ML20024E493
| ML20024E493 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 08/11/1983 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| 81-463-01-OL, 81-463-1-1, 81-463-1-OL, ISSUANCES-OL, NUDOCS 8308150173 | |
| Download: ML20024E493 (81) | |
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In the matter of:
DUKE POWER COMPANY et al Docket No. 50-413 OL (Catawba Nuclear Station 50-414 OL Units 1 & 2)
ASLBP No. 81-463-01-0I:
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Telephone Conference 1120-1201 Location: Washington, D.C.
Pages:
Date: Thursday, August 11, 1983 i
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Court Reporters i
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1120 UNITED STATES OF AMERICA 1
(N NUCLEAR REGULATORY COMMISSION N
3 ATOMIC SAFETY AND LICENSING BOARD 1
1 TELEPHONE CONFERENCE 5
X 6
In the Matter of:
7
- Docket No. 50-413 OL DUKE POWER COMPANY, et al.
No. 50-414 OL 8
- ASLBP No. 81-463-01-OL (Catawba Nuclear Station 9
Units 1 and 2) 10 X
11 Tayloe Associates 12 Suite 1004 1625 I Street, N.
W.
13 Washington, D. C.
14 Thursday, August 11, 1983
\\m) 13 The telephone conference in the 16 above-entitled matter convened, pursuant to notice, at 17 11:10 a.m.
18 19 ASLBP MEMBERS PARTICIPATING IN TELEPHONE 20 CONFERENCE:
21 JAMES L.
KELLEY, Chairman Administrative Judge, ASLBP 22 i
DR. DIXON CALLIHAN, Member l
21 Administrative Judge, ASLBP 21 DR. RICHARD F.
FOSTER, Member Administrative Judge, ASLBP 25 j
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1121 PARTIES PARTICIPATING IN TELEPHONE CONFERENCE:
1 2
On Behalf of the Applicants:
3 J.
MICHAEL McGARRY, III, ESQ.
4 DeBevoise & Liberman 1200 17th Street, N.
W.
5 Washington, D.
C 6
ALBERT V. CARR, ESQ.
I RONALD C. GIBSON, ESQ.
Duke Power Company 8
422 South Church Street Charlotte, North Carolina 28242 9
10 On Behalf of the Intervenors:
11 ROBERT GUILD, ESQ.
12 Palmetto Alliance P. O.
Box 12097 13 Charleston, South Carolina 29412 s
11 On Behalf of the NRC:
15 16 GEORGE E.
JOHNSON, ESQ.
Office of Executive Legal Director 17 Washington, D.
C.
18 CAROLE F.
KAGAN, ESQ.
19 ASLBP NRC Staff 20 Washington, D.
C.
21 22 23 21 23
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TELEPHONE CONFERENCE PROCEEDINGS O'
JUDGE KELLEY:
We are making efforts to reach 3
Mr. Riley. I think we should just go ahead. There is going to be a transcript of this eventually and maybe we can 5
fill him in on what happened, the substance anyway, in the 6
hopefully few minutes in which takes to reach him.
7 First of all, we indicated the other day in 8
the hearing that we would mail two or three things.
We 9
said, one, that we would go over the' transcript and make 10 any corrections or additions that we wanted to make and 11 just mail you all a copy, and I am talking about the order 12 part of the transcript which runs maybe 15 pages toward 13 the end, and then we would just mail you all a copy with 14 5
)
any changes that we made.
I just got the transcript this morning and I 16 have read it through quickly once.
It looks pretty clean 17 and I don't think we will be making a lot of changes, but 18 there seemed to be a few places where a word was either lost or something needed to be added. So that is one item.
'O The second item is I was going to send Mr.
21 Guild a copy of both the Commission's decision and the San Onofre decision.
I made a mistake._ I had one with me and
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I was going to give it to you.
I just forgot.
't
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MR. GUILD:
Judge, I might say George Johnson sent me a copy that crossed in the mail and I now have it.
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1 JUDGE KELLEY:
Okay. I did refer to another 2
decision from San Onofre by the Licensing Board. I thought 3
that would be out by today or yesterday maybe, but it is 4
hung up a day or so.
It is not out yet. I think I said I would mail that to everybody, too.
So I' expect to mail to 6
the p'arties two things probably the middle of next week or I
the early part of next week, a copy of the transcript, 8
that part of it which contains our rulings with any 9
changes we want to make in that, plus a copy of a 10 Licensing Board decision in San Onofre.
II I also said that we wanted any comments on the 12 San Onofre thing by the 19th and that is now probably I3 going to get too tight.
So we will do something with that I4 due date, depending on when we can make this mailing.
~
I JUDGE CALLIHAN:
Callihan is here now.
JUDGE KELLEY:
Okay, fine.
17 Let me just mention a personal time limit.
I 18 am going to have to sign off a little after 11:30 if we 19 are not done by that time, but I would suggest we have a 20 court reporter on and the other two Members of the Board 21 are on and Carol Kagan can pick up my phone.
22 MS. KAGAN:
I am on.
U JUDGE KELLEY:
Carole is on the line now and 21 she is with us.
23 As I suspect we may discussing the various s
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items in the Gibson letter and hearing Mr. Guild and the 2
applicants on the pros and cons of those items, why don't 3
we just go ahead and get your arguments into the record.
4 What we propose to do in that regard is we 5
will probably have a transcript tomorrow setting forth 6
these" points and we will have heard you and we will look 7
at the transcript and we will decide and let you know I 8
would say quite soon what the decisions are on those 9
disputed documents.
10 Let's put off the Gibson letter discussion for 11 a few" minutes though.
The other thing we wanted to do 12 today was not to get the merits so much as to figure out a 13 way to proceed on the other open points with regard to it discovery concerning contention six.
I know of three such O/
15 are'as that on a little thought appear to lend themselves 16 to similar but in some respects perhaps different 17 treatment.
18 The three that have been raised I believe are 19 objections to deposition questions.
That is one category.
20 The second would be whether Mr. O'Reilly the staff's 21 regional man should be subject to deposition.
Then the 22 third would be the matter of reopening discovery on areas 23 other than welding.
21 Let me take those just in that order and put 25 out on the table a suggestion that seems to be one o
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I feasible approach to dealing with these matters and then O
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2 we can hear your comments on them, 3
Mr. Guild has requested a face-to-face 4
discovery session.
That is going to be logistically 5
difficult for the Board as I indicated the other day.
6 What We are going to try to do in these forthcoming 7
suggestions is something like the functional equivalant.
8 That is to say, Mr. Guild has contended that the burdens 9
on him in preparing for the case are.such that he is not 10 well positioned to file a written motion and he would 11 rather present his points orally and we are trying to work 12 out a way to do that.
13 Let me just tell you what we have got in mind 14 as tentative way to proceed and get your comments.
15 Taking first the objections to deposition 16 questions, now, first of all, Mr. Guild, you plan, as I 17 understand it, is to get copies from the staff of the 18 depositions via the Freedom of Information Act, right?
19 MR. GUILD:
Judge Kelley, it is Mr. Guild, Can 20 you hear me?
I am getting a little interference on the 21 line.
22 JUDGE KELLEY:
Right. I understand with regard Il to these objections to deposition questions what you plan 25 to do is get copies of the depositions from the staff 3
under the Freedom of Information Act, right?
l A
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MR. GUILD:
That is correct, Judge.
2 JUDGE KELLEY: And I believe you indicated that 3
you would prefer not to have to formulate your positions 4
on those points until you had those copies in hand, is 5
that correct?
6 MR. GUILD:
That is correct, yes.
7 JUDGE KELLEY:
Do we have a notion of where 8
that stands, Mr. Johnson?
Do you know where that stands?
9 MR. JOHNSON:
Yes, sir. We have the Freedom of to Information section that has been processing the request.
11 I believe that all the depositions that we have have been 12 forwarded to the Public Document Room, I think one copy 13 has been forwarded to the Public Document Room in 14 Washington and one in Rockhill. except for two 15 depositions, which we haven't had a chance to copy yet.
16 JUDGE KELLEY:
Now just the way the mechanics 17 of this kind of thing usually works, if Mr. Guild has a 18 request in to the Washington PDR for a Xerox copy, would 19 he be likely to have that next week or the week after or 20 when?
21 MR. JOHNSON:
I am sorry, I can't speak to S
that.
I am not that familiar with the way they work. I 23 think Mr. Guild may know better than I do.
21 MR. GUILD:
Judge Kelley, the FOIA request, 3
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disposition response due tomorrow so you will have it if j
2 you are interested, it is directed as the Rules of 3
Practice or the Commission's rules governing FOI dictate 4
to an officer who is responsible for answering them for' 5
the agengy. It makes a commitment to pay the copying costs 6
provi'ded for in the regulations which is five cents a 7
page, although it has a fee waiver request included in the 8
letter.
9 As I understand it, within 10 working days of 10 the receipt of that letter the agency is required to 11 respond.
Now they are not necessarily required to actualy 12 give you the information within 10 working days, but they 13 are required to tell you what they are going to do, 14 whether they are going to provide it or not.
O' 15 I have yet to receive that response, although 16 it appears to me that it should be due by now.
I don't 17 have the letter in front of me, but I think it was dated 18 the last week in July, and I think 10 working days has 19 expired.
So I think it is just a question of the 20 bureaucratic limbo right now.
21 MR. JOHNSON:
I have a copy of the letter that 22 was sent out.
It was sent to Palmetto Alliance in 23 Columbia.
So it should be there pretty soon if it is not 21 there already.
25 MR. GUILD:
My letter was dated July 28th. So O
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we have a request for copies and a commitment to pay the
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2 copying costs.
That, in my experience under the FOIA with 3
the agency should be enough to actually generate copies of 4
the response.
Now the timing of it is beyond me, except, 5
as Mr. Johnson says, there should be a letter.
6 George, do you know whether or not that letter 7
included the copies.
8 MR. JOHNSON:
No, the letter doesn't have the 9
copies.
The letter says the copies,.just like said to you 10 before, are being made available in the two locations that 11 I mentioned.
12 MR. GUILD:
Judge, I guess that then requires 13 me to make an additional request to the PDR.
That is not 14 within my experience what the agency generally does.
They 15 usually send the documents.
But if that is necessary, I 16 will have to get the letter that Mr. Johnson says in on 17 its way, see what it says and try to figure out how to 18 jump through the next hoops that are required in dealing 19 with the PDR.
So I can't predict when those things would 20 be available to me.
21 JUDGE KELLEY:
Well, I guess you just have to 22 proceed with that, and whatever you can do, Mr. Johnson, Il to expedite it.
We have got a case we want to move on 21 with.
The metal picture I had was somebody down there, a 15 clerk down there messing around and making copies and who O
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knows when they will get around to it.
So if anything can 2
be done, I would appreciate it.
3 MR. JOHNSON:
Okay. As I said, I believe they 4
are there, except for two, and I will give a call and see 5
what is the problem.
6 JUDGE KELLEY: The other thing that concerns me l
7 is just the sheer bulk of mailing it down there.
I assume 8
that is a lot of paper.
9 MR. CARR:
Judge Kelley,.as George as pointed to out, they are in Rockhill and if we are to believe 11 Palmetto Alliance's petition to intervene, they have a lot 12 of members that live around Rockhill that could go over 13 and copy those things and get them down to him.
14 MR. GUILD:
As I hope I have made the point 15 enough times, it is 25 cents a copy at Rockhill and 16 Rockhill is 90 miles away from where I live.
17 JUDGE KELLEY:
I understand your point. The 18 expense is quite a bit higher.
19 Let me make this suggestion, gentlemen.
You 20 are just going to have to push the wheels as best you can 21 and get the paper that you need to have as soon as you 22 can. But it seems to me that once you get it, then you are Il going to go through these depositions.
21 I would assume, Mr. Guild, you will go through 25 them and whenever you come to a question that was objected TAYLOE ASSOCIATES
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to you will ask yourself whether you really want to push
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s_/
2 it.
