ML20038A654
| ML20038A654 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/10/1981 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8111160116 | |
| Download: ML20038A654 (96) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD O
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3----------
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4 In the Matter of a a
s 5 METROPOLITAN EDISON COMPANY s
Docket No. 50-289 s
(Restart) 6 (Three Mile Island Unit 1) a 7--
x 8
Harrisburg II Building 9
333 Market Street Harrisburg, Pennsylvania 10 Tuesday, November 10, 1981 11 12 The reopened evidentia ry hearing in the above-13 entitled matter convened at 2: 44 p.m.,
pursuant to notice.
14 2EFORE:
15 GARY MILHOLLIN, Special Master, A tomic Saf ety and Licensing Board 16 On behalf of the Licensee, Metropolitan Edison Company:
17 ERNEST L.
BLAKE, JR.,
Esq.
18 BONNIE GOTTLIEB, Esq.
DEBORAH B. BAUSER 19 Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
20 Washington, D. C.
20036 21 On behalf of the Commonwealth of Pennsylvania:
22 ROBERT ADLER, Esq.
Assistant Attorney General 23 505 Executive House Harrisburg, Pennsylvania l O 24 25 ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
23,462
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1 On behalf of Mr. and Mrs. Norman Aamodts 2
JOHN CLEWETT, Esq.
The Christic Institute 3
1324 North Capitol Street O-Washington, D. C.
20002 4
On behalf of Three Mile Island Alert:
5 LOUISE BRADFORD 6
JOANNE DOROSHOW 1011 Green Street 7
Harrisburg, Pennsylvania 17102 8
On behalf of the Regulatory Staff:
9 LUCINDA LOW SWARTZ, Esq.
JACK R. GOLDBERG, Esq.
10 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission 11 Washington, D. C.
12 On behalf of Two Unnamed Parties:
13 HICHAEL F. MC BRIDGE, Esq.
(])
LeBouef, Lam b, Leiby & MacRae 14 1333 New Hampshire Avenue, N.W.
Washington, D. C.
20036 15 On behalf of One Unnamed Party 16 DAVID E. COLE, Esq.
17 Smith and Smith 2931 North Front Street 18 Harrisburg, Pennsylvania 17110 19 20 21 22 23
()
24 25 O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
23,463 1
Q EEOEEE2IEGE 2
JUDGE MILHOLLIN:
Good afternoon, ladies and 3 gentlemen.
The hearing vill come to order.
4 My name is Gary Milho111n.
I have been appointed 5 as a Special Master to conduct an evidentiary hearing into 6 the matter of cheating on operator license examinations at 7 Three Mile Island Nuclear Station Unit 1.
8 This is the first day of the evidentiary hearing.
9 Before we begin I will present a brief background of this 10 case.
But before we do that I would ask th e parties to 11 introduce themselves.
12 MR. BLAKE:
Judge Milho111n, my name is Ernest 13 Blake.
I am a member of the law firm of Shaw, Pittman, 14 Potts and Trowbridge of Washington, D. C.
I represent the 15 Licensee in this proceeding.
16 With me today on my left is Mr. John Wilson of the 17 law firm of Devevoise and Liberman in Washington, who has 18 n o t entered an appearance in this proceeding but will be 19 assisting me in this case.
20 To Mr. Wilson's right is Ms. Debra Bauser from our 21 la w firm in Washington and behind Ms. Bauser, Miss Bonnie 22 Gottlieb, also of our law firm.
Both Miss Bower and Miss 23 Gottlieb have entered written a ppearances in this proceeding.
()
24 MS. BRADFORDs Judge Milho111n, my name is Louise 25 Bradford.
I am here representing Intervenor Th ree Mile O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASPNGTON. D.C. 20024 (202) 554-2345
23,464 1 Island Alert.
To my lef t is another member of Three Mile 2 Island Alert, Ms. Josnne torochow.
She will be here from 3 time to time, also participating from time to time.
4 MR. CLCWETT Judge Milho111n, my name is John 5 Clevett.
I am an attorney from Washington, D. C.
with the 6 Christic Institute.
I am representing the Aamodt family in 7 this proceeding.
To my right is Mrs. Marjorie Aamodt and 8 her daughter, Sue Aamodt.
9 MR. ADLERs My name is Robert W.
Adler.
I as an 10 assistant counsel representing the Commonwealth of 11 Pennsylvania.
12 MS. SWARTZ My name is Lucinda Svartz.
I 13 represent the JRC Staff.
To my right is Jack Goldberg, who 14 elso represents the NRC Staff.
15 JUDGE MILHOLLINs Thank you very much.
16 As I promised, I will now give a background of the 17 ca se.
This proceeding is an enforcement proceeding which 18 was undertaken by the Nuclear Regulatory Commission af ter i
19 the accident at Three Mile Island Nuclear Unit Station 2.
l 20 The Commission f ound, af ter the accident, that there was no l
21 longer a reasonable assurance tha t Unit 1 could be operated 22 saf ely.
23 At that time, when the Commission made that O
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e= =aut ao a-rue co==1==1oa aeciaea ta t 25 the Licensee, Metropolitan Edicon Company, now GPU Nuc.sar O
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1 Corporation, was required to complete certain requirements 2 bef ore Unit 1 could be restarted.
The Commission appointed 3 an Atomic Safety and Licensing Board to conduct a hearing to 4 see whether the requirements had been met.
5 Two of the requirements established by the 6 Commisison are that the Licenese must, in a gener01 sense, 7 show that its management is competent to operate the 8 f acility safely and that, second, its reacter operators are 9 competent.
10 The Atomic Safety and Licensing Board which the 11 Commission appointed conducted extensive hearings in 12 Harrisburg on this question.
The Board wrote an opinion 13 finding that the Licensee had gene rally met the requirements.
O 14 However, at about the time when that opinion was 15 published, it was dicovered tha t there had been cheating on 16 the examinations which NRC uses to determine whether 17 operators are qualified.
That examination was given in 18 A pril 1981.
Because of the discovery of cheating, the 19 Licensing Board, in its published opinion, said that its f
20 conclusions were subject to a further inquiry into the 21 uub ject of chea ting and it reopened the record in that 22 proceeding to receive additional evidence.
23 The Licensing Board then appointed me as Special
()
24 Master to conduct that proceeding.
At the end of this 25 inquiry I will write a report to the Licensing Board.
Then 0~j l
l ALDERSON PEPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D C. 20024 (202) 554 2345
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23,466 1 that Board will reevaluate its conclusions in light of my 2 report.
Af ter the Board does that, it will forward its 1
3 final decision to the Commission, which will then decide 4 whether Unit 1 at Three Mile Island can be restarted.
j 5
Before the Licensing Board turned this proceeding 6 over to me, it made a formal statement of the issues which 7 this proceeding must or should take up.
The Licensing Board j
8 specified twelve issues.
They fall into two broad 9 categories.
10 The first category is management competence and 11 integrity and the second category -- these are broad i
12 categories -- the second category is operator competence and i
13 integrity.
14 (Inder the issue of management competence we have 15 an issue which the Licensing Board listed as number three, 16 which has to do with the Licensee's investigation of and 1
17 r es ponse -- the Licensee's response to the cheating 18 incident.
A second issue, issue number five, addresses the 19 Licensee 's knowledge of cheating or a f ailure to prevent 20 chea ting.
21 Issue number seven has to do with Licensee's s
4 22 constraints upon NRC investigation.
The issue would be 23 whether there were such constr.11nts.
Issue number eight is O
24 -- addressses the question of Licensee's response to an 25 inciden t in 1979 and issue number eleven has to do with the i
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1 Licensee 's ability to staff the Unit 1 reactor adequately.
]
2 Under the question of operator competence we also i
3 have several issues.
The first one is the extent to which 4 there was cheating on the examination, either by NRC or by 5 -- or on other examina tions.
Isuue number nine brings into 6 question the adequacy of the Licensee's plans for 7 administering examinations in the future.
s 8
Issue number twelve brings into question the J
9 Licensee 's system and criteria for certifying candidates as I
10 eligible to sit for the NRC exam.
And issue number two 11 addresses the adequacy of the investigation of cheating 12 which was conducted by the NRC Staff.
13 Finally, also under the general issue of operator
- ()
i 14 compe tence, we have specific issue number ten, which l
15 considers the adequacy of the administration of the Staff 16 licensing examinations, both past and future.
17 As 1 said before, this is an enforcement 18 proceeding in which the Commission directed the Licensing 19 Board-to compile an adequate record and I,
.',n t u r n, have 20 been appointed by +he Licen sing Board to help the Licensing I
21 Board carry out that duty.
Therefore, I consider it to be 22 m y duty to see to it that there is a complete record on this 23 aspect of the case, regardless of the contributions of O
24 Intervenors.
i 25 The Licensee has the general burden of showing ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 10024 (202) 554-2345
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1 tha t the requirements established by the Commission have 2 been met.
In this reopened proceeding that means that th e 3 Licensee has the burden of showing that the specific issues 4 which I just mentioned should be resolved in the Licensee's 5 f avor.
6 The parties to this proceeding have been working 7 very hard.
They -- we had a conference on October 2 and 3, 8 and we had another conference among the parties on October 9 16, 1981.
The parties have been exchanging documents, 10 conducting depositions and in general preparing their cases 11 for this evidentiary hearing.
The parties deserve 12 commenda tion f rom me and from the world a t la rge for their 13 eff orts to cooperate to make this hearing proceed on an 14 expeditious basis.
15 One other matter I perhaps should mention before 16 we get started is this, that there has been a request that 17 the names of individual reactor operators be kept 18 con fiden tial.
In order to do that, a system of lettering 19 h as been used in which the names of the ope ra tors have been 20 replaced by letters.
I have ruled that there is no right to 21 confiden tiality on the part of the operators.
That ruling 22 was appealed to the Licensing Board.
The Licensino Boa rd 23 recently sustained my ruling and I understand that the
()
24 Licensing Board 's ruling has been appealed to the Atomic 25 Safety and Licensing Appeal Board.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE S.W., WASHINGTON D.C. 20024 (202) 554 2345
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1 For the time being, the appeal has not been 2 finally disposed of, so we will maintain the system of 3 1ette rin g which has been in use up until now.
Later on I 4 will have an announcement, I think, with respect to the 5 status of the Appeal Board's consideration of the appeal.
6 That exhausts my background information.
We have 7 several matters pending before.; which could be j
8 characterized as preliminary.
Perhaps I should indicate to 9 the parties the things which are on my agenda as preliminary to matters and then if there are additional matters, the 11 parties could notify me of that.
12 First we have additional requests for discovery 13 and we have requests for witnesses other than those who have O
14 already been identified.
There will be additional documents 15 required and probably additional testimony required.
We 16 should discuss the possibi11ty of receiving the results of 17 the October 1981 examination conducted by the NRC Staff.
18 Those are the items which I have noted as being 19 richt for discussion as pre 11minary items.
If the perties 20 have other matters which are not included there, now would 21 be the time to suggest putting them on the agenda.
22 MR. GOLDBERG:
Judge Milhollin, the Staff has a 23 number of additional items which we believe ought to be O
241nc1oded on the 11st of pre 11minery metters before the 25 hea ring actua11y gets under wa y.
As you pointed out, there O
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1 are some additional discovery requests and when it is 2 app ropriate we vill respond orally to the Aamodt's 3 supplemental discovery request which was directed to the 4 S ta f f.
5 Another matter which we would like to take up is 6 the iden tification of Monte V. Davis as a potential witness 7 in this hearing and I would like to take up a scheduling 8 conflict that may be presen t and discuss that with everyone 9 and perhaps resolve the conflict bef ore the hearing gets too 10 f ar under way.
11 I have a minor correction to the Staff's trial 12 pla n, a typographical error which, when you prefer, I would 13 note for the record and have a replacement page for the 14 October 13 report of investigation f or the NBC Staf f 's 15 Office of Inspoction and Enforcement where additional 16 inf ormation has baen deleted and we would ask that this page 17 be replaced on all parties' copies of this report and made 18 subject to the Licensing Board's November 2 order concerning 19 protection of the informant 's iden tity.
20 JUDGE MILHOLLIN :
Perhaps we could take that up 21 rig h t no w.
22 MR. GOLDBERG:
Okay.
If you prefer, we can hand 23 these out as page four of the October 13 report of
()
24 investigation and would ask that pursuant to the Boa rd 's 25 November 2 order tha t these pages be subtituted for your O
ALDERSON REPORTING COMPANY,INC, 400 VIRGIN;A AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
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1present version of page four and the November 2 otherwise 2 being complied with.
3 JUDGE MILHOLLINs My understanding was this had 4 already been done.
Perhaps my understanding is not correct.
5 MR. GOLDBERGa Your Honor, this is an additional 6 page which the Staf f discovered should have had f urther 7 inf ormation deleted in order to comply with the Board's 8 order and it was discovered after the others were sent out.
9 And that is why we would ask this opportunity to do it at 10 this tim e.
11 JUDGE MILHOLLIN:
So that there are a total of two 12 pages which need to be changed.
Is that right?
13 MR. CLEWETTs Since I do not have a copy of that 14 report before me, if I might request the Staff to, without 15 revealing any information, to characterize the nature of 16 these additional deletions.
17 MR. GOLDBERGa They are of the nature of the area 18 o f the country where the individual is employed and the 19 place of employment of the individual.
I think to make the 20 record complete we have just distributed page four.
21 Previously we had distributed pages seven, eight and all of 22 enclosure one to the October 13 report.
23 To complete the items which we would ask be O
241ac1=aea uaaer tne ne aiae or pre 11 1aerr ettere-eaa 25 perhaps most approp ria te f or an off-th e-record discussion is O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
23,472 1 a discussion of the future scheduling of this hearing as far 2 as your plans for proceeding on a day-by-day basis.
3 And finally -- finally, the Staff would like to 4 address the Aamodt's revised testimony which we just 5 recently received.
That concludes the additional matters 6 that the Staff has.
7 JUDGE MILHOLLIN Any other party have additional 8 matters?
9 MS. BRADFORD:
TMIA and the Aamodts have a joint 10 motion f or sequestration of witnesses.
We mailed this 11 motion on Saturday, but if the parties have not yet received 12 copies of it, we can serve them.
13 MR. BLAKE No.
14 MR. CLEWETT:
Judge Milhollin, one other matter 15 which needs to be discussed a t some point, there are still 16 continuing negotiations among the parties as to the 17 possibility of reaching a stipulation on the question of 18 con fiden tiality.
