.
MARQUAND:
Right.
But then the next 11 day we got into talking about,
- again, as Counsel 12 pointed out, at Page 870.
13 MS.
EUCHNER:
Because I believe we had a 14 lengthy discussion about the NRC regulations as to 15 when our interrogatory responses could be used.
16 JUDGE YOUNG:
Okay.
On 463 was where it 17 was first mentioned.
18 MR.
DAMBLY:
That would have been the 19 second day of the hearing, I think.
20 JUDGE COLE:
That would be --
21 MR.
DAMBLY:
For some reason, there was 22 like a 300-page gap in the record, for some reason.
23 JUDGE YOUNG:
The first day's transcript 24 has been corrected with the page numbers.
The first 25 version of April 23 that you got started with Page 1.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5694 The gap was because the second day we started on the correct page in the transcript.
There's a newly paginated April 23 transcript now available that starts on the day it should have started, which would have followed the last telephone conference that was in the transcript.
MR. DAMBLY:
Oh.
So you numbered the telephone conferences as part of the --
JUDGE YOUNG:
Right.
MR. DAMBLY:
record.
JUDGE YOUNG:
They're done sequentially.
MR. MARQUAND:
So the correct version is going to begin on Page what for April 23?
Will it begin at Page 262?
We have to have the same pagination you do.
MR. DAMBLY:
Yes.
We don't have it that way.
version is JUDGE YOUNG:
The correct version --
CHAIRMAN BECHHOEFER:
Two-six-two.
JUDGE YOUNG:
Two-sixty-two.
MR. MARQUAND: So that's the way the final going to be.
JUDGE YOUNG:
Right.
MR. MARQUAND:
Okay.
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sure you get that when you're doing your citations.
2 All right.
So somewhere around 462 is where it first 3
came up, and then we got down to 655 you tendered it, 4
Mr. Dambly objected --
5 MS. EUCHNER:
And, Your Honor, it looks 6
like it was discussed again at the very end of the day 7
on April 25.
The discussion goes on for quite a 8
while.
9 JUDGE YOUNG:
April 25 or 24?
10 MS. EUCHNER:
Yes, April 25.
11 CHAIRMAN BECHHOEFER:
Where does the 12 discussion --
13 MS. EUCHNER: I'm trying to find where it 14 starts, because it's a very lengthy discussion at the 15 end of the day.
It looks like it starts at the bottom 16 of Page 847 and that's where Mr. Marquand tenders 103 17 again. And then it goes through the end of that day, 18 and it looks like at the end of the day it was decided 19 that we would take it up in the morning, and no ruling 20 was ever made on April 25 as to whether it should be 21 admitted or not.
22 JUDGE YOUNG:
So it was tendered --
what 23 page do you show it first being tendered?
24 MS. EUCHNER: I show -- well, I don't know 25 whether it was tendered any earlier, but I show it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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being either tendered for the first time or tendered 2
again starting at the very bottom of Page 847 on line 3
24, going to the top of 848.
And then Mr. Dambly 4
objects to it again on Page 849.
5 JUDGE YOUNG: Did you look around Page 655 6
to see the first time it was tendered?
7 MS. EUCHNER: I believe I did, and I think 8
that's where we objected to it the first time.
9 JUDGE YOUNG:
Probably the record should 10 reflect the first time it was tendered.
The problem 11 is the computer changes the page numbers, so it's a 12 little hard for me to --
13 MS. EUCHNER:
Are you using summation, 14 Your Honor, to do that or a different program?
15 JUDGE YOUNG:
Just WordPerfect.
16 MS. EUCHNER:
Oh, okay.
17 JUDGE YOUNG: But the pagination sometimes 18 changes.
19 JUDGE COLE: At 655, Mr. Marquand says, "I 20 am going to tender the TVA 103." On transcript, Page 21 655, Mr. Marquand says, "Your Honors, at this time, I 22 am going to tender into the record TVA Exhibit 103."
23 JUDGE YOUNG:
So that's the first time.
24 And then again 800 and something, and then you're 25 saying that's where the discussion started?
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MS. EUCHNER:
The discussion --
on Page 2
- 656, Mr. Dambly objected to it the first time on 3
grounds of relevance, and then when he retendered it 4
again on Page 847 and 48, then on Page 849, we 5
objected to it again. And throughout the rest of that 6
day's transcript, through Page 866, there was a legal 7
argument about it, and it looks like --
8 JUDGE YOUNG:
What was the last page you 9-mentioned?
10 MS. EUCHNER:
Eight-sixty-six.
And then 11 it looks like there was no decision made and towards 12 the very end, on 865, Judge Young, you say, "Tomorrow 13 morning, could both of you bring us any case law on --
14 NRC case law or other case law on a particular way in 15 which interrogatories are used in NRC proceedings. So 16 you withheld decision on that day for us to argue it 17 further the next day.
And then if you look at the 18 beginning, Page 870 of April 26, we pick up on that 19 date right away with the same argument.
20 And then that's where Mr. Marquand states 21 that they're going to do the cut and paste and only 22 come up with a document that includes the ones that 23 they discussed with their witnesses.
And 'that I 24 believe is what eventually became TVA 113.
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Mr. Marquand and Mr. Slater?
2 MR. MARQUAND: I was looking over at Page 3
in the beginning of Page 979 through 983, and, yes, 4
113 is a cut and paste of 103.
5 JUDGE YOUNG:
What date are you on?
6 MR. MARQUAND: If you go to April 30, Page 7
979 to 983, at that point, we were tendering 113 which 8
is a cut and paste of 103.
I'm not even sure that I 9
see a ruling at that point.
It did happen at some 10 point, but from my recollection, and I may be wrong, 11 but my recollection is at some point in time, even 12 after 113 came in, that 103 --
the issue of 103 came 13 up and there was --
it may have been placed in the 14 record as well.
15 MS. EUCHNER: What I recall is after they 16 proffered 113, which was the redacted version, we 17 objected further, because it excluded a couple of 18 supplemental responses that the Staff had provided.
19 And then they went and added those supplemental 20 responses. And then we withdrew our objection to 113.
21 I don't know that Your Honors ever made a ruling on 22 103 because it was my understanding 113 was done to 23 replace 103.
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the issue with respect to 113 you all kept looking at 2
it, and my recollection is that that may have been one 3
of those situations that you all objected for a long 4
time and then Mr. Dambly said, "Well, never mind.
5 Let's just put it in."
6 JUDGE YOUNG: Well, look back on Page 872 7
-- actually, 871 and then 872. The bottom of 871, Mr.
8 Marquand, you -- okay, we were talking about --
this 9
was the next morning of April 26.
We were talking 10 about 103, although you don't mention it by number, 11 and then you said -- the light here is terrible.
12 MR. MARQUAND: Yes. We said we were going 13 to do it over the weekend, and then we went to April 14 30, the pages I was talking about.
15 JUDGE YOUNG:
Right.
We made it --
we 16 didn't make a ruling because you were going to work on 17 it over the weekend.
18 MR. MARQUAND: Right.
And then we moved 19 to April 30, the next Monday, beginning about Page, 20 let's see, in the 970 to 73 area. And we were talking 21 about 113, and as Ms. Euchner mentioned, Staff wanted 22 to look at it some more.
We're talking about 974, 23 they wanted to look at it some more. At some point, 24 113 came in, but I'm thinking at some point they threw 25 up their hands and said, "Let's put 103 in too."
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JUDGE YOUNG: Let me see if I can find 103 2
again.
Okay.
On Page 977, you mentioned 103.
You 3
- say, "we had Exhibit 103 which was their entire 4
discovery responses.
We've simply gone through and 5
identified the specific responses that we wish to call 6
to the Court's attention, and we've excised, if you'll 7
turn over several pages, you'll see where several 8
pages are blank."
And then there's some discussion 9
about what you had done with 103.
Let me look and see 10 if there's another reference to it anywhere.
Ten-11 seventy-six.
12 Okay.
Ms. Euchner, you said on Page 1076 13 did you want to discuss 103, which was excerpts, or 14 did you want to deal with that issue at the end of the 1s day?
16 MR. MARQUAND: And Judge Bechhoefer said, 17 "Let's deal with it at the end of the day."
18 JUDGE YOUNG:
Okay.
Let me find the next 19 one.
Okay.
Page 1156.
20 JUDGE COLE:
Eleven-fifty-seven.
21 JUDGE YOUNG:
And I asked if you could 22 tell us the next day what you agree and disagree on.
23 And Judge Bechhoefer made a reference to, he said, 24 "What is it, 103?"
And then you said, "The redacted 25 version is 113." And then you were to let us know the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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next morning what you agree on and what you don't 2
agree on, which would take us to May 1.
3 MR. MARQUAND:
Judge Bechhoefer had the 4
impression at that point, on page 1158, that even 5
though Staff might have some disagreement about what 6
should be in it, he had the impression, he says, "I 7
guess we've admitted the exhibit already."
One-8
- thirteen, I think, in the ruling it should be 9
admitted, subject to it being --
the Staff making 10 whatever supplements to it that they wanted to have 11 made.