Then if you decide that you do, that will be one you 3
will want to push. Could you not then informally by letter 4
or phone, not a formal pleading, but informally, or 5
formally if you want to, just let the applicants know 6
which" points you want to pursue, just a letter from you to 7
Mr. Carr which says I am going to press my question on 8
page 37 of the Smith deposition, so he knows what you are 9
talking about in advance.
10 Then could we not, gentlemen, set up a time 11 fairly soon after Mr. Guild has these documents in front 12 of him, and af-ter he has notified the applicants of what 13 he wants to go ahead with, and what I would suggest is 14 that we get back on the phone with a reporter and we can 15 go through these deposition questions one by one and Mr.
16 Guild can say why he believes it is a proper question and 17 the applicants can say the contrary and then when we read 18 the transcript we will decide it. Is that a reasonably way 19 to proceed all things considered?
20 Mr. Guild, how does that sound to you?
21 MR. GUILD:
Judge, in the absence of the 22 opportunity for another face-to-face conference, which we 21 would desire and think is best, I think that you are 21 right, the transcribed telephone conference is probably 25 the next best thing.
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JUDGE KELLEY:
Okay.
2 Mr. McGarry?
3 MR. McGARRY:
That sounds fine.
4 JUDGE KELLEY:
Mr. Johnson?
5 MR. JOHNSON:
That is fine with me.
6 Can I just add one thing if we are going to be 7
moving past this issue to the O'Reilly deposition?
8 JUDGE KELLEY:
Sure.
9 MR. JOHNSON:
I would to.get the Region 10 Counsel, Bradley Jones on the phone.
11 JUDGE KELLEY:
I really wasn't thinking about 12 getting to the merits of it, although I wouldn't rule it 13 out if he is available.
14 Let me just say for myself, as I have said, I x/
15 am kind of boxed in this morning and I can't be around you 16 real long.
It may be a good idea if Jones is available. I 17 wasn't going to go to the merits of whether O'Reilly 18 should be subject to deposition or not.
19 Let me just ask you a couple of procedural 20 questions first.
21 MR. JOHNSON:
Okay.
22 JUDGE KELLEY:
We talked about a phone 23 conference with a reporter approach to the objections to 28 deposition questions.
Now as to O'Reilly, could we not 3
adopt a similar procedure under which Mr. Guild and Mr.
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Johnson would confer and suggest a time, that is to say if
T s_)
2 we don't do it this morning, and put it on the record from 3
each side and then the Board would have a basis for 4
deciding.
5 Now we can take the next step in a minute of 6
whether we ought to do it right now, but let ask whether 7
in general that is a reasonable approach?
8 What do you think, Mr. Johnson?
9 MR. JOHNSON:
That is fine with me.
10 JUDGE KELLEY:
Mr. Guild?
11 MR. GUILD:
Judge, that would be fine. Let me 12 put it this way.
The awaited transcripts would provide me 13 with the ability to make specific references for Mr.
14 Johnson's purpose to get to inform him of the grounds on n
'/
15 which we will seek the O'Reilly deposition.
16 One of the depositions sought, or two of them 17 sought are two NRC employees, Resident Inspector VanDoren la and his former superior, Mr. Bryant.
It is largely on the 19 basis of their deposition testimony identifying Mr.
20 O'Reilly's responsibilities and role in dealing with QA 21 issues at Catawba on which we seek the O'Reilly 22 deposition.
23 So again it seems to me it is matter of 26 timing.
When I get those depositions, I will be happy to 3
confer with Mr. Johnson and inform him of the grounds on p
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which I will rely and see if we can arrange a time for a
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2 conference call.
3 JUDGE KELLEY:
It sounds like we ought not to 4
try to do it now, Mr. Johnson.
Okay?
5 MR. JOHNSON:
Okay.
6 JUDGE KELLEY:
Now the third point is this 7
question of Palmetto's interest in reopening discovery on 8
certain areas that are e, compassed within No. 6, but which 9
are not welding type concerns.
10 Now, once again, I think we would be willing 11 to hear a presentation of good cause on a transcribed 12 phone basis. It does strike me, at least tentatively, that 13 it might be the kind of thing where we might have to do it 14 twice, that is get on the phone twice, to get on the phone
,-s 15 a second time for the response.
I say that because the 16 applicants don't have in advance what points you are 17 interested in or what your arguments are going to be in 18 support, and I am not sure it is fair to expect them or 19 the staff, for that matter, to respond cold, as it were.
20 But if, on the other hand, you got on the 21 phone with a reporter and stated in some detail what you 22 wanted and in some detail what the justification was, they II would then have, when they get the transcript, the 21 equivalent of a pleading that they could respond to.
They 5
can respond in writing if they want to, or we can get back
(']
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on the phone and do it the other way.
But it strikes me
'v 2
like you may need a two-step procedure.
Otherwise, we 3
could do pretty much the same thing we have been talking 4
about.
5 How does that strike you, Mr. Guild?
6 MR. GUILD: Judge, that would be fine. I may be 7
able to do one better than that.
If I can see the 8
transcripts of these depositions and formulate an outline 9
in a written form that states our grounds for relief 10 regarding further discovery on contention 6, perhaps I can 11 make that a part of the same written communication to Mr.
12 Carr or Mr. Gibson.
13 JUDGE KELLEY:
I wasn't clear, and I just want 14 to understand this, I wasn't sure that the new areas 15 presentation was also dependent upon your getting the 16 transcripts of the depositions. You are saying that it is?
17 MR. GUILD:
Yes, sir. I think in terms of the 18 specific factual basis for showing cause, it is in the 19 testimony of the Duke witnesses deposed whose depositions 20 were taken.
21 JUDGE KELLEY:
Any comment, Mr. McGarry?
22 MR. McGARRY:
I think the procedure you have 23 outlined is fine.
21 JUDGE KELLEY: Are you saying two steps, or are 25 you saying one step with the right to take two steps if P
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1 you need them, if you follow me?
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MR. McGARRY: I do follow you. I would think we would want two steps.' We would like to think of ourselves 3
4 as skilled and be able to respond quickly, but this is a 5
pretty serious matter, reopening discovery.
So I think we 6
would' stand on our right to hear or read what the 7
intervenor has to say with respect to reopening, and then 8
have an opportunity to reflect upon that and subsequently 9
to respond either in another conference call or in 10 writing.
11 JUDGE KELLEY:
All right.
12 Mr. Johnson?
13 MR. JOHNSON:
I think what Mr. McGarry just 14 stated is a fair way to do it.
O 15 JUDGE KELLEY:
Okay.
16 My fellow Judges now will be talking about 17 these and other matters later, but do you see any real 18 problem with this approach, Dick?
19 JUDGE FOSTER:
It sounds all right with me.
20 JUDGE KELLEY:
Dixon?
21 JUDGE CALLIHAN:
That is fine.
l 22 JUDGE KELLEY:
Okay. Well, I think the 23 consensus is that this is a way we can go, and then the 24 pacing item is going to be Mr. Guild's getting ahold of 5
the copies under the FOI Act.
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Let me ask this.
We can turn now I guess to 2
the Gibson letter disputes and try to get that at least on 3
the transcript so that we can get that decided pretty 4
quickly.
5 Are there other matters that need to be raised 6
at this point?
7 MR. McGARRY:
Yes. We have three matters, and
~
a let me just identify them. One is discovery and a schedule 9
with respect to-emergency planning, the second concerns 10 the map, and the third concerns a statement made at the 11 August 3rd prehearing conference by Palmetto wherein they 12 alleged that there were serious construction deficiencies 13 which exist as a result of alleged pressure to get the 14 plant built.
b V
15 JUDGE KELLEY:
You mean August 8th or August 16 3rd?
17 MR. McGARRY:
Excuse me?
18 JUDGE KELLEY:
You said August 3rd. Did you 19 mean the 8th?
20 MR. McGARRY: I meant the August 3rd conference 21 call.
22 JUDGE KELLEY:
Oh, okay, fine.
23 MR. McGARRY:
I am sorry. I misspoke when I 21 called it a prehearing conference.
25 JUDGE KELLEY:
Okay. Why don't you take them Q
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one at a time.
2 MR. McGARRY:
All right. With respect to the 3
discovery schedule, at the prehearing conference on August 4
the 8th we addressed this point at the end and wanted some 5
assurance that the Board would not impose the first right 6
to di'scovery ruling with respect to emergency planning.
7 Our understanding of Palmetto's and CESG's response is 8
they have told us everything they can at this point in 9
time.
So to file interrogatories at.this particular point 10 in time would be of no value.
11 We are interested in seeing this case move 12 along.
So we would suggest the following schedule.
13 August the 8th, discovery is open.
14 September the 8th, intervenors are to file la-interrogatories.
16 October the 7th, applicants and staff are to 17 respond to intervenor's interrogatories and applicants and 18 staff are to file interrogatories on Palmetto Alliance and 19 CESG.
20 November the 7th, Palmetto Alliance and CESG 21 are to respond to applicants' and staff's interrogatories.
22 From November the 7th through December the 8th Il any party can seek follow-up ' discovery, depositions to l
21 follow up interrogatories.
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follow-up interrogatories that inasmuch as the party
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2 responding has 20 days, that any follow-up interrogatory 3
should be in hand by the 18th of November.
4 Then we would propose that discovery close on 5
December the 8th, that prefiled testimony be filed on 6
January the 9th and that we begin hearing on emergency 7
planning on January the 23rd.
8 JUDGE KELLEY:
Let me just react to that. Now 9
that is a concrete proposal with specific dates.
10 I gather Mr. Guild is getting this for the 11 first time over the phone; is that correct, Mr. Guild?
12 MR. GUILD:
Yes, sir.
13 JUDGE KELLEY:
Why don't you do this, Mr.
14 McGarry, and then Mr. Guild can say what he wants to at 15 this juncture about the proposed schedule, but it seems to 16 me that it might be better if you could just send him a 17 copy.
When we get the transcript tomorrow or Monday of 18 this particular conversation, can you Xerox the page or 19 two that will set forth your proposed schedule and just 20 give it to Mr. Guild?
21 MR. McGARRY:
Judge, I will tell you what we 22 will do.
We will send a letter to Mr. Guild and to the z1 staff today with this schedule.
21 JUDGE KELLEY:
Just to serve it.
25 MR. McGARRY:
Just serve it.
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JUDGE KELLEY: Why don't you just serve it. Now
(_s 2
he has heard it over the phone, it is in the transcript 3
and that is fine. I wouldn't necessarily expect him or Mr.
4 Riley to respond in any detail now without the chance to 5
study it, as I think they ought to study it and think 6
about*'it before they respond.
7 MR. McGARRY:
Our basic point is discovery is 3
open. This Board opened discovery and this has four months 9
for the discovery of emergency of emergency planning.
10 Now the second point is the map.
11 JUDGE KELLEY:
Wait a minute, let me close on 12 that.
13 Mr. Guild and Mr. Riley then, you will be 14 getting this proposed schedule and the Board would like to l-a have comments that you have got on it.
I suppose Mr.
-16 McGarry is right and, as the Board said, discovery is 17 open.
As we sit here talking today it is open, and the 18 question is where to go with it and what time that must 19 have.
20 I think your next deadling for anything is 21 along about the 26th.
You have got responses due on the 22 26th.
23 MR. GUILD: I have got a response due tomorrow, 21 Judge.
3 JUDGE KELLEY:
That is right, you have got one TAYLoiE ASSCK:lATES j
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on the 12th. If you could respond with any counterschedule
(
2 suggestions, along with your 26th filings, I think that 3
would be adequate.
4 MR. McGARRY:
Do you want me to turn to the 5
map, Judge Kelley?
6 JUDGE KELLEY:
Is that okay, Mr. Guild?
7 MR. GUILD:
Yes, sir.
8 JUDGE KELLEY:
Okay, and Mr. Riley, too.