There has not yet been a complete meeting 19 o f the minds on this and I just wanted to raise the point 20 t h a t at some point in today's proceedings, presumably after 21 the preliminary matters have been disposed of, it might be 22 a pp ro pria te for there to be some opportunity to see if the 23 parties can in f act reach this meeting of the minds.
Q 24 JUDGE MILHOLLIN:
Very well.
Does the Licensee 25 have any additions?
^ O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
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MR. BLAKE:
I have some comments, but I think they Q
2 are included in the general topics which others have 3 identified here.
4 JUDGE MILHOLLIN:
Very well.
Perhaps it would 5just be best to start at the top and go down the list.
If 6 we have any left at the bottom we can take them up.
7 MR. BLAKE:
I think the first one you identified, 8 Judge Milho111n, was additional requests for discovery.
At 9 this point there are not, to my knowledge, any additional 10 requests that Licensee has of other parties to the 11 proceeding by way of discovery.
12 T am alco not aware of any outstanding requests of 13 Licensee at this point which have not already been met other 14 than with respect to the Aamodts.
There are a couple of 15 open items.
Let me address those.
16 One is that together with their tri.a1 plan, at the 17 time they filed tha t trial plan, the Aamodts filed a 18 document requesting additional discovery with respect to the 19 Licensee.
It iden tified several let tered individuals whom 20 the Aamodts wanted to depose.
Thereafter I was in touch 21 with the Aamodts and with Mr. Clewett to discuss 22 arrangements to do tha t.
23 On Sunday, this past Sunday evening, the Aamodts O
24in fact did depose two of the three individuals who they 25 wanted to conduct depositions o f.
The third individual who O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTCN. D.C. 20024 (202) 554-2345
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1 was FF is out of the area, out of town until tomorrow and he 2 is not objecting to having his deposition taken.
It is a 3 matter of scheduling it at a time convenient to the Aamodts.
4 Beyond that one deposition, the only other request 5that I am aware of was made today by Mrs. Aamodt.
6 Apparently there is a misunderstanding with respect to the 7 RWT tests which Mrs. Aamodt wanted delivered to her.
We had 8 provided on Friday to her and sent copies to the parties a 9 random sampling of twenty exams.
What she had in mind was 10 exams from a number of sessions rather than just particular 11 tests, a nd we have talked to her today and I do not think 12 tha t will be a problem to provide her with more -- some 13 random sampling of something a lot more than twenty tests.
14 B ut I do not see it as a problem at this point.
15 So I think from Licensee's standpoint, if I am I
16 correctly representing where we stand or I understand where i
17 we stand, we are in pretty good shape.
18 JUDGE MILHOLLIN.
So there is no outstanding l
19 disagreement about the requests which have been made of you?
20 MR. BLAKE:
No, I am not aware of any.
21 JUDGE MILHOLLIN:
All right.
Very well.
22 MR. BLAKE:
I guess I would ask at this point 23 whether or not I could get a confirmation of that from the
(])
24 other parties.
25 MR. CLEWETTs I believe that you hLve fairly O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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i 1 represented the situation.
I understand that the position
[)
2 of the Licensee is that since Mr. YY is no longer an 3 employee of the Licensee th a t the Licensee is not in a O
4 position to facilitate our attempts to reach him or to 5 discuss any matters with him.
6 This is a circumstance which we will review 7 f urther in an attempt to understand how best to approach the 8 question of Mr. YY.
9 MR. BLAKE:
Judge Milho111n, that brings two 10 things to mind.
One is the YY question.
11 JUDGE MILHOLLIN:
That is on my list.
12 MR. BLAKE:
This is a unique situation and I 13 really had regarded it as a difference between us from the
(}
14 discovery standpoint.
15 The second is that some time ago, and I would like 16 to raise this, some tim e ag o, the Aamodts had asked us for 17 the name and address of ex-employees of Licensee and we have 18 objected to that and filed it in written form saying that 19 would give away their identities.
Depending upon what comes 20 out of today's negotiations on the confidentiality issue, 21 t ha t difference, I would an ticipate, would eva porate as well.
22 But for the moment that is an outstanding issue.
23 JUDGE MILHOLLINs All ri gh t.
({}
24 MR. BLAKE:
That was some time ago.
25 JUDGE MILHOLLIN:
Yes, I recall that particular O
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1 matter.
So in addition to YY there is the possibility that
)
2 there could be a continuing problem with respect to these 3 f ormer employees.
But it looks as if it is going to be C:)
4 resolved.
5 MR. BLAKE:
There is a potential for it.
6 JUDGE MILHOLLIN:
There is a potential for it, 7 okay.
8 Perhaps this would be as good a time as any to i
9 take up Mr. YY since Mr. YY's letters have been mentioned.
10 With respect to Mr. YY, I requested the Licensee to pro vid e 11 Mr. YT with a copy of the investigative report in which Mr.
12 YY 's interview was contained.
I assume tha t was done.
13 MR. BLAKE:
It is my understanding that has been 14 done.
15 JUDGE MILHOLLIN:
I have decided because of the 16 need to main tain Mr. YY's confidentiality that I will 17 control communications with Mr. YY.
I might also say that I i
18 think Mr. YY 's testimony is relevant and necessary in this 19 proceeding, so at some point Mr. YY will be subpoenaed.
20 So I suppose the question is simply one of --
21 simply a practical question, how to facilitate Mr. YY's 22 appearance and in what order his testimony should be 23 received.
Would anyone like to comment on what I just said ?
(])
24 MR. BLAKE:
Well, let me speak to the latter first 25 and then come back to the former.
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1 JUDGE MILHOLLIN.
All right.
2 MR. BLAKE4 At the last prehearing conference we 3 generally sketched out the order in which we anticipate 4 putting on witnesses and I think YY would easily fit into 5 that same order.
That order was that Licensee would put on 6 all of its witnesses for which prepared testimony had been 7 filed, but the Intervenors then would do theirs.
NRC Staff 8 would then put on theirs.
9 And then a t tha t point, ha ving c t least -- at 10 least from Licensee's standpoint, if we have done our job in 11 our prepared testimony, then at that point we would then 12 t ak e up what' additional individuals, either from Licensee or I
j 13 f rom the NRC Staff, presumably only those two sources, ought O
14 t o be called in order to clear up areas which are still open 15 o r where there needs to be confirmation.
16 My suggestion on YY would be that he would come 17 early in that latter stage.
It might well be he would be 18 the first order of business in this sequence of potential 19 witnesse s.
20 On the former, how we facilitate his appearance, I 21 a m not really sure what you had in mind by putting the 22 question to us.
But I have resisted Mr. Clevett's request.
23 I thought from what I understood to be Judge Smith's order,
()
24 h e was a special individual, a confidential informan t of the 25 NRC, and we ought not to do anything to disclose that O
ALDEREON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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2 So in that context I resisted.
Mr. Clewett asked 3 me last Friday and I told him quite frankly I did not know 4 who YY was and I did not.
At this juncture I guess I would 5 prefer to leave it, quite frankly, to you, if you are going 6 to be in charge of communications to get him here.
7 JUDGE MILHOLLIN:
I was not suggesting that you 8 should arrange for him to come.
I think you can assume I 9 vill make whatever arrangements are necessary or I will be to generally responsible for having the arrangements made.
11 MR. BLAKE:
In terms of facilitating his 12 appearance from a scheduling standpoint, it may be -- I take 13 it now he lives some distance away.
It might be that we 14 could set, as we get closer to the end of Staff's case, for 15 exa mple, we could look at a window of time and set that time 16 for him to come so that he would be inconvenienced less.
To 17 the extent many of those individuals are Licensee's 18 witnesses f rom the area are more accessible, so that would 19 be my sugges tion.
20 JUDGE MILHOLLIN:
Anyone else have a comment on 21 M r. YY?
22 (No response.)
23 All right.
Are there any other outstanding
(])
24 discovery matters with respect to --
25 MS. BRADFORD:
Judge Milhollin?
O A JERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 JUDGE MILHOLLIN:
Yes?
2 MS. BRADFORDs TMIA has a potential probicx that I 3 would like to discuss.
4 JUDGE MILHOLLIN:
With respect to YY?
5 MS. BRADFORDs No, wi th re spec t to one of the 6 witnesses we have proposed calling, Mr. Wayne Hartman.
At 7 the tide I listed him in the trial plan we had thought tha t 8 we had a definite contact te Mr. Hartman.
That is a little 9 more tenuous at this point and I an at this point not sure 10 that I can contact Mr. Hartman.
11 If indeed we do contact Mr Hartman, I am not sure 12 that he will come and we might need to subpoena him.
I am 13 sorry.
I misspoke.
That is Harold Wayne Hartman.
O 14 JUDGE MILHOLLIN:
We seem to have eased ourself 15 into the question of witnesses in general.
Perhaps I should 16 ask now th a t the Licensee anticipate any difficulties in 17 arranging for the appearance of any of the requested 18 witnesses who are employees of the Licensee.
19 There are quite a number listed in the trial plans 20 o f the Intervenors and my question is --
21 MB. BLAKE I have not touched base with each of 22 tne individuals whose letters have been given to you or 23 whose names have been identified.
I though t, quite frankly,
()
24 once we had gone through our case and the Intervenors had 25 gone th rough th ei rs, the wi tn e s se s, the Staff's, we can find O
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1out who it is that we need to bring in and we can talk about 2 it at that tine.
3 I would be able to do -- I just have not touched 4 base with all of them at this juncture.
I should say 5 Jenerally that I do not anticipate a problem with 6 individuals who are Licensee employees.
7 JUDGE MILHOLLIN:
I am just asking whether any 8 problem has been identified with respect to anyone and I 9 t ak e it your answer is no.
10 MR. BLAKE:
No.
I cannot see tha t with respect to 11 anyone at this point.
12 JUDGE MILHOLLIN:
You indicated your preference 13 with respect to these four phases of the hearing.
Perhaps I 14 should ask the Intervenors whether it is their intention to 15 call the people in their cases when it is their turn, whom 16 they have mentioned.
I assume it is, or is it not?
17 M R. CLE'JETT It is our in tention currently to 18 call these individuals.
I should say that not c11 of these 19 witnesses are expected to be on the stand for very long.
'J e 20 d o no t plan a day's worth of examination for each of these 21 witnesses.
22 JUDGE MILHOLLIN :
I bring that up because that 23 m ea n s, as I interpret that response, that means that this
()
24 lis t of operators will for the most part be asked to testify 1
25 a t the close of your case.
Is that not correct?
I address
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I that to the Intervenors.
That is my interpretation of what 2 you filed.
3 MS. BRADFORDs That was the way that I had 4 perceived it going.
2 5
JUDGE MILHOLLINs All righ t.
6 MR. CLEWETTs It was not necessarily our intention i
7 that these would all testify at the end of the case.
There 8 was some question in our minds as to whether we might have 9 one of o0- witnesses testif y more to wa rd the la tter end of 10 the presentation we would be putting on.
11 In any event, it would probably still be workable 12 for the counsel for Licensee to contact these people at his 13 earliest convenience and to see what scheduling difficulties 14 the re migh t be.
15 JUDGE MILHOLLIN s You follow my point?
I thought I 16 MR. BLAKEs This is the first time 17 had talked both with Ms. Bradford and the Aamodts and I 18 thought I understood it.
19 JUDGE MILHOLLIN:
As I read this, it looks as if 20 we are going to have quite a stream of people coming on 21 af ter you conclude your direct case.
And if we put the two 22 lists together, the list from TMIA and the list from the 23 A a m od ts, there are not many left who will not be called.
()
24 Perhaps I could just let you think about that for 25 a while while we discuss other things.
You are not ready to O
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1 MR. BLAKE:
I am not sure how much sense it makes 2 to go down through it.
For example, EE, Michael Ross is the 3 first one that they identified from Licensee.
He is one of 4 our prepared witnesses.
I assume if we have gone through 5 the process and he has appeared as a witness, then they 6 would not be calling him for the Intervenor's case.
7 JUDGE MILHOLLIN:
I make the same assumption, but 8 he is only one letter in a list of --
9 MR. BLAKE4 The same thing takes care of almost 10 the entire first page, except for YY.
Hevell, Long, Arnold, 11 these are all -- when we get to the second page, we start 12 talking about lettered individuals.
13 JUDGE MILHOLLIN:
You get over to page 5 and 6 14 with the Aamodts, we are talking about a number of those 15 individuals.
16 MR. BLAKE:
And I guess, Judge Milhollin, in terms 17 o f whether or not there was a need for these people to 18 appear, I doubt, quite frankly, you would be in a better 19 position to make th a t deter 31 nation along with those that 20 you wanted as witnesses after you had hea rd the 21 presentations f rom all the parties.
22 That is really
^? t the nature of my suggestion 23 was at the last prehearing conference.
I think it takes
()
24 something more than an intervenor just saying we want 40 25 people from the Licensee's organiration.
I think there O
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1 ought to be some need.
And I think your opportunity to make 2 that sort of a determination comes better at a point in time 3 when you have heard all the evidence which people propose y
4 through their own witnesses and prepared testimony.
5 MR. GOLDBERG Judge Milho111n, if the Staff may 6 address that issue, I would simila rly ask that the Board 7 proceed along the lines of the original stated intention of Bhaving each party present his direct case, at least as far 9 as the prepared written direct testimony that has been 10 filed, and I would also point out that some of Intervenor's 11 witnesses are also some of the staff witnesses who will 12 appear here on behalf of the staff and have filed prepared 13 testimon y.
O 14 We would also urge that the inconvenience to thele 15 many witnesses be kept to a minimum and we think it 16 certainly makes a lot of sense to proceed as was planned 17 with the written prepared testimony of each of the parties, 18 and at that time the Board can make the determination as to 19 whether additional witnesses would be required and, if so, 20 which witnesses and what would be the best order to proceed 21 a t that point.
22 MR. CLEWETT:
If I might just note, the reason 23 there are some witnesses listed here who are going to be
()
24 voluntarily presented as part of the direct case of Licensee 25 and Staf f is that we did not want to in a position where O
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1 we were foreclosed from questioning them on the points that 2 we were interested in because that was not a part of their 3 direct testimony as it was submitted.
4 It is perfectly acceptable to us to question these 5 people when they appear.
We do not necessarily need to call 6 them a second time.
As to the other individuals that are 7 listed, we have discovered through t he various documents 8 that have been produced that testimony of certain 9 individuals is critical.
10 Through depositions of other individuals we have 11 discovered evidence which is relevant to these proceedings 12 and we f eel that these individuals do form a part of the 13 case which we would like to present to the Special Master.