12 MS. EUCHNER:
And I think that's correct, 13 that 113 was going to be admitted subject to the 14 supplementation, because if you look at the first page 15 of Wednesday, May 1, Page 1162, we pick up with TVA 16 113, which was appropriately supplemented, and then 17 Your Honors admitted it.
18 MR. MARQUAND: Page 1163 on May 1, there's 19 a definitive ruling that 113 was admitted.
20 MS.
EUCHNER:
That is correct. But there 21 was never a definitive ruling on 103, and I think that 22 might be the problem is that there never was a ruling 23 that definitely stated TVA 103 rejected; 113 in its 24 place, because we are just arguing back and forth.
25 JUDGE YOUNG:
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was occurring, was that you were substituting 113 for 2
103 and that that was done by agreement.
And all 3
these references to you all tell us where you agree 4
and disagree that finally we ended up with 113 and 5
that there was no longer any need to rule on 103. Mr.
6 Marquand, is that not --
I'll see if I can find 7
another reference to 103, but -- there are no further 8
references to 103.
9 CHAIRMAN BECHHOEFER: Should we treat 103 10 as --
11 MR. MARQUAND: Identified, apparently not 12 admitted.
13 JUDGE YOUNG:
And we indicated the page 14 number, what was it, six --
15 MS. EUCHNER:
Six-fifty-five maybe.
16 JUDGE YOUNG:
655?
17 MS. EUCHNER:
I think that was the first 18 time it was offered.
19 CHAIRMAN BECHHOEFER:
At Page 1162, we 20 admitted 113.
21 MS. EUCHNER:
It looks like --
22 CHAIRMAN BECHHOEFER: Which is as we were 23 supposed to be supplemented.
24 MS. EUCHNER: It was supplemented at that 25 time.
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JUDGE YOUNG:
So all the record needs to 2
reflect that --
all my pens are --
3 CHAIRMAN BECHHOEFER:
One-thirteen was 4
admitted on 1162.
5 JUDGE COLE:
No, 1163, I believe:
"So, 6
okay, it will be admitted," said Chairman Bechhoefer, 7
1163.
8 JUDGE YOUNG:
And 103 was identified on 9
655, was it?
10 MS. EUCHNER:
Sorry?
11 JUDGE YOUNG:
Six-fifty-five?
12 MS.
EUCHNER:
Six-fifty-five was, I
13 believe, the first time Mr. Marquand offered it.
14 JUDGE YOUNG: And so it never was admitted 15 or rejected.
16 MS. EUCHNER: Because Mr. Dambly objected.
17 JUDGE COLE:
Should we identify that as 18 the substitute and submit it as 113 -- modify it and 19 submit it as 113?
20 MR. MARQUAND: That's true.
I'd just say 21 103 was just identified but not -- there was no ruling 22 on it.
So it was identified.
It wasn't rejected, it 23 wasn't admitted.
24 JUDGE YOUNG: You all need to tell us when 25 we get to it whether you want it in or out of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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record.
2 CHAIRMAN BECHHOEFER:
Correct.
3 JUDGE YOUNG:
Okay.
4 CHAIRMAN BECHHOEFER: This would be one of 5
the occasions where somebody reviewing the record 6
might want to have available 103 to see what the 7
difference between what was in the record and what is 8
not in the record. So perhaps it should be treated as 9
rejected.
10 MR. MARQUAND:
Well, I'm not sure that 11 even if somebody who was reviewing the record might 12 want to see it.
It wasn't ruled on. Even if somebody 13 wanted to see it, if it wasn't ruled on, just like 14 anything else, I would not --
I guess we shouldn't 15 include it in the record to satisfy somebody's idle 16 curiosity and invite --
17 CHAIRMAN BECHHOEFER: Well, should we rule 18 on it now?
19 MR. MARQUAND:
No.
I think if it's not 20 rejected, it shouldn't travel with the record.
If 21 it's not rejected or admitted.
If it's only 22 identified and not part of the record, it shouldn't be 23 part of the record.
24 CHAIRMAN BECHHOEFER:
I mean should we 25 reject it now?
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MR. MARQUAND:
No, because then it would 2
require to go with the record, and I don't know that 3
if there wasn't a ruling on it, I don't know that Mr.
4 Dambly --
5 JUDGE YOUNG:
Do you disagree?
6 MS. EUCHNER: Oh, no.
I actually think --
7 what I was going to say is that all of the sections, 8
those specific interrogatories with which Mr. Marquand 9
questioned witnesses about, are in 113.
So there is 10 no reason for 103 --
11 CHAIRMAN BECHHOEFER:
Oh, okay.
12 MS. EUCHNER:
to travel with the 13 record. They can look at 113 and see the same thing.
14 MR. MARQUAND:
I don't think we want to 15 invite somebody to go outside the record that's been 16 compiled here.
17 CHAIRMAN BECHHOEFER:
Well, it would not 18 be outside the record if we rejected it now.
19 JUDGE YOUNG:
One-thirteen was 20 substituted, and I think it was done by agreement, 21 from everything I can tell, and we admitted 113, so 22 there's no reason for 103 to be in.
The parties seem 23 to agree on that.
24 MR. MARQUAND:
Now, before we go off the 25 record, we did note that there were a number of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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documents which were identified which apparently 2
through oversight were not tendered into the record, 3
and I think that we need to go through those before we 4
go off the record.
But we need to go through those 5
and get a ruling as to the admission of those 6
documents.
7 JUDGE YOUNG: Okay. Let me suggest how we 8
do that.
I think that the most efficient way of doing 9
that is we go through the volumes one by one.
As we 10 get to those, we go back on the record. If you've got 11 a list of them, we'll get to them.
12 MR. MARQUAND:
I've got a list of them.
13 And I was just going to say let's go ahead and get the 14 ruling on the list and have one list and then go off 15 the record for a long period of time.
16 JUDGE YOUNG:
Have you got them easily 17 accessible for us to do that?
18 MR. MARQUAND:
Yes.
19 CHAIRMAN BECHHOEFER: Do we have to haul 20 out a lot of documents --
21 MR. MARQUAND:
I think when we tell you 22 what they are, everybody's going to say, "Oh, yes, 23 that needs to be in the record."
24 JUDGE YOUNG:
How many volumes are you 25 talking about?
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MR. MARQUAND:
They're documents.
2 JUDGE YOUNG:
I know, but how many 3
different volumes are they in?
4 MR. MARQUAND:
I don't know.
5 MS. EUCHNER:
Your Honor, the list is at 6
the beginning of each of their volumes, so to the 7
extent --
8 JUDGE YOUNG:
Right.
Just tell us what 9
the exhibits are and what volumes they're in. And if 10 you want to do it that way, let's do that quickly.
11 MR. MARQUAND:
The first one is Joint 12 Exhibit 9. It should be in Volume 1. It is one of 13 the NSRB minutes that was discussed.
It's the 14 February 1992 NSRB minutes.
If you recall --
15 JUDGE YOUNG:
Was there any objection to 16 that?
17 MR. MARQUAND:
No, it wasn't offered.
18 JUDGE YOUNG: You're offering them now, I 19 presume.
20 MR. MARQUAND: Yes, we're offering it now.
21 JUDGE YOUNG:
Is there any objection to 22 it?
23 MR. DAMBLY: Let me look at it.
We don't 24 object.
25 CHAIRMAN BECHHOEFER:
Without objection, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5708 Joint Exhibit 9 will be admitted.
(Whereupon, the above-referred to document, previously marked as Joint Exhibit No.
9 for identification, was admitted into evidence.)
JUDGE YOUNG:
Now.
CHAIRMAN BECHHOEFER:
Now.
JUDGE YOUNG:
Okay.
What's next?
CHAIRMAN BECHHOEFER:
But it can be identified whenever it was identified.
JUDGE COLE:
Somewhere in Mr. McGrath's testimony.
JUDGE YOUNG: Did the record reflect that it was ever identified, Mr. Marquand?
MR. MARQUAND:
Yes, it was. And that was because there was Joint Exhibit 4, which was an extract and Mr. Dambly objected to the extracts without the complete documents, so we went and said, "Okay, here is the complete document."
JUDGE YOUNG: All I want to know is was it identified?
identified, MR. MARQUAND:
Yes, it clearly --
JUDGE YOUNG: If it indicates that it was we don't need to worry about it.
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MR. MARQUAND:
It was clearly identified 2
on April 24.
3 JUDGE YOUNG:
Okay.
Next one.
4 MR. MARQUAND: Next one. We have --
it's 5
a TVA exhibit, I believe.
TVA Exhibit 57.
I can't 6
tell you which volume --
Volume 2?
7 MS. EUCHNER:
Three.
8 MR.
MARQUAND:
Volume 3?
It is a 9
memorandum that was identified by Wilson McArthur and 10 has to do with the issues that Employee Concerns found 11 in Mr. Fiser's Department of Labor complaint or the 12 Sasser letter, and it addresses the fact that Dr.
