ML20043J095
| ML20043J095 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 06/26/1990 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#390-10585 OLA-5, NUDOCS 9006270275 | |
| Download: ML20043J095 (34) | |
Text
4 Y
CRIG NA i
OFFICIAL TRANSCRIPT OF PROCEEDINGS l
t geggr.
Nuclear Regulatory Commission Florida Power and Light Company,
Title:
Turkey Point Plant (Unit Nos. 3 and 4), Facility Operating Licenses Nos. DPR-31, DPR-41 Docket No.
So-250-OLA-5, $0-251-OLA-5 Technical Specifications Replacement t
=
(OCADON:
Bethesda, Maryland DATE Tuesday, June 26, 1990 PAG 13: 67 - 98 l
ANN RIIEf & ASSOCIATES, IE.
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1612 K St. N.W. Suite 300 l
Mshington, D.C 20006 7-
+00627027D 90Q626 (202) 293-3950 r prs
($Doch 000v02?0 T.
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67 0
1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
...............x 5
In the Matter of
- Docket Nos. 5 0-2 50-O LA-5 6
FLORIDA POWER AND LIGHT 50-2 51-O LA-5 7
COMPANY
- Technical Specifications 8
Turkey Point Plant Replacement 9
(Unit Nos. 3 and 4) 10 Facility Operating
- - - - - - - - - - - - - - -x (Telephone) 13 Nuclear Regulatory Commission 14 4350 East-West Highway 15 East-West Towers 16 Bethesda, Maryland 17 Tuesday, June 26, 1990 l
l 18 The above-entitled matter came on for hearing 19 before the Atomic Safety and Licensing Board, at 2:00 p.m.,
i 20 pursuant to notice.
21 BEFORE ADMINISTRATIVE JUDGES:
22 PETER B. DLOCH, Chairman 23 GEORGE C. ANDERSON i
24 ELIZABETH B. JOHNSON 25
68 1
APPEARANCES: (via telephone.)
2 On behalf of the Applicant Florida Power & Light 3
Company:
4 HAROLD F. REIS, ESQ.
I 5
MICHAEL BAUSER, ESQ.
6 Newman & Holtzinger 7
1615 L Street, N.W.
8 Suite 1000 9
Washington, D.C.
10 On behalf of Intervenor Nuclear Energy 11 Accountability Project, and Thomas J.
- Saporito, 12 Jr.:
i 13 BILLIE PIRNER GARDE, ESQ.
14 Hardy, Milutin & Jones 15 500 Two Houston Center 16 909 Fanin t
l 17 Houston, Texas,77010 18 On behalf of the NRC Staff:
19 PATRICIA A. JEHLE, ESQ.
1 20 JANICE E. MOORE, ESQ.
I 21 Office of General Counsel
'1 22 U.S. Nuclear Regulatory Commission l
l 23 Washington, D.C.-20555 1
24 25
69 1-PROCEEDINGS 2
JUDGE BLOCH:
This is the Atomic Safety and 3
Licensing Board Panel.
We are holding a proces' ural i
4 conference in Docket Nos. 50-250-OLA-5 and 50-251-OLA-5, a
-j 1
5 case involving the Florida Power and Light Company Turkey.
6 Point Plant, Units 3 and 4, Technical Specifications 1
7 Replacement.
8 With me today are George Anderson and Libby
-9 Johnson.
I would like to have the parties identify 3
1 10 themselves for the record, please, beginning with Ms..Carde.
Eli MS. GARDE:
This is Billie Garde.
I'am on this
[
12 call representing Mr. Thomas J.
Saporito, the Intervenor, 13 and Nuclear Energy Accountability Project, the Inte'rvenor.
14 JUDGE BLOCH:
Mr. Saporito is not currently an 15 Intervenor.
16 MS. GARDE:
I understand.
I'm sorry.
17 JUDGE BLOCH:
For the Licensee?
18 MR. REIS:
Harold F. Reis.
With me is my partner 19 Michael Bauser, who has recently filed a notico of 20 appearance in this proceed).ng.
21 JUDGE BLOCH:
For the Staff?
22 MS. JEHLE:
With me is Janice 23 Moore.
1 24 JUDGE BLOCH:
Today we are primarily going to 25
-consider two questions derived from motions recently filed.
70 I
1 The first question is-whatner or not to grant an i
2 extension of time with respect'to'atandiry and the i
3 intimidation issues which Ms. Garde hhs requested in order 4
fto, as she says, fully represent her clients.
5 The second question is whether or not to dismiss 6
the case.
That question'has been raised in-a filing by the 7-Applicant.
8 MS. GARDE:
When was.that filing?
j 9
JUDGE BLOCH:
You don't have that?
j 10 MS. GARDE:
No.
. hat was the date of that filing, 11 JUDGE BLOCH:
W I
12 Mr. Reis?
13 MR. REIS:
The day of the filing:was June 22.
I l
14 believe that was last Friday.
It was served by mail'and'it 15 was addressed to Ms. Garde at both of the offices she 16-indicated in her notice of appearance;.that"is,.Appleton, 17 Wisconsin, and at'the law firm-of Hardy, Milutin'& Jones.