14 So it is not just a question of attempting to call everyone 15 who works for the Licensee or NRC but to present witnesses 16 which have something to add to the overall picture.
17 JUDGE MILHOLLIN:
All right.
I think it is useful 18 to ge t that particular subject out on the floor so that we 19 can all think about it.
I am not prepared to make any 20 decisions now on that subject because I think there is a 21 f air amount of information that has to go into that 22 decision.
There are some other factors which will actually 23 influence how we come out, but it is important for us to
()
24 k ee p tha t in mind.
1 25 MR. GOLDBERG Judge Milhollin, I think this would O
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1 be an appropriate time to bring up the Monte Davis matter I 2 mentioned because this is another witness who has been 3 identified by either the Board or the Special Master, and I 4 would like to point out a scheduling problem that Mr. Davis 5 has, namely, that he can has current plans to be in 6 California the period of November 30, at least until 7 December 9, on State business, and has requested that if it 8 is possible, the Boa rd schedule his appearance, if the Board 9 thinks his testimony is necessary, during the first two 10 weeks of hearing.
11 The assumption is that if we cannot finish all the 12 parties ' case in these first two weeks and.vait until the 13 third week that is ten ta tively scheduled for the beginning O
14 of December for Board witnesses and Special Master 15 witnesses, that it is at that time that Mr. Davis might be 16 expected to appear, and it is a t that time that he would 17 have the conflict.
i l
18 So if it is possible, he would urge the Board to 19 have him appear, if necessary, these first two weeks.
20 JUDGE MILHOLLIN4 Very well.
21 I would like to identify some additional documents 22 which I feel may very well be necessary.
First -- well, 23 before I begin, we might have missed something in this
()
24 exchange of documents in discovery.
If it turns out the 25 document I am about to describe has already been produced, I O
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1 hope you will point it out.
2 The first document is this.
The first addition 3 would be thist copies of the documents which were used to 4 evaluate parallelism of answers by candidates mentioned in 5 Mr. John Wilson's testimony.
That is, Mr. Wilson's 6 testimony describes documents used to evaluate parallelism 7 in answers.
These documents were described as instructional 8 material for the most part, such as trasparencies, old 9 examinations.
10 I an ticipate that there will be some interest in 11 retracing Mr. Wilson 's steps in coming to his conclusions.
12 MB. BLAKE:
To assist you, Judge Milhollin and the 13 o ther pa rties, I am informed that those documents have in 14 f act been provided in the course of discovery and they are 15 attachments to Mr. Wilson's reports.
That is, during 16 discovery we provided reports.
These are, I am told, 17 attachments to his reports.
By and large they are training 18 or instructional materials.
19 JUDGE MILHOLLIN:
Did these include transparents 20 a nd some old exams?
That is, would they include all the 21 inf ormation necessary to decide whether it is more likely 22 that paralle3 answers were th e result of memorizing rather 23 than cheating?
Did they include all the documents necessary
()
24 to make that decision and all the documents you relied on to 25 make tha t decision ?
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1 MR. BLAKE:
I think they include, and we will 2 double check for you, all the documents that we used in 3 ordc : to reach -- or Mr. Wilson used in order to reach his 4 judgments.
5 JUDGE MILHOLLIN:
You said they were filed as 6 attachments to Mr. Wilson's report?
7 MR. BLAKE:
Reports.
There were several in nature 8 which Mr. Wilson had generated as he conducted his 9 investigations.
10 JUDGE MILHOLLIN:
Very well.
They were sent as a 11 response to which party's discovery request?
12 MR. BLAKE:
We. do not know a t the moment.
We will I
13 do better.
14 JUDGE MILHOLLIN:
All right.
15 MR. CLEWETT:
If I may ask for some clarification, 16 is my understanding correct tha t all of Mr. Wilson's reports 17 tha t contain these attachments have been suhmitted to the 18 parties in response to discovery requests?
19 MR. BLAKE:
That is what I am told, yes.
20 MR. CLEWETTs It would be very useful to the 21 parties if at the earliest convenience of Licensee's counsel 22 tha t he could indicate specifically which individual 23 documents he is ref erring to since there has been a great O
24vo1u e or stuer nica it is se=et1=ee so e net airricu1t to 25 sort through for a particular document.
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1 JUDGE MILHOLLIN:
I assume the Lice nsee will 2 inf orm you and me specifically of which reports we are 3 ref erring to so both of us can find the material more 4 quickly.
5 MR. CLEWETT:
Thank you.
6 JUDGE MILHOLLIN:
The second thing I identified, 7 and again, this may already be contained in the mountain of 8 documents which have already been distributed, are copies of 9 the instructie".al ma te rials used in the requalification l
10 quizzes, in particular Rounds 1, 2 and 3.
I think those are 11 the only rounds evaluated by Dr. Trunk, including old exams.
i 12 MB. BLAKE:
We will check on that one, Judge 13 Milhollin, and try to report back to you after a break.
O 14 JUDGE MILHOLLIN:
Very well.
It may be necessary 15 based on what those documents reveal to have some brief 16 testimon y f rom the instructors who taught the materials to 17 describe how the candidates were taught, tested and graded 18 on the materials.
19 MR. BLAKE:
Would you read to me again the way you 20 initially ph ra sed it?
21 JUDGE MILHOLLIN.
All right.
I said that based on 22 wha t these materials reveal, the instructional materials, it f
23 might become useful to call the instructors briefly and ask
] ()
24 the instructors how the materials were used, how they were 25 used to teach, test and grade the candida tes.
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1 MR. BLAKE:
And the instructional materials which 2 we are talking about were instructional materials --
3 JUDGE MILHOLLIN:
For the requalification quizzes.
4 The next item is a question to the Licensee.
Has 5 the Licensee prepared testimony describing new examinations 6 f or Category T?
That is, does your testimony describe your 7 plans or procedures for the reexamination of candidates in 8 Category T?
I believe one of your witnesses indicates that 9 the candidates wt11 be reexamined at Category T.
10 My question is are you prepared to set forth the 11 arrangements for that examination?
12 MR. BLAKE:
Two things.
One, the policies and 13 procedures, the generic policies and procedures which are 14 the subject of our training panel's testimony I expect would 15 be applicable to the Category T as well as other exams 16 administered by Licensee's training department.
17 As a second matter, beyond that I can certainly, 18 as additional direct when that training panel arrives, take 19 that occasion to have those witnesses describe to you and to i
20 t he other parties the exact nature, schedule and what not of i
21 the Category T testing in order to open it up f or cross l
l 22 examination.
I 23 I should take this occasion to say that I
()
24 understand that the Ca tegory T test has been in fact 25 administered to all personnel at this point in time, but I
()
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1 23,491 1 can confirm that with the witnesses when they are here.
Q 2
JUDGE MILHOLLIN :
Are you referring now to the new 3 Category T examination?
4 MR. BLAKE:
Yes, sir, correct.
5 JUDGE MILHOLLIN:
Very well.
I would be 6 interested in having the record reflect what the 7 arrangements are or were for that examination.
8 The next item is answer keys.
This is directed to 9 the Staff.
Again, perhaps this information has been 10 pro vided.
The Staff should provide the answer keys for the 11 April 1981 examination as they existed before the changes 12 were made as a result of the Licensee's review.
13 MS. SWARTZ:
I think those have been provided. I O
14 will check.
If they have not, I think we can provide those.
15 JUDGE MILHOLLIN :
All right.
Then, of course, you 16 will be asked to provide the changes.
4 17 MS. SWARTZ:
I am afraid I don't understand.
18 JUDGE MILHOLLIN:
Tha t is, it will be necessary to 19 provide the answer keys in such a way that the person could 20 tell what the changes were.
21 MS. SWARTZ:
I understand.
I thought you were 22 just referring to the answer keys that we use to grade.
One 23 o f those was provided, I do not believe the one -- a before O
24 a nd af ter comparison could de made, but I will endeavor to 25 d o that.
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1 JUDGE MILHOLLIN:
Ana the last item there would be 2 to specify which one of the Licensee's reviewers suggested 3 each change.
4 One more pcint of cla rification.
Does the 5 Licensee know now which of its employees will not require 6 confiden tiality so that we can abandon letters in their 7 cases?
8 MR. BLAKE:
No, I cannot state with respect to i
9 each, again because I thought we would wait and see who to required it.
11 JUDGE MILHOLLIN:
Very well.
12 MR. BLAKE:
I should also say that this discussion 13 on confidentiality --
14 JUDGE MILHOLLIN:
May affect that.
Okay.
15 We might just as well take that up.
I take it the 16 parties have had discussions on the subject and you 17 anticipa te f urther discussions.
18 ER. ELAKE:
We have had some discussions.
We were 19 scheduled to meet at 10:00 this morning.
We were not able 20 to make it until 11:00.
So the period of exposure was 21 ra ther brief, but during that period in time we made some 22 headway.
That has led to another redraf t which I would hope 23 to have the opportunity to discuss with them this afternoon.
O 24 avoct attaott ">
veer e11-25 MR. CLEWETT:
If I might just clarify for the O
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1 record one point, it was not the question of the In ter veno rs i
2 being unable to arrive at 10:00.
In fact, Mr. McBride 3 called later yesterday evening to say that the time had been O.
4 changed from 10:00 to 11:00.
That was the first time the 5 Aamodts heard about it, and the people from TMIA only heard 6 about it from the Aamodts.
So I do not know why it was 7 changed.
It was not as a result of anything that the i
8 Intervenors did.
9 MR. BLAKE:
I apologize.
to JUDGE MILHOLLIN:
The next item on my list to 11 discuss is the question of the results of the most recent 12 W ritten examination.
13 MR. GOLDBERG:
Excuse me, Judge Milhollin.
We 14 seem to have passed over a disco ve ry matter, and that is the 4
15 Aamodt's supplemental discovery request against the Staff.
16 Did you want to take it up later?
17 JUDGE MILHOLLIN:
Let's take it up.
You are 18 right, we did pass over that.
Let's take it up.
19 MR. GOLDBERG:
We did have a brief discussion on 20 the record of the depositions which the Aamodts request, and i
21 I take it f rom tha t discussion that the subject is pretty 22 much moot.
They are not staff personnel.
The only concern 23 we had at all was about the possible impact on the hearing
()
24 schedule, and we would not object to the Aamodts taking any 25 o f those depositions so long as it does not impact on this ALDERSoN REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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1 current hearing that is under way.
2 With respect to the second category of discovery 3 that the Aamodts request, and that is namely the 4 interrogatories which appear as Appendix A to the Aamodts' 5 Nrvember 2, 1981 request for supplemental discovery, the 6 Staff would point out that those interrogatories are not 7 timely filed, and in addition --
8 JUDGE MILHOLLINs Are these the interrogatories 9 which refer to the arrangements f or administering the most 10 recent e xamina tions?
11 MR. GOLDBERG Yes.
Those are Interrogatories 27 12 through 34, for the most part, which although they are new, 13 are not follow-on discovery, and objectionable on that O
14 basis.
The prior 26 interrogatories are identical to 15 interrogatories that the Aamodts served on the staff on 16 October 21, to which the Staff responded with objections.
17 No motion to compel was filed with respect to the 18 S ta ff 's objections.
However, notwithstanding those 19 objections which we do believe pertain to those 20 interrogatories, the Stafi believes that the witnesses it 21 will be presenting in this hearing will be able to respond 22 for the most part to these interrogatories and we do not 23 have any objection to their responding to the extent they
()
24 can to these interrogatories when they are on the stand.
25 Item No.
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1 which we do object to responding.
That asks for the NRC RO l
2 and SRO licensing exams used in the October 1981 i
3 examinations of TMI-1 operators.
We object to producing 4 those at this time.
Those exams have not yet been graded.
5 With respect to the third item of discovery which 6 the Aamodts seek, namely, the original copy of the April 4
7 1981 reactor operator exam taken by Michael Ross, the Staff 8 has the original in its possession here and it does not have 4
9 any objection to making that available for inspection by the i
10 Aam odts.
1 11 MR. CLEWETT4 If I may respond to that, it is true 12 as counsel f or the Staff notes that some of these discovery 13 requests, that some of these interrogatories were previously 14 submitted and were objected to by the Staff.
These 15 circumstances are described on page 3 of the Aamodt request 1
16 for supplemental discovery to which those interrogatories
.I i
17 a re a ttached.
18 As it says there, rather than arguing the extent 19 to which the previously asked interrogatories are proper 20 follow-on discover 1, the Aamodts believe it is most 21 important to focus on the real issue, which is that the l
22 actual circumstances under v..ich the reexamina tion took 23 place 'are of srch critical relevance to the issues in this
-O 24 proceeding that discovery at this time was necessary and i
25 proper.
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It is somewhat inexplicable to us that the Staff 2 would object to the untimeliness of requests about the l
3 circumstances of an event that did not even start until l O 4 almost the end of the discovery period, after such a time 1
5, hen any original discovery request could be asked, and at a 6 time after the entire original discovery pericd was closed.
4 7
We believe that the circumstances of the j
8 administration of the NRC licensing exam are of such 9 critical relevance tha t it is necessary through some 10 mechanism f or us to be able to engage in discovery about 11 this.
We do not feel that it is an acceptable substitute 12 to be allowed to ask some questions of some staff witnesses 13 who may or may not be able to respond to them.
j 14 The purpose of discovery is to be able to 15 underttand the circumstances before the actual necessity of 16 cross-examining people, and we would ask the Special
- aster, 17 in light of the critical relevance of the circumstances of 18 the NBC examination which was given in October of this year, l
B 19 to require the staf f to rescond to these interrogatories.
20 MR. GOLDBERG:
Judge Milho111n, I really question 21 whether it is worthwhile engaging in this debate any l
22 f ur ther.
We will have here at the hearing the people who we 23 would ask to respond to these interroga tories
'.n any event, O
24 a nd to the extent that they can respond, they 12 If the y 25 cannot respond and you believe it is appropriate to have a O
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I l Q 1 response, we will get the people who can respond.
1 Our point is tha t at this la te da te we are now 3 here at the hearing.
Those staff employees who have 4 knowledge that is responsive to the interrogatories will be 5 here and these questions will be put to them at that time i
6 and they will do their very best to respond.
If that is not J
7 deemed adequate, we will provide people who can answer them 8 better, but for the most pa rt, they are the same people who o
9 will be responding to interrogatories in any event.
i 10 JUDGE MILHOLLIN4 My view is that on the law Mr.
11 Clewett is right.
I do not think these interrogatories are I
i i
12 tainted with untimeliness.