9 MR. JOHNSON:
Excuse me,.before we get off to scheduling and discovery on emergency planning, I would 11 like to make just a couple of comments.
12 JUDGE KELLEY: Sure. I should have asked you. I 13 am sorry.
14 MR. JOHNSON:
There are two things that relate g
15 to FEMA that I would like to bring up that were in fact 16 clear at the prehearing conference.
17 I have had the opportunity to talk to the 18 Associate General Counsel of FEMA who was on vacation and 19 I couldn't reach after,J udge Kelley, you asked me to get 20 some information from FEMA.
He confirmed that FEMA should 21 be treated in general as a non-party.
However, he also 22 indicated that they would attempt to answer questions l
23 posed to them as they could on an informal basis.
i 28 JUDGE KELLEY: Okay. In that connection, I know 25 there was a legal issue in the San Onofre case about l
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whether dealings with FEMA involved ex parte D)
(-
2 considerations and the ruling was that they don't, and I 3
think the Appeal Board spoke to that, too.
That being so, 4
the question was their time and resources.
Can a party 5
just call up or go visit FEMA and ask them questions?
6 MR. JOHNSON:
I don't see why not.
7 JUDGE KELLEY:
The intevenors are down there 8
and there are the regional people there and you can take 9
an informal approach, I would think,.to the FEMA people 10 who are working on the case.
11 MR. JOHNSON:
The second point is as we get 12 into discussing the schedule, FEMA's role is pretty 13 important.
The Associate General Counsel's name is Spence 14 Perry and requested to participate in any conference call s\\
15 or prehearing further conference that may happen to 16 discuss the schedule for FEMA findings and so on.
That 17 definitely has not been determined when that would be as 18 yet.
19 There is one further comment that I can make
{
N about that, and that is that there is presently a 21 tentative date for a full-scale exercise and that is to 22 take place on February 15th and 16th.
Z3 JUDGE CALLIHAN:
Of what?
28 MR. JOHNSON:
1984.
Z5 JUDGE KELLEY:
What month?
l l
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MR. JOHNSON:
February 15th and 16th.
75
(_,)
2 JUDGE KELLEY: Oh, February. I am sorry I mised 3
it.
4 MR. JOHNSON: Mt. Guild had asked when he would 5
have an opportunity to have public input at a meeting, and 6
it ismy understanding that on February 14th in the 7
evening there would be a public meeting in which the 8
public be heard.
9 JUDGE KELLEY:
Okay. That is helpful, and I 10 think you are right, that their relationship, one, it is 11 important and, two, it is kind of complicated in that it 12 involves a lot of different things.
If you can keep us 13 apprised of the developments and new information, that is 14 good, and maybe in one of our next conferences, if FEMA N-15 becomes of special interest, we should include Mr. Perry 16 on the phone.
17 MR. McGARRY:
Judge Kelley, I was thinking of 18 sending to Mr. Perry the schedule that I would send to the 19 other parties, if that would be appropriate.
20 JUDGE KELLEY:
I think it is all right.
21 MR. GUILD:
Judge Kelley, it just strikes me 22 that it is a little untoward for FEMA to try to have it Z1 both ways.
If they take the position they are not a party 26 and therefore presumably for discovery purposes they are 25 not subject to the obligations of a party to be responsive TAYLOE ASSOCIATES g
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to primarily discovery needs of the intervenors, then I 2
would object to them being accorded other status and 3
privileges of a party with respect to participating in 4
other ways.
5 It just seems to me that that deprives us of 6
all o'f the rights that would be accorded us as against an 7
adverse party while giving them all of the privileges.
I 8
mean they clearly are adverse and they are going to be 9
essentially defending the plan that exists despite their 10 role in review.
11 I think the gentleman's observations at the 12 prehearing conference last week to the effect that somehow 13 he treats their review documents as public documents 14 between his agency and the state and local officials 15 suggests that adversary role, and it seems to me to be 16 improper for them to try to play it both ways.
17 JUDGE KELLEY:
Let me make just one 18 observation, and I think I am renewing an observation I 19 made the other day, although very briefly.
The FEMA role 20 and exactly how they fit into the case is something that 21 may very well be a subject of dispute among parties.
The 22 Board certainly hasn't ruled and I am not expressing any 23 personal view of whether you can send a deposition to 21 FEMA.
Maybe you can and maybe you can't.
25 If you think you have got a decent argument i
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that will provide you with some sort of access to FEMA or
(_s 2
FEMA documents, then you can make the argument and we will 3
rule on it.
4 MR. GUILD:
All right, sir.
5 JUDGE KELLEY: When Mr. Johnson says that it is 6
FEMA'B position that such and such is the case, well they 7
may be right and maybe they are not, but we are not 8
foreclosing argument on any point.
9 I do think that sending them a copy of a 10 proposed schedule that we are looking at is at worse 11 harmless and it might help some.
12 MR. GUILD:
I don't have any objection to that 13 at all, Judge.
14 JUDGE KELLEY:
Okay, fine.
73 15 MR. GUILD:
It is just allowing them to 16 participate as a party with counsel in record proceedings 17 in this case where they are not a party strikes me as 18 improper.
19 JUDGE KELLEY:
Well, that may be a point that 20 you could raise at some time.
21 Mr. Johnson, I have to interject.
In about a 22 minute I have to leave and then I take it you will take up n
the Gibson letter and go ahead with other points and I see 21 no reason that you shouldn't.
I just wanted to mention 3
that I have to go in a minute.
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Mr. Johnson, you had a point?
2 MR. JOHNSON:
Yes. I just wanted to tell Mr.
3 Guild that.in terms of that particular type of t
4 correspondence, I should talk to him, because I think to 5
the extent that the document has been sent from FEMA to 6
the states, that kind of document, they would have access 7
to that I believe, but we can talk about that.
8 JUDGE K'ELLEY:
Okay. Gentlemen, I am going to 9
have to sign off.
Could you get into the Gibson letter at 10 this point and discuss the merits of the half dozen areas 11 of documentation that are involved. Then that will give us 12 a record basis for giving you rulings.
13 JUDGE CALLIHAN:
Do you have any general 14 remarks to make on it before you leave?
\\.
15 JUDGE KELLEY: You may have to explain a little 16 bit what is involved in some of these documents, but even 17 with that, if you could try to be fairly brief and to the 18 point.
We don't need to know, I would think, the total 19 history of the document and whether you should have asked 20 for it a year ago and so on, but rather just how is this 21 document relevant to the contention and why do you need 22 it, on the one hand, and, on the other hand, is it 1
23 irrelevant or is it a tremendous burden to produce it and 24 that it is unfair to be asked to produce it.
Those kinds 25 of things fairly briefly put I would hope would give us a p
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sort of manageable transcript of not too many pages that 2
we could then work with.
3 MR. GUILD:
Judge Kelley, before you leave, I 4
just want to say this morning I got an August 10th letter 5
from Mr. Gibson of the applicants to you apparently 6
transhitting a number of depositions, and I think they are 7
depositions that are relevant to pending summary 8
disposition.
Of course, these are depositions that we do 9
not have yet.
The applicants have refused to make them 10 available to us and we are now seeking to compel them from 11 the agency through FOI. We would object to those documents 12 being made available to the Judges unless those documents 13 are also made available to Palmetto.
14 We think it is the burden on the applicants to O
15 serve those depositions on us if they seek to rely on 16 those depositions for their summary disposition which they 17 obviously do.
18 JUDGE KELLEY:
Okay. I have not received the 19 letter and I haven't looked at the depositions.
I 20 understand that you are registering an objection.
I am 21 just going to at this point have to say good-bye, but if 22 there is further to be discussed in that regard when I get Il the letter, and I will take into account your objection 21 and what do we need to hear from the applicants, and we
$5 can take it up as we need to.
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MR. McGARRY:
We will just put our position on 2
the record, and I realize you have to go ---
3 JUDGE KELLEY:
Could you just do that.
4 MR. McGARRY:
--- so we can develop a record 5
that you can read tomorrow or the next day.
6 JUDGE KELLEY:
Right, exactly. If you could 7
just say your position, that is fine.
8 I think this has been productive and I hope 9
that it will continue that way.
We will be back on the 10 phone, I would guess just the way things are going, before 11 very long.
12 I-thank you all very much, and I will leave it 13 to my fellow Judges and Carole to carry on.
14 Thank you.
O 15 MR. McGARRY:
Might I just respond to Mr.
16 Guild's last comment with respect to the depositions, and 17 that would be that the applicants' position is that the 18 depositions that were sent to the Board, aside from the 19 Hoopingarner and Mcaffee depositions, were depositions 20 that were taken by Palmetto Alliance, and under the 21 stipulation that was entered into between Palmetto 22 Alliance and the applicants and the staff, Palmetto 23 Alliance took the depositions by tape and the tapes were 21 supposed to be delivered to the Board.
3 As I understand it, the Board has told l
(~%
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Palmetto Alliance to hold on to the tapes, but at some 2
point in time the Board is entitled to know precisely what 3
took place in the depositions.
So it is either the tapes 4
or the transcript.
That is our position.
5 MR. GUILD:
Judge Callihan, I think that the 6
August 10th letter to Judge Kelley speaks for itself.
Our 7
position is that to the extent that anything of record is 8
being served on the decision-makers, the Judges by one 9
party, they have an obligation to serve it on all others.
10 That is part of the Rules of Practice.
11 Regardless of who constructed the document in 12 the first place, and in this instance they were 13 transcripts that were produced at the applicants' request.
14 So we would ask that copies be served on all parties if s
i N
15 the Board is gaing to rely on them.
16 JUDGE FOSTER:
I have a question. Are the 17 deposition that are being discussed at this point, were 18 those served to just Judge Kelley or to Callihan and 19 Foster as well?
20 MR. GIBSON:
Judge Foster, I sent the original 21 transcript of those depositions to Judge Kelley.
I might 22 point out that, as I understand it, the Rules of Practice 23 before the Board are patterned after the Federal Rules and 21 it is common for a party to send the original transcript 25 to the Clerk for the Judges' use should it be necessary, A
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and that is simply what we have done in following up on 2
Mr. McGarry's comments, but we sent a letter to everyone 3
else indicating that the original transcript had been 4
lodged with Judge Kelley.
5 JUDGE CALLIHAN:
Mr. Gibson, are those the 6
transcripts taken from the tapes?
7 MR. GIBSON: No, Your Honor. The applicants had 8
a court reporter come in for each deposition that was 9
noticed or taken by Palmetto Alliance.
So at applicants' 10 expense we had a transcript made of each deposition, 11 although they were taken by Palmetto, and in the normal 12 course of things Palmetto would have incurred that expense 13 and would have done that.
So these are the transcripts of
,-s the depositions and they would be the same as the tapes 14 15 that Palmetto has, and we have submited to the Board for 16 the Board's use, we submitted the original copy to Judge 17 Kelley.
18 JUDGE CALLIHAN:
Those supplement the tapes or 19 vice versa?
20 MR. GIBSON:
I wouldn't want to say they 21 supplement them.
They are an independent transcription of 22 the testimony by a certified court reporter.
Il JUDGE CALLIHAN:
It was the same proceedings.
21 MR. GIBSON:
That is right.
3 MR. GUILD:
Dr. Callihan and Dr. Foster, the TAYLOE ASSOCIATES 1625 i STREET, N.W. - SUITE 1004 WASHINGTON, D.C.
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stipulation I presume also includes, if I read Mr.
i 2
Gibson's letter correctly, or it is referenced I believe, 3
the stipulation provides that by agreement of all the 4
parties the official transcription of those depositions is 5
the court reporter's transcription which is being sent.
6 I mean we all concede that it is more reliable 7
to have a court reporter who is skilled at transcribing 8
court proceedings in a written form of question and answer 9
with page and line references, that that is more reliable 10 and accurate than any tape recording. We didn't anticipate 11 there would be any transcripts other than our notes and 12 the tapes because we could not afford to get a transcript 13 made ourselves.