18 MS. GARDE:
I am in the Wisconsin office and-I i
19 have not received it here.
I talked.to my Texas paralegal' l
20 yesterday and had~her go through my mail, and at least as of 21 the end of the day yesterday it wasn't in the mail stack 22 that she reviewed or I would have had her. send it overnight 23 mail.
So.I have not seen that pleading.
24 JUDGE BLOCH:
In any event, it is established that 25 you haven't seen that pleading.
1 71 1
I still would like to see if we can discuss these 2
questions today and then consider whether or not there might 3
be prejudice by'the fact of your not having seen the written 1
4 motion.
5 I would like to make a brief comment on behalf of 6
the Board so that the parties canLbe commenting on our 7
thinking process as they make their presentations.
As I 8
speak I am going to recommend that each party have ten 4
9 minutes subject to requests for extension if it is not 10 adequate.
t 11 The Board in considering Ms. Garde's motion feels 12 that there really are two outcomes that we favec.
One 13 possibility'is to~ deny the' motion based on the fact that.Mr.
14 Saporito had all the opportunity'you could-possibly imagine 15 to tell us both why NEAP has standing and why he was
)
l 16 intimidated.
There really was no ambiguity about our 17 request that he do that.
18 In addition, it appears that he had over 30 days l
l 19 after he was fired to inform us.
During all that time we 20 were deliberating on issuing an order that had to do with l
l 21 contentions as well as standing.
I guess we feel that there 22 was plenty of opportunity to let us know what the facts were 23 so that we would not be deciding issues in the blind.
24 Another possibility would be'to take basically the j
l' 25 same approach but to say that given that the no significant l
l
_j 72 l
I hazards determination has'been reached by the-Staff and the 2
possibility that the Department of Labor'could find that 3
there'was,an improper firing of Mr. Saporito in the present 4-instance that we could defer any further action on the' case 5,
pending the determination by the Department of Labor.-
6 There might be other possible outcomes'the parties i
7 might speak to, but I ask that they consider those.
8 Ms. Garde, will'you need a little bit of a break l
9 to consider what I have said, or would you like to begin 10 right now?
11 MS. GARDE:
Judge, I think I can-jump in right now 12 unless you want to hear from the other parties _first.
13 JUDGE BLOCH:
It would probably be best for us to hear from you tirst.,
14 15 MS. GARDE:
I.am in a somewhat difficult position 16 here and will make my best stab at representing my client i
l 17 given what you said the Board is leaning toward.
l 18 I wasn't advising Mr. Saporito on what he was 19 telling this Board on various matters throughout the course 20 of the last couple months, so I can't purport to represent.
21 what his reasoning would be nor have I questioned him on 22 that.
.I can represent that as these events were unfolding 23 and came to my attention Mr.-Saporito indicated that he was l
,24 afraid he was being_ fired and I indicated if he filed a 25 Department of Labor complaint he should contact me to i
l
l
-o-l 73 a
1 consider representation at that time.
l 2
In the context of one of those conversations he j
3 inquired about what to-inform this Board on these matters.
l 4
I simply tried to determine at that time whether these 5
l'ssues were before the Board and advised him that being that 6 ~
they were not before the Board that I was not sure if he
{
l 7
should be briefing the Board on all:the facts and i
8 circumstances regarding the firing because I didn't think i
9 that you would-rule on those-issues anyway.
j 10 JUDGE BLOCH:
Have-you read our order of April 25?
l 11 MS. GARDE:
I think I have read:through most 12 everything.
I honestly cannot tell you that I know the 13 record in this case well enough to say I even-know which 14 order you are referring to.
I certainly know that I read 15 things over the weekend and that had I been advising him at 16 the time-I would have said we have got to do a complete 17 filing.
I didn't read any of your orders or any of the 18 Staff or Applicant's pleadings in this case until the last 4
19 few days.
So I can't offer a defense on his behalf.
20 Are you still there?
21 JUDGE BLOCH:
Yes.
22 MS. CARDE:
Did we lose somebody.
23 MR. REIS:
Applicant is here.
24 MS. JEHLE:
Staff is here.
25 JUDGE BLOCH:
Ms. Johnson.
Is Judge Johnson here?
q
l 74 1
(No response.)
l 2
Judge Anderson?
3 JUDGE ANDERSON:
Yes, I'm here.
4 JUDGE BLOCH:
We_have lost Judge Johnson.
I want j
5
-to continue.- Will you hold for a second so I chn have my
.l 6
secretary see if we-can get Judge Johnson reconnected.
7 (Off the record.)
8 On the record.
9 JUDGE BLOCH:
Ms. Garde.
10 MS.' GARDE The point that I wanted to make Judge 11 Bloch is that I am not going to posture about why.Mr.-
12 Saporito did or did not do something.- I think that l
13 everything he did was in good faith. - In reading'this record 14 I am sorry that he didn't raise pleadings or arguments that-f 15 I would have made had I represented himrfrom the beginning.