It seems to me that now is the f
i r
13 time to pose interroga tories of this kind, so I cannot find 14 tha t these interrogatories were late.
I cannot either find j
i 15 t h a t they are irrelevant.
So my ruling is that they are l
i 16 proper a nd must be answered.
i 17 I think it is appropria te for me to say something f
18 else.
I think it would be better for the record if the 19 S ta f f were to present additional written testimony 20 describing the administration of the October examinations.
21 This would include testimony showing how the examination was 22 proctored, how it was graded, and how the questions were i
23 saf eguarded.
I O
24 rnese ere e11 1==ues vnica neve erisea with 25 respect to other examina* ions.
If the Staff is taking the
! O I
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23,498 1 position that there now shou'd be confidence in its j
2 administration of examinations, I do not see how the Staff i
l 3 can avoid putting in a detailed case en that subject.
l 4
Also another issuo which has arisen in that area l
l 5 is the nature of the Licensee's participntion in review of I
6 the questions.
It seems to me that th e record should i
j 7 reflect how that review occurred.
It is going to reflect 8 the way that review occurred in the past, so I think it 9 should also reflect the way it occurred in October.
I 10 I do not think the record would be complete 11 without tha t kind of showing by the Staff.
12 Finally, I think the Staff's testimony should i
1 13 include a statemen t of the extent to which the questions on
! O 1
14 the October exam were repeated or were the same as some a
i I
15 question on a previous exam.
16 With respect to the first in te rro ga to ry, I 17 understand the Staff's response to be that since the 18 examination has not been graded, it would not be proper to 19 reveal the content of the examination.
Could you elaborate 20 on your reasoning for that position?
21 MR. GOLDBERGt Well, one of the things that we are 22 all concerned about is saf eg uarding the exams and answers to 23 the exams and making sure this information is not publicly O
24 e ve12 31e def ere ther heve deea proper 1r er ded, ead 1 Sust 25 do not think it is a gcod practice and a ppropriate to O
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i j Q 1 release the answ' r keys bef ore the ex.m has been graded.
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2 JUDGE MILHOLLIN:
Excuse me.
My impression was i
3 that the first request was for the matter of the exam, not i O 4 the answer keys.
Am I losing something there?
a 5
MR. CLEWETT4 No, you are not, Judge Milhollin, 6 missing anything th ere.
7 MR. GOLDBERG:
Staff just believes that it is not i
8 a sound practice to disclose the exam before it can be 9 graded.
It is not our practice to do that and we do not to think it is a good practice, and I would object on that 11 basis.
rf 12 JUDGE MILHOLLIN:
Perhaps the Aamodts could say
~
13 w hy they need the examination now as opposed to waiting *
~
14 until it is graded.
15 MR. CLEWETT:
Well, one reason is that it may well 16 eventua te tha t the examination may not be completed until 17 af ter the hearing is completed.
The primary reason for i
18 including this request was so that we could come to some t
19 understanding of the degree to which the October examination 20 repeated questions that had been on the April examination 21 a nd to have some chance of understanding th e degree to which 22 the October examination may have been made substantially 23 easier than the April examination.
I O
24 The provision of the examinations to us will not i
25 in any way that we can see compromise the integrity of the
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1 grading process.
We would be willing to stipulate if the 2 staff wishes that we will not answer the test and mail it te 3 any of the graders or anything of tha t nature.
I am at a 4 loss to see how this would compromise the NRC's procesc, and 5 it is material that we feel is very important to our 6 understanding of the nature of the October administration of 7 the NRC examination.
8 MR. GOLDBERG:
Pursuant to your req uest, I 9 understand you are asking the Staff to address in additional 10 prepared testimony the concerns essentially that the Aamodts 11 have.
If that is the Board's wish, then we will certainly 12 d o that.
As soon as the exams are graded, then they can be 13 made available, but with respect to the substance of the 14 exams, I think that is clearly beyond the scope of the 15 issues in this proceeding, and I do not think it is 16 legitimate for the Intervenors to go into the question of i
17 whether or not this exam is easier or harder than past exams.
18 I think the issue here is the administration of 19 the exas and not the substance.
You have asked us to 20 add ress the administra tion of that exam and we will endeavor j
21 t o do th a t.
I 22 JUDGE MILHOLLIN:
Since this is a discovery 23 request rather than a tender of evidence, the showing fcr O
24reteveace 1=-
e=
e 11 xa subst at1 117 1o et-1 =t111 25 don ' t think the Staff has made a convincing argument that O
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1 providing the exam with a proper protective order would 2 compromise the process of grading the exam.
3 So my ruling is that if the Aamod ts agree to 4 promise not to disclose the questions to third parties, the 5 examination must be delivered.
6 I take it the Aamodts are willing to agree to a 7 protective order.
8 (Counsel for the Aamodts conferring.)
9 MR. CLEW ETT s If such a protective order would 10 allow us to discuss the test with one additional individual 11 who has been working with us, we would be most willing to 12 agree to that.
13 JUDGE MILHOLLIN:
The individual, of course, would 14 be asked to become a party to the agreement.
I 15 MR. CLEWETT:
That would present no problem.
16 JUDGE MILHOLLIN:
In that case, the ruling is the 17 examination must be furnished.
18 MR. CLEWETT4 If I might ask fo r clarifica tion, it 19 is my understanding that there were two separate rulings of 20 the Special Ma ster, one which directed the Staff to answer 21 the interrogatories and the other which directed the staff
( 2Tto present written testimony on certain aspects of the h 23 October test.
O 424 aUDcE M1tnott1x:
Ies.
ro the extent it wes 25 conf usino whether I was requesting or orderino Staff, I O
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1 should say that my intention was to order the Staff to 2 submit that testimony, that is right.
3 MR. GOLDBERG:
My inte:1 tion was to present the 4 testimony whether it was a direction or a request.
l 5
JUDGE MILHOLLIN:
According to my list of t
l 6 preliminary matters, we only have one more.
I 7
MR. BLAKEs Judge Milhollin, before we go to the 8 next matter, I have to observe that with the Board's -- with 4
l 9 the Special Master's determination here and Mr. Clewett's 10 observation that he does not understand how the process ca n 11 be compromised, that we will not hear down the road that 12 somehow the process has been compromised by this and there I
13 has been some undue influence on the graders or the results i O 14 o f the e xam, we are the ones at risk on this ene.
15 And to the extent that the examination has been 16 p u t out, as I understand the order is to provide it to the 17 Aamodts, I would not expect to hear as a result of that i
18 process or wha tever happens to the exam or its distribution l
l 19 or questions about it, about individuals or any otuer i
20 m at ter, that it has been compromised or that the systen is
(
21 a t risk as a result of this.
22 JUDGE MILHOLLIN.
I think I may have missed a word i
23 earlier in your remarks, which made it hard for me to follow O
24 the last part.
Could you rephrase that aga in, please?
I 25 just want to make sure I understand your point.
I am afraid O
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1 I missed a word or two and I was unable to follow you.
2 MR. BLAKE:
I only wanted to make the observation 3 that with the Special Master's ruling providing or letting 4 out whatever system NRC has for protectJng that exam until 5 it is completed its grading process, and Mr. Clevett's 6 observation that he could not envision a way in which the 7 process migh t be compromised by allowing this request to be 8 honored, that we do not hear later on, regardless of what 9 happened between now and this hearing, somehow it has 4
10 occurred.
I 11 i
l 12 i
13 14 15 16 17 18 19 20 21 22 23 O
2.
25 O
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1 JUDGE MILHOLLIN:
You are notif ying everyone that 2 estoppel would be appropriate?
3 MR. BLAKE:
We are the party a t risk here.
4 JUDGE MILHOLLIN:
All right.
I understand your 5 comment now.
6 MR. GOLDBERG Judge Milhollin,may I ask for the 7 dates on which you want the Staff to respond to these 8 various items -- for example, the provision of the exams, 9 the response to the Aamodts' interrogatories, and the 10 additional testimony that you asked for?
11 JUDGE MILHOLLIN:
With respect to the exam, I 12 assume that there would not be any practical obstacles to 13 th a t, that it would be as soon as you can Xerox a copy.
O 14 With respect to other interrogatories, I guess I 15 made the sa me assumpticn, that the responses would be given j
16 as soon as practicable.
But what you are suggesting is that 17 that probably is not sufficient in terms cf direction.
l 18 MR. GOLDBERG4 I am suggesting that we are going 19 to need a little bit of time to cet these things answered, 20 w ri tten, typed and filed and I guess I would ask that we 21 h ave a w eek to both respond to these interrogatories and 22 provide the additional written testimony you asked for.
23 JUDGE MILHOLLIN:
We have a precedent in this
()
24 proceeding of negotiating those things and it has been very 25 successf ul, so I would suggest that the two of you get O
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1 together over the break and arrange for a date on which that 2 could be supplied.
I think Mr. Clevett's concern is he 3 would like to have the answers before your witnesses go on.
)
4 Isn't that right, Mr. Clevett?
5 HR. CLEWETTs That is correct, Judge Milho111n.
6 JUDGE MILHOLLIN:
So with that understanding, 7 perhaps it would be more ef ficient for the two of you to sit 8 down and work that out between yourselves than to have me 9 impose a time limit.
If you cannot work it out then I will i
10 rule on it.
11 MR. GOLDBERG Is the Board also directing the 12 Staff to provide the October '81 exams to any parties other 13 than the Aamodts who requested them?
O 14 JUDGE MILHOLLIN:
No.
With respect to the written 15 testimon y, I assume that it would be a supplemental 16 testimon y included in your direct case, whenever it might i
17 come on.
I also assume that if for some reason it was not j
18 possible to do that you would notify me;.
i i
19 MR. GOLDBERG:
Very well.
20 JUDGE MILHOLLINa I think the logical place would 21 b e as part of your direct case since the same vitnesses whom 22 you have already identified would be giving that testimony.
23 A t least that is my understanding.
()
24 MR. GOLDBERG I think that is correct.
25 JUDGE MILHOLLIN:
The last item which I assume we O
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'caa oet te aov is the auestioa or the re==1t= or the october 2 examination.
3 MR. BLAKE:
Judge Milho111n, I am told tha t we 4 anticipa te the results on that exam within a period of 5 thirty days from when the examinations were taken.
Tha t 6 would mean, presumably, the last week in November was when 7 we an ticipa te th e re sults.
8 JUDGE MILHOLLIN :
When were the exams given 9 exactly, the written exams?
Do you know the dates?
10 MR. BLAKE:
Well, I did at one point.
The Ros 11 were given -- I am told it was the 21st and 22nd and th e 12 28th and 29th was when the written examinations were given.
13 JUDGE MILHOLLIN:
Those are R0s and SBos?
O 14 MR. BLAKE:
Yes.
15 JUDGE MILHOLLIN:
R0s were given October 21 and 22 i
l 16 a nd the SR0s were given the 28th and 29th, is that right?
l 17 MR. BLAKEs That is my understanding, yes.
18 JUDGE MILHOLLIN:
And if your full waiting period l
19 were consumed as it normally is in administrative matters, 20 then you would expect to get the results on the 22nd from 21 t he RC exam and the 29th for the SRO exam.
Is that right?
22 MR. BLAKE:
I do not know.
'Je had an 23 understanding that it was thirty days from each.
Our 24 understanding was that it was thirty days from when the 25 exams were completed.
The most I can say is we anticipate l O ALDERSON REPORTING COMPANY,INC.
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1 the results on all the exams in the last week in November.
2 And I certainly have no problem in providing that 3 inf ormation to you.
4 JUDGE MILHOLLIN:
The floor is now the Staff's.
5 HR. CLEWETTs May I, before that, make one request 6 f or. clarification as to whether the results of those 7 examinations would include the results of the oral j
8 examinations?
9 MS. SWARTZ:
It is my understanding that the 10 exams, SRO and RO exams, and the oral exams will be -- the 11 results of those will be available on the 30th of November.
12 Tha t was the answer that I got yesterday when I asked Mr.
13 Collins, who is head of the Opera tor Licensing Branch of th e O
14 N RC.
He does not expect them any sooner and he is also l
15 hesitant to give out partial results for the reason that it 16 is not fair to the examinees who took the exam to find out 17 through the grapevine that on the RO exam there may be an 18 eighty cercent pass ra te.
19 That was the response I got yesterday.
20 JUDGE MILHOLLIN:
Do you know how many do you 21 know whether the oral exams have been graded?
22 MS. SWARTZ:
I asked yesterday what the status was 23 f or the grading.
It was told it had not yet startea.
I do l
24 n o t know if it includes the orals or not.
l 25 For the oral exams, they are not graded with a 97 ALDERSON REPORTING COMPANY,INC, 40G VIRGINTA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
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' or en 83-rner ere a==t oiven e 9e==/not 9
=s-Ther ao aot 2 give that immediately because I thin 1. they go through the 3 exams, the notes they wrote during the walk-through, before 4 they assion a grade or pass /no pass.
5 JUDGE MILHOLLIN:
Is that all the information you 6 can provide?
7 MS. SWARTZ:
Yes, it is.
8 MB. BLAKE:
In terms of the sched uling of those, 9 my understanding is the oral exams span a three-week period, 10 the week of the 12th of October, and then the two subsequent 11 weeks, each of which held RO and SB0 written examinations as 12 well.
So I would an ticipa te the results to be a vailable in 13 the same time f rame.
O 14 JUDGE MILHOLLIN:
So the oral examination occurred 15 o ve r th ree wee k s ?
16 MR. BLAKE:
Yes.
They, of course, were done 17 individually, so it takes longer.
18 JUDGE MILHOLLIN:
Beginning on the 12th, you said?
19 MR. BLAKE:
The week of the 12th.
20 JUDGE MILHOLLIN:
My view on the subject is as 21 f ollows.
I believe the grades on the written examinations 22 a re rele van t to the following questions.
First, I think the 23 grades on the written examinations, now referring to the O
u October wu tten exeminetions, ere re1 event to the tesumonx 25 o f M r. Arnold, Mr. Huckel and Mr. Ross on the general O
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' co oetence or over tor -
I am sorry. I believe 2
I believe th e te s timon y 3 the grades on the written exams are relevant to the 4 testimony of Mr. Huckel on the reliability of his system for 5 certifying candidates.
I believe it is relevant to the 6 testimony of Mr. Ross concerning the reliability of Mr.
4 7 Ross' system for certifying candidates.
8 Also, I think the results of the written 9 examinations are relevant to the testimony of the individual i
10 operators.
If there is a high degree -- if there is a high 11 percentage of passing on the exam then I would say that that 12 indicates tha t the operators were sufficiently competent to 13 pass the NRC and other exams without cheating.