13 McArthur had addressed those issues.
And we're 14 offering TVA 57.
15 JUDGE YOUNG:
TVA 57, objection?
16 MR. DAMBLY:
No objection.
17 JUDGE YOUNG: So when we go off the record 18 the first thing we're going to need to do is get these 19 marked.
Judge Bechhoefer, can we admit 57, correct?
20 CHAIRMAN BECHHOEFER:
Yes.
21 (Whereupon, the above-referred 22 to document, previously marked 23 as TVA Exhibit No.
57 for 24 identification, was admitted 25 into evidence.)
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3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5710 MR. MARQUAND:
All right.
The next exhibit is TVA Exhibit 70.
It is the complete --
it was identified on April 24 by Mr. McGrath.
It is the complete minutes of the NSRB meeting, Number 136, held on November 21 and 22.
CHAIRMAN BECHHOEFER:
Which exhibit is that?
MR. MARQUAND:
TVA Exhibit 70.
CHAIRMAN BECHHOEFER:
Seventy?
MR. MARQUAND: Yes.
It was identified on April 24, and it is the complete minutes, the extract of the same minutes --
MR. DAMBLY: We won't object, whatever it is.
JUDGE YOUNG:
Admit, Judge Bechhoefer?
CHAIRMAN BECHHOEFER:
Yes.
But I'd like to look at it and see what we're talking about.
(Whereupon, the above-referred to document, previously marked as TVA Exhibit No.
70 for identification, was admitted into evidence.)
MR. MARQUAND:
Is it admitted?
CHAIRMAN BECHHOEFER:
The minutes --
TVA 70 is admitted.
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JUDGE YOUNG:
Okay.
Next? We can catch 2
these up as we go.
3 MR. MARQUAND: I've got one here, and I'm 4
just looking --
5 JUDGE YOUNG: No, I'm just saying in terms 6
of marking them.
7 MR. MARQUAND:
Oh, yes.
TVA Exhibit 81.
8 It was identified on June 19 by the Acting Inspector 9
General Don Hickman.
10 MR. DAMBLY: This is the OIG report on Mr.
11 Grover that you specifically, I think, excluded.
We 12 object to that.
13 MR. MARQUAND:
I don't have a record 14 whether it was excluded or not.
15 JUDGE YOUNG:
Okay.
TVA Exhibit 81?
16 MR. MARQUAND:
Yes.
17 JUDGE YOUNG:
Hold on just a second.
18 Let's see what I can find.
19 MR. MARQUAND:
And it may have already 20 been ruled on.
I just don't have a record of it.
21 JUDGE YOUNG:
Eighty-one?
22 MR. MARQUAND: Yes. It would have been on 23 June 19.
24 MR. DAMBLY: This is the Grover OIG report 25 that was the subject of stipulation, and we objected.
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JUDGE YOUNG:
It's tendered on Page 4266 2
or somewhere around that page.
Let me see what the 3
ruling was.
I don't see anymore reference to it, so 4
what was the page number I just gave you?
5 MR. MARQUAND:
You gave us 4266.
6 JUDGE YOUNG:
What date is that?
7 MR. MARQUAND:
June 19.
8 MS. EUCHNER:
Okay.
It starts on Page 9
4239 at the bottom.
I presume this is Mr. Marquand 10 questioning Mr. Hickman:
"Let me ask you to identify 11 TVA Exhibit 81." He identifies it.
On 4240, he asks 12 a number of questions about it.
He tenders it on 13 4241.
14 JUDGE YOUNG:
This is June 20, right?
15 MS. EUCHNER:
June 19, according to my 16 page numbers. I have it on June 19.
And on 4241, he 17 tenders it, Mr. Dambly objects because the whole point 18 of the stipulation regarding Mr. Grover was to avoid 19 entering this exhibit into evidence.
And on Page 20
- 4243, Judge Bechhoefer says, "Yes.
The Board 21 unanimously will sustain the objection to that 22 document."
23 CHAIRMAN BECHHOEFER:
Okay.
So it's 24 rejected, so it needs to go with the record, the 25 rejected document.
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JUDGE YOUNG:
Rejected, Page 4263.
2 JUDGE COLE:
No, 4243.
3 MS. EUCHNER:
Yes.
It was rejected on 4
4243.
5 JUDGE YOUNG:
I'm sorry, 4343.
6 JUDGE COLE:
Forty-two forty-three.
7 JUDGE YOUNG:
Okay.
Any others?
8 MR. MARQUAND: There is a TVA Exhibit 112, 9
which was identified on April 30, and it was a bench 10 memorandum that we submitted.
I don't care whether 11 it's admitted as an exhibit, but it needs to be part 12 of the record.
I don't remember how we handled it.
13 JUDGE YOUNG:
One-twelve?
14 MR. MARQUAND:
Yes.
15 MR. DAMBLY:
Yes.
That is a legal brief 16 they filed on staff depositions.
I don't see that 17 being admitted as an evidentiary exhibit, but --
18 MR. MARQUAND:
It has to be part of the 19 record.
20 MR. DAMBLY:
it should be part of --
I 21 don't know how you put briefs in the record here.
22 JUDGE YOUNG:
Let me find what might 23 happen to it.
24 MR. MARQUAND: There's discussion of it at 25 Page 972.
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JUDGE YOUNG:
What date is that?
2 MR. MARQUAND: April 30.
3 JUDGE YOUNG: I see Judge Cole saying, "I 4
thought it was admitted."I What's the page, 9 --
5 MR. MARQUAND: Nine-seventy-two and three, 6
and we didn't ask the Board to rule as to whether or 7
not -- as to its admissibility but we asked that it be 8
placed in the record.
9 (Judges confer.)
10 JUDGE YOUNG:
It could be filed as a 11 pleading.
If you want to admit it as an exhibit, we 12 can do that now, if there's no objection to that.
13 JUDGE COLE: I've got a problem here. I'm 14 looking at our list of TVA exhibits and TVA Exhibit 15 112 was identified in our list deposition of Philip 16 Reynolds, November 8, which is identified in --
17 MS. EUCHNER:
You sure that's not Staff 18 112, Your Honor?
19 MR. MARQUAND:
That would be Staff 112.
20 JUDGE YOUNG:
It says it's identified at 21 Page 972.
22 MS. EUCHNER:
Staff 112 is Mr. Reynolds.
23 MR. MARQUAND:
I think that we submitted 24 TVA Exhibit 112, but we weren't submitting it as 25 evidence, but we did ask that it be placed in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5715 1
record.
I don't know whether you want to --
how you 2
want to designate it in order to ensure that it is 3
part of the record, whether it needs to be simply 4
admitted or simply, as you say, as a pleading or 5
whatever.
6 JUDGE COLE:
Yes.
I misspoke.
I'm 7
looking at the Staff's list.
8 MR. MARQUAND:
It's an addendum to the 9
record, whether you call it an exhibit or not.
10 JUDGE YOUNG:
What Judge Bechhoefer is 11 saying is that the simplest way may be to just go 12 ahead and admit it.
13 MR. DAMBLY:
It may be simple but --
14 JUDGE YOUNG:
If you have an objection to 15 that, we can do it another way.
I don't think that 16 this is a matter of great dispute.
If you want to 17 file it as an attachment to your proposed findings, 18 you can do that.
19 MR. MARQUAND:
Well, I mean it was a 20 matter that we considered at that time, not with the 21 proposed findings.
22 MR. DAMBLY: May I? My only problem with 23 having it admitted as an exhibit I don't want to see 24 any citations in the post-hearing brief to this is 25 some kind of evidentiary document.
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5716 1
MR.
MARQUAND:
It's obviously not 2
evidentiary.
Like I said, It's an addendum.
It's 3
appended to the record regardless of what you call it.
4 JUDGE YOUNG: Okay. If it's an exhibit to 5
the transcript, it will get into the record that way.
6 It has not yet been entered into the record, because 7
in order for it to be officially part of the record, 8
it has to be filed with SECY. The only way to do that 9
would be to do that now.
10 MR. MARQUAND:
Right.
Then we'll tender 11 as --
12 JUDGE YOUNG:
Well, you would need to --
13 if you're not going to tender it as an exhibit --
14 MR. MARQUAND:
I'm tendering it as an 15 exhibit.
16 JUDGE YOUNG:
Well, you --
17 MR. MARQUAND: Not as evidence, but as an 18 exhibit.
19 JUDGE YOUNG:
Then you need to file that 20 separately.
21 CHAIRMAN BECHHOEFER:
I don't think he 22 does.
I think --
23 MR. MARQUAND:
I am tendering it as an 24 exhibit.
25 CHAIRMAN BECHHOEFER:
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5717 1
technically could consider it as an exhibit, not as an 2
evidentiary matter but as a legal brief that was 3
before us --
4 MR. MARQUAND: Consider it for what it is.
5 CHAIRMAN BECHHOEFER:
-- at the time.
6 JUDGE YOUNG:
If the Staff has no 7
objection to that, then I don't see any problem with 8
that.
If the Staff has an objection, then we need to 9
consider their objection.