Il But now these transcripts are in the hands of 15 very other party to this proceeding except the 16 intervenors.
They are in the hands of the NRC staff, they 17 are in the hands of the applicants and now they are in the 18 hands of the decision-maker, at least Judge Kelley.
Our 19 point is if they are in everybody else's hands, 20 particularly in the decision-maker's hands, then they 21 ought to be in ours.
I assume they will be in ours 22 eventually under the Freedom of Information Act request, a
but our objection is one that kind of goes to the ex parte 25 nature of this as evidence that is available only to one 5
side at this point.
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MR. McGARRY:
Given Mr. Guild's statement, 2
which indeed is correct, that all parties have agreed that 3
the transcripts of the depositions serve as the official 4
record, the rules clearly provide, and I am referring to 5
Section 2.740a(e), that at the completion of the 6
depos'ition and after the deposition has been corrected, it 7
is the obligation of the officer taking the deposition to 8
send a copy of that deposition to the Commission.
The 9
Commission in this instance has delegated its authority to 10 this Licensing Board, 11 So the normal NRC practice and indeed the 12 correct NRC practice is for all depositions to be lodged 13 with the Chairman, and that is precisely what has been 14 done.
It does'not require that any party be served with a 15 copy of that deposition.
16 We understand Mr. Guild's point, and I think 17 he is taking that up under his FOIA avenue, but with 18 respect to our lodging the depositing with the Board, that 19 is totally consistent with the regulations and it is 20 totally consistent for the Board to read that transcript.
21 MR. GUILD:
I think we stated our position, 22 except to say that my objection is not to lodging the 23 originals with the Commission.
My objection is to the 21 Judges, the Licensing Board relying on those transcripts, 3
reading them in any way, shape or form or relying on them p,
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and making a decision on a pending matter without those 2
transcripts being made available to all parties, and 3
particularly to my clients.
I just state that objection.
4 That is stated and I think that is an argument from my 5
side.
6 MR. McGARRY:
We could move on. There are two 7
other points that I wanted to address before we got to the 8
Gibson letter, if that is all right with the Board.
9 JUDGE CALLIHAN:
Fine.
10 JUDGE FOSTER:
Go ahead.
Il MR. McGARRY: Now the second point was the map.
12 What we propose is to send the map to all the parties at 13 this point in time.
14 Let us tell you what we have done.
We have 15 taken the map that was on the blackboard at the prehearing 16 conference on August the 8th, and what we have done is we 17 will outline the city limits of Charlotte and we will then 18 from the 10-mile EPZ, from the north to the east sectors 19 give the population density per square mile, which 20 population density is based on the 1980 census.
So we 21 propose sending a map that reflects that to the Board and 22 the parties and we hopeful to get that out tomorrow.
Il JUDGE FOSTER: That sounds very helpful.
28 JUDGE CALLIHAN:
Fine.
25 MR. GUILD:
Well, Judges, I understood the TAYLOE ASSOCIATES
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.1 direction from the prehearing conference to be that Mr.
)
2 McGarry was going to communicate at least to me and to the 1
3 other parties perhaps to arrive at a stipulated source and i
4 set of numbers.
Now I would object to him sending out a 5
map with numbers on it.
I am very interested in what his 6
sourc'e of numbers is and whether or not that is the most 7
reliable and thorough source of numbers for the point that 8
needs to be made.
9 So I would ask that instead of simply sending to this material cold for the record that I hear from someone 11 for the applicants. I am interested, first of all, in what 12 specific census data source he is using and I am 13 interested, frankly, in having access to that source 14 myself to review and looking towards a stipulated set of 15 number.
16 MR. McGARRY:
Our point is that we would like 17 to get this issue moving along.
We represent that it is 18 the 1980 census.
We don't have any problem, Mr. Guild, of 19 speaking with you and telling you precisely where we got 20 this 1980 census information from.
I don't know, as a 21 matter of fact, at this point in time.
22 MR. GUILD: A suggestion, Mike, might be if you M
would just call me afterwards and tell me what you have 28 got or have somebody else call me who does know and 'fe cal 3
talk about it.
I have made some inquiries myself about TAYLOE ASSOCIATES
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neighborhood data that is available and I would like to 2
know what you have and maybe make some suggestions.
3 MR. McGARRY:
Fine. Let's do it this way. We 4
will talk to you today and, unless we run into some 5
problem, we will send out the map to the Board and the 6
parti'es after we talk to you. The Board and parties should 7
be expecting a map to go in the mail hopefully Friday 8
unless we run into some snag, the snag being a snag 9
between applicants and Palmetto.
10 JUDGE FOSTER:
Mr. McGarry, at the recent 11 prehearing you indicated that you would be providing the 12 information on the population density segments.
Now do I 13 understand that what you are going to send us on the map 14 is that particular information?
n V
15 MR. McGARRY: That is right. What we are doing, 16 since we are focusing on Charlotte, we are looking at the 17 sectors.
It is the north sector, the north northeast 18 sector, the northeast sector, the east northeast sector 19 and the east sector, and that will encompass Charlotte and 20 its surrounds.
We will give you all the population 21 densities out from the EPZ and I think ten miles from the 22 EPZ.
23 JUDGE FOSTER:
But the map that you are going 21 to provide us will have the population density by square 25 mile?
fmv)
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MR. McGARRY:
That is correct, and that s-s/
2 population density will be based on 1980 census data.
3 JUDGE FOSTER:
Fine.
4 MR. JOHNSON:
Before you go any further, Mike, 5
can I make a comment on the question that we finished, 6
that'is the stipulation.
Have you filed with the Board a 7
copy of the stipulation that was reached between the 8
applicants and the intervenor?
9 MR. McGARRY:
This has to do with the 10 deposition?
11 MR. JOHNSON:
Yes.
12 MR. McGARRY:
I believe it is included in Mary 13 Birch's desposition which was the very first deposition 14 taken by Palmetto Alliance.
15 MR. JOHNSON:
The problem as I see it is this.
16 If Mr. Guild is objecting to the Board reading any of the 17 depositions, they ought to separately have a copy of the 18 stipulation because I think the text of the stipulation is 19 relevant to determining whether there is a valid 20 objection.
21 For example, it seemed to me that it is 22 possible to interpret the stipulation which calls for the 23 court reporter transcription to be the official record as 25 tacit agreement that the Board would have access to this.
3 So it seems to me that the Board should have a (N
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copy of the stipulation. I did not send one either because O
k_j/
2 we executed a similar stipulation.
It seemed to me that 3
either the applicants or the staff or both or Mr. Guild 8
ought to send the Board a copy of the stipulation so that 5
they would have that to aid them in deciding this 6
quest' ion of objection.
7 MR. GUILD: Mike,did we ever sign one of those, 8
or did we just read it into the record?
That is my 9
problem.
10 MR. McGARRY:
I think we read it into the 11 record and we both acknowledged we agreed with it.
12 MR. JOHNSON:
Well, in our case, Bob, we both 13 signed it.
18 MR. GUILD:
Yes, I know. Well, I guess what I
\\
15 would suggest is maybe, George, if you would send one.
16 Mike, you were there at the time, isn't that 17 an accurate reflection of the terms of our agreement as 18 well?
19 MR. McGARRY:
Yes, it is. I think the best 20 thing is just to take the stipulation as reflected in 21 Mary Birch's deposition and just send that to the Board 22 and parties, and we will do that today.
Il MR. GUILD:
That is fine.
28 MR. McGARRY:
I have one other point on the 3
map.
I just raise this for the record and the Board can pg TAYLOE ASSC<lATES Q
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deliberate on this, but we are concerned as to what
/
2 standards, what are the standards against which the Board 3
will measure the population densities beyond the 10-mile 4
EPZ against.
5 Do you follow me, Board?
6 JUDGE FOSTER:
Yes, I understand.
7 JUDGE CALLIHAN:
Come again on that one, 8
please.
9 MR. McGARRY:
What are the standards against 10 which you will measure the population densities outside 11 the 10-mile EPZ of Charlotte.
In other words, you are 12 going to look at the population densities outside the 13 10-mile EPZ on the Catawba docket and what are you going 14 to measure them against to deter;iine whether or not they 15 are significant or insignificant.
16 JUDGE FOSTER:
I understand your question.
17 MR. McGARRY:
We just raise that as a point.
18 The only referece that we are aware of we have cited in 19 our document, and those are the setpoints that are 20 guidance from the NRC, but those setpoints do not 21 correspond to the population density per square mile.
The 22 setpoints are 500 people per square mile at the time of
$1 operation and 1,000 people per square mile at the end of 24 life of the plant.
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follows.
Say you are at 11 miles from the site. You take
()
the area of the entire 11 miles and all the people therein 2
3 and you do a calculation to determine what are the people 4
per square mile in that ll-mile circle.
You go out to 12, 4
5 13 and 18 miles and you do the same thing.
The number of 6
peopl'e inside the 18-mile circle divided by the area 7
inside the 18-mile circle gives you people per square 8
mile.
9 When you ask for population density per square 10 mile for Charlotte and its surrounds, that is not all the 11 area within the 11 or 12 or 18-mile circle.
I am just 12 pointing that out.
I am not aware of any guidance with 13 respect as to how you will measure whether or not 14 Charlotte poses a situation that requires its inclusion in 15 the EPZ.
16 MR. GUILD:
I think really this is in the form 17 of argument, and I would appreciate it if Mike McGarry 18 would give me a call afterwards and we could talk about 19 this.
I mean I could have a suggest that he get the 20 population densities for the circumference of those 21 circles so he can make his point more effective, but I 22 really think that we can work this out and that is the 21 reason why it is appropriate that this be'done by 28 stipulation.
I feel uncomfortable having to argue cold 25 with two of the three Judges on the basis of Mr. McGarry's O
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1159 JUDGE CALLIHAN:
We will take notice of it of 3
course.
Incidentally, Mr. McGarry, did you perchance 5
did up any mid-70 or early-70 data?
6 MR. McGARRY:
Yes, sir, and we will serve that 7
on the Board and parties tomorrow.
8 JUDGE CALLIHAN:
Fine. Thank you very much.
9 MR. McGARRY:
The last point we have before 10 getting to the Gibson letter is the point about the 11 allegations of serious construction deficiencies.
12 As I noted during the August 3rd conference 13 call when we were discussing the bifurcation issue, one of 14 the reasons advanced by Palmetto Alliance as a basis for
)
la-maintaining the present Board on the emergency plan issue 1
16 was that there were alleged serious construction 17 deficiencies that are said to exist as a result of alleged 18 pressure to get the plant built.
19 Now in the Board's June 20th order, and I make 20 reference to page 8, in talking about new information, the 21 Board said, and I will just read this, "However, pursuant 22 to 10 CFR 2.740(c)(3), the Board is imposing a duty on 23 Palmetto to supplement promptly its interrogatory 28 responses under contention 6 to the applicants and staff 5
as to any such new areas of concern under that contention C
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other than welding concerns and the concerns of Mr.
2 Hoopingarner and Mcafee."
3 Now we would like Palmetto to identify this 4
new serious construction deficiency.
What is it or what 5
are they we think we are entitled to know because, quite 6
frankly, one of concerns with respect to bifurcation was 7
that in the QA area, based on our experience, it seems 8
that you can't get the case closed because it seems like 9
there is always a new allegation being raised either right to at the beginning of the hearing, during the hearing or 11 right after the hearing is closed and we are fearful that 12 we are going to see an effort to reopen and reopen again 13 the record on QA.
Il Now we have heard for the first time that 15 there may be serious construction deficiencies, and let's 16 haev them identified so we can discuss them at this 17 hearing rather than having an reopened hearing.
18 That completes our statement.
19 JUDGE FOSTER:
Mr. Guild.
20 MR. GUILD:
Judge, I don't have anything 21 further to say to Mr. McGarry.