If a great O
14 many people fail, then I think this can cause one to wonder 15 whether they needed help in order to pass the examinations T
16 which have already been given.
17 Also, the question of how these exams turned out 18 is crucial to the Licensing Board's determination of the 19 staf fing question.
I do not think it is convenient to be 20 f orced to wait for the test results and then recall d
21 witnesses to ask them whether their testimony has changed in i
2211ght of the test results, although this ma y be inevitable 23 t o so me extent.
24 So my view is that November 30 is not an adequate 25 time and so I think I am going to have to decide upon a O
t A
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1 certain time and to do that it is going to be necessary for 2 the Staf f to present detailed information about the 3 arrangements which have been made to grade the exam, the 4 possibility of expediting the arrangements or expediting the 5 grading.
6 So I would anticipate your giving me that 7 information as soon as you can, making a report on the 8 status of the grading, a precise report on how many or which 9 examf 7ees have been graded, to what extent, explain the 10 staffing arrangements for grading the rest.
If it is 11 necessary to increase staffing, that is a possibility which 12 will have to be explored by someone.
i 13 So I invite ran to respond as to when you think O
14 you might be able to report.
15 MS. SWARTZ:
I will call Mr. Collins.
We can tak e l
16 a break this afternoon, try and get in touch with him this 17 af ternoon and get as much information as we can from him 18 this af ternoon.
19 JUDGE MILHOLLIN:
If you require more time you can 20 report tomorrow.
21 MS. SWARTZ:
If I am not able to get in tcuch with 22 him this af ternoon I may have to.
I did put these kinds of 23 questions to him yesterday and I got no, we have not started
()
24 g rading th e exams and that they had four people available or 25 that they thought they had four people available to grade O
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1 the exams -- two for the RO, two for the SRO.
One of the 2 SRO people got sick.
They were not sure about the RO.
(}
When I called yesterday afternoon they were 3
4 getting together to talk about who was going to do the 5 grading.
I am not sure how much more information I can give 6 you this af ternoon or even tomo rro w.
a 7
JUDGE MILHOLLIN :
This is one of those situations, 3 I think, in which necessity generates information.
9 MS. SWARTZ:
Yes.
10 JUDGE MILHOLLIN:
So I guess the procedure will be 11 wait until you can make as f ull a report as possible and 12 then I will indica te to you whether that is, in my view, 13 acceptable and I will decide what to do after that.
O 14 So you can -- we will assume that you will report 15 as soon as possible.
16 MS. SWARTZ:
Fine.
17 JUDGE MILHOLLIN:
And tomorrow would be 18 appropriate for me if it requires an overnight effort to 19 make sure the information is complete.
20 MS. SWARTZ:
As a result of the meeting yesterday 21 af ternoon that I interrupted with our questions they may l
t 22 have come to a resolution of the problem.
23 JUDGE MILHOLLIN:
Very well.
()
24 That is the last preliminary matter on my list of 25 preliminary matters.
Does anyone else have a prelimina ry O
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Q 1 matter?
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MR. BLAKE4 Judge Milhollin, I would like to make 3 an observation.
I understand the inference in the results 4 of the exam and I pa rticula rly understand how that, as a 1
5 very real matter, would affect the staffing question.
But I 6 would take some issue with the ease wi th which the Special 7 Master would derive the capabilities of individuals from 8 what is in unknown results.
9 There are, as you know, factors which can affect 10 results and I am reluctant at this point to ascribe to the
]
~
11 view that these results necessarily indicate the 12 capabilities of these individuals.
They ma y in fact, and 13 the y may not.
But I do not think we are there yet.
O 14 JUDGE MILHOLLIN.
Perhaps I could make another 15 remark which migh t be appropriate in view of the remarks you 16just made.
I think I said that I considered the results l
l 17 rele van t.
I do not consider them any more than that so far, 18 since we do not know what they are.
i l
19 The testimony you have already filed indicates 20 tha t the examination is only one factor among many which is 21 used in th e certification process by the Licensee.
So 22 well, I did not expect you to be unhesitatingly enthusiastic 23 a bout my view of relevancy of the new test results to the 24 things I mentioned.
Buti I do want to assure you that the 25 whole question is still open and I certainly have not come O
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' to ear coactu=1oa= e to how i=9otteat thet eviaeace 1 -
2 I think it is important, however, to justify 3 considerable ef fort to get it in a timely way.
So I assume i
4 our discussion on that subject is over unless someone else 1
5 has additional comment.
6 Any other preliminary ma tters bef ore we begin the 7 evidentiary hearing?
We have a request for sequestration 8 which we will come to in a second.
9 HS. SWARTZ:
We have a matter tha t we just want to 10 comment on.
One is the Aamodts sent us, after testimony was 11 due and the other parties too, I believe, some revised 12 copies of their testimony of Dr. Mulholt and Professor 13 Holzinger and Staf f definitely appreciates the f act that O
14 they sent us better and more usable copies of the examples 15 they wanted to use, but we do note that at least in one 16 instance the testimony of I believe it was Dr. Mulholt, his 17 summary statement was substantially changed.
18 And although we are not going to press the 19 objection that th e testimony was changed and was filed late, 20 i t is certainly something we are going to inquire into on 21 cross examination and the f act that the professional 22 qualifications stateuent was added to it at a later date is 23 something we are going to pursue on voir dire and may make a I
24 motion to strike a t tha t time.
25 JUDGE MILHOLLIN:
At that time we will take it up.
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as sw^arz=
oae ce tter-wita rea ra to our 2 trial plan, on page two there is a tyrocraphical error under 3 the summary of testimony, line six.
The "U" should be 4 changed to "FF".
It is definitely a typographical error.
5 JUDGE MILHOLLIN:
Yes.
Very well.
6 Other preliminary matters?
It is past the time l
7 when we probably should have taken a break.
I assume we can 8 finish up the preliminary matters and then take a break.
If t
9 there are a number of them perhaps we should ta k e the break 10 first.
l 11 JUDGE MILHOLLIN:
Mr. McBride, I believe, would i
12 like to be recognized for some purpose.
i 13 MR. MC BRIDES Yes.
Thank you, Your Honor.
O 14 The reason that I arise is because I had thought, 15 because of the discussions we had with the parties this 16 morning with respect to a possible stipulation on 17 confiden tiality that we.aight be able to handle the matter 18 in a short recess.
But I am lead to believe, after having 1
l 19 spoken to Mr. Clevett just briefly just before you began i
20 this af ternoon, we might need a little longer than I thought.
21 But I think that we and the parties are fairly 1
22 close, if not very close, to a stipulation that we could all 23 agree upon.
And I would ask tha t we might have sufficient 24 time to try and do that this afternoon before you break 25 tod ay.
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1 For the convenience of the parties and myself I I
2 would like to go back to Washington tonight if I could.
f 3
JUDGE MILHOLLIN:
Very well.
Any objections to 4 that?
j 5
MR. CLEWETTa I am not sure I understand exactly 1
6 what Mr. McBride is asking.
7 JUDGE MILHOLLIN:
I understand you to be asking 8 f or a long break.
Is that right, Mr. McBride?
9 MR. MC BRIDES I would think we would only need a 10 short one.
Mr. Clevett migh t be in the best position to 11 know if we will need a long one or short one.
I endeavored i
i 12 to put together a stipulation that represented the interests 13 of all the parties as best as they could be accommodated and
()
I 14 when broke this morning from a series of meetings that we 15 had, because not all parties could be present at the same 16 time, I thought we had a stipulation tha t e veryone could 17 sign.
r 18 I am led to believe that we do not and Mr. Clevett 19 w as the person who told me what he did, which led me to 20 believe tha t we don ' t.
So perhaps he could address whether 21 w e need a short break or a long break.
l 22 JUDGE MILHOLLIN :
We're going to use up the break 23 time discussing how long the break time should be.
(
24 (Laughter.)
25 MR. CLEWETT4 My only concern is this having not l
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1had adequate time to completely review this.
I have skimmed 2 the new version which Mr. McBride has had prepared and I am 3 concerned that there may be matters as to which we are not 4 terribly close yet, and so I would be reluc ta n t to represent 5 to the Special Master that any particular window of time 6 would be adequate.
7 So what I had hoped would be the procedure that we 8 would follow is that af ter finishing whatever preliminary 9 matters we might have it would be possible to adjourn for 10 some time to attempt to reach an accommodation on this, 11 rather than having additional preliminary matters to be 12 resolved so that there would be greater time pressure to 13 either reach a conclusion that was not satisfactory or else O
14 to break off discussions and we could come back.
i 15 JUDGE MILHOLLIN:
We will break until 4:45, at
[
l 16 which time you can report.
i 17 (A brief recess w as taken. )
18 JUDGE MILHOLLIN:
The hearing will come to order.
- 9 The record should reflect that the parties have been 20 negotiating on the possibility of reaching a settlement 21 concerning the issue of confidentiality.
Is there a report 22 f rom the parties at this time?
23 MR. MC. BRIDE:
Yes, Judge Milhollin.
My name is
()
24 Michael McBride, attorney for two of the individuals whose 25 names might have been disclosed if the unexpurgated version O
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' or the st << = report = nea deen a1=tributea to the verties 2 in this proceeding.
3 For the last several days the parties have been 4 engaged in settlement discussions and I am pleased to report 5 to you that I have in hand a stipulation that is scmewhat 6 marked up with some pen and ink changes but is generally 7 legible and contains the signatures of all the parties, as 8 well as Mr. Cole and myself for three of four individuals 9 who are referred to by letter in the stipulation.
10 Er. Blake represents the interests of a fourth 11 individual who has been designated as FF in the Licensee's 12 lettering system.
We are undertaking at this time to have 13 the stipulation retyped so that you will have a clean O
14 version, but at this time I would like to present to you f
15 tbts stipulation signed by Mr. Cole and I and the parties 16 which contains a line at the end both for your signature and 17 the date of your approval and would offer it to you as the l
I 18 agreement of the parties with respect to confidentiality.
19 There are a couple of understandings that the 20 parties reached that are not reflected in the words of this 21 stipulation that I think the parties would like to express 22 on the record.
23 One of those is that Mr. Clevett had some concern O
24thet e1t% ugh the stipu1etien provides f or certein testimon y 25 to re taken in camera, the Licensing Board has already O
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' reterred to the rect tn t it mer ne dirricu1t to aeve -
2 completely clean, if you will, in camera session and the 3 parties have informally agreed tha t we will not object to j
4 the testimony of persons contemplated to be taken in camera 5 if the in camera session is not perfect, if you will, as to j
6 the ability of the witnesses to come and go and the like so l
7 as to prevent disclosure of their identities.
8 Also, Mr. Blake, I understand, has signed, subject 9 to his ability to reach an individual or certain individuals 10 on whose behalf he has signed.
11 JUDGE MILHOLLIN:
Very well.
I 12 MR. MC BRIDE:
May I approach the bench?
13 JUDGE MILHOLLIN:
Yes, yes.
O 14 MR. CLEWETT Judge Milho111n, I would add to that 15 that as to the tenth numbered paragraph of the stipulation 16it is the understanding of the parties th a t the intent which 17 that paragraph seeks to convey is that the designated 18 individuals will be forthcoming in their testimony.
The 19 f act that it states that they waive any objections 20 previously stated does not contain any hidden loophole, that 21 there is some additional objection other than just gene ral 22 relevance objections which might be made.
23 MR. MC BRIDE:
Let me elaborate on tha t, if I 24 niic h t.
25 JUDGE MILHOLLIN:
Excuse me, Mr. McBride.
The O
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I record should show that Mr. McBride has handed me a copy of 2 the stipulation to which he has already referred.
Are we 3 ref erring here in paragraph ten to privileges which have 4 been asserted?
5 MR. MC BRIDE:
Yes.
I neglected to mention 6 another agreement that the parties had off the record.
We 7 struggled somewhat with the language in paragraph ten and 8 agreed to leave it as you see it, subject to this provision, 9 tha t two of the three individuals that Mr. Cole and I i
10 represent had previously filed affidavits asserting a Fifth 11 Amendment privilege as to their testimony.
They will not 12 assert that privilege and it is my understanding that the 13 third individual who did not so assert a privilege will also
! O 14 not assert that privilege when they testify.
15 Now, of course, the paragraph also refers to Mr.
i i
16 FF, whose interests are represented by Mr. Blake and the 17 caveat that I mentioned with respect to Mr. Blake's i
18 signa ture would apply to this assertion of privilege as well.
19 The intention of the paragraph was that it was --
20 JUDGE MILHOLLIN:
The paragraph states that Mr.
i 21 Blake has not had an opportunity to confer with his client.
22 Is that right?
23 MR. BLAKE:
Yes.
FF, in one sense he is a
()
24 clien t.
The company is actually my client here.
He is an l
25 employee of the company and I cannot, although I have signed O
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1 that, I want it on the record that I need to touch base'with 2 this individual, FF, f or his ratification of this before I 3 can in good conscience go along with it.
)
4 The other individuals, while I am taking this 5 occasion, that I need to check with are those individuals 6 whose confidentiality to this point in time we have 7 maintained by a lettering system but which in this agreement and to drop the lettering 8 we agree to dispose and not 9 system f or.
So I need to touch base with some people.
10 We have been trying throughout the day and we just 11 have not finished up.
12 JUDGE MILHOLLIN:
Very well.
Thank you.
13 MR. MC BRIDES Just to complete the understanding O
14 of the parties, the purpose of paragraph ten was to withdraw 15 those objections that we had previously raised and Licer.see 18 had previously raised Sith respect to testimony, arqaments 17 with respect to things like the Freedom of Informatica Act, 18 t he Privacy Act, and the Fifth Amendment and the like.
19 But the purpose of paragraph ten is to preserve 20 those, if you will, routine objections tha t one migh t make 21 in the course of a hearing such as the form of the question, 22 relevance of the question, attorney-client privilege and the 23 lik e.
()
24 JUDGE MILHOLLIN:
Very well.
That is quite 25 helpful by way of illustration -- by way of explanation of O
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1 the understandings.
2 MR. CLEWETTs One other informal agreement which 3 was reached during the same negotiations was to the effect
{)
4 that an informal discovery response that had been provided 5 to the Aamodts which indexed the employment history of 6 various reactor operators and senior reactor operators which 7 was indexed by a numbering system will be supplied to all of i
8 the signatories of this agreement, with some mechanism for 9 identifying the names of those numbered individuals.
10 JUDGE MILHOLLIN:
Very well.