10 CHAIRMAN BECHHOEFER:
It could be cited 11 not as a factual matter but in preparing your 12 conclusions of law.
It could be referenced. The fact 13 that it would have an exhibit number, that's just a 14 location number really.
15 MR. MARQUAND: I agree. I mean the record 16 is replete with all sorts of legal arguments that 17 nobody suggests are evidentiary in nature either.
18 MR. DAMBLY:
None of them have been 19 admitted as exhibits. I don't know what the basis for 20 wanting to admit some non-evidentiary material as an 21 exhibit for the record.
22 MR. MARQUAND:
I think it's just an 23 appendix.
24 JUDGE YOUNG:
- Well, Mr.
Dambly, you 25 admitted a brief and a decision in the Department of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5718 1
Labor case, so I mean we can argue about this.
It's 2
really not worth that much argument.
I can either be 3
admitted as an exhibit, which obviously would not be 4
relied upon for facts because there are no facts 5
apparently in it, or it could be filed with SECY.
6 MR. MARQUAND: If it were so relied on, we 7
wouldn't follow it.
8 JUDGE COLE:
Also, if we're going to put 9
it in as an exhibit, we need three copies.
10 MR. MARQUAND: I thought we had -- did not 11 have three at the time?
12 JUDGE YOUNG:
They're probably already 13 there.
14 CHAIRMAN BECHHOEFER:
I don't know.
15 JUDGE YOUNG:
Maybe not.
16 MR. DAMBLY:
As long as everybody knows 17 it's not something can be cited as part of any 18 evidentiary matters, then fine. If that's the easiest 19 way to get it in, I don't think we need to refile with 20 SECY or anything like that at this point.
21 CHAIRMAN BECHHOEFER:
That was my only 22 suggestion -- reason for my suggestion was that it be 23 for a locational purpose.
24 JUDGE YOUNG: So it's admitted but not to 25 be relied upon as evidence.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5719 CHAIRMAN BECHHOEFER:
Right.
JUDGE YOUNG:
But it's admitted as an exhibit at this point.
(Whereupon, the above-referred to document, previously marked as TVA Exhibit No.
112 for identification, was admitted into evidence.)
JUDGE COLE:
I found three copies of it.
CHAIRMAN BECHHOEFER:
All right.
JUDGE COLE:
That's the stuff we got the other day.
CHAIRMAN BECHHOEFER:
Okay.
So do you want to have that marked?
JUDGE YOUNG:
Next?
MR. MARQUAND:
The next two exhibits, I think we can handle quickly, are TVA Exhibits 118 and 121.
They are --
the first one is a June 30, 1994 page from Mr. Fiser's planner. The next one is a June 29, 1994 page from Mr. Fiser's planner.
They were both identified on May 7.
JUDGE YOUNG: Hold on just one second.
CHAIRMAN BECHHOEFER:
TVA 118 and 121?
MR. MARQUAND:
Yes, Your Honor.
MS. EUCHNER:
Staff has no objection to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5720 1
those exhibits.
2 JUDGE YOUNG:
They were part of a series 3
that were admitted, and we overlooked admitting these, 4
so if there's no objection, shall we admit them, Judge 5
Bechhoefer?
6 CHAIRMAN BECHHOEFER: Yes.
Let me get to 7
them just to make sure they are there.
8 JUDGE YOUNG:
They're not in the book.
9 CHAIRMAN BECHHOEFER:
They are in the 10 book.
They're in my book.
11 JUDGE YOUNG:
Oh, you made a copy.
12 They're not in the original books.
13 CHAIRMAN BECHHOEFER:
Without objection, 14 TVA Exhibits 118 and 121 will be admitted.
15 (Whereupon, the above-referred 16 to documents, previously marked 17 as TVA Exhibit Nos. 118 and 121 18 for identification, were 19 admitted into evidence.)
20 JUDGE COLE:
And I have three copies of 21 121.
22 MR. MARQUAND: You've been holding out on 23 us.
24 JUDGE COLE:
We got them in the mail the 25 other day.
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5721 1
JUDGE YOUNG: When we get to them, we can 2
put them in the book.
Next?
3 MR. MARQUAND: TVA Exhibit 132. I was out 4
of the room. You all may have discussed this earlier.
5 It's not on the list that was prepared earlier by the 6
Panel.
7 MS. EUCHNER: The two I had as not on the 8
list were 56 and 132.
9 MR. MARQUAND: And so that was included?
10 MS. EUCHNER:
Yes.
11 MR. MARQUAND:
Okay.
12 JUDGE YOUNG:
Pardon? I didn't hear what 13 you said.
14 MR. MARQUAND:
It's already been dealt 15 with.
16 MS. EUCHNER:
We discussed earlier TVA 17 Exhibits 56 and 132 as having been admitted but not on 18 your master list, right?
19 JUDGE YOUNG:
Correct.
20 CHAIRMAN BECHHOEFER:
They were both 21 admitted earlier but merely left off the list.
22 MS. EUCHNER:
That's correct.
23 MR. MARQUAND:
The next one we have --
24 CHAIRMAN BECHHOEFER:
We don't have to 25 take any action now.
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5722 1
MS. EUCHNER:
Correct.
2 MR. MARQUAND:
is Staff Exhibit 55.
3 JUDGE YOUNG:
Staff 55?
4 MR. MARQUAND:
Right.
That's a computer 5
printout from the HRIS System of the Employee Action, 6
reasons for Ron Grover.
It was identified on June 18 7
by Mr. Boyles.
8 MS. EUCHNER:
Staff has no objection to 9
that.
10 JUDGE YOUNG:
Staff says they have no 11 objection.
Do you have --
12 CHAIRMAN BECHHOEFER:
I was just 13 recollecting that I thought the Staff objected because 14 we weren't supposed go into any of the details 15 concerning Mr. Grover.
16 MR. MARQUAND:
No.
That wasn't --
the 17 stipulation was narrower than that, Your Honor.
18 MS. EUCHNER:
Yes.
The stipulation 19 related to an Office of Inspector General 20 investigation of Mr. Grover that happened four years 21 after the events in this case.
This document simply 22 relates to his employee --
23 MR. MARQUAND:
Employment history.
24 MS. EUCHNER: Employment history. We have 25 no objection to this document.
It's not within the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5723 1
scope of the stipulation.
2 JUDGE YOUNG:
So we admit Staff Exhibit 3
55, correct?
4 CHAIRMAN BECHHOEFER: Yes.
Staff 55 will 5
be admitted.
6 (Whereupon, the above-referred 7
to document, previously marked 8
as Staff Exhibit No. 55 for 9
identification, was admitted 10 into evidence.)
11 JUDGE YOUNG:
Next?
12 MR. MARQUAND:
Staff Exhibit 128 is a --
13 it's head count numbers from 1996.
It was identified 14 on April 23 by Mr. McGrath.
15 MR. DAMBLY:
No objections.
16 CHAIRMAN BECHHOEFER:
Which number?
17 JUDGE COLE: One-twenty-eight, Staff 128.
18 CHAIRMAN BECHHOEFER:
Okay.
The Board 19 will admit Staff Exhibit 128.
20 (Whereupon, the above-referred 21 to document, previously marked 22 as Staff Exhibit No. 128 for 23 identification, was admitted 24 into evidence.)
25 MR. MARQUAND:
All right.
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5724 1
exhibit is Staff Exhibit 166.
It is a record of 2
interview by TVA's Inspector General of Kathy Welch, 3
and it was identified by Ms. Welch on April 23.
4 MR. DAMBLY: No objection.
5 CHAIRMAN BECHHOEFER:
Without objection, 6
Staff 166 will be admitted.
7 (Whereupon, the above-referred 8
to document, previously marked 9
as Staff Exhibit No. 166 for 10 identification, was admitted 11 into evidence.)
12 MR. MARQUAND:
That's it.
13 JUDGE YOUNG:
All right.
Anything else 14 that we need to put on the record before we start 15 going through the exhibits with the understanding that 16 if we come to something in our discussion that needs 17 to be placed on the record, all anyone has to do is 18 say, "We request to go on the record." We'll go back 19 on the record, put whatever needs to be on the record 20 and then go back to going through the exhibits as 21 quickly as possible.
22 MS. EUCHNER:
That's fine, Your Honor.
23 JUDGE YOUNG:
Is that all right with you 24 all?
25 MR. MARQUAND:
Yes, Your Honor.
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5725 1
JUDGE YOUNG: Great.
Okay. Let's go off 2
the record.
Come back in 15 minutes and start going 3
through the exhibits.
4 MR. MARQUAND:
Well, if Judge Bechhoefer 5
is not going to --
if we're not going to tear into his 6
- set, we could actually get started without him, 7
couldn't we?
8 CHAIRMAN BECHHOEFER:
Yes.
I'll be back 9
in 15 minutes.
10 JUDGE COLE: But we can continue working.
11 MS. EUCHNER:
Yes, but I think everybody 12 needs at least a quick five-minute break.
13 JUDGE COLE:
Yes.
We all need a break.