16 However, I think that in1the last several weeks L
17 there have been fairly dramatic changes in the posture of' 18 this case and that the' events:as they were_ unfolding were 19 somewhat confusing to him and that only when he read;your 20 order of the-15th of June did he realize or.was it crystal i;
L 21 clear to him that he was'in a Catch-22 position.. At.that 22 time when he asked me for help and I started reading.the 23 pleadings it seemed to me that that'is what he needed.
24 I am making a good faith effort to give him the 25 best representation I can against circumstances that. frankly l
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a-
75 1
I didn't create or advise him on.
2 I think, given the posture of the proceedings, 3
given the no significant hazards determinatior,, that there 4
won't be any significant prejudice to the Board at least 5
letting me lay out in a manner that I think it needs to hear 6
what'the issues regarding standing'are.-
7 JUDGE BLOCH:
I guess I am still troubled that we 8
were pretty clear in our order of April 25 that we wanted j
9 him to comment on his charges of intimidation.
We made 10 preliminary findings about the non-intimidation that we saw-11 and he chose not to respond to that portion of our order,.
12 which makes me think that he wanted us to make a 13 determination aside from that.
I understand him to be an 14 intelligent man.
I don't understand him to be-unable to 15 understand what we said in that order.
16 MS, GARDE:- I think Mr..Saporito'is.an intelligent 17 man.
He is not on the phone and I cannot speak for him as 18 to why he did not provide that response in responsa
- your l
19 order, which I agree was clear.
I can offer to brief that l~
i 20 if I am given the extension of time-and the opportunity to i
21
.do that and have you decide on whether or not there is any' l
22 basis for that.
But I can't' offer that explanation at this l
23 time.
l 24 JUDGE BLOCH:
I take it NEAP had all the l'
25 opportunity it needed to show whether it had standing based I
76
-i 11 on anyone other than Mr.-Saporito and it just did not show 2
that.
Do you agree with that' interpretation of the record?
I 3
MS. GARDE:
I' don't.
-I think that the request for 4
4 representation that he submitted by the other member of NEAP 1
5 did meet the request as it was framed.
I am not sure that 6-if I would have written that request for representation it 7
would have read that way, but I think there wasLan opportunity and he did comply with that.
I would argue 8
9 that.-
4 10 JUDGE BLOCH:
That is a question as to whether we l
11 made an error in our decision based on what we were told.
12
.This is not aside from what we were told?- We made an error 13 in interpreting-it?
14 MS. GARDE:
I would argue that, a
15 JUDGE BLOCH:
On that specific point, though, is' i
16 it just the material we had?
There woOld be no one else
~
17 additional, I assume, that we would have to hear about.
18 MS. GARDE:
If I had the opportunity,.and I would 19 ask in my filing to have the opportunity, to submit'more 20 information, I think-that Mr. Saporito, given what:I 21 understand on that aspect of-it, was being very protective
)
l 22 of his members and.their identity to the' detriment of-the 23 way the Board ruled on the basis of his comrdnnent to the 24 members or NEAP's commitment to the members of keeping 25 identities on membership confidential.
I.think that he l
E
=-
77 1
attempted to make a balance between giving the Board what it 2
needed to know and giving the members the protection they 3
needed and I think he made the call too close.
I would have 4
put in other affidavits.
5 JUDGE BLOCH:
Did you notice that in the affidavit 6
that was submitted the membership appeared to be for an 7
organization and not for the individual?
8 MS. GARDE:
Yes.
9 JUDGE BLOCH:
Do you still think there'is.
10 standing?
11 MS. GARDE:
I think there is on the basis of the:
12 facts that I know, but-I don't want to argue it right now, 13 mainly because I just haven't had a chance to read all the 14 case in order to feel comfortable with that.
15 JUDGE BLOCH:
Your argument was going to be that-16 it was on the facts that I know?
17 MS. GARDE:
Yes.
On the facts that you know, as-18 presented, I think that your ruling was fair.
I would want 19 you to reconsider it under an argument'that I would have, 20 but I certainly think that there was basis for it.
21 JUDGE BLOCH:
Is there anything else you would-22 like to say at this time?
23 MS. GARDE:
Only that I have laid out the facts-24 and I understand the position that my client is in.
I think 25 that given consideration of all of the circumstances in this
? *'
i 78-1 case and the fact that there would not be harm to the 2
proceeding that fairness would dictate the: Board lean in t
3 favor 1of-giving me an opportunity to' lay this thing out for' 4
NEAP and Mr. Saporito in.a manner more consistent with NRC 5
case law and the laws of standing that the NRC has~ applied.
l 6
JUDGE BLOCH:
Thank you.
7
-For the Applicant?
8 MR. REIS:
At the outset you indicated that the 4
9 Board is' leaning toward one of two possible actions with i
i 10 respect to the pleadings that are'before it.
One is to deny 11 standing and dispose of the proceeding'and the other is to 12 defer the-whole proceeding in light of the Department of 13 Labor proceeding and the fact.that a no significant hazards 14 determination has been made.