11 MR. MC BRIDE:
I think we are completed, Judge 12 Milho111n.
I just wan ted to thank you for your indulgence 13 and say that the parties have negotiated in good faith over O
14 the last week and we certainly appreciate the opportunity to 15 negotiate with them.
16 JUDGE MILHOLLIN:
I certainly appreciate your 17 eff orts to reach an agreement.
I will study this and inform 18 you as soon as possible of my decision as to whether it is 19 acceptable.
l 20 MR. BLAKE:
Judge Milho111n, I should add to what 21 Mr. Clevett said.
Indeed we shall undertake to provide what 22 we have agreed to provide to the Aamodts by way of informal 23 discovery the employmen t history a nd we will undertake to'
}
24 coordinate that with the lettering system so that they know 25 -- it is really an auomented key we are p ro viding and we a re
(:)
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1 froviding it under the protective agreement which is 2 referred to in this stipulation.
3 I also want to alert you and the other parties.
{])
4 We have today, in order to preserve the stay on the 5 confiden tiality f or the moment, filed a request with the 6 Appeal Board to continue the stay which otherwise would run 7 out by the close of business today, the stay put in effect 8 by the Licensing Board, and along with that an appeal and a 9 brief in support of those.
10 Paragraph ten of the stipulation would say that we 11 would be dropping that appeal, but until I have it ratified 12 b y the individuals whom I need to touch base with, it is not 13 my intention to drop that until I can be a good faith O
14 signatory to this agreement.
15 The final observation that I would make about the 16 stipulation and have you consider overnight as you review it 17 with an eye on whether or not you will be able to approve it 4
18 is that the stipulation refers in it to a protective order.
19 There is no accompanying protective order.
20 What I would suggest, I think the stipulation 21 stands on its own and together with your approval and an 22 order from the bench that this will govern the proceedings 23 a nd an admonishment to the parties about needing to abide by
(
24 i t if it is approved, I think would suffice for my purposes 25 and to the extent you feel you need to put out a one-liner O
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=> ort 9totective oraer or co eir tioa or taie 2 stipu1Ltion thereafter, I think that would suffice.
3 It does no t look for another complete document
~~
' 4 entitled " protective order", but only your approval, your
~
5 ordering, in effect, the parties to abide by it and a 6 recognition on your part that violations of it will have to 7 be dealt with.
8 JUDGE MILHOLLIN.
After I study it I may have 9 questions about it which I will pose to you tomorrow 10 probably.
11 HR. MC BRIDE:
I do not expect to be here, Judge 12 Milhollin, but if you have questions I'm sure Mr. Blake or 13 someone on his team could relay them to me.
O 14 JUDGE MILHOLLIN:
If I have questions which 4
15 require your response then we will deal with that, I 16 suppose, when it comes up.
17 MR. MC BRIDE 4 All right.
Very well.
18 MR. CLEWETT:
Judge Milhollin, th e re is one other 19 matter which I need to report on, one other fruit of the 20 b re a k, which is that the Staff has agreed to provide the 21 test which was spoken of in the additional discovery request 22 b y this Friday, if there should be no unexpected problems, 23 and ' e verythinc; else in those requests by Tuesday at the
. 24' l a t est.
25 -
I understand that Ms. Swartz has not been able to O
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1 talk with the NRC people in Washingttn yet, but I would want 2 to add to that that this agreement is conditioned on her
(])
3 representation tha t th e pe o ple whose testimony would relate 4 to these matters would be on, a t the very earliest, the 5 Thursday of that week and we would like to note that to the 6 extent we do not have at least two days to digest these i
7 materials, that we would at that point make a request for 8 some rescheduling of witnesses or, if all else f ailed, for a 9 brief delay of the proceedings in order to be able to 10 understa nd these materials.
11 JUDGE MILHOLLIN:
All right.
I would like to, 12 bef ore we go on, perhaps I should say again to Mr. McBride 13 a nd M r. Cole, thank you for your efforts to resolve this 14 matter concerning confidentiality by agreement.
15 You both made appearances already in the t
1 i
16 proceeding and 1 assume -- you can assume that if further 17 communication with you is needed tomorrow or af terward tha t 18 we will make arrancements to include you in whatever 19 discusaions are appropriate.
20 MR. MC BRIDE:
Thank you.
21 MR. COLE:
Thank you.
22 JUDGE MILHOLLINs So, Mr. Clevett, you are 23 raporting to me that you sa tisf actorily resolved the timing 24 o f the responses to you discovery requests?
25 MR. CLEWETTs Yes, that is correct.
I
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1 JUDGE MILHOLLIN:
At least for the time being?
2 MR. CLEWETT:
At least for the time being.
3 JUDGE MILHOLLINa Very well.
(])
4 MS. SWARTZ:
Excuse me.
You did not indicate when 5 you wanted our supplemental testimony filed by.
6 JUDGE MILHOLLIN:
I think I said I assumed it 7 would be filed -- it would be presented by your witnesses as 8 they made their ca se in chief.
Would you like to propose a 9 suf ficient time period in advance of their appearance for i
10 the other parties to review the testimony?
11
- 53. SWARTZ4 I can endeavor to have the testimony 1
12 filed at the same time we file the answers to the 13 interrogatories.
For one reason, the answer to the
()
14 interrogatories may very closely parallel the testimony, the 15 supplemental testimony that is filed, which would be next 16 Tuesday.
And we do no t a n ticipa te, if the Staff 's case did 17 start at the beginning of next week, we would not anticipate 18 tha t the Staff witnesses who do testify on this particular 19 subject would begin until Thursday of next week.
20 So if we file it on Tuesday that would give the 21 parties and the Special Master two days to ao over their 22 testimony before they testify.
23 JUDGE MILHOLLIN:
Is that agreeable to the pa rties?
(}
24 MR. CLEWETT:
To the extent that any additional i
i 25 witnesses would appear at a reasonably late time in the O
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1 Staff presen tation, that should pose no problem at all.
2 JUDGE MILHOLLIN:
Very well.
So we will have the 3 same schedule for the te stimony as do the responses for
(])
I 4 discovery.
5 HR. BLAKE.
Judge Milhollin, we have had an 6 opportunity, and I think I can respond to your earlier 7 questions on the supplemental documents.
You asked whether 8 or not the information had already been provided or, if it 9 had not, that there micht be a need for additional documents 10 Your first request was specifically directed to 11 training materials which had formed the basis for Mr.
12 Wilson's judgments about individuals.
Your later request 13 in your later request you referred to training or 14 instructional materials and my recollection of the term you 15 used was used in the requalification exams which again have 16 been reviewed by Mr. Trunk and had played a role in his 17 determinations.
I 18 They are the same.
The ma terials tha t Mr. Wilson 19 used are the same as those that Mr. Trunk also viewed and 20 used and wha t we are talking about are training materials 21 which were used in the operators' qualification training 22 program and specifically those which relate to the Category I
23 T makeup examinations, which is the only place where they 24 have used training materials for this purpose.
25 Those materials relied upon by Mr. Wilson were I
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' oroviaea in ticensee response to reaueet nu her one oa 2 TMI A's first set of discovery requests of Licensee and they 3 were attachments to items ten, eleven and twelve.
That 4 response was dated October 15. I think that includes all of 5 it.
6 7
8 9
10 11 l
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1 JUDGE MILHOLLIN:
Very well.
2 Mr. Blake, I for a couple of reasons was unable to 3 transport all of the documents in this case with me to this 4 hearing, so it would be an accommodation to me if you could 5 put those documents together into a package and furnish them 6 to me as early as possible.
7 MR. BLAKE We will undertake to do that.
8 JUDGE MILHOLLIN:
Thank you.
9 The record should reflect also that you have 10 prepared at my request a chart which ind'icates the dates of j
11 examinations which were given by the Licensee and by the NRC 12 and the candidates who took the exams and a great deal of 13 o ther informa tion.
14 The char t does not include a statement of which of 15 the operators passed and failed the various examinations.
16 Perhaps when I requested you to put the chart together, I 17 neglected to ask you to do that.
I think that information i
18 would be useful to have, so my request is can you provide it?
19 MR. BLAKEa Yes, sir.
20 JUDGE MILHOLLIN:
Rather than setting a deadline, 21 I will just assume you will provide it as soon as you can.
22 I suspect that the relevance of that information will not --
l 23 let 's put it this way.
I suspect that that particular
()
24 information will not be relevant, if it does become 25 relevant, for some time, so you should have time to furnish O
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1 it, hopefully, before it is necessary to use it.
I will 2 just assume you will do it as quickly as possible, and you
[}
3 can just put it in as an addition to the chart.
4 I assume all parties have received the chart.
5 MR. ADLER:
I have not.
6 MR. BLAKE4 It was mailed in a package just last 7 Friday the 6th. To any parties that have not in fact 8 received it, there were several documents in the package and 9 I will undertake to provide another copy to you up here if 10 you will just alert me.
11 JUDGE MILHOLLIN:
I have received from the Atomic 12 Saf ety and Licensing Appeal Board an outline of an order 13 which the Board made today concerning the appeal from the O
14 Licensing Board decision on confidentiality.
I have an 15 outline of it here which the Licensing Board has requested 16 t ha t I read to you since this is the most expeditious way of 17 serving it on you.
You are all here and not in Washington.
18 First, the Appeal Board has stayed the licensing 19 Boa rd 's decision.
Second, the Appeal Board will entertain 20 brief s f rom the parties.
These briefs must be in the Appeal 21 Board's hands and delivered to the parties personally no 22 later than the close of business on Monday, November 16, 23 1981.
()
24 Oral arguments are to be held before the Appeal 25 B o a rd at 2:00 p.m.
Tuesday, November 17, 1981 in its hearing O
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're-eitta 11 or-z t-we=t to er= a=11aiao-
"1aetr 2 minutes will be allowed for arouments, as follows.
Licensee 3 and the involved individuals will share 30 minutes, TMIA and 4 the Aamodts will share 30 minutes, and the Staff vill have 5 30 minutes.
6 The Appeal Board mentions three questions which j
7 should be addressed in its brief s.
The first question is 8 this.
Why would the preservation of confidentiality through 9 the use of a protective order or in camera proceeding -- I 10 am going to start that again.
11 The first issue is as follows.
Why would the 12 preservation of confidentiality through use of a protective 13 order as in an in camera proceeding or an in camera hearing O
14 employing a lettering system adopted as an interim measure 15 either impair the ability to obtain all necessary l
16 inf ormation or result in any unnecessa ry invasion of privacy?
17 So the question is, to rephrase that, perhaps, why 18 would it impair the ability to obtain all necessa ry 19 inf ormation or result in any unnecessary invasion of privacy 20 to apparently use at in camera proceeding -- I am sorry.
21 Just strike all that.
I am going to have to do better, I 22 quess, a t reading this.
23 Number two:
Will the involved individuals give O
24 testimony before the Specie 1 xeeter if their nemes ere not 25 disclosed or if they receive other protection?
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1 issue number two.
2 Issue number three:
Are the reports of the NRC
,e 3 Office of Inspection and Enforcement indexed by names of 4 individuals so as to constitute a system of records within 5the meaning of the Privacy Act?
6 Because I have been unable to give you a clear 7 expression of issue number one, I will now promise to do 8 that in the morning.
The followino is not part of the 9 order.
That is the end of the order, the outline of the 10 order.
11 The Appeal Board will mail first thing Thursday, 12 tomorrow being a federal holiday for some people, the Appeal 13 Board will may first thing Thursday by Express Mail to me O
14 the orde r, which I should have by 3 or 4 p.m.
on Friday.
15 Are there any questions ?
16 (No response.)
17 I recognize that is not a very accurate rendition l
18 of issue number one, but I have promised to make a better l
19 a ttempt tomorrow morning.
20 So the upshot of this is that the Licensing l
21 Board 's decision is stayed.
l 22 A re there other preliminary matters?
23 MR. CLEWETT:
One such preliminary matter which is 24 still before us is th e join t mo tion by TMIA and the Aamodts 25 to exclude and reparate witnesses.
(
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1 JUDGE MILHOLLIN.
Yes?
2 MR. CLEWETTs We believe that it is important for 3 the various witnesses who are either put on the stand by th e
[}
4 Licensee or who will be called by the Intervenors but who 5 nonetheless work for Licensee to be under some form of order 6 so that they do not adjust their testimony as the hearing 7 process goes along.
8 Given the nature of this case and the position of 9 the Intervenors in it, it may well be necessary to build a 10 case through the use of at least some mosaic, and to the 11 extent that each person's testimony can be thoroughly 12 debriefed in a lengthy post-mortem af terward by other 13 witnesses who would be coming f orward at a later time, that O
14 will interfere considerably with our ability to search out 15 the truth of this matter.
16 It is for that reason that the motion which I 17 believe you have before you and the other parties have 18 bef ore them was written.
There are at least three separate
(
19 categcries of individuals who would f all within the coverage l
20 of this motion.
Perhaps the most important group are the 21 operators themselves, who are not as accomplished at givinq 22 testimony as perhaps some of the management people are and 23 w hose testimony could well be crucial.
24 There are also those management personnel who will l
25 be a ppea ring and we feel that as to them it is also O
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1 importan t that they not discuss with one another the 2 testimony that has been given and the testimony that is 3 about to be given.
{
4 And a third group, perhaps somewhere in between 5 the management and the operators, are the training people --
6 excuse me for one minute, please.
7 (Counsel for the Aamodts conferring.)
8 As to the tra'ning, as to the people involved with 9 training, there are Mr. Long, Mr. Newton and Mr. Brown.
We 10 are most concerned about having Mr. Long separated from Mr.
11 Newton and Mr. Brown.
If Mr. Newton and Mr. Brown were able 12 to talk with one another, that would not be as serious, in i
13 our view, as if Mr. Long were able to consult with them O
14 either during the testimony, if they should appear as a 15 panel, or sequentially if they should appear separately.
16 But as to all three of these groups, we feel that l
17 it is important fe hem to be under an order prohibiting 18 them from discussing what testimony has been given so as to 19 tailor f uture testimony to the f acts that have been alleged 20 a t that point in the hearing.
21 JUDGE MILHOLLIN:
Does each party have a copy of 22 t h e joint motion by TMIA and the Aamodts?
23 Does the Staff have any response to the motion?
(
24 MR. GOLDBERG:
Perhaps it would be more 25 appropriate for the Licensee to respond first since it is O
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1 their witnesses ve are talking about. I do have something to 2 say, but we would like to hear the Licensee first.
3 MR. BLAKE:
I have to start by observino that this 4 is not a very arguably drawn motion and I have considerable 5 confusion in trying to understand it.