14 MR.
MARQUAND:
We'll give you five 15 minutes.
16 CHAIRMAN BECHHOEFER:
Let's make it 15.
17 (Whereupon, the foregoing matter went off 18 the record at 11:01 a.m. and went back on 19 the record at 11:30 a.m.)
20 JUDGE YOUNG:
Let the record reflect that 21 we have taken out Joint Exhibit 6, 8, 10, 11, 12, 13, 22 14, 15, 16, 17, 18 and 19.
We are also taking out 23 Exhibits 20 through 23, and we'll be, before those are 24 destroyed, redacting --
25 CHAIRMAN BECHHOEFER:
They were all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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5726 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 admitted.
JUDGE YOUNG:
I'm sorry.
CHAIRMAN BECHHOEFER:
We're not taking those out, and making is deleted.
we're --
JUDGE YOUNG:
Thank you.
We're going to CHAIRMAN BECHHOEFER: -- taking them aside sure that privacy information, et cetera, JUDGE YOUNG: Thank you. All right. And probably from time to time we'll just stop like that and just indicate for the record what we've done.
MR. MARQUAND:
We're off the record now?
JUDGE YOUNG:
Off again.
(Whereupon, the foregoing matter went off the record at 11:31 a.m. and went back on the record at 11:45 a.m.)
JUDGE YOUNG: Are you ready? Check me to make sure I'm right.
MR. MARQUAND:
Do you want me to read it in and then anybody can chime in and say --
since I've kept a list.
JUDGE YOUNG:
Okay.
I ha, ahead.
Go ahead.
MR. MARQUAND:
All right.
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Go We have, www.nealrgross.com
5727 1
beginning with Joint Exhibit 24, we have left in Joint 2
Exhibits 24 through 34. We've taken out Joint Exhibit 3
35, taken out Joint Exhibit 37 and 38 and 40.
We've 4
taken out Joint Exhibit 50, 52, 54, 56 and 57, Joint 5
Exhibit 61 and 62 and Joint Exhibit 64, and we have 6
left in the ones that I haven't mentioned through 7
Joint Exhibit 67.
8 JUDGE YOUNG: That coincides with my list.
9 Very good.
Ms. Euchner, you nodded yes too?
10 MS. EUCHNER:
Yes.
Staff agrees.
11 JUDGE YOUNG:
So that takes care of the 12 Joint exhibits.
Go off the record and start --
13 CHAIRMAN BECHHOEFER: Where do we want to 14 go, Staff or TVA?
15 JUDGE YOUNG: It looks like TVA is next in 16 line.
17 (Whereupon, the foregoing matter went off 18 the record at 11:47 a.m. and went back on 19 the record at 12:01 p.m.)
20 JUDGE YOUNG:
If you're ready, go ahead.
21 MR. MARQUAND: We have just looked through 22 Volume 1 of the TVA exhibits, and we have removed 23 Exhibit Numbers 1, 2, 3, 6, 7, 8, 10, 1, 16, 17, 19 24 through 23, 25, 28, 29, 30, 32, 33, 34 and 35.
25 JUDGE YOUNG:
Does that coincide with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-4 5728 1
yours?
2 MS. EUCHNER:
Yes.
3 (Whereupon, the foregoing matter went off 4
the record at 12:02 p.m. and went back on 5
the record at 12:09 p.m.)
6 CHAIRMAN BECHHOEFER: Back on the record.
7 MR. MARQUAND:
we've just gone through 8
Volume 2 of the TVA exhibits, and we removed Exhibits 9
36, 37 and 38 and Exhibits 40 through 47.
We left in 10 Volume 2 only Exhibits 39 and 48.
11 (Whereupon, the foregoing matter went off 12 the record at 12:10 p.m. and went back on 13 the record at 12:22 p.m.)
14 MR. MARQUAND:
We've just gone through 15 Volume 3 of the TVA exhibits, and we have left in TVA 16 Exhibits 51, 55 through 57 and TVA Exhibit 61, and I 17 have marked it as rejected.
We have taken out of 18 Volume 3 TVA Exhibits 49 and 50, TVA Exhibits 52 to 54 19 and TVA Exhibits 58 through 60.
20 JUDGE YOUNG:
Pardon me, what about 53?
21 MR. MARQUAND:
I said 52 through 54.
22 JUDGE YOUNG:
Okay.
I didn't hear 23 "through."
24 MR. MARQUAND: Moving on to Volume 4.
25 (Whereupon, the foregoing matter went off NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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5729 1
the record at 12:22 p.m. and went back on 2
the record at 12:29 p.m.)
3 CHAIRMAN BECHHOEFER: Mr. Marquand, would 4
you cover Volume 4?
5 MR. MARQUAND: All right. We've just gone 6
through Volume 4 of the TVA exhibits, and we have left 7
in it TVA Exhibits 62, 65, 66, 70 and 73.
We have 8
removed from it TVA Exhibits 63, 64, 67, 68, 69, 71 9
and 72.
10 JUDGE YOUNG: And none of the ones left in 11 require redacting?
12 MR. MARQUAND: I thought one of them did.
13 MS. EUCHNER:
No, I don't think so.
14 MR. MARQUAND: No, not in Volume 4; you're 15 correct.
16 (Whereupon, the foregoing matter went off 17 the record at 12:30 p.m. and went back on 18 the record at 12:45 p.m.)
19 JUDGE YOUNG: Okay.
Let me read this off 20 and see if I'm correct, and then I'll read the wording 21 for the ones that were changed. Ready? And then I'll 22 have Mr. Marquand indicate which ones were taken out.
23 All right. For the record, TVA Exhibits 81, which was 24 rejected, 82, which was admitted, and 83, which was 25 originally rejected but subsequently, by agreement of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5730 1
the parties, pages were substituted for original 2
exhibit pages.
This was admitted as such in lieu of 3
the original.
Those three exhibits stay in.
4 And the same original rejection but 5
subsequent agreement of the parties to substitute 6
summary pages for the original exhibit pages and to 7
have those admitted in lieu of the original pages also 8
applies to Exhibits 84 and 85.
Then, Mr. Marquand --
9 is that correct, does everyone agree?
10 MR. MARQUAND: You missed TVA Exhibit 80, 11 it stays in as well.
12 MS. EUCHNER: That's correct, Your Honor.
13 JUDGE YOUNG:
Did I leave out 80?
14 MR. MARQUAND:
Yes.
15 JUDGE YOUNG:
So 80, 81, 82, 83, 84, 85 16 are in.
17 MR. MARQUAND: Right. And we're going to 18 also --
19 JUDGE YOUNG: Eighty-one was the only one 20 that was rejected in the end.
21 MR. MARQUAND:
Right.
22 MS. EUCHNER:
Exactly.
23 MR. MARQUAND:
Now that was --
Volume 5 24 was Exhibits 74 through 83.
25 JUDGE YOUNG: Do you want to indicate the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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5731 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ones that --
were any taken out of this volume?
MR. MARQUAND: Exhibit 74 through 79 were taken out of Volume 5.
JUDGE YOUNG:
Correct.
MR.
MARQUAND:
We've go ahead of ourselves.
Actually, Volume 6 is Exhibits 84 and following.
JUDGE YOUNG:
I just indicated that they were the same since --
MR. MARQUAND:
Right.
JUDGE YOUNG:
the same thing applied.
And we can go off the record at this point as long as everyone's in agreement.
MS. EUCHNER: Actually, it might not be a bad idea to have the court reporter remark all of these retention registers now. That way we don't have to keep doing it.
I think the next couple of volumes there are just two --
JUDGE YOUNG: We can do those all at once, rather than --
MR. MARQUAND:
Right.
JUDGE YOUNG: So are we done with Volumes 5 and 6?
MR. MARQUAND:
Yes.
MS. EUCHNER:
Yes.
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5732 1
JUDGE YOUNG:
Okay.
2 CHAIRMAN BECHHOEFER: So we've been asked 3
to do what?
Seven and eight, collectively.
4 JUDGE YOUNG:
The same thing applies to 5
both 86 and 87?
6 MR. MARQUAND: All the way through 92. We 7
can go off the record.
8 (Whereupon, the foregoing matter went off 9
the record at 12:48 p.m. and went back on 10 the record at 1:01 p.m.)
11 CHAIRMAN BECHHOEFER:
Mr. Marquand, if 12 you'd like to just read for the reporter what we did 13 with Exhibits through 92.
14 MR. MARQUAND: All right. From 83 through 15 92, TVA Exhibits 83 through 92, we have left the first 16 page in.
The court reporter has marked that first 17 page as saying that it was admitted by stipulation, by 18 agreement today.
And the pages following the first 19 page have been removed and by agreement a substitution 20 a single-page summary document is going to be 21 provided for each of those exhibits.
22 JUDGE YOUNG:
Just so the record will be 23 clear, they were originally rejected --
24 MR. MARQUAND:
Yesterday.
25 JUDGE YOUNG:
and this is a
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5733 1
substitution and admission of all of them with those 2
provisos.