If he has a problem, he 22 should put it in writing.
I stand by our statements.
Il MR. McGARRY: I think we are prepared now to go 25 to the Gibson letter, and I believe we should hear from l
3 Mr. Guild now.
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Does that suit you, Judges?
2 JUDGE FOSTER:
Yes, I am ready for that.
3 JUDGE CALLIHAN:
Yes, I am ready.
4 MR. GUILD: Judge Callihan and Judge Foster, do 5
you have a copy of the Gibson letter with you?
6 JUDGE CALLIHAN:
I have it in my hand.
I MR. GUILD:
All right, sir.
8 JUDGE CALLIHAN:
It is July 26, 1983, right?
9 MR. GUILD:
Yes, sir, that is correct.
10 First, let me say the genesis of this letter 11 is a list that was generated in the last couple of days of 12 the period of-discovery provided for under the reopened 13 discovery on contention 6 that closed about the 20th of 14 July, an approximately three-week period of time during 15 which a number of depositions, and the number escapes me 16 right off, of Duke employees were taken under the Board's l'T earlier order that provided for an opportunity to follow 18 up discovery on general subjects identified in the 19 attachments to a motion by Palmetto Alliance to r'eopen or 20 extend discovery on our quality assurance contentions.
21 The Board essentially said here are a number 22 of documents loosely described as documents reflecting 23 concerns expressed by welding inspectors at Catawba 21 concerning alleged falsification of documents, harassment l
3 of inspectors for trying to do QC inspections and
\\
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systematic breakdowns in the quality assurance program
()
2 going back several years, and also documents that 3
reflected the Nuclear Regulatory Commission's Region II 4
office staff's response to those allegations, largely 5
non-response, in our judgment, essentially confirming and 6
acquiescing in Duke's own response to those welding 7
inspector concerns.
8 In short, after a period of time, concluding 9
that the concerns did not relate to safety matters in any 10 substantial degree, that there were communications 11 problems between inspectors and craft, inspectors and the 12 supervisor and that a number of procedural and training 13 changes were implemented largely focusing on retraining 14 the inspectors in more clearly understanding when you 15 write up a non-conforming item report and what your role 16 is in relation to the craft whose work you are inspecting.
17 The list of documents then were documents that 18 remained in dispute, but which the company had agreed they 19 would consider favorably responding to as these 20 depositions came to a close.
21 Mr. Gibson, who was the counsel for the 22 applicants who was primarily representing the witnessas 23 that were being deposed during the latter part of these 21 discovery depositions, took the list and said these are 25 items that we are talking about and we have actively under TAYLOE ASSOCIATES 16251 STREET, N.W. - SUITE 1004 WASHINGTON, D.C.
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review in terms of your position in seeking them and we
(
2 will give you a reading.
The July 26th letter represents, 3
I understand, the company's reading on what they were 4
going to give us and what they weren't.
5 Fundamentally, Mr. Gibson's July 26th letter 6
missthtes the course of dealing between applicants and 7
Palmetto Alliance during the course of that reopened 8
discovery.
It mischaracterizes the extent and nature of 9
the applicants' objections to questions that were asked, 10 applicants' objections to the scope of discovery that 11 Palmetto Allilance sought and applicants' willingness to, 12 first, provide documents when requested, second, concede 13 that documents that were identified should have been 14 produced many, many months earlier under long-standing O
\\ s!
15 interrogatories and document production requests, and that 16 it mischaracterizes the nature of the documents that 17 remain under dispute.
18 Judges, for the record, let me direct your 19 attention to the first paragraph of the July 26th letter.
20 These documents were not made available to you because 21 they were not requested under any of your discovery 22 requests, and in some cases they are not relevant to 23 contention 6.
21 You became aware of 'nese documents during the 25 course of the depositions because you conducted basis TAYLOE ASSOCIATES 16251 STREET, N.W. - SUITE 1004 WASHINGTON, D.C.
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discovery depositions instead of limiting the scope of the 2
depositions as indicated, et cetera.
3 If you will turn to the attachments to this 4
four-page letter, there is a document that entitled 5
Attachment A.
6 JUDGE CALLIHAN:
Just in passing, the Board 7
copies did not include the attachments.
8 MR. GUILD:
Oh, I am sorry. Well, then you 9
should get a copy of those attachments in order to be able 10 to fully understand the argument that follows, and I can 11 either forward them to you, or perhaps more appropriately, 12 since it is Mr. Gibson's letter and we will have no 13 dispute about the accuracy, the applicants could forward 14 Attachments 1 and 2. There are two pages, Judges. They are 15 not voluminous.
Attachment A is entitled " Documents Made 16 Available During Depositions," and Attachment B is called 17 "QA Procedures in Response to Guild's Request of 7/15/83."
18 Those two schedules I think are useful and important to 19 our argument.
20 I only state this, that the schedules identify 21 three sets of documents.
They are entitled "First 22 Documents From Mr. Grier, the second, " Documents From i
23 L. R. Davidson" and, third, "Other Documents."
Those 28 documents, to the best of my understanding, exclusively 3
represented documents that were identified by applicants (V]
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and which applicants conceded were documents that were 2
arguably called for in an outstanding earlier document 3
production request.
4 For example, Mr. Grier, who is the current 5
Corporate Manager of Quality Assurance for Duke Power, 6
lists12 items which are largely training and procedural 7
changes resulting directly from the recommendations of 8
Duke's welding inspector task force, the company task 9
force that reviewed the welding inspector complaints and to prescribed remedial measures.
11 These are not new things outside of the scope 12 of quality assurance and welding.
They dirctly relate to 13 remedial measures dealing with welding inspection.
14 The Davidson set of documents, which is the la-second set, were documents that were in his file, many of 16 them very current documents, but they were documents that 17 were presented at the beginning of his deposition as 18 documents that were responsive to outstanding discovery 19 requests and were being presented under Duke's obligation 20 to supplement its discovery responses.
21 Most pointedly of this class of documents that 22 I think amply reflects the inaccuracy of Mr Gibson's l
l 21 representations is a document that I understand to be the 28 document that is under other documents, No. 2, and it is 5
on Schedule A identified as follows,." Implementation of a p/
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Noncomformance Evaluation Team and Check List," or maybe I
2 perhaps 5.
I will add 5 there as well, which is entitled i
3
" Documents Confirming Implementation of the Technical Task 4
Force Recommendations."
5 No. 5 I understand to consist of a six-inch 6
stack of documents that was presented from a Mr. Bradley's 7
file that was represented by counsel to me as having been a
discovered only on a Saturday immediately prior to these 9
reopened set of discovery depositions as reflecting his 10 entire work product as the Duke Power Company person 11 resonsible for overseeing the implementation of the 12 welding inspector task force recommendations on the 13 technical side, in This six-inch stack of documents represented la-numerous procedural changes, numerous reinvestigations of 16 specific non-conforming item reports dealing with specific 17 bad welds and pieces of workmanship that had been called 18 into question, and it was identified at the time as an 19 oversight on the part of applicants in not having 20 identified this earlier.
21 It was a set of documents that clearly should 22 have been identified and produced many, many months before z1 to the extent that the documente existed many months 28 before, and a number of them did.
25 That said, Judges, our position is that many, p
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many documents of the class that we are talking about, 2
including those now in dispute, were documents that in all 3
fair understanding should have been produced many, many 4
months before and were only produced becuase we had a 5
witness under oath specifically saying yes, that such a 6
docum'ent exists, and we would say well how come you didn't 7
produce it earlier, and mum was the word and we would go 8
and find it.
9 Now turning specifically.to the list of six to items which are the subject of this dispute, the first 11 item essentially deals with procedures that the company 12 utilizes for quality control inspectors to perform their 13 quality control functions, and this is where Schedule B 11 becomes significant, Judges.
Attachment B is "QA
-s N
15 Procedures in Response to Guild's Request," and they list 16 a number of procedures by letter and number, and these are 17 the Duke Power Company procedural identifying titles.
18 The point here is that in the course of 19 deposition it was clear that many of the written 20 procedures governing the way a quality control inspector 21 performs his quality assurance function have changed in 22 many significant ways over time at the. Catawba site. There i
l 23 are obviously many changes that are minor and simply of a l
l 2.s administrative character with no significance in terms of 25 the effectiveness of the quality assurance program, but I
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there are many procedural changes that, in our judgment,
()
2 reflect the company's inadequate response to complaints 3
.about serious QA program deficiencies.
4 For example, there is a procedure that has 5
been identified as Q1. Q1 is the procedure for documenting 6
noncanforming items, and it is a specific procedure
~
required by one of the Appendix B quality assurance 8
criteria.
That Q1 procedure and the disputes about how it 9
is to be implemented by using the form that is called a 10 OlA, a nonconforming item report, is largely the 11 significant area where the welding inspectors had 12 complaints.
They had significant complaints about Duke 13 management in the QA department and in the construction 14 area telling them not to write up non-conforming item Cr 15 reports and they, the welding inspectors, identified what 16 they viewed was a nonconformance with safety significance, 17 a bad weld or a weld not made according to a welding 18 procedure or with other problems.
19 Now that Q1 procedure is simply one of a large 20 number of procedures that a welding inspector utilized.
21 They also had reference to specific construction 22 procedures in the welding area and they had reference to 21 specific welding inspection procedures that are identified 21 separately.
3 The point of item No. 1 is not really missed
,e'.
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by Mr. Gibson in his letter because he says in other 2
words you are interested in changes in how the welding 3
inspector goes about doing his job, and that is true, we 4
are.
In order to capture that point, though, we need 5
something other than what applicants have provided.
6 My understanding of what they have provided is 7
simply a set of the current procedures as they now exist, 8
the most recent revisions of this identified list of 9
procedures. That is a start of course, but what that fails 10 to really tell us or disclose is how those procedures 11 differed in material points in the past that are within 12 the legitimate scope of our contention No. 6.
Obviously 13 large parts of the Catawba plant were built, including 11 welding, long before the latest revision to the Q1 0
15 procedure went into effect.
16 What we are requesting specifically on this 17 point one is that the company identify and make available 18 for copying all of the previous revisions, understanding 19 that we apparently have the current up-to-date revision of 20 these procedures, but that they identify and make 21 available for inspection and copying all of the prior 22 revisions of those same procedure to the extent that they Il are used to identify construction deficiencies in welding 24 that have been used at the Catawba site, l
3 Now I understand those are voluminous, and s
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what I would suggest as a measure would be that those 2
documents be identified and made available at the 3
company's Charlotte office.
What I would plan to do is 4
review them there and copy only those portions that indeed
)
5 were of further interest to us.
6 JUDGE CALLIHAN:
That last group that you are T
referred to, Mr. Guild, is that the item 6 in the Gibson 8
letter?
9 MR. GUILD:
No, sir, I am talking about item 10 No. 1.
We are still taling about item No. 1 I am afraid.
11 Item No. 1 is any new procedures or revisions 12 and existing procedures used by welding inspectors to g
13 identify construction deficiencies, et cetera.
14 Did you find that, Judge?
gg 15 JUDGE CALLIHAN:
Mr. McGarry, any comment?
16 MR. McGARRY:
On item No. l?
17 JUDGE CALLIHAN:
On what Mr. Guild just said.
18 MR. McGARRY:
Well, with respect to the 19 specific points, I am going to turn it over to Mr. Gibson.
20 I have a general comment, but to the specific points I 21 believe Mr. Gibson will respond.
22 Ron, are you there?
23 MR. GIBSON:
I am here. I assumed you were 21 going to go ahead and make your general points, but I will 25
.be glad to go ahead.
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MR. McGARRY:
Okay. Well, let me go into my 2
general points, Judges, and then I will turn it over to 3
Ron.
I As we understand Mr. Guild, he seems to be 5
saying that documents came to light when Palmetto Alliance 6
took the depositions of the various Duke of ficials and 7
these Duke employees made reference to various documents.