15 I gather from Ms. Garde's argument that'she wants 16 an opportunity to argue against either of those'possible H
17 resolutions of the matter.
I would urge the Board to 18 effectuate one of the two, possibilities that you mentioned
)
19 at the outset and not to entirely relitigat'e this whole i
20 proceeding.
21 We have got a situation in which the prot'eding j
1 22 was started more than six months ago.-
Expansive contentions.
I 23 were made.
Both of.them were either abandoned or dismissed.
24 We have gone to considerable effort to deal with this 25 proceeding.
3 1
79 1-As you have pointed.out, and I see no:need to i
2 belabor the point', Mr. Saporito has been given every 3
opportunity to get his views across, and I think the Board 4
has leaned over backward to deal' fairly with him.
5 the failure to advise the Board of the change of 6
circumstances seems to me to be inexolicable.
What Ms'.
7 Garde is now suggesting,' er I think she is going to be 8
suggesting, is essentially we now statt all over again with 9
her to help Mr. Saporito) despite the fact that FPL now has 10 the amendments in place.
T4.at is not the way to run a 11 serious administrative proceeding._
12 An intelligent person was given every_ opportunity-13 and it is quite clear he has-dropped the b'all.
He=is saying 14 now let me start over with more help than'I thought I-15 needed.
16 I suggest strongly that.the first alternative you l
17 mentioned be adopted by the Board.
18 JUDGE BLOCH:
Could you tell me what_the prejudice 19 might be of the second?
To the-Board the advantage _of the 20 second might be that we do risk dismissing this proceeding 21 at this time and then'later finding that the DOL determines 22 that Mr. Saporito was dismissed from his-job for the very 23 purpose of defeating this lawsuit.
i 24 MR. REIS:
There is that risk and I cannot i.;
i
'25-dissipate that risk entirely.
That risk always exists.
t
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k 80
(
o.
L 1
However, what is involved here, and the only thing involved, i
2 is if there-is an ultimate finding by the Department of 5
i 3
Labor down the road that FPL acted in a manner that is 4
clearly in-violation of the regulations, it will be subject 5
to very severe sanctions.
6 It is time the' Board will not have an opportunity, 7
but so far as the~ health and safety issues that are involved' 8
here, and conceivably environmental ones, there are 9
opportunities to deal with them.. Not before a licencing 10 board, but to' address them if they are really serious.
i 11 There is always the basis for taking sanctions against FPL 4
12 if, as I am very confident will not happen, ultimately it is 13 determined that FPL misconducted itself with respect Mr.
14 Saporito.
15 JUDGE'BLOCH:
Thank you, i
16 MS. GARDE:
Judge, I would like to' respond briefly i
17 to those comments.
18 JUDGE BLOCH:
Why don't we let Ms. Jehle argue 19 first and then I will give you a-brief' rebuttal and we will 20 see if at that point there is anything new that has to be-21 rebutted.
Ms. Garde, I would like you to have the 22-opportunity to rebut something that was new and not 23 expected.
(
24 Ms. Jehle.
'25 MS. JEHLE:
Judge Bloch, the Staff argued for and
~..-.,
a 81 1
supports the dismissal of the proceeding _ based on the facts 2
which are'before the Board and have been before the Board i
3 regarding Mr. Saporito standing.
Mr. Saporito has had ample l
4 opportunity to set forth information regarding his_ standing i
5 and that of NEAP.
The Board has repeatedly and clearly 6
requested any information.- Mr. Saporito-provided 7
information which-enabled the Board to come to'its decision 8
and any information that cculd have been presented should 9
have been presented earlier.
10 Furthermore, Mr. Saporito failed to notify the' il 11-Licensing Board of his changed circumstances, and this 12 argues against providing Mr. Saporito and NEAP an additional i
13 opportunity to present additional l'nformation.'
j i
14 JUDGE BLOCH: ~Thank you, Ms. Jehle.
)
15 Ms. Garde, was there new material that you need to 16 respond to?
17 MS. GARDE:- Two points.
One-to the Staff and one i
18 to the Licensee.
19 First~of all, Your-Honor, assuming that your April 20 25th order is the order in which Mr. Saporito dropped the 21 ball, if you will, in failing to respond with new 22 information, I think that because you don't know the facts 23 of when these events occurred and because Mr. Saporito at 24 the time that order was received was not in the position 25 that he now is in -- he wasn't terminated until the middle I
--a
(
l, 82-1 1
of May.
2 JUDGE BLOCH:
May loth; is that correct?
3 MS. GARDE:
That's true.
On April 25th and 4
shortly thereafter he hop 61 and believed with all of his
~
5 good faith that his job was going to continue.- He has got a 6
family to support and he hoped it was over, and he was 7
wiling to take the ruling of the Board and deal with that-i 8
from the Board's perspective and deal'with the issues in'the 9
Department of Labor context to the extent that they existed.
10 JUDGE BLOCH:
We specifically said that he sh'ould' 11 not have made charges that were'not documented.
That means 12 that anything prior to the time that he filed in responsefto 13 our April 25th order should:not be sail to us at the very; 14 least.