3 MR. MARQUAND:
Those were originally the 4
working documents and extensive documents, and there's 5
going to be a summary at the page in their place 6
substituted.
7 JUDGE YOUNG: And, Ms. Euchner, you agreed 8
with that.
9 MS. EUCHNER:
Yes.
10 CHAIRMAN BECHHOEFER:
I assume the staff 11 will want to look at the summary pages that are 12 received --
13 MS. EUCHNER:
Yes, Your Honor.
14 CHAIRMAN BECHHOEFER: -- to decide whether 15 that falls within the area or the general scope of 16 what was agreed to.
Make sure the summary pages have 17 some relationship to what was in the other document.
18 MS. EUCHNER:
Yes, Your Honor.
When we 19 get them, we'll review them and let the Board know 20 whether we have an objection or no objection.
21 CHAIRMAN BECHHOEFER:
Right.
22 JUDGE YOUNG:
We set a --
what was the 23 deadline we set for that?
24 MR. MARQUAND:
We set ten days, I think.
25 JUDGE YOUNG:
So do you want to set a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5734 1
subsequent deadline for you to notify us if there's 2
any problems?
3 MS. EUCHNER: Well, what is ten days from 4
now, the 23rd?
5 JUDGE YOUNG:
Did we set an actual date?
6 MR.
MARQUAND:
We didn't.
We just 7
generalized.
8 JUDGE YOUNG:
Today's the --
9 MR. MARQUAND:
Thirteenth.
10 JUDGE YOUNG:
13th, Friday the 13th.
11 So the 23rd, is that --
12 CHAIRMAN BECHHOEFER:
What day is the --
13 MR. MARQUAND:
That's a weekday.
14 CHAIRMAN BECHHOEFER:
Pardon?
15 MR. MARQUAND:
That's a weekday.
16 MS. EUCHNER: It is a weekday. I'm trying 17 to figure out what we can --
18 JUDGE YOUNG: I don't have a calendar with 19 me.
20 MS. EUCHNER:
I shouldn't need --
21 JUDGE YOUNG:
It's a Tuesday, so by that 22 Friday?
23 MS. EUCHNER:
Yes, that should be fine.
24 MR. MARQUAND:
That's a Monday.
Let's 25 make it 11 days.
Mondays are always bad.
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5735 1
MS. EUCHNER:
So the 22nd is Monday?
2 Then, yes, that Friday should be more than enough.
3 JUDGE YOUNG: Now wait a minute. You said 4
the --
5 MR. SLATER:
The 23rd is Monday.
6 JUDGE YOUNG:
Okay.
So the --
7 MR. MARQUAND:
The 23rd's a Monday, and 8
the 24th will be better.
9 JUDGE YOUNG: Okay. The 23rd is Tuesday.
10 MR. MARQUAND:
Right.
No, the 24th is a 11 Tuesday.
12 JUDGE YOUNG: The 24th you're going to get 13 us the substitute pages.
14 MR. MARQUAND:
Right.
15 JUDGE YOUNG:
The 27th you're going to 16 tell us if you have any problems with any of them.
17 MS. EUCHNER:
Is the 27th Friday?
18 MR. MARQUAND:
Yes.
19 MS. EUCHNER:
Okay.
Then no later than 20 that Friday.
21 JUDGE YOUNG:
All right.
So the record 22 reflects that.
23 CHAIRMAN BECHHOEFER:
And I think the 24 documents should be --
will there be any problem 25 scanning the documents to --
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MR. MARQUAND:
No.
We'll have the thing 2
typed up and e-mail it to you.
3 CHAIRMAN BECHHOEFER:
Okay.
Or at least 4
fax it to us, either way.
5 MR. MARQUAND:
We'll e-mail it and hard 6
copy, just like we do everything else.
7 CHAIRMAN BECHHOEFER:
Right.
Okay.
8 JUDGE YOUNG: So September 27 objections, 9
and this is for --
just for the record, 83.
10 MR. MARQUAND: Actually, it's going to be 11 more than --
83 through 92, 95 and 96 and 109 and 110.
12 JUDGE YOUNG: Okay. Very good. Anything 13 more for the record before we --
14 MR. MARQUAND:
Actually, 93 and 94 also 15 are the same types of documents.
We didn't say 16 anything about this and the whole thing's admitted, 17 but it might be helpful to the Board if we went ahead 18 and prepared a summary document that can be appended 19 to those two exhibits as well.
20 JUDGE YOUNG:
To add to them.
Any 21 objection?
22 MS. EUCHNER: No. Staff has no objection.
23 CHAIRMAN BECHHOEFER:
Does the Staff not 24 have certain questions about particular pages of those 25 documents?
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MR. DAMBLY:
Yes.
But we won't remove 2
anything from 93 or 94.
3 MS. EUCHNER: Oh, yes, 93 and 94 are going 4
to stay in their entirety and on top of that we'll do 5
we'll have them supplemented, yes.
6 MR. DAMBLY:
Right, right.
7 JUDGE YOUNG:
And do either of those 8
require any redactions?
9 MS. EUCHNER: Actually, 92, 93 and 94, the 10 front page, all need to be redacted. Well, 93 and 94, 11 the entire documents are going to need to be redacted.
12 But for 92, that front page, the Social Security 13 number at the top needs to be redacted.
And I guess 14 we can just mark 93 and 94 for later, as those are 15 going to take quite a while to redact.
16 JUDGE YOUNG:
So there's just the one 17 Social Security number on 92 for Page 1.
18 MS. EUCHNER:
Correct.
19 CHAIRMAN BECHHOEFER:
We can do it right 20 now.
21 MS. EUCHNER:
Yes.
22 JUDGE YOUNG: Okay. And then 93 and 94 --
23 CHAIRMAN BECHHOEFER:
Well, wait, whoa, 24 whoa. What about --
I see a Social Security number on 25 Page 2.
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MS. EUCHNER: We're getting rid of Page 2.
2 CHAIRMAN BECHHOEFER:
That's part of 3
everything that will be substituted?
4 MS. EUCHNER:
Yes.
5 CHAIRMAN BECHHOEFER:
Okay.
6 MR. MARQUAND: If it's Exhibit 92, you're 7
taking out Page 2.
8 CHAIRMAN BECHHOEFER:
It's 93 that we --
9 JUDGE YOUNG:
Ninety-three and 94 coming 10 in completely with additional pages to be appended, 11 and we're going to need to redact.
12 MR. MARQUAND:
Your Honor, what we told 13 you earlier was 93 through 94.
We would redact in our 14 office and make numerous copies and send them to you 15 all.
16 JUDGE YOUNG: Thank you. Did we get that 17 on the record.
18 MR. SLATER:
You can keep the first page 19 in.
20 MR. MARQUAND:
Well, yes.
Let's remove 21 everything but the first page.
22 JUDGE YOUNG:
Remove everything else.
23 Okay.
24 MR.
MARQUAND:
Go ahead and remove 25 everything behind the first page in 93 and 94 and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5739 1
redact them and submit them back to you.
2 JUDGE YOUNG: Are we still on the record?
3 Okay.
So we'll add those to the list of ones, but 4
you're going to do the whole thing on 93 and 94.
5 MR. MARQUAND:
Yes.
Ninety-five and 96 6
also --
7 MS. EUCHNER:
Well, 95 is in the same 8
notebook.
9 MR. MARQUAND:
Right.
Ninety-five and 10 ninety-six remove everything but the first page.
11 MS.
EUCHNER:
Any anyone with the 12 originals needs to have 92 and 95 remarked by the 13 court reporter.
14 JUDGE YOUNG: Anything else we need to put 15 on the record right now?
16 MR. MARQUAND: Not beyond 96.
17 MS. EUCHNER:
No.
18 MR. MARQUAND:
We ought to go ahead and 19 redact the first pages of those that need to be 20 redacted but we're living in, though.
21 MS. EUCHNER: Looks like 92 and 94 have a 22 first page that needs to have a Social redacted.
23 JUDGE YOUNG:
I think I've got 92.
We 24 just did 92 a minute ago, didn't we?
25 MS. EUCHNER:
Yes.
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5740 1
JUDGE YOUNG:
We're off now?
We can go 2
off? Off the record.
3 (Whereupon, the foregoing matter went off 4
the record at 1:09 p.m. and went back on 5
the record at 2:37 p.m.)
6 JUDGE YOUNG:
Out of an abundance of 7
caution, I want to thank Judge Cole, Mr. Marquand and 8
Mr. Slater for coming down to the parking basement 9
with me to make sure that my tire was not flat.
10 during the lunch break I went, it had lost not half 11 the air, but it still had enough to drive to a gas 12 station, so I have gotten it fixed.
Fortunately, I 13 will report to you.
I believe that Ms. Euchner 14 indicated that she had no concern with Mr. Slater and 15 Mr. Marquand going down to the basement with Judge 16 Cole and myself to check on my car.
I probably am 17 going far beyond the call of duty to report this, but 18 since it has been mentioned, I just want to thank you 19 and indicate that if anyone has any problem about it, 20 please bring it to my attention immediately.