I certainly 6 understand the thrust of it, and in general Licensee will 7 not be opposing.
My question has to do with how it works, 8 the extent of its working, and I guess I do not know, 9 because I do not intend generally to oppose the 10 sequestr ation, I do not know that it is important that I go 11 through each of the questions that are posed by this.
12 But let me say that the Licensee does not 13 generally oppose and understands in this setting in O
14 particular that sequestra tion may lead to what the Special 15 M aster believes is a more confident hearing record.
For 16 tha t reason and because that is in our inte rest as well, we 17 d o not oppose it.
18 I would ask for two exceptions to it, one of those 19 under the Exception No. 2 out of the Federal Rules of 20 Evidence, R ule 615, which allows for an officer or an 21 employee of a party which is not an actual person designated 22 as its representative by its attorney to be excluded.
23 With the breadth of our proposed witnesses and and
()
24 requested witnessed beyond tha t by the parties already in 25 the proceeding, you cannot wipe me out of some officer of O
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I the company for me to talk wi th, and my request is that you 2 exclude from any sequestration order under this exception 3 Mr. Arnold.
He is scheduled as our first witness.
4 It seems to me to do minimum violation to wha teve r 5 objective the parties have in mind in requesting and 6 insisting upon sequestration, and I must have somebody at 7 the company to be able to talk with, consult with and freely 8 discuss testimony.
9 JUDGE MILHOLLIN:
He is th e pe rso n you would 10 designate under Exception No. 2?
11 MR. BLAKEs Yes, sir.
12 JUDGE MILHOLLIN:
Exception No. 2 to Rule 615.
13 MR. BLAKE:
Exception No. 1 does noat apply to us, O
14 b u t Exception No. 3, a person whose presence is shown by a 15 party to be essential to the presentation of his cause.
I 4
16 would a sk, J udge Milhollin, that you except M r.
Wilson from 17 any sequestration order that you otherwise see fit.
t 18 Mr. Wilson, as his prepared testimony indicates, 4
19 has been involved virtually the f ull time in this ef fort.
20 H e is at the heart of providing all the documentation and 21 doing the in terviews.
He is necessary to me in order to try 22 this case as a valuable source of information.
I make no 23 other exceptions to our request under those rules.
()
24 I would like, though -- and I have not heard 25 bef ore for the splitting up of our proposed panel of
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1 training witnesses, which is new to me -- I guess I have not 2 heard a basis for it, for Mr. Long being split up from Mr.
3 Newton and Mr. Brown, and I would like to hear that basis.
4 JUDGE MILI;0LLIN:
Could you elabo rate further for 5 the necessity of having Mr. Wilson be excluded ?
Could you 6 elaborate f urther on your position with respect to Exception 7 No. 3.
That is the argument in f avor of the proposition 8 that Mr. Wilson is essential to the preservation of your 9 cause.
10 MR. BLAKE:
I would sta r t by obse rving that Mr.
11 Wilson -- my choice of how to be best prepared today at the 12 beginning of the hearing was to have Mr. Wilson sit next to 13 m e.
In the course of responding to your questions today 14 about information which we have provided in the course of 15 discovery and the exact identification and location of that 16 material, I have sought Mr. Wilson's assistance.
17 He has been involved in the preparation of all of l
18 our disccvery responses in the collecting and sorting and 19 organizing of ma terials in preparation f or this case.
There i
20 have been a lot of materials which have exchanged hands.
I l
21 think we individually are f ar and away the greatest 22 contribu tors to the paper that you have indicated several 23 times is dif ficult to get a grasp on, and M r. Wilson to me
! ()
24 has that best grasp.
25 JUDGE MILHOLLIN:
The subject upon which M r.
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1 Wilson is going to testify consists of, as I recall, his 2 inferences based on Mr. Trunk's report and Mr. Wilson's
()
3 investigations of materials which are appro priate to those 4 inferences.
That is, Mr. Wilson has looked at the results 5 of Mr. Trunk's report, he has looked at the training 6 materials, he has interviewed the operators, and he has 7 drawn inferences from that basic information with respect to 8 whether they cheated or whether they didn 't, as I recall his 9 testimony.
10 MR. BLAKE4 At least a portion of his testimony, 11 y es.
12 JUDGE MILHOLLINs That is an important part of his 13 testimon y.
And you would propose that Mr. Wilson be allowed O
14 to remain in the hearing room the entire time, is that right?
15 MR. BLAKE:
Well, I would certainly want that 16 option, and I had, q uite f rankly, an ticipa t ed that he would 17 be with me.
I 18 JUDGE MILHOLLIN:
Well, perha ps before we go 19 wan ted to get a more detailed statement from you of your 20 ground for making the claim under Exception No.
3.
It might 21 be good now for us to turn the forum over to Mr. Clevett and 22 let him respond.
23 MR. CLEWETTa We would, first o f all, commend the 24 Licensee f or its generally accommodating attitude toward 25 t his request.
Our response will attempt also to be O
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1 accommodating.
2 To begin with, we find no problem with Mr. Arnold
)
3 being able to be outside of this sequestration system.
As 4 to M r. W ilso n, we are most concerned about discussions 5between Mr. Wilson and Mr. Trunk.
We would certainly not 6 vant Mr. Trunk to be in the hearing room when Mr. Wilson 7 testified, and there is also some concern as to the effect 8 that Mr. Wilson's presence later on in the proposed schedule 9 of witnesses when M r. Trunk appears, might have some 10 intimida ting effect on the testimony of Mr. Trunk.
11 The main reason we would want Mr. Wilson included 12 is so that he be completely separated from Mr. Trunk, a r.d 13 perhaps some arrangement could be worked out so that he O
14 could be hear during the hearings with the exception of the 15 appearance of Mr. Trunk.
16 JUDGE MILHOLLIN:
Yes, that is why I suqqested we 17 consider what Mr. Wilson's testimony would be.
That 18 possibility occurred to me as well.
If that is your 19 suggestion, then perhaps it is appropriate to ask Mr. Blake 20 how he reacts to it.
The suggestion, as I understand it, is l
21 tha t Mr. Wilson be allowed to remain for the purpose of 22 assisting you except when Dr. Trunk testifies.
Is that 23 righ t, Mr. Clevett?
24 MR. CLEWETT:
Yes.
25 MR. BLAKE4 I guess I would like an opportunity to
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1 think about that.
2 JUDGE MILHOLLIN:
Very well.
3 This leaves us, I think, with the question of 4 whe ther the panel device is going to be used as an exception 5 to the general rule against -- well, rule of sequestration.
6 Is it your position, Mr. Blake -- well, could you tell us 7 what your position is on that?
I think that is outstanding, 8 isn ' t~ it ?
I am not sure you have made up your mind what you 9 think about tha t.
10 MR. BLAKE:
Well, I had not heard the basis.
11 JUDGE MILHOLLIN:
I am sorry, you a re right.
Your 12 response was that you would appreciate hearing the basis for 13 Mr. Clev ett 's request.
Very well.
O 14 HR. CLEWETT:
Dr. Long is the head of training for 15 all of GPU, as I understand it, and is closely tied with 16 management.
By contrast, Mr. Newton and Mr. Brown are much 17 closer to the events of interest in these proceedings and we 18 are interested in attempting to foreclose the possibility 19 tha t the presence of Dr. Long will color the testimony of 20 all three of them, when in fact if they were to appear 21 separately, it would be possible to examine whether there 22 are diff erences of recollection or differences as to what 23 perceived policy is and matters of that nature.
That is the
()
24 basis on which we wish these particular individuals to be 25 sepa ra ted.
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1 (Pause.)
2 MR. BLAKE:
Let me react to both, Judge Milhollin, 3 first on the training people.
As I understand it, it is the
()
4 potential for intimidation by Dr. Long of the two.
5 MR. CLEWETT:
Not so much the question of 6 intimidation as that the others might defer to Dr. Long, who 7 is at the same time more closely tied with management and 8 less f amiliar with the relevant particulars that we might be 9 interested in discussing.
10 And our concern is that his presence would, not 11 necessarily as a matter of intimidation but by a matter of 12 def erence, perhaps, would tend to color the testimony of all 13 of them and would at the same time make it impossible to O
14 discover whether there were any conflicting opinions or 15 recollections or judgments or understandings, because of the 16 f act tha t they would all be there at the same time and would 17 be able to discuss their answers bef ore giving them.
18 MR. BLAKE:
No, that is not the way panels worked 19 in the last setting, and I doubt that Judge Milhollin 20 anticipates that we will have a huddle after each question 21 among panels of witnesses f ollowed by one individual 22 responding.
I had not proposed that and I had not 23 anticipa ted that that would be the case here, and although
()
24 several people appear together, I do not see the need for 25 consultation in between questions.
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1 If that is the nature of the concern, I will 2 instruct my witnesses to avoid that before they appear, 3 remind them of the instruction which they have gotten
(}
4 p reviously in this proceeding.
5 JUDGE MILHOLLIN :
With respect 'to the panel 6 question, which is the last one posed, it seems to me that 7 there is a strong policy in the Federal Rules in favor of 8 granting sequestration when it is requested for the purpose 9 of preventing one witness from forming his or her testimony 10 o n the basis of another witness's testimony.
It is a clear 11 policy.
It is in many cases available as a matter of i
12 absolute right.
13 So in my view it would take a fairly streng O
14 showing to overcome that clear policy in the Federal Rules.
15 I think the only showing which can be made in the. case of 16 the panel is that the panel is convenient because we have 17 three people there at the same times if one of them does not i
18 know the answer to a question, another one can provide it.
19 T ha t really is the justification for using the panel system 1
20 in our hearings.
21 I will have to find that the convenience of havinq 22 the three witnesses present must give way to the policy in 23 f avor of sequestration and the prevention of the possibility
()
24 of f orming testimony because I find the policy is very clear 25 in th e Fede ral Rules.
And the convenience -- I guess again O
ALDERSON REPORTING COMPANY,INC.
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1 I am repeating myself -- the convenience of using a panel is 2 simply not strong enough to prevent the policy in favor of 3 sequestration f rom applying to the last question.
4 With respect to the other one, I take it that you 5 are going to continue to think about that.
6 MR. BLAKEs Yes.
My problem is that I have to 7 determine f rom Mr. Wilson, just as a centractual matter with 8 Mr. Trunk, where he stands, whether or not he has received 9 everything at this point or needs to have M r. Trunk do more to or established another contact. I do not really know what 11 the ramifications are of that request.
12 I guess, Judge Milhollin, it really had not 13 occurred to me that a professor with Mr. Trunk's background
()
I 14 might be intimidated, as ha s been suggested, by Mr. Wilson's 15 presence, and I really had maybe overestima ted my ability to 16 g e t my two meager requests met.
I am taken aback at the i
17 moment with respect to Mr. Wilson vis-a-vis Mr. Trunk, and I 18 would like some time to think about it.
19 On the training witnesses, though, we will have to 20 undertake now some sort of mechanical change in the 21 testimon y to accommoda te your order.
22 JUDGE MILHOLLINs I realize that that does create 23 a mechanical problem.
As I said, I do not think utider the
()
24 Federal Rules I have much choice.
It is a clear decision.
25 MR. BLAKE4 No, I understand.
I guess I would O
I l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON D.C. 20024 (202) 554-2345
23,543 1 like to hear more from you on sequestration and how it is 2 you would have it work or wha t instructions you would have 3 me give individuals who are subject to sequestration, how
,s 4 you would have me conduct myself with regard to them.
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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JUDGE MILHOLLIN:
That is a topic we have not even 2 discussed yet.
So f ar we have only -discussed the question 3 of which persons should be excepted from a possible l
4 sequestration order.
5 As you point out, there are a number of other 6 questions.
7 MR. BLAKEs They are not unrelated, at least in my 8 own mind, about what I would say about Mr. Wilson.
9 JUDGE MILHOLLIN :
Perhaps I can give you some 10 notion of what I would have in mind by way of an order.
11 That is certainly a fair request.
12 First, I think at a minimum, of course, and the 13 easy thing comes first, and that is no witness other than O
14 the one tes tif ying would be in the hearing room except for 15 the e xce ptions.
When a witness is testifying, no other that is 16 prospective witness could be in the hearing room, 17 the first point -- unless that witness in the hearing room 18 were sub ject to an exception.
19 MR. BLAKE:
Okay.
20 JUDGE MILHOLLIN:
If you have responses you can l
l 21 m ak e then as I go down the list or you can save them until 22 the end.
23 MR. GOLDBERG.
Judge Milho111n, I did want to be O
24 hea rd on the issue.
I do not have too much to say but I did 25 want to be heard.
Maybe it would be inappropriate before O
4 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
23,545 1 you outline your rulings.
2 JUDGE MILHOLLIN:
All right.
3 MR. GOLDBERGs I do not have too much to say about 4 the merits of sequestering the Licensee's witnesses.
I 5 would like to point out, though, just for consideration 6 purposes, that I do not believe the Federal Rules of 7 Evidence are controlling.
I think they should provide some 8 guidance to the Special Master as to what might be the 9 correct ruling, but they are not binding on this to administrative tribunal.
11 One particular concern that I do ha ve, however, is 12 with respect to the requests toward the end of the motion to 13 have the Special Master direct witnesses to refrain from 14 reading newspaper accounts of the hearing until the witness 15 is finally excused.
And I would just like to urge some 16 caution in deciding to order that particular aspect of the 17 r eq uest.
18 I do not see any basis for that even in the 19 Federal Rules of Evidence where they are strictly i
20 applicable, and I believe that there is a strong possibility 21 of inf ringing upon someone's constitutional rights if such l
22 an order were granted.
23 3R. ADLER:
While we are at it, I have a few brief 24 comitents.
We agree with the general thrust of the request 25 f or sequestration.
We also agree in general with the O
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1 principle of both Mr. Arnold and Mr. Wilson being excepted.
2 However, I want to emphasize our agreement with the need to 3 sequester Mr. Wilson f rom Mr. Trunk.
4 In the Commonwealth's view, the independence of 5 the analysis between Mr. Trunk and Mr. Wilson is a critical 8 issue in this proceeding and we believe that the integrity 7 of that process needs to be maintained.
8 JUDGE MILHOLLIN :
So your position is that you 9 would be in favor of requiring Mr. Wilson to leave the room 10 when Dr. Trunk testifies?
11 MR. ADLER:
That is correct.
12 JUDGE MILHOLLIN:
Very well.
I 13 We are now back to taking up the individual parts 14 of this motion, I believe.