Anything prior to that that relates.to intimidation
-15 should be ruled out because he had plenty of time to tell us l
16 about that.
17 MS. GARDE:
Let's assume that-that is correct.
18 Let's assume that on the' basis of the Board's order he s
l 19 should not have breathed a word of what he had to say or 20 what he-believed was harassing, intimidating or conduct 21 violating his rights under the Energy Reorgani'zation Act, t
22' JUDGE BLOCH:- We never told him that.-
It~is'the-23 opposite, Ms. Garde.
What we asked him to do was,to tell us 24 why he'said he had been intimated.
He had already told us f2 in a filing that he was intimidated.
e e
i 83 1
1 MS. GARDE:
And-he supplied the information
-2 regarding:the. Butler letters.
3 JUDGE BLOCH:
The chronology is a little 4
different.
He gave us the Butler letters and said he was
)
5 intimated.
We had the prehearing-conference and it didn't j
6 come up again, and then subsequently he filed a motion to 4
7 withdraw as a party.. In that one lua again' alleged t
8 intimidation and never said what he thought it was.
9 MS. GARDE:
Are you asking me to respond?
This is j
-10 not what I consider new information.
I understand what Mr.
11 Saporito was trying to do.
.I understand why~he didn't raise 12 it.
To the extent that the Board thinks he made an error, 13 it was a good faithJerror of him trying to sort =out who was 14 responsible for making what decisions.
I can't defend what 15 he didn't do or what he did do or how he read the besrd's 16
. order given'the nature that the Board is-looking at it in.
17 now.
18 JUDGE BLOCH:
Isn't.what he did was to decide that i
19 he would place his own personal interest'in the DOL suit 20 over.the interest of. fully proseccting this safety. matter?
21 MS. GARDE:
The intimidation issue in the context 22 of the Licensing Board, yes.
23 JUDGE BLOCH:
He decided that.he would place his 24 own personal interest in the DOL suit above NEAP's pursuit 4
25 of this case.
e 4
-..,e..--
.e
4 84 1
MS. GARDE:
No.
That is not what he decided.
He 2
decided'that to the extent he had any issues with the 3
Licensee on the Butler letters he would pursue them thrvegh 1
4 the Department of Labor and he would pursue the technical
)
5 issues through the Staff and he would' keep his mouth shut on 6
the intimidation aspect of what happened to him and take his 7
chances in the Department of Labor proceeding.
He made that' V
8 decision without the benefit of counsel.
Set that aside and 9
assume he has to live with that decision.
That decision was 10 before he was terminated.
11 JUDGE BLOCH:
We were faced with his request to l
l 12 withdraw from this case and we really went overboard to be 13 able-to allow him to say "I really don't mean that."
14 MS. GARDE:
I can see that in your orders.
He 15 didn't see that in your orders. 'That is the state of.the 16 World as it is.
I have read more of your' orders.' I l
l 17 understand what you meant by your~ orders.
He did not.
Now l
l 18 that I have spent enough time with him and,enough time with l
19 these pleadings I can see what happeried.
'20 I think that it would be an ircredible travesty of 21 justice, for all the pejorative taat that may raise, the 22 Licensee's argument that Florida-Power and Light will have 23 to take their. lumps from the Staff if ultimately Mr.
24 Saporito prevails that he was drummed out of a job by 25 Florida Power and Light influence for being an Intervenor in.
.-v
1 l~
l 85 L.
1 these proceedings.
I just don't1see how-the Staff could l
2 possibly defend the integrity of the Licensing Board given l
3 that that is essentially the charge that now is pending in 1
1 4
front of the Department of Labor.
Those two cases have been 5
consolidated.-
6
-I can see-a way that the Board could rule on part 7
of the two situations given Mr.'Saporito's dropping the. ball 8
in the first one.
Frankly, had he not been terminated, I 9
think that he would have kept his mouth shut about 10 intimidation, gone' forward'on the contention.and not turned 11 to this Board for any further remedy on the aspects of 12 intimidation.
I think.he was prepared to live with the
\\
13 Butler letter rulings even though.he disagreed,with them.
14 Frankly what turned his whole life upside down -- I don't-I 15
-know how else to say it.-- and made him seek legal guidance 16 was when he lost his job.
17 JUDGE BLOCH:
How do you deal with the delay that l
18 we had between May 10 and the time that we' issued our l
L 19 decision on June 177 He never told us that he had been 20 fired and he a31 owed us to live'in the belief that he still 21 had standing based on where he worked.
22 MS. GARDE:
Your Honor, I don't want to say I am 23 at fault on that, but I certainly bear some of the fault l
24 because I told him not to file anything until after I got j
25 down there and sorted out what had happened to him: Give i
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them your strong sentiment in your pleadings, but don't say
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t-,
2 anything about intimidation unless you are prepared to back j
3 it up.
I just told him that he'd better not~ file anything J
i-4 else with Judge Bloch until after.I have had an opportunity.
5 to review'his situation.