21 MS. EUCHNER:
The Staff has no problem 22 with that, Your Honor.
23 JUDGE YOUNG:
Thank you.
24 MR. MARQUAND: If Mr. Vigluicci was here, 25 he would say, "Forget about it."
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5741 1
(Laughter.)
2 JUDGE YOUNG:
Right.
I'm quite sure he 3
would.
Judge Bechhoefer had some concerns, and I 4
wanted to allay his concerns, but I think we can move 5
on now.
So we can go off the record.
6 CHAIRMAN BECHHOEFER:
Yes. Well, off the 7
record, but which documents are we up to?
8 (Whereupon, the foregoing matter went off 9
the record at 2:39 p.m. and went back on 10 the record at 2:47 p.m.)
11 JUDGE YOUNG:
Tell us when you're ready.
12 MS. EUCHNER:
Ready.
13 JUDGE YOUNG:
Mr. Marquand, you want to 14 say what's in and out?
15 MR. MARQUAND:
We have just finished 16 Volume 10.
TVA Exhibit 96 was changed.
The first 17 page was left in.
The remaining pages were pulled, 18 and we're going to substitute for those pages a 19 summary document.
TVA Exhibit 97 was pulled and 20 trashed.
TVA Exhibit 103 and 104 were pulled and 21 trashed.
The remaining documents were left in.
22 JUDGE YOUNG:
Correct, Ms. Euchner?
23 MS. EUCHNER:
Yes, that's correct.
24 JUDGE YOUNG: My goodness, are we to the 25 last volume of TVA?
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MR. MARQUAND:
No.
We brought you some 2
extra volume books.
3 JUDGE YOUNG:
Extra documents.
4 MR. MARQUAND:
Yes.
5 JUDGE YOUNG:
But not volumes.
6 MR. MARQUAND:
No, we brought you some 7
volumes to put them in when we're done.
8 (Whereupon, the foregoing matter went off 9
the record at 2:48 p.m. and went back on 10 the record at 3:39 p.m.)
11 CHAIRMAN BECHHOEFER: Mr. Marquand, would 12 you like to record for the reporter --
13 MR. MARQUAND:
Sure.
14 CHAIRMAN BECHHOEFER: --
the exhibits that 15 were dealt with?
16 JUDGE YOUNG:
Let's say first the ones 17 that were left in and then the ones that were taken 18 out of the last volume and then go through the loose 19 ones maybe.
20 MR. MARQUAND:
Go through what?
21 JUDGE YOUNG:
In Volume 11 of TVA's 22 exhibits --
are we on the record? Okay. Volume 11 of 23 TVA, let me say which ones I have.
People tell me if 24 I'm missing any, and then, Mr. Marquand, you can tell 25 us which ones were taken out.
One-zero-five, 106, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5743 1
107, 108, 109, 110, 111 are in; 109 and 110 were 2
originally rejected but then there was an agreement to 3
take out all but the first page and then substitute 4
summary pages.
5 MR. MARQUAND:
Correct.
6 JUDGE YOUNG: All the others were admitted 7
as they were.
Were there any that were taken out of 8
that Volume 11?
9 MR. MARQUAND:
Nothing was taken out of 10 Volume 11.
11 JUDGE YOUNG:
That was admitted as is.
12 MR. MARQUAND:
Yes.
13 JUDGE YOUNG:
All right.
14 CHAIRMAN BECHHOEFER:
Starting with 112.
15 JUDGE YOUNG:
Ms. Euchner, did you hear 16 the ones we went through so far?
17 MS. EUCHNER:
Yes.
18 JUDGE YOUNG:
Okay.
19 CHAIRMAN BECHHOEFER:
Starting with 112 20 now, do you want to reflect, Mr. Marquand?
21 MR. MARQUAND: All right.
Starting with 22 112, the documents that are in are TVA 112, 113, 114, 23 116 through 126, 128 through 136, 138 --
24 JUDGE YOUNG: Hold on.
Go ahead.
25 MR. MARQUAND:
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5744 1
142, 144 --
2 JUDGE YOUNG:
Hold on.
Everyone caught 3
up? Go ahead.
4 MR. MARQUAND: One-forty-four through 152.
5 JUDGE YOUNG: And just for the record, 148 6
is a CD.
7 MR. MARQUAND:
Correct.
And among the 8
documents that were excluded were Documents 115 --
9 JUDGE YOUNG:
Just to be clear, not 10 excluded --
11 MR. MARQUAND: They were removed from the 12 record --
115 --
13 JUDGE YOUNG:
Or were never in it.
14 MR. MARQUAND:
127, they've never been 15 offered, 137 and 143.
16 JUDGE YOUNG: We can go off now, I think.
17 (Whereupon, the foregoing matter went off 18 the record at 3:44 p.m. and went back on 19 the record at 3:57 p.m.)
20 CHAIRMAN BECHHOEFER: Back on the record.
21 MS. EUCHNER: In that book, we have -- and 22 that's Staff Volume 1, Exhibits 2, 4, 5, 6, 7 and 12 23 were admitted.
And then 1, 3, 8, 9, 10, 11 and then 24 13, 14, 15, 16, 17, 18, 19 and 20 were excluded.
25 JUDGE YOUNG:
Were not proffered.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5745 MS. EUCHNER:
Were not proffered and removed from the volume.
Okay.
JUDGE YOUNG:
We can go back off.
(Whereupon, the foregoing matter went off the record at 3:58 p.m. and went back on the record at 4:05 p.m.)
JUDGE YOUNG:
Ready?
Go ahead, Ms.
Euchner.
MS. EUCHNER:
Exhibits.
Included are 21 30, 31, 32, 33, 34 and 37.
JUDGE YOUNG:
Volume 2 of the Staff
, 22, 24, 25, 26, 27, 29, Excluded are 23 --
Let's say not proffered, I
because --
interpreted 35, 36 and MS. EUCHNER:
Okay, not proffered.
JUDGE YOUNG:
sometimes excluded is to mean --
MS. EUCHNER:
Not proffered are 23, 28, then 38, 39 and 40.
MR. MARQUAND:
I agree.
JUDGE YOUNG:
All right.
(Whereupon, the foregoing matter went off the record at 4:05 p.m. and went back on the record at 4:09 p.m.)
JUDGE YOUNG:
Ms. Euchner.
MS. EUCHNER: All right.
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5746 1
Staff Exhibits.
Included are 43, 44, 45, 46, 47, 49, 2
50 (a) and (b) --
3 JUDGE YOUNG:
One of which is tape.
4 MS. EUCHNER:
That's correct.
I think 5
50(a) is the tape.
Okay.
So 50(b) is in the book.
6 Fifty-one, 52, 53, 54, 55 and 56.
And then not 7
proffered are 41 and 42, 48 and 57.
8 JUDGE YOUNG:
Go off the record?
9 CHAIRMAN BECHHOEFER:
Off the record.
10 (Whereupon, the foregoing matter went off 11 the record at 4:10 p.m. and went back on 12 the record at 4:17 p.m.)
13 MS. EUCHNER:
All right.
This is Volume 14 4 of the Staff exhibits. Included are 60, 63, 64, 65, 15 67, 70, 71, 72, 73 and 74. Not proffered were 58, 59, 16 61 and 62, 66, 68, 69 and then 75, 76, 77, 78. 79, 80 17 and 81.
18 JUDGE YOUNG:
Off the record?
19 CHAIRMAN BECHHOEFER:
Off the record.
20 (Whereupon, the foregoing matter went off 21 the record at 4:18 p.m. and went back on 22 the record at 4:20 p.m.)
23 CHAIRMAN BECHHOEFER: Are you ready to go 24 on the record?
25 MS. EUCHNER:
Staff exhibits Volume 5.
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5747 1
Included are 84, 85, 86, 87, 88, 90, 91 --
2 JUDGE YOUNG:
Excuse me, 90 was in?
3 MS. EUCHNER: Ninety is in.
4 JUDGE YOUNG: Hold on just a second. Ah, 5
just was behind another tag.
After 90, what comes, 6
91?
7 MS. EUCHNER: Ninety-one, 93, 95, 96, 97, 8
98, 99, 100, 101 and 102. And then not proffered were 9
82 and 83, 89, 92 and 94.
10 JUDGE YOUNG:
Okay.
Off the record?
11 CHAIRMAN BECHHOEFER:
Off the record.
12 (Whereupon, the foregoing matter went off 13 the record at 4:21 p.m. and went back on 14 the record at 4:22 p.m.)
15 MS. EUCHNER:
Staff Volume 6. Included, 16 107, 108, 110, 111, 112 and 115.
Not proffered, 103, 17 104, 105, 106, 109, 113 and 114.
18 JUDGE YOUNG:
Off the record?
19 CHAIRMAN BECHHOEFER:
Off the record.
20 (Whereupon, the foregoing matter went off 21 the record at 4:23 p.m. and went back on 22 the record at 4:26 p.m.)
23 MS. EUCHNER: Are you ready?
24 JUDGE YOUNG:
Yes.