The first portion of the motion 15 ref ers to excluding all Licensee witnesses from the hearing 16 room during the course of the reopened proceeding.
Of 17 course, it is always possible to find in words something 18 which one does see for the first time, but I would assume 19 tha t that would be granted as a normal constituent part of 20 a ny sequestration order, that it is standard to exclude all 21 witnesses except for the one testifying and the other 22 witnesses who have been excepted.
23 MR. BLAKE:
And let me ask, as I go along,
()
24 cla rif ying questions, Judge Milho111n, because we stand a 25 good chance of getting goofed up here with as many people as O
ALDERSON REPORTING COMPANY,INC.
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2 3,5 f4 7 1 we are talking about.
2 Is it meant by that, that is insofar as you adopt 3 this in your order, that that applies to all of those 4 individuals that we have proposed as Licenses's witnesses j
5 and all of those people who you have identified as 6 potentially a witness on behalf of the Special Master, and 7 all of those witnesses who TMIA or the Aamodts have 8 identified as well as a potential witness?
9 JUDGE MILHOLLIN:
Yes, unless you ask for relief 10 with respect to a particular individual.
11 MR. BLAKE.
Okay.
12 JUDGE MILHOLLINs There is no var for me to invent i
13 a work formula which subdivides the categories of 14 prospective witnesses unless you argue that there is a 15 reason for subdividing it some way.
So the answer is, 16 unless you argue that there is a need for excepting 17 additional prospective witnesses, then all witnesses, all 18 persons who have been identified as prospective witnesses, 19 would have to be excluded.
20 The second part of the motion is that these 21 witnesses be kept separate and apart from each other while 22 waiting outside the hea ring room.
23 MR. BLAKE:
Is tha t an element which you are O
24 considering granting?
Is that what you meant -- I thought 25 you were goino to identif y what you had in mind in a O
}
ALDERSON REPORTING COMPANY. INC, 400 VIRGINTA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
23,548 1 protective order.
[}
2 JUDGE MILHOLLINs I guess I have just switched.
3 Let me say -
perhaps I could say -- perhaps I should say to 4 you what I was considering g ra n tin g.
The first one I am 5 considering granting, that is exclusion of the hearing room 6 of witnesses other than the witness testifying.
It seems to 7 se that is clear.
8 Second, I think there is another provision which 9 is fairly standard and f airly clear, and that is a 10 prohibition against communication by witnesses with other 11 witnesses.
That is, no person appearing as a witness should 12 discuss his testimony with any other person who may be a 13 witness until the record is closed.
That includes witnesses 14 who have already te sti fied.
15 That would prevent a witness who has testified 16 f rom speaking to another witness who is a prospective 17 witness and it would prevent two witnesses who have already 18 testified f rom conversing with each other if there is a 19 chance that either of them might be recalled.
20 I think those prohibition are simply constituent 21 parts of the general policy.
But I am certainly sitting 22 here waiting for you to argue the contrary if you find that 23 is too broad.
()
24 MR. BLAKE:
In your mind it attaches to 25 individuals once they have testified in order to preserve ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 i
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1 that testimony and so as not to have tha't testimony 2 influence subsequent testimony by a second' individual. If'
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3 you grant this order tonight it does not have any impact on O
4 these individuals who are now prosp'ebi've witnesses until' 5 after one of them has testified, issthat true ? Is tha t \\the
's 6 way it works?
Is that what you have l'n mind I guess is what 7 I am really asking, because I --
8 JUDGE MILHOLLIN:
I suppose it would be possible, b 9
HR. BLAKEs I would have trouble doing business,?'
3 10 f or example, with the breadth of witnesses and all of them 11 working together virtually every single day and having 12 discussions of these subjects.
These subjects are not just 13 being discussed in the hearing room.
We are trying to get' O'
14 up and down in management.
We are trying to find out 15 ourselves.
16 Goodness gracious.
If you stop us from talking I 17 do not know whether we can do business.
So I am really 18 trying to pin down exactly what you have in mind.
(
19 JUDGE MILHOLLIN:
The normal assumption is that t
l 20 bef ore the hearing starts the witnesses have already been.
21 able to talk with each other as much as they want.
22 MR. BLAKE Sure.
23 JUDGE MILHOLLIN:
So as a practical matter it is s
O 24 very hard for a judge to prevent people from talking to each 4
25 other before the case starts.
It would be, I suppose, O
ALDERSON REPORTING COMPANY. INC, 400 V:RGINIA AVE., S.W, WASHINGTON. D.C. 20024 (202) 554-2345 '
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23,550 1 conceivable that I could order, as of this minute, no
{
2 persons who are prospective witnesses could talk to each 3 other about their testimony.
O 4
I wa s no t thinking of doing th a t.
I was thinking e
,t 5 only of ordering people once they testify, so I am sorry.
6 Thh t was not well said.
I was thinking that the order would 7 at, tach to witnesses who have testified, although obviously
<q 8 the spirit of the policy would reach people, neither of whom 9 have ' testified yet.
'10 So I guess my response to you is I am not sure
~
11 about-the exact dimensions of what I should order on that i
12 subject, but it would certainly attach to anyone who has i
13 testified e E
14
'MR. BLAKE:
May I ta k e a moment, Judge Milhollin?
.15
_ JUDGE MILHOLLINs Sure.
1G (Counsel for the Lice nsee conferring. )
MR. BLAKE:
Thank you, Judge Milhollin.
17 I
18 JUDGE MILHOLLIN:
Mr. Blake, let me suggest i
l 19 something.
It is getting late.
We know what the subject on i
20 the agenda is.
I think we have already managed tC identify l
21 some of th e problems which are attached to this idea of 22 sequectr ation.
23 It might be in the interest of a better resolution
(
24 for us to think about it overnight and make arguments on the 25 subject in the morning, unless you would prefer to persist l
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I 23,551 1 now.
2 MR. BLAKE:
Gee, if you could just identify, maybe 3 I will keep quiet wi th my clarifying questions or whatever, 4 just identify what it is you have in mind and how you were 5 coing to impose the sequestration.
It migh t allow me to 6 f ocus my thoughts, Judge Milho111n.
Tha t is really why I 7 asked initially.
8 JUDGE MILHOLLIN:
I would say we have several 9 dif ferent questions.
First of all, who can be in the 10 hearing room ?
We talked about that.
11 The second question is what can people do outside 12 of the hearing room.
We just began to talk about that 13 subject.
We have already disposed of the question of who is 14 excepted from the arrangements.
L 15 I think those are really the principal issues 16 except for reading the newspaper.
I am sorry.
There is one 17 more request Ly the Aamodts which is that there be an l
18 individual a ppoin ted to act as a hea ring officer whose duty l
l 19 it shall be to ensure that the Special Master 's o rder is l
l 20 enf orced.
That subject will have to be addressed.
l 21 I was -- ny inclination was to grant the motion, 22 a t least with respect to the question of who can be presen t 23 in the hearing room.
And a t least wi th respect to the 24 exten t that a witness already testifying would be prohibited 25 f rom discussing his testimony with any other witness,
' O ALDERSON REPORTING COMPANY,INC, 400 V'RGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
1 23 ASS 2 1 prospective or
- well, any other prospertive witness.
2 I was inclined to grant the motion at least in i
3 those two respects and I was inclined to instruct attorneys 4 not to engage in any communication which would tend to 5 undermine the spirit of the prohibition against i
6 communications by witnesses which would be -- I suppose tha t 7 is a fairly obvious corollary of the prohibition against t
8 witnesses.
9 That is really all I had decided on or those are 10 the -- tha t is the extent of my inclinations up to now.
11 With respect to how far -- with respect to the 12 s co pe o f th e prohibition before a witness testifies, I will 13 have to admit my mind is not at all made up on that and I 14 think that is a difficult problem and I am not sure what the 15 answer to it should be.
16 So I would invite you to think about it and make
{
17 arguments on that subject.
Possibly tha t is another subject l
18 which could be worked out through our very effective l
19 practice of negotiation among the parties.
I think I have 20 told you about as much as I can tell you.
21 MR. BLAKE:
I will be prepared in the morning j
22 again to address this subject of sequestration.
I 23 JUDGE MILHOLLIN:
I have omitted to announce the O
24schedu1e or waere we ere meetiae orricie111 I ess==e l
25 everyone knows that to avoid any problems a t the last O
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1 minute, let me go through the schedule which I have.
2 We will meet in this room tomorrow and we will 3 meet in this room en the 14th and on the 17 th of this
. O j
4 month.
On the 12th and the 13th of this month we will meet 1
)
5 at a different place, the Skyways Motor Inn.
Perhaps a 6 party could supply the address of that establishment.
I do l
7 not seem to have it right here.
8 MR. ADLER:
Judge Milho111n, I believe it is on 9 Eisenhower Bouleva rd.
I am not sure. I could certainly 10 provide it tomorrow morning.
l 11 MR. BLAKE:
It is on Eisenhower Boulevard, and it 12 is ph ysically located adjacent to Pennsylvania Exit 19, 13 which is the Harrisburg-East exit, the confluence of that 14 and Eisenhower Boulevard and 283, where it makes a 90-degree 15 turn.
l i
16 JUDGE MILHOLLIN:
Yes, yes. That is where it is.
l 17 On the first I am sorry.
On November 18, 19, i
18 20, and 21 we will maet in the Honor Suite in this building I
19 a nd if the hearings continue beyond those dates we will mee t 20 also in the Honor Suite on December 1, 2, 3, and 5.
On 21 December 4 wo will meet at the Holiday Inn downtown, Second l
22 and Chestnut Streets in Harrisburg.
l 23 Hearings will begin at 9:00 in the morning and run O
24 uat11 s 2o ia the evea1ao-
^= rou cea see, we aeve droxea 25 the rule already for today.
O ALDERSoN RE*ORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
23,554 Q
1 Any f urther matters which any party wishes to 2 advance at this time?
3 MB. BLAKEs I would like to talk a little bit O
4 4 about tomorrow.
Mr. A rno1d has been here today patient 1y 5 awaiting the discussions of counsel.
He is our first l
6 proposed witness. I take it that a11 we have to do tomorrow 7 mornino is to hear f rom you, Judge Milho111n, on the 8 confidentiality stipulation and your views on that, and a 9 report f rom me on whether or not I have been able to get the to ratification from the individuals that I need.
11 JUDGE MILHOLLIN:
Yes.
12 MR. BLAKEs We also need to wrap up the 13 sequestration subject and other than those two, we are 14 prepared to go with Mr. Arnold and on to Mr. Hukill and the 15 ord er of witnesses.
16 JUDGE MILHOLLIN s That is my underntanding.
The 17 only other matter which may be necessary to address is a 18 more coherent rendition of the Appeal Board 's order.
19 MR. BLAKEa Okay.
And a fina1 prospect, at least, 20 is whether or not we are going to an ticipate getting 21 individ uals in here right on the heels of our testimony or 22 af ter the Staf f 's testimony, that is, the individuals that 23 TMI A or th e Aamodts ha ve indicated that they would like to O
24 ce11 1f in f ect you do not ce11 them.
25 The timing of tha t as we11 I think you were going O
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1 i
1 to think about.
2 JUDGE MILHOLLIN:
Yes, I think perhaps that 3 subject is one which would be best to think about.
I do not 4 think it has to be decided right away.
In fact, we do not 5 really have to decide -- well, perhaps we do.
I was 1
6 thinking it might be possible to put off the decision on i
7 sequestration with respect to the parts of it which do not 8 involve exclusion of witnesses f rom the hea ring room if it 9 were expeditious to simply begin teistimony.
10 If I could not decide quickly we could still begin I
11 testimony, simply by excluding witnesses.
l 12 MR. GOLDBERG Does the 9:00 to 5:30 include 13 Saturdays?
i 14 JUDGE MILHOLLIN:
Yes.
At this time --
15 MB. MC BRIDES Could I be heard for one moment.
16 Since I will not be here the balance of this week ind next, 2
" I assume because of th e proposed set of witnesses the 18 Licensee and the Staff, do you have any present sense as to 19 when you tight desire the testimony of the individuals Mr.
20 Cole and I represent?
4 21 JUDGE MILHOLLIN:
I would be surprised if we 22 reached those individuals this week, but you must realize I 23 am speaking now not in a prescriptive but in a pred$ctive O
24=oae-1 we=1d euess we 1 eat reech tae-aext eex, but e en 25 t ha t, I thin k, is questionable.
O I
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MR. MC BRIDE:
Okay.
The one other matter I 2 wanted to raise was we gave you a slightly marked up copy of 3 the stipulation and I think we were all ope ra ting under the 4 assumption a few minutes ago that we might have a clean one 5 to sign.
If we do not, do you have any difficulty in 6 proceeding with the stipulation tha t you have, or do you 7 prefer a cleaned up version?
8 JUDGE MILHOLLIN:
I may have questions about this 9 anyway.
This version is certainly adequate for me to make a 10 decision as to whether I approve it or to f ormula te 11 questions about it.
Your question is would I be willing to 12 sian this.
Is the problem that you will not be here to sign 13 the clean copy ?
14 MR. MC BRIDE:
I can certainly leave my proxy to 15 be signed if you prefer a clean copy to be ultimately used 16 in the proceeding.
17 JUDGE MILHOLLIN:
That will be be tter.
18 MR. MC BRIDE:
I will give Mr. Blake that proxy to 19 sign the cleaned up version.
I understood he was having it 20 typed up this evening.
21 JUDGE MILHOLLIN:
It will not delay any decision 22 by me.
23 MR. MC BRIDE:
Okay, thank you.
O
- 24 JUDGE MItH0tLIN:
The hearing is adjourned until 25 9:00 tomorrow morning.
t O
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1 (Whereupon, at 6:34 o'cicek p.m.,
the hearing was 2 recessed, to reconvene at 9 :00 o ' clock a.m.,
Wednesday, 3 November 11, 1981.)
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O
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(*.
NUCLEAR REGULATORY CO.*C4ISSIC'T
',,1 Ihi3 is Oc certify ; hat the attached. proceedings before the
- -w ATOMIC SAFETY AND LICENSING BOARD v'
in the matter of: METROPOLITAN EDISON COMPANY (THREE MILE ISLAND UNIT 1)
Date of ?roceeding:
November 10, 1981 Docket !!u= b er:
50-289 (Restart)
? lace-of ?receeding:
Harrisburci, Pennsylvania dere held as herein appears, and tha: this is the original transcrip:
, hereof for :ne. file of the Cocsission.
e David S. Parker Official Reporter (Typed)
O
)c (SIGNATJ2E C." REFCRC R) 1
.