8 Mr. Guild says that these documents are the type of 9
documents that should have been turned over during 10 discovery months ago.
11 We acknowledge that the documents indeed were 12 referred to during the depositions.
However, our point is 13 that these documents are not documents that were required 14 to be turned over months ago.
15 To explain I need to set some perspective. The 16 matter that we are talking about stems from depositions 17 which were taken after the close of discovery.
We must 18 remember that the intervenor waited until the last minute 19 to pursue discovery on QA and welding matters, this 20 despite the fact that the Board had advised the 21 intervenors on several occasions that they should take the 22 depositions early on in January and February and March Il rather than waiting until mid-May.
28 Simply what happened is intervenors got caught 3
short.
They waited until mid-May. They sought additional l
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time to take depositions and they sought additional time
)
2 to seek additional discovery.
This Board granted 3
intervenors' request with respect to taking additional 4
depositions, but denied intervenors's request to take 5
additional discovery.
6 In our view, what intervenor is now seeking 7
with respect to these documents is the additional 8
discovery which this Board ruled it wasn't entitled to.
9 Now let me explain.
10 The Board's ruling concerning depositions was 11 narrow.
Specifically the Board in its June 13th, 1983 12 order at pages 6 and 7 limited strictly the scope of the 13 deposition.
That is, that Palmetto was to be given an 14 opportunity to take depositions of company and NRC 15 personnel who may have knowledge of matters relating to 16 quality assurance and control in welding at Catawba.
17 However, contrary to the limiting scope, 18 Palmetto took the opportunity during these depositions to 19 conduct basic fishing expedition discovery concerning the 20 entirety of contention 6.
We simply cited as a basis that 21 any cursory reading of the numerous depositions support 22 our position.
M We allowed Palmetto to pursue general 21 background areas concerning quality assurance, i
3 organization and procedures which arguably affected QA and O,
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1 QC in welding at Catawba.
As a result of this general
)
2 educational discovery, the various documents indeed were 3
identified and Palmetto Alliance now seeks some of those 4
documents.
5 However, those documents, as Mr. Gibson will 6
expla'in, do not relate to quality assurance or quality 7
control in welding at Catawba. Rather, they are general QA 8
documents that Palmetto should have sought in discovery.
9 The Board denied Palmetto's efforts to extend to discovery on general QA matters and I cite specifically 11 the Board stated, and I am trying to get a page here, but 12 I can quote the Board, "The time for fishing is over."
13 Back on page 2 of the Board's June 13th, 1983 14 order in denying an extension of discovery, again they 15 said that "The time for fishing is over," and yet that is 16 precisely what these documents relate to.
17 Inasmuch as this Board has already once denied 18 Palmetto Allilance's request to expand discovery, we 19 maintain that this Board should reaffirm that decision and 20 deny Palmetto Alliance's request for the documents that it 21 now seeks.
22 What is interesting in today's conference call 23 is we find additional support for our-position. One of the 25 three iteme that this Board raised at the beginning of 3
this conference call dealt with a motion to reopen p
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discovery on matters other than welding, and Palmetto s/
2 Alliance said that it needed to look at the transcripts in 3
order to form a basis for that motion.
4 Why does it need to look at those transcripts 5
if those transcripts indeed were limited to QA and QC in 6
weldihg at Catawaba? It needs to look at those transcripts 7
because it deals with matters other than QA and QC in 8
welding at Catawba, and that is precisely the point. These 9
documents deal with matters other than QA and QC in 10 welding at Catawba.
11 Inasmuch as the Board limited discovery to QA 12 and QC in welding at Catawba, matters other than that 13 issue should not be entertained, and, again, since 14 Palmetto is seeking documents other than QA and QC in 15 welding, that request should be denied.
16 Now with respect to the specifics, I will turn 17 it to Mr. Gibson.
18 MR. GIBSON:
Members of the Board, Mr. Guild 19 made several comments at the beginning concerning my 20 characterization of what has transpired and my description 21 of the documents.
I won't attempt to go through each one 22 of those at this point, except to disagree with that
%)
characterization.
I will point out that perhaps the only 21 way to resolve that nature of our dispute is to look at 13 the specific transcripts, hq TAYLOE ASSOCIATES 1625 i STREET, N.W. - SUITE 1004 WASHINGTON, D.C.
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1175 1
Specifically, Mr. Guild is correct in only one i
O'N /
2 very limited area, and I want to make it clear.
He 3
referred to the nonconformance team evaluation documents 4
and I am referring to the Attachment A, Members of the 5
Board.
He referred to a group of documents entitled 6
" Documents Confirming Implementation of the Technical Task 7
Force Recommendations," a short reference being,the 8
Bradley documents.
9 In all candor, this is the only set of 10 documents that were covered by Mr. Guild's earlier 11 discovery request that were not produced earlier, and I 12 want to describe for the Board and on this transcript 13 record what those documents are.
7-~
The technical task force recommended that very 14 15 specific things be done, and let me point out that at the 16 task force recommendation, their documents had been made 17 available and were in the hands of Palmetto Alliance many 18 months ago.
So the recommendations were quite specific.
19 Applicants appointed Mr. Bradley to 20 essentially be sure that each "t" was crossed and each "i" 21 was dotted with respect to those recommendations.
Mr.
22 Bradley set up a filing system and set up forms to be sure Il that a person was appointed to go and be sure that each l
21 recommendation was carried out, that these are the 3
documents that show that yes, indeed, each and every TAYLOE ASSOCIATES 1625 i STREET, N.W. - SUITE 1004 WASHINGTON, D.C.
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recommendation was carried out.
()
2 Now during the earlier phases of discovery the 3
primary focus was disputes and disagreements between
(
i welding inspectors, and that is where most of the 5
attention was given.
6 As I say, in all candor, these documents were 7
not turned over and they should have been, but they are 8
not the kind of new universe of documents that open up a 9
whole new area of discovery as Mr. Guild would have you 10 believe. They are simply the documents that show that each 11 recommendation was acted on, but keep in mind that the 12 recommendation and the basis for it, the description for 13 it was contained in the task force and those have been 11 produced.
15 Now with respect to item one of the letter 16 concerning procedure, Mr. Guild had already asked for ---
17 JUDGE CALLIHAN:
Just a second.
18 JUDGE FOSTER:
I would like clarification. The 19 words didn't come through.
You indicated that this 20 particular group of documents relative to being turned 21 over earlier, was your word there should or should not 22 have been turned over earlier?
4 l
21 MR. u1BSON: I think that on a broad reading of 21 Mr. Guild's request for all documents relating to the task 3
force, these documents should have been turned over.
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,_.-.-..__.,.,v___.
.-...,_._,,-,,._,,_..._.___._,_mm__
1177 1
JUDGE FOSTER:
All right.
b
(_/
2 MR. GIBSON: I spoke about the emphasis earlier 3
being on disputes and disagreements. I believe that is the 4
reason no one thought to go get Mr. Bradley's sort of 5
implementing documents.
So in that sense they should have 6
been turned over speaking candidly with the Board, but 7
they are not the kind of new universe or new area of 8
discovery.
They simply show that what was recommended was 9
done.
10 JUDGE FOSTER:
Thank you.
11 MR. GIBSON:
Now with respect to item one, the 12 new procedures, as indicated in the letter, what was 13 requested earlier was made available.
l 14 Now on Attachment A we refer to some revisions 15 to procedures that were made available during the 16 deposition.
That is correct, but again these revisions 17 were of a minor nature and were not revised again as a 18 result of the welding inspector task force.
19 What we attempted to do was send Mr. Guild a 20 complete set of all these revisions with my latest 21 submission to him which would give him set so that he 22 wouldn't have to go back to prior documents.
23 If Mr. Guild wants to review all of the 21 earlier revisions to these documents, we can pull those.
l 3
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but it can ce done and can be made available if the Board 2
requires it.
3 But again, as Mr. McGarry made very clear, 4
this is not something that Mr. Guild asked for earlier.
5 Sure he thinks it is relevant, and it may indeed be 6
relevant, but that is coming to his attention at this late 7
date because he is doing his broad general discovery at 8
this late date.
9 I could go on I think and respond to many of 10 the other specific points about the positions we took and 11 the characterizations we made, but I won't do that.
12 One final point with respect to how all of 13 this occurred.
In his notice of deposition, which to my 14 understanding was not filed with the Board or served on 15 other parties, Mr. Guild had a broad general request for 16 all documents relating to contention 6.
17 We attempted to honor that request for 18 additional documents to the extent that documents had not 19 already been produced in discovery and to the extent some 20 additional item might arguably be covered by the request.
21 So many of those documents are set forth on Attachment A, 22 the attachment Mr. Guild has referred to.
Il Specifically with regard to Mr. Grier, Mr.
21 Guild had not asked for many of the items listed under the 25 12 documents under Mr. Grier's name, but his notice of 3
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deposition widely read would have included those 2
documents.
So we made them available at his deposition 3
consistent with the notice of deposition request for 4
documents, but they were not requested earlier in I
5 discovery.
6 In order to I think appreciate the 7
controversy, unfortunately you might require looking at 8
description and the questions concerning each of these 9
documents contained in Mr. Grier's deposition.
That would 10 be time consuming for the Board, but I am just trying to 11 give you some idea of how these documents came to light.
12 It is not the-situation that Mr. Guild is inferring, that 13 there is a universe of documents that have been held back 14 and not made available to him.
That is simply not the D
15 case.
16 If there are some other questions concerning 17 No. 1 or concerning what I have said, I will be happy to 18 respond to those from the Board.
19 JUDGE FOSTER:
Foster has none.
20 JUDGE CALLIHAN: Well, I think we have just got 21 to get all this down on the record and sit down and mull 22 it over.
23 MR. GUILD:
Judges, one last line on No. 1.
I 21 will concede that No. 1, which includes specific 25 procedures, was not asked for expressly. When I formulated O
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discovery interrogatories in April of 1982, which were the p
L, 2
interrogatories that ultimately identified the welding 3
inspector complaints and all of the follow-up, I had no 4
idea that there were any welding inspectors who had 5
complaints, let alone the details of Duke does it business 6
at the Catawba site.
So the fact that I didn't ask for 7
procedure Q1 expressly reflected only my ignorance that 8
was such a procedure Ql.
9 Now we asked ultimately,.once we identified 10 the welding inspector concerns, for documents that 11 reflected the circumstances in which those concerns came 12 to light, the review of those concerns and any 13 implementation of corrective actions.
That was 14 Interrogatory No. 9 of the set of follow-up O
15 interrogatories that we served in March that were 16 responded to by the company on March 25th, 1983.
17 Now the procedures that we identified in No. 1 18 that we are asking for tell us the written instructions on 19 how a welding inspector is to do his job.
We think that 20 they are relevant by any stretch of the imagination to 21 quality control and quality assurance in welding and we 22 would ask that they be identified and made available for a
inspection.
28 JUDGE CALLIHAN:
Looking at No. 1, Mr. Guild, 3
your position is that you want more than the document sets p)
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forth on Attachment B, remembering that we don't have 2
those attachments?
3 MR. GUILD:
Yes, sir. Attachment B is current 4
revisions only and we would like the company to identify 5
and make available for inspection and copying earlier 6
revis' ions of those same procedures.
7 JUDGE CALLIHAN:
How far back do you think you 8
have to go?
9 MR. GUILD:
Well, I will.be more than happy to 10 try to work it out with the company on the details of how 11 far back, depending on their administrative needs, but my 12 assumption is we need documents that reflect procedures to 13 when welding work began at Catawba.
14 JUDGE CALLIHAN:
Mr. Johnson, do you want to 15 say something to this?
16 MR. JOHNSON:
No, sir.
17 JUDGE CALLIHAN:
Let's see, is Mr. Riley on?
18 (No response.)
19 JUDGE CALLIHAN:
Remember I got in late. I 20 don't know if Mr. Riley was in this or not.