L 6
JUDGE BLOCH:
Well, he didn't have to charge-t 7
intimidation.
He could have just informed-us that he no 8
longer had that employment.
9 MS, GARDE:
And he should have.
In retrospect,'he 10 should have.
To the extent that that was an error in terms 11 of trying to sort out what was going on with the Department 12 of Labor proceeding, what was going on with'this case, we i
13 probably should have filed something immediately saying he i
14 had been terminated and he filed another charge.
We did.
i 15 not.
\\
16 Frankly, I could tell in your rulings that-you-17 were very stressed about his having filed the charge without l
18 giving supporting material and I didn't want him to say 19 anything else until after I was-convinced that there was l
20 some basis for his claim.
1 21 JUDGE BLOCH:
Mr. Reis, I heard you speaking-up.
22 MR. REIS:
I apologize-for having done so.
'I 23 misunderstood something'Ms. Garde said.
It is unnecessary.
24 for me to have interrupted..
25 JUDGE BLOCH:
I would like to ask the Staff a 1
e
87 1
question.
I-would like to know whether any of the questions 2
that have been raised in the order we issued relating to 1
3 possible safety issues are being looked at'by the Staff as
)
4 safety matters apart from this case.
5
.MS. JEHLE:
Yes, Judge Bloch.
We believe the 6
Staff is looking into the issues that you raised 1n your
~
7 order.
8 JUDGE BLOCH:
You believe it?-
9 MS. JEHLE:
Yes, we do.
10 JUDGE BLOCH:
But you don't know it?
11 MS. JEHLE:
That's correct.
Those-issues have 12 been brought to the attention of the Staff.
They are aware-13 of the order.
I believe that they are being looked into.
I 14 have not had that confirmed.
l 15 JUDGE ' BLOCH:
They are looking at it from that 16 standpoint and you don't know exactly what is being done; is 17 that what you are saying?.
18 MS. JEHLE:
I do not know exactly where.they have 19 gone with those issues.
20 JUDGE BLOCH:
I was anxious to have this call'be 21 in place of further paper filings on these issues.
22 Ms. Garde, how do you feel-about the need for you 23 to receive the motion to dismiss?
24 MS. GARDE:
I would sure like to see it.'
Since I 25
-have filed a notice of appearance, I would like to review
s 88 I
the pleading.
I haven't seen it.
So I can't address it.
2 Can I ask what the basis is? -Is the basis the fact that he 3
is no longer working at ATI and-therefore it should-be 1
4 dismissed since there is no standing?
5 JUDGE BLOCH:.That was part of it.
I-think they 1
6 also made some of the. arguments about opportunities to prove 7
things.
8 Mr. Reis,- maybe you could expand a little bit.
9 MR. REIS:
Essentially the basis for the motion 10 was that there was a material alteration of the facts, and 11 that is that as a matter of-fact, whatever the reasons, Mr.
12 Saporito no longer is employed within the geographical zone 13 of interest.
That essentially was the. basis.for it.
I 14 We pointed out'in our response to Ms.. Garde's 15 point that the whole issue of standing had been extensively 16 briefed throughout this case and a great deal of attention-17 had been given to it and that she would have an opportunity 18 to add anything,she might wish to add to the standing issue 19 in response'to our motion to dismiss.
There-is no need to-l 20 grant her extra time.
21 The clear basis of our motion to dismiss is that 22 the activity within the geographic zone of interest is no 23 longer there and to the extent that they-were arguing that 24 the he had been oushed out of the zone of interest by the 25 Applicant, this was being thoroughly litigated in the I
4 89 l'
Department of Labor, and'there was no reason to have dual 2
proceedings here on that basis.
3 MS. GAF DE:.I am not sure that there.is either and 4
I am not arguing that at this point.
Your Honor, Mr.
5 Saporito isn't tha only one who knew he had been terminated.
I 6
He filed a Department of Labor complaint almost immediately 7
on that issue.
8 MR. REIS:.
I would like to respond to that, Judge 9
Bloch.
10 JUDGE BLOCH:
Let Ms. Garde finish and then you' 11 can respond, Mr. Reis.
12 So there was an immediate notification?
13 MS. GARDE:
There was a-filing with the Department 14 of Labor and Florida Power and Light's counsel was notified, 15 I am going to say, within five days of the termination.
I 16 don't have the exact dates in front of me.
The Staff also 17 received a copy of the Department of Labor complaint.
18 There was an; initial determination against Mr.
19 Saporito essentially on a jurisdictional issue of whether or 20 not the Department of Labor had standing over a former 21
- employer, Judge Thomas has now ruled that the Department of 22 Labor does have.
So that issue is resolved.
23 I think what has changed is that neither Florida 24 Power and Light nor the Staff nor Mr. Saporito knew that 25 your ruling was going to be connected directly to Mr.
i 4
90 1
Saporito's employment only in the Miami-area and that when 2
that came out that really-just changed the importance of i
3 where Mr. Saporito was employed.
4 We wouldn't be arguing this now in front of you if 5
you had held' that the other affidavit that was submitted, or 6
statement of representation, was adequate.