25 MS. EUCHNER: Okay. Staff Exhibits Volume NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N W.
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5748 1
7 included, 122, 124, 126, 128, 130, 131, 133, 134 and 2
135.
Let's see if I can get the not proffered list 3
right.
Not proffered, 116, 117, 118, 119, 120, 121, 4
123, 125, 127, 129, 132, 136, 137, 138, 139 and 140.
5 CHAIRMAN BECHHOEFER:
Off the record.
6 (Whereupon, the foregoing matter went off 7
the record at 4:28 p.m. and went back on 8
the record at 4:49 p.m.)
9 CHAIRMAN BECHHOEFER:
Why don't we go on 10 the record.
Ms. Euchner, you go.
11 MS. EUCHNER: We're on Book 8 of the Staff 12 exhibits. Included, 147, 148, 152, 154, 160, 162 and 13 166.
Not proffered, 141, 142, 143, 144, 145, 146, 14 149, 150, 151, 153, 155, 156, 157, 158, 159, 161, 163, 15 164, 165 and 167.
16 CHAIRMAN BECHHOEFER:
Off the record.
17 (Whereupon, the foregoing matter went off 18 the record at 4:50 p.m. and went back on 19 the record at 5:05 p.m.)
20 MS. EUCHNER: All right.
Final volume of 21 Staff exhibits.
Included are Staff 170, Staff 173, 22 174, pages 721 through 733 and then pages 628, 630 and 23 631.
Staff 178 and 179 are tapes, and then Staff 180 24 is included in this volume. Staff 177 is included in 25 a separate volume.
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JUDGE YOUNG:
Okay, 180 was in the first 2
volume.
3 MS. EUCHNER: Yes. And then not proffered 4
are 171, 172, 174, pages 734 to 736, 175 and 176, 5
three pages.
6 CHAIRMAN BECHHOEFER:
Three pages?
7 MS. EUCHNER: Yes, Your Honor. And that's 8
it for the Staff exhibits.
9 JUDGE COLE:
And that's it for all the 10 exhibits.
11 JUDGE YOUNG: Anything else that we need 12 to put on the record before we close?
13 MR. MARQUAND:
There are several large 14 exhibits that have to be redacted.
15 JUDGE YOUNG:
Redacted, okay.
16 MR. MARQUAND: And I would suggest that we 17 divvy them up, like we said we'd take those 83 through 18 110 exhibits and deal with those.
And there was 19 something else --
oh, we were taking 93 and 94, we 20 were going to deal with those.
TVA Exhibits 20, 21, 21 22 and 23 are the selection notebooks, and I would 22 suggest the Staff take two and we'll take the other 23 two.
24 JUDGE YOUNG: Let me go through what's in 25 my stack and make sure I've got them all.
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Volume 1, we're going to redact Exhibit 24?
Is that 2
something that --
3 MR. MARQUAND:
Say that again.
4 JUDGE YOUNG:
I have a note on 24 that 5
there were things that needed to be redacted?
6 MS. EUCHNER:
Yes.
7 JUDGE YOUNG:
TVA 24.
8 MS. EUCHNER:
Yes.
Those are --
that's 9
the VPA and the selection notebook for the 1994 10 selection, and there's going to be a lot of Social 11 Security numbers in there.
12 MR. MARQUAND:
TVA Exhibit 24.
I'm 13 looking at the wrong exhibit.
14 JUDGE YOUNG: Is it Joint, I'm sorry? No, 15 it's TVA 24.
16 MR. MARQUAND:
TVA 24 has a large number 17 of redactions that need to be made.
18 JUDGE YOUNG: Okay. Now, is that one that 19 we want to do together?
20 MR. MARQUAND:
Why don't we make a list 21 and then divvy them up to do them that way?
22 JUDGE YOUNG:
Let's make a list and then 23 decide what to do.
24 CHAIRMAN BECHHOEFER:
Let me inquire of 25 the parties.
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5751 1
as of now but subject to the changes we've already 2
identified and --
3 MR. MARQUAND: Well, we were going to wait 4
until TVA submitted and the Staff agreed upon the 5
summary documents to TVA Exhibits 83 through 92.
6 CHAIRMAN BECHHOEFER:
Well, I'm saying 7
technically we could still close the record, subject 8
to those later filed documents coming in.
9 (Judges confer.)
10 JUDGE YOUNG:
11 MR. MARQUAND: Well, we have to redact 93 12 and 94.
13 JUDGE YOUNG:
I'm going through them.
14 MR. MARQUAND:
You're right, TVA 149.
15 JUDGE YOUNG:
Okay.
Let me --
could I 16 just go through the ones that I've got, because 17 they're falling off here.
18 MR. MARQUAND:
Sure.
19 JUDGE YOUNG: We don't need to do this on 20 the record.
21 CHAIRMAN BECHHOEFER:
Go off the record 22 for the moment.
23 (Whereupon, the foregoing matter went off 24 the record at 5:10 p.m. and went back on 25 the record at 5:19 p.m.)
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5752 1
CHAIRMAN BECHHOEFER: Back on the record.
2 JUDGE YOUNG:
Shall I read these off?
3 CHAIRMAN BECHHOEFER:
Well, I was having 4
the sponsors of the particular documents read them 5
off, which would be Mr. Marquand.
6 JUDGE YOUNG: Mr. Marquand, do you want to 7
read off those documents that you were going to 8
redact?
9 MR. MARQUAND:
Sure.
10 JUDGE YOUNG:
How about if I summarize 11 them and you tell me if they're correct, okay?
12 MR. MARQUAND:
Okay.
13 JUDGE YOUNG:
Ninety-three and 93, TVA 14 Exhibits 93 and 94, you have those exhibits --
15 MR. MARQUAND:
Right.
16 JUDGE YOUNG:
from all the volumes.
17 You are going to redact them and send them back to us 18
-- four copies to Judge Bechhoefer, one to Judge Cole, 19 one to me. You are going to take your one copy of TVA 20 Exhibits 24, 149, 39 --
21 MR. MARQUAND:
Go slow, make sure I get 22 them.
23 JUDGE YOUNG:
I'm sorry, 24 --
24 MR. MARQUAND:
Right.
25 JUDGE YOUNG:
149 --
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MR. MARQUAND:
Right.
2 JUDGE YOUNG:
39 --
3 MR. MARQUAND:
Right.
4 JUDGE YOUNG:
55 --
5 MR. MARQUAND:
Right.
6 JUDGE YOUNG:
56 --
7 MR. MARQUAND:
Yes.
8 JUDGE YOUNG: -- and Joint Exhibits 22 and 9
23.
10 MR. MARQUAND:
Right.
11 JUDGE YOUNG:
And you are going to send 12 four copies to Judge Bechhoefer and one copy to me of 13 each of those.
The Staff did not require those, 14 although, again, if you want to have an opportunity to 15 object to them or observe to see if there's anything 16 left out --
17 MS. EUCHNER:
I'm not going to object.
18 Yes, I would waive that objection.
19 JUDGE YOUNG: And the Staff is going to do 20 the same thing with Joint Exhibits 20 and 21.
21 MS. EUCHNER:
Four to Judge Bechhoefer, 22 one to you.
Judge Cole, you didn't want one?
23 JUDGE COLE:
I don't need it.
24 MS. EUCHNER:
Okay.
25 CHAIRMAN BECHHOEFER:
Okay.
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that's --
three of the ones forwarded to me will be 2
used as official --
3 MR. MARQUAND:
Correct.
4 CHAIRMAN BECHHOEFER: -- copies. Is there 5
anything further before we adjourn today?
6 MS. EUCHNER: Nothing for the Staff, Your 7
Honor.
8 MR. MARQUAND:
Nothing for us.
We do 9
appreciate the Board's patience through this and the 10 Staff's attention to this case.
11 CHAIRMAN BECHHOEFER:
We appreciate the 12 efforts of each one of you in participating.
13 JUDGE YOUNG:
We feel like we're old 14 friends by now, almost family.
15 MR. MARQUAND: Even those attorneys who we 16 didn't see fit to be here the entire time.
17 CHAIRMAN BECHHOEFER:
Okay.
Well, we'll 18 close for the day.
19 JUDGE YOUNG:
Thank you all.
20 MS. EUCHNER:
Thank you.
21 MR. MARQUAND:
Thank you, Judge.
22 JUDGE YOUNG: We can go off the record now.
23 CHAIRMAN BECHHOEFER:
Off the record.
24 (Whereupon, at 5:22 p.m., the hearing was 25 concluded.)
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D C. 20005-3701 www nealrgross.com
t CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding:
Tennessee Valley Authority Watts Bar Nuclear Plant, Unit 1 Sequoyah Nuclear Plant, Units 1 and 2 Browns Ferry Nuclear Plant, Units 1,2,3 50-390-CivP; ASLBP No: 01-791-01-CivP Rockville, Maryland Docket Number:
Location:
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
LsI6?Qpbex1JA. (in ptEn jj
~becca Davis Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D C. 20005-3701 www nealrgross corn