21 MR. GUILD:
I haven't heard from him, Judge.
22 JUDGE CALLIHAN:
All right.
23 MR. GIBSON:
Judge Foster, if I might make one 28 final comment.
3 JUDGE FOSTER:
Yes.
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MR. GIBSON: With respect to how far back these 2
documents go, we have them back I believe to the early 3
70s s and, as I say, they can be pulled.
The documents may 4
indeed be relevant, but again our primary concern is to 5
move the case forward to hearing and get a quick 6
adjudication on the matter.
7 We don't want the production of procedures 8
that may or may not' be relevant to the issues that have to 9
be decided by the Board to be a basis and a justification 10 for additional time or delay in the hearings, particular 11 here, as is the case here, they haven't been identified to 12 Palmetto Alliance because they didn't ask them.
I think 13 Mr. Guild has basically indicated that he wasn't aware of 14 them, and it is because he didn't do the proper discovery-15 during the early months discovery.
16 MR. GUILD:
In order to move things along, 17 Judges, I will just stand on what I said before and not 18 respond one more time.
19 I am prepared to go forward on No. 2.
I think 20 you have a basic understanding of the nature of our 21 disputes here and I will try not to repeat back all of 22 that information.
I am prepared to turn to No. 2 now.
m JUDGE FOSTER:
Back on one for just a' moment.
21 MR. GUILD:
Yes, sir.
25 JUDGE FOSTER:
As I understood it from Mr.
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Gibson, they might be willing to go back and look up these
()
2 earlier procedures and there might be some room for 3
negotiation on how far back you go.
Now do I interpret 4
those statements as indicating that the parties would be 5
willing to try to work something out on this particular 6
point'; or do you expect to wait for the Board's decision?
7 MR. GIBSON:
We will comply with the Board's 8
view about whether we should go back and produce the 9
documents. If the Board thinks we should do it, we will do 10 it and we will go back as far as Mr. Guild thinks is 11 necessary or the Board thinks is necessary.
12 I would think that if we should produce them 13 going back to the time welding began at Catawba is 14 probably a good benchmark point. But, as I say, we are not i
15 interested in producing volumes of paper that might be on 16 tangentially relevant to the' issues in the case and then 17 have that be a basis for delaying matters later on.
That 18 is our primary concern.
If it will move matters along to 19 produce these items, we will do that, and if it will move 20 matters along to keep things on the real basic issue, then 21 we will do that, i
22 JUDGE FOSTER:
All right, but you are going to 2'l wait for some word from the Board before you do anything 28 more on it.
j 25 MR. McGARRY:
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point.
As I understand No. 1, it seems to have taken a
(_/
2 litte turn here.
Just so everybody is clear, in Mr.
3 Gibson's response we said that we would hand over a set of 4
information concerning procedures as they relate to 5
welding, but as to other procedures that are unrelated, 6
we weren't going to turn those over.
7 What I hear the discussion saying today is we 8
are not concerned with those other procedures.
What Mr.
9 Guild wants is with respect to the procedures that we have 10 already turned over, he wants the previous revisions to 11 those procedures, and, as I understand Mr. Gibson to be 12 saying, we are willing to work this out and after we look 13 at what the universe is to make those available to 14 Palmetto.
15 Is that a fair restatement?
16 MR. GUILD: The question only asked for welding 17 inspector documents.
18 MR. GIBSON:
I misunderstood you to be asking 19 for the prior revisions to all of those procedures.
20 MR. GUILD:
No, only the only the ones that 21 relate to welding inspectors.
22 MR. GIBSON:
I see.
Il JUDGE CALLIHAN:
Mr. Guild, you just said 21 welding inspectors, true?
5 MR. GUILD:
Yes, sir.
j i
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The last line, I agree with Mr. Gibson's 1
2 characterization, "In other words, you are interested in 3
changes in how the welding inspector goes about doing his 4
job."
5 MR. GIBSON:
I have one of the QA technical 6
peopl'e here with me who has indicated that to comply as we 7
are describing it now, procedures that related to welding, 8
would include all of the revisions to all of the documents 9
indicated on Attachment B.
It it would be a fairly broad to universe because welding inspectors, like other 11 inspectors, use procedures that don't specifically refer 12 to welding, but they are procedures for inspectors.
So it 13 would be a fairly substantial universe of documenta 14 even though we limit it to welding. A welding inspector is 15 an inspector, but he is a welding inspector.
There are 16 some things are limited to welding, but there are other 17 things that explain how he does his job that are the same 18 for all other inspectors and the universe would be quite 19 voluminous.
But as I indicated, we would comply with the 20 Board's view on the matter.
21 JUDGE FOSTER:
Let's move on to No. 2.
22 Is that all right with you, Judge Callihan?
%)
JUDGE CALLIHAN:
Well, I just wanted to 21 summarize that No. 1 refers solely to procedures for 3
certification, examination and that sort of thing of p(j TAYLOE ASSOCIATES 1625 i STREET, H.W. - SUITE 1004 WASHINGTON, D.C.
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welding inspectors.
True, Mr. Guild?
2 MR. GUILD: It is narrower than that, but it is 3
just welding inspectors, Judge.
4 JUDGE CALLIHAN:
I said welding inspectors.
5 MR. GUILD:
Right, not certification and 6
traiding, but it is procedures on how they do their job 7
essentially.
8 JUDGE CALLIHAN:
Only procedures.
9 MR. GUILD:
Yes, sir.
10 JUDGE CALLIHAN:
Not certification and not 11 examination.
12 MR. GUILD:
Not what No. 1 calls for, no, sir.
13 JUDGE CALLIHAN:
All right. Let's go to No. 2 14 then and kind of keep it short if you can.
O 15 MR. GUILD:
I will try, Judge.
16 No. 2 read as follows.
"The INPO 17 self-initiated evaluation of Catawba design and 18 construction criteria (the self-evaluation by whatever 19 name conducted around October of 1982).
20 Now this was an evaluation, the existence of 21 which came to light in the context of one of these l
M discovery depositions.
I was not informed that there was Il such an ePuluation of construction at Catawba.
So we had 21 no oppportunity to ask for it earlier.
25 Now we believe that it is covered, first, x
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because it is relevant in part to welding.
In one part 2
which the applicants did resond to as I guess in part i
3 described under item No. 2 here, the INPO team urged the 4
applicants to clarify their procedures with respect to 5
trending a nonconforming item document' called an R2A. This 6
is a' document that Duke had used in place of a 7
nonconforming item report, one of the subjects of our 8
dispute about how you identify document construction 9
deficiencies.
They had not trended R2A7s, as we 10 understood, and it was recommended that they do so.
11 That procedure relates to the area of welding 12 and was a specific recommedation.
Now more generally we 13 believe that the INPO self-evaluation of Catawba is an 14 evaluation that we since understand has been turned over
\\1 15 to the Nuclear Regulatory Commission and that there was a 16 briefing of the NRC Region II staff, including perhaps Mr.
17 O'Reilly, at which Duke described the results of the 18 evaluation, we passed or did a good job or things look 19 great at Catawba or something like that.
This is relying 20 on a description in one of the depositions I believe Mr.
21 Owen who is Vice President of Construction.
22 The INPO self-evaluation conducted in October Il of '82 we believe clearly should have been identified and 25 the report produced for copying under pre-existing 25 discovery requests. Those I specifically have reference to
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1 are the discovery requests that call for identifying
(
2 construction deficiencies, that call for audits conductcd 3
by applicants of construction quality of Catawba and it 4
called for communication with the NRC regarding 5
construction deficiencies at Catawba.
6 In all those respects the INPO self-initiated 7
evaluation clearly is a study and produced document that 8
should have been earlier identified and produced in our 9
judgment.
10 Finally, even if it is not relevant to 11 welding, and we have identified a specific recommendation 12 we believe clearly ties it to welding, if it is not 13 covered by previous discovery requests, which we believe 14 it is, it is clearly relevant to the subject of quality 15 assurance at Catawba as it relates to welding.
16 One of the things you look at is how you weld, 17 and to put their recommedations on welding in any kind of 18 perspective, we are entitled to, under the discovery 19 rules, not just relevant evidence, i.e.,
evidence that 20 would be admissible at a trial on welding quality control, 21 but documents and evidence that is likely to lead to the 22 discovery of relevant evidence.
In JUDGE CALLIHAN:
Mr. Gibson or Mr. McGarry?
28 MR. GIBSON:
Judge Callihan, first off, this 3
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discovery requests.
He talks about generally construction 2
deficiencies and he talks about NRC audits, and this not 3
one of those items.
This was a document concerning an 4
evaluation by Duke and TVA officials going to the INPO 5
standards and criteria.
6 Now Mr. Guild has described, the basis he has 7
set forth for why it should be produced pertains to 8
welding and quality assurance.
We gave him those portions 9
of the evaluation concerning felding. and quality 10 assurance.
That is put forth in my letter and there is 11 really not much to add to that.
12 With respect to the NRC, I am not certain of 13 the communication to the NRC involving this evaluation.
I 14 understand there have been some communications, but I Os-15 don't remember specifically what Mr. Owen's testimony was 16 in that regard.
But irregardless, that doesn't change the 17 fact that Mr. Guild is attempting to get broader more 18 general discovery at this time.
We have given him those 19 portions of this report that are relevant to the issue, 20 the welding inspection at Catawba.
There is really 21 nothing else to add other than what is set forth in the O
letter, as long as it is clear to the Board that we have 23 given him those portions related to quality assurance and 26 welding.
3 JUDGE CALLIHAN:
Mr. McGarry.
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MR. McGARRY:
I prescribe to Mr. Gibson's O
\\- / -
2 position.
3 JUDGE CALLIHAN:
Mr. Johnson.
-1 MR. JOHNSON:
I have no comment.
5 JUDGE CALL 1HAN:
Okay.
6 Dick, anything?
7 JUDGE FOSTER:
I would ask Mr. Guild that in 8
view of what Mr. Gibson is saying and what has been 9
provided, are you still looking for something more?
10 MR. GUILD:
Yes, sir.
11 JUDGE FOSTER:
What?
12 MR. GUILD: Well, we are looking for the entire 13 document, sir, for the reasons I have stated and I will 14 rely on what I have said already.
I can't judge even the
~
15 narrow question of whether he has given me what is 16 relevant to welding.
I can only stand on the fact that 17 they told us months before that they gave us everything 18 that was called for in discovery and then we have 19 confessions that large quantities of documents were 20 overlooked or were produced later.
21 Why should it be our burden of certifying that 22 applicants have given us everything that relates to our Il concerns about welding from the INPO self-evaluation.
The 21 point of discovery we again say is that you are entitled 5
to not just admissible evidence on your claim, but F
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discovery of information that is likely to lead to O(_j 2
additional evidence, and we think-the INPO self-evaluation 3
clearly meets that standard of relevance.
4 JUDGE FOSTER:
Foster is ready to go to No. 3.
5 JUDGE CALLIHAN:
Is there a question pending?
6 Was that Mr. Johnson on?
7 MR. JOHNSON:
No, that was Judge Foster saying 8
he was ready to go to No. 3.
9 JUDGE CALLIHAN:
All right.
10 MR. GUILD:
On No. 3 there is no dispute, 11 Judges.
That is a performance management plan, and I 12 believe the company identified the documents and we have 13 it.
Il JUDGO CALLIHAN:
So that is taken care of?
15 MR. GUILD:
Yes, sir.
16 JUDGE CALLIHAN:
Now we don't have to get into 17 all the details of why ---
18 MR. GUILD: No, no, no, I am not going to. I am 19 just trying to see if there is anything else.
20 JUDGE CALLIHAN: Do you have any comment on No.
21 4, Mr. Guild?
22 MR. GUILD:
Yes, sir. My problem with No. 4 is 23 this, Judges.