7 I think the posture of it was that you-had told i
8 Mr. Saporito not to say anything about intimidation unless 9
he was-prepared to back it up.
I think everything'you'said 10 was correct and right and was keeping. control of proceedings 11 where emotions can run high.
I understand all that and I 12 don't disagree with it._
How that_was interpreted by Mr.
i.
13 Saporito in. terms of his current problem was "I shouldnft j
14 say anything."
Whether that1was right or wrong,1that is F
15 what he thought.
16 Given that everyone from our perspective,was l
l 17 looking at whether or not the Board was going to rule on the i
18 other statement of representation, not-just PON Saporito's, f
i 19 I think that that-is all-of a sudden now why this has become.
i 20 so important.-
If you,had granted' standing on the basis of i
l 21 the other members or on some other aspect and that Mr.
22-Saporito's standing didn't matter,-I am sure that we would i
23 have had to' weigh and evaluate whether or not to come back 24 to the Board and raise the issue of intimidation in the 1!5 context of this proceeding.
I am still not sure that.we l
1
~
.~.
L n
91 1
should or-that'we would for exactly the reasons that Mr.
2 Reis just said.
Frankly,-it is.really a' red herring to the 3
technical issues that are before the Board.
4 On the other hand, if the Department of_ Labor 5
ultimately gives a factual determination that Florida Power-6 and Light interfered with his employment and-effectuated,his 7
termination and then he lost standing, I,just don't.see how i
8 the Board'can tolerate that'in the context of-the state of 9
the record as it now exists.
10 As I said, I just got in the middle of this and I 11 have been swamped with other things and am doing the best I 12 can at this juncture to argue what my: client needs, which is -
13 time to restructure this.
. 14 I agree with Mr. Reis.
I have got a stack of -
i 15 paper here almost half a foot tall where the standing issue l
16 has been litigated extensively.
Notwithstanding all that, i
17 it has come down to one point: Mr. Saporito's employment, 18 which was terminated on what he alleges _Was Florida Power 19 and Light's interference and causing him to lose his-job.
20 JUDGE BLOCH:
Thank you, Ms. Garde.
21 Mr. Reis?
l 22 MR. REIS:
I really would like to express my l
23 displeasure and disappointment at one little note.that was.
24 in Ms. Garde's presentation.
That was the' implication that 25 we were somehow at fault and the Staff, although they can t.
.- =
j 92 I
1 speak for themselves, was somehow at fault in not informing t
2 the Board of Mr. Saporito's discharge from the job he.had in 3
Miami.
For one thing, counsel in this proceeding has borne 4
quite a bit of burden of accusations of being at fault.
Mr.
5 Butler is being exposed to it; I am being potentially 6
-exposed to it; and it is the first time that has happened to 7
me in 50 years of practice.
I do not like it and I don't j
8 want it implied.
9 Second, this pleading we filed,.which Ms. Garde 10 has not had, explains why we did not advise the Board, and 11 that is, we took Mr. Saporito's notice of withdrawal at face 12 value and it was no longer-relevant.
It only became 13 relevant because the Board gave Mr. Saporito'a second-14
- chance, 15 Footnote 6 of our motion for reconsideration, i
16 which Ms. Garde does not have, explains why we didn't inform 17 the Board.
'i 18 Footnote 5 explains another. mistake Ms. Garde 19 made.
The only basis for acceding to' standing was that job 20 in Miami.
That was expressly the Applicant's position in 21' its relevant filing and it clearly was the Staff's position.
22 I am finished.
Thank you.
23 MS. JEHLE:
Judge Bloch, the' Staff would like to 24 respond to Ms. Garde's comments.
.25 JUDGE BLOCH:
Please do.
a,
,r, nm-.
e
93 1
MS. JEHLE:
First, I would like to make clear that
~
2' Janice Moore and I were not served with a copy of Mr.
3 Saporito's DOL complaint.
Ms. Garde's letter of June 20, 4
1990, advised Janice and me of Mr. Saporito's discharge from 5
ATI.
6 We would also like to state that'the initial DOL' 7
determination seems to suggest a lack of intimidation..It 8
is speculation to talk of what the ultimate DOL decision 9
will be', but we would like to say that-if the DOL proceeding 10 were to result in Mr. Saporito's favor, he would be able to 11 file a motion to' reopen the proceedings at such time.
12 JUDGE BLOCH:: So'we could actually make it 13 explicit that there was nothing in our~ dismissal that would 14 preclude that.
15 MS. JEHLE:
Yes.
The Staff believes that's 16 correct.
17 JUDGE BLOCH:
Despite the fact that I promised my 18 Board I would make no rulings, the tentative ruling I would 19 like to make is that Ms. Garde.should have the opportunity 20 to respond to the motion to dismiss.
21 Judge Anderson, do you have any problem with that 22 ruling?
23 JUDGE ANDERSON:
No.
That ruling is fine with me.
24 JUDGE BLOCH:
Ms. Johnson, are-you back?
25 (No response.)