These are trending documents and these 28 documents reflect, you know, you identify certain 3
deficiencies by the NCI or by the R2A or the N4, et A
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cetera, these different procedures, deficiencies in
()
2 construction, and then you trend them to be able to 3
identify root causes and take corrective action.
4 Well, I got some documents.
As Mr. Gibson 5
describes, a review apparently was conducted and some 6
documents were produced.
I don't know what I have is my 7
problem right now.
I don't know whether I have any 8
problem.
I may have gotten everything that is called for, 9
but perhaps counsel for the applicants could simply tell 10 me what they gave me.
11 MR. GIBSON:
We sent him what is indicated in 12 the letter.
We sent him those trending documents that 13 identified trends in welding.
We had our people review 14 what is approximately a three-foot high stack of papers, 15 including some correspondence relating to discussions 16 about the trends and that sort of thing, and made 17 available to them the portion from the trending documents 18 that relate to or identify trends in welding, and that has 19 been sent to him.
20 MR. GUILD:
Okay.
21 JUDGE CALLIHAN:
Mr. Guild, have you received 22 that material yet?
23 MR. GUILD:
Yes, sir. I received a stack and I 2
just needed an identification of what it was.
3 JUDGE CALLIHAN:
Does that take care of No. 4 s
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then?
f
)
2 MR. GUILD:
If I could have a moment, let me 3
see.
Yes, sir, that is fine.
i 4
MR. GIBSON:
Does that mean that Mr. Guild is 5
not asking for the other trending documents, or what? I am 6
not c' lear on on where we are.
7 MR. GUILD:
That is all I have to say at this 8
point.
I don't think we have any further dispute-on No. 4 9
at this point.
10 JUDGE CALLIHAN:
So it is okay.
11 MR. GUILD:
Yes.
12 JUDGE CALLIHAN: What have you got to say about 13 No. 57-14 MR. GUILD:
No.
5, I think I have got Om/
15 everything he describes there, and let me be real quick 16 and look at it again.
Do I understand that under No. 5 17 what was excluded were things not related to welding; is 18 that correct, Mr. Gibson?
19 MR. GIBSON:
That is correct.
20 MR. GUILD:
Judges, I am going to let it stand 21 at that because I have a general point that I think we i
22 talked about at the beginning of this call of how to deal II with non-welding areas.
That is all I need to say about i
28 No. 5 right now, those reviewed nonconforming items and we Ti have got the one dealing with welding.
So we have no i
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problem there.
2 JUDGE CALLIHAN: So far as 5 goes as it relates s,
3 to welding you are taken care of?
4 MR. GUILD:
Yes, sir, it appears to be. I have 5
nothing further on welding there.
6 JUDGE CALLIHAN:
Okay. No. 6.
7 MR. GUILD:
No. 6, the last item, documents 8
relating to the performance work evaluations of Mr.
L.
R.
9 Davidson made by is superiors from the time Mr. Davison 10 took on supervisory duties with regard to the welding 11 inspectors until the present.
L.
R.
Davidson is presently 12 Quality Assurance Manager at Catawba.
He has been on the i
13 site supervising the quality assurance work at Catawba, 14 including welding inspection, since the plant began 15 construction in the '74 '75 time frame.
~
16 Mr. Davidson, as the Judges will learn soon, 17 plays a central role, in our judgment, in the problems 18 that we see in the quality assurance program at Catawba.
19 His name will arise prominently and if you review the 20 attachments to our motion requesting extension of 21 discovery on No. 6, keep in mind the initials L.R.D.
22 because the initials L.R.D.
come up many, many times in 21 each of those welding inspector concerns about supervisory 28 efforts to void nonconforming item reports, pressure in 25 our judgment to approve fault workmanship and failure to
(
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1195
-1 adequately supervise the quality assurance function as it 41 )
'2 relates to welding.
3 Mr. Davidson plays a prominent role further in 4
that he is responsible for having approved negative l
5 evaluations for one of the welding inspector supervisors, 6
Mr. Ross.
Mr. Davidson's deposition was taken in the 7
reopened discovery.
Mr. Davidson also has supplied an 8
affidavit in support of the applicant's motion for partial 9
summary disposition of our contention 6.
10 The applicants relied on Mr. Davidson to 4
11 review the the Hoopingarner and Mcafee concerns. Those are 12 the two former workers who are Palmetto Alliance members.
13 JUDGE CALLIHAN:
If I read 6, you want to get 14 into his personnel file to see what his performance has O
15 been and the like.
16 MR. GUILD:
Yes, sir. Mr. Davidson, like all 17 Duke employees, and all exempt employees now, is under the 18 performance mangement plan, which is the item that is 19 referred to and one we have no dispute about.
It is the 20 item described in No. 3.
We understand from having 21 reviewed the documents describing that plan, and also 22 reviewing the work evaluation of Mr. Ross, that the Z1 company did produce before Mr. Davidson's deposition the 21 performance mangement evaluation of Mr. Beau Ross who was 25 the welding inspector supervisor who ---
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1196 1
JUDGE CALLIHAN:
I think we understand your 2
position on that.
j 3
Dick, any questions?
4 JUDGE FOSTER:
No, but I would like to hear 5
from the applicants.
6 JUDGE CALLIHAN:
Of course.
7 MR. GUILD:
If I could just finish. I have one 8
more thing I would like to say, and that is we believe 9
that Mr. Davidson's evaluation, because his credibility 10 will be central to this case, if it hasn't been already 11 since it has been put in issue by his affidavit and the 12 motion for summary disposition, that we are entitled, r
13 while we recognize the sensitivity of personnel 14 information, they have disclosed personnel information of N-15 Mr. Ross, which was negative, we believe that they should 16 disclose the personnel evaluation of Mr. Davidson so that 17 we may have access to that with respect to his 18 credibility.
19 JUDGE CALLIHAN:
We recognize what you say.
20 Mr. McGarry or Mr. Gibson.
21 MR. GIBSON:
Members of the Board, just a few 22 comments.
With respect to the Ross evaluation that Mr.-
l 21 Guild attempts to draw a parallel indicating that we 25 produced his evaluation which in Mr. Guild's 25 characterization was negative, and I am not agreeing that s
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that was the case, but, on the other hand, will not
(-~
(m,/
2 produce Mr. Davidson's, Mr. Ross filed a recourse that 3
involved the rating he received on his evaluation.
We 4
determined that the documents related to his recourse will 5
be covered by Mr. Guild's discovery request that sought 6
documents reflecting disagreements between welding 7
inspectors and supervisors because some of the things 8
stated by Mr. Ross were very similar to some of the 9
concerns expressed.
10 In order to give a complete picture of that 11 recourse in being responsive to that discovery request, 12 Mr. Ross' evaluation had to be included so you could see 13 what the evaluation was.
14 We objected during discovery to making b\\J 15 available the specific evaluation of our exempt employees.
16 We did, however, allow questions concerning whether Mr.
17 Davidson or other officials had been disciplined or had 18 any adverse action taken against them because of or 19 arising out of the welding inspector concern.
The 20 indication was there were no adverse evaluations or 21 negative actions taken.
22 Simply put, Mr. Guild in this instance is Il fishing to open a new area of discovery, an area that if 28 he wanted to raise should have been raised much earlier, 25 and at this stage he is required to make a good cause TAYLOE ASSOCIATES
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showing. We simply content that that good cause showing is
()
2 not made by him simply saying Mr. Davidson's credibility 3
is at issue so we ought to delve into his personnel file.
4 Mr.McGarry might have a point to add, but that is 5
essentially our position.
6 MR. JOHNSON:
I stand by Mr. Gibson's 7
statement.
8 JUDGE CALLIHAN:
Okay.
9 MR. GUILD:
I have nothing further to add.
10 JUDGE CALLIHAN:
Mr. Johnson?
11 MR. JOHNSON:
I have nothing to say on this 12 matter.
13 MR. GIBSON:
There is one housekeeping matter, 14 unless there are some questions.
15 JUDGE CALLIHAN:
Yes.
16 MR. GIBSON:
I want to know where each Member 17 of the Board is today so that I can get the attachments la either telecopied or federal expressed to you so I can 19 find you as quickly as possible.
20 JUDGE POSTER:
Foster is at home.
21 MR. GIBSON:
I am sorry, I couldn't hear.
22 JUDGE FOSTER:
Foster is at his normal mailing Il address.
i 28 MR. GIBSON:
Okay. What about Judge Callihan?
1 l
25 JUDGE CALLIHAN:
I am in Rockford, Illinois, m
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and I will be here tomorrow, but that is only until 2
noontimeish, and that will probably not make connection.
3 MR. GIBSON:
I believe that federal express will guarantee morning delivery if you are at some place 5
that is fairly easy to find.
6 JUDGE CALLIHAN:
Let's don't take a chance on 7
that.
Let me have my of fice call you perhaps tomorrow and 8
tell you where to send it.
9 MR. GIBSON:
All right, that would be fine.
10 JUDGE CALLIHAN:
Or I will call you. Let me 11 look at your letter.
704-373-7910, that gets you.
12 MR. GIBSON: 'That is correct.
13 JUDGE CALLIHAN:
Let me see what my plans are 18 and where is a good place to send it.
15 MR. GIBSON:
Fine.
16 MS. KAGAN:
Judge Kelley is in Washington.
17 MR. GIBSON:
We would just like to telecopy 18 that to Judge Kelley.
So if Carole Kagan will either stay 19 on the line or give us the telecopy number, we will send 20 that to Judge Kelley.
21 MS. KAGAN:
I don't know that, but I can find 22 out for you.
23 MR. GIBSON:
We will call you and take care of 25 that after the call is over.
55 JUDGE CALLIHAN:
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comment on all of this?
2 MS. KAGAN:
Not at the moment. I would request 3
that you gentlemen just stay on the line for a moment I
after we get off.
5 JUDGE CALLIHAN:
Yes, I want to see what you 6
all are going to do with transcripts.
Who ordered the 7
transcripts, the Board?
8 MS. KAGAN:
I believe so, yes.
9 MR. GIBSON:
And applicants would like a copy.
1)
JUDGE CALLIHAN:
No, no, I am sorry. I meant-11 who made arrangements for having this transcribed.
12 MS. KAGAN:
I believe the Board did.
13 JUDGE CALLIHAN:
Mr. McGarry, you did not?
Il MR. McGARRY:
That is correct.
\\-
15 JUDGE CALLIHAN:
All right. It must be the 16 Board then.
I get in late as you remember.
17 MR. McGARRY: I had requested at the prehearing 18 conference that this conference call be transcribed, but I 19 believe Judge Kelley got the court reporter.
20 JUDGE CALLIHAN:
That is all I wanted to 21 confirm.
22 All right.
Well, anything else?
M MR. GUILD:
No, sir, that is all I have.
28 JUDGE CALLIHAN:
Dick, have you got anything?
3 JUDGE FOSTER:
No. We will stay on the line
(~'
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with you and Carole.
2 JUDGE CALLIHAN:
All right.
3 Thank you for participating.
4 (Whereupon, at 12:50 p.m.,
the conference call 5
concluded.)
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 21 21 25 l
O\\
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CERTIFICATE OF PROCEEDINGS 1
)
2 This is to certify that the attached telephone conference 3
of the Atomic Safety and Licensing Board Panel in the 4
matter an Duke Power Company, et al.,
(Catawba Nuclear 5
Station Units 1 and 2) Docket Nos. 50-413/414 OL and ASLBP 6
No. 81-463-Ol-OL, taken in the offices of Tcyloe 7
Associates, Suite 1004, 1625 I Street, N.
W., Washington, 8
D.
C.,
on Thursday, August 11, 1983, commencing at 11:10 9
l a.
m.,
was held as herein appears, and that this is the 10 original tranceript for the file of the Nuclear Regulatory 11 Commission.
12 13 II l'
15 16 Mary C. Simons 17 Official Reporter - Typed 18 I
_______ W _ h _______
20 Official Reporter - Signature 4
21 22 23
. 21 25
^3 -
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---.a
,