.. ~
l 94 1
That said, is there any other necessary business-2 before we conclude this call?
3 MR. REIS:
Just a minor matter of detail._ I 4
believe Ms. Garde would ordinarily have 15 days since we 5
. filed the motion and serviced by mail to respond.
That'was 6
June 22.
She apparently does not now have the motion.
How 7
much time are you going to give her?
8 JUDGE BLOCH:
Unless she files for an extension of
+
9 time, it will be the regular way of computation.in the rule i
10 book, which gives her five days for service, I believe.
11 MS. GARDE:
Right.
And I have a trial between now 12 and then.
I don't anticipate the need for-more, but I am 13 going to need all the. regulations provide.
14 JUDGE BLOCH:
I think you should have:the time-D 15-that the regulations provide.
It'could very well be that 16 most of the matters in response have already been-covered in s
17 this conversation.
That being said,-is there any further 18 necessary business.
19 MS. JEHLE:
Judge Bloch, the' Staff would like to H
20 know whether you contemplate a response-from'the-Staff?
21-JUDGE BLOCH:
How do you feel about the need for 22 the Staff to respond?
23 MS. JEHLE:
The Staff does not feel'it n,ecessary-24 to respond to Ms. Garde's motion.
25 MS. GARDE:
Do you mean in response to what I am 3
4 L
95 1
going to file or in response to the letter I filed?
2 MS. SEHLI: -We are not planning to respond to the 3
motion because'of what we have covered here, but we were l
4 wondering whether you were going to permit us to respond to 5
-Ms. Garde's response.
I 6
JUDGE BLOCH:
Are you talking about a response to 7
Ms. Garde's response to the motion to dismiss or are you 8
talking about a need to respond to Ms. Garde's motion for an 9
extension of time?
10 MS. JEHLE:
The motion to dismiss.
11 JUDGE BLOCH:
Do you want to respond to Ms.
12 Gardo's response to the motion to dismiss?
13 MS. JEHLE:
Could you wait one moment, please?
14 JUDGE BLOCH:
Yes.
i 15 MS. JEHLE:
The Staff will rely on its-arguments j
16 made here unless Ms. Garde presents new information, An 17 which case we may want-to have the opportunity to respond to 18 any new information raised.
19 JUDGE BLOCH:
If there is new information, in your 20 opinion, please notify me promptly upon receipt of Ms.
21 Garde's response.
22 MR. REIS:
I suppose, Your Honor, that goes'for us 23 too.
24 JUDGE BLOCH:
That's true, if there is enough new 25 information so that you would want to file a motion for
1 i
96 I
reply.-
1 l
I 2
MR. REIS:
I am a little confused.
I wonder if I' 3
can recapitulate the bidding so I am sure that everybody 4
understands where we stand.
The Applicant moved to dismiss S
the proceeding.
That's on paper.
The Staff is not going to
.l 6
file a response to that motion but,_and I want to be clear l
7 about this, has always supported it during this hearing.
Is i
8 that correct?
9 hS. JEHLE:
That's how I understand it.
i 10 J'IDGE BLOCH:
I think that is correct, Mr. Reis.
i 11 hR. REIS:
The only pleading that is now being.
--)
12 expected from_any of the parties is Ms. Garde's response to 13 the motion to dismiss.
14 JUDGE BLOCH:
That's-correct.
I have not granted 15 the motion for the extension of time that she filed.
If we 16 grant that, it will be by subsequent written' order.
17 MR. REIS:
I just wanted to be clear.
.i 18 JUDGE BLOCH:
I appreciate your helping us out.
I 19 Ms. Garde, you said you had another comment.'
20 MS. GARDE:
The only comment-that I wanted to make
{
21 was responding to Mr. Reis' being offended and_ disappointed 22 at my statement.
I wanted to make very clear to him that I 23 was not trying to in any way personally or p~rofessionally 24 insult either him or Mr. Butler.
This is a complex problem I
25 and I am trying to make sure that there is no inappropriate
.w' 97 1
personal or professional comments or charges here.
2 What I was trying to say, and I do want the Board 3
to hear me say this, is that I understand given the state of 4
the record why no one told the Board.
I offered an 5
explanation for why my client didn't tell the Board.
I 6
don't know youra, but I presume that it was similar in 7
nature.
8 It isn't as if Mr. Saporito is the only one of the 9
three parties that were on this phone call that was aware of 10 his being terminated.
Janice, I know the Staff lawyers' B
11 don't get notified about these DOL cases.
I said that the gg 12 Staff routinely gets them served on them by the Department 13 of Labor.
I imagine this one went to the allegation 14 coordinator of Ruglon II.
That is usually where they go.
I 15 didn't mean to laply that you did know.
So to the extent 16 that my statements were considered as derogatory, I 17 apologize, because they were not meant that way.
18 JUDGE BLOCH1 I understand tha other side's 19 position on everything that Ms. Garde has just said.
Is 20 there now any other necessary businnss?
21 MS. JEH LE:
Judge Bloch, the Staff would like to 22 change its mind.
We would like to respond to the Licensee's 23 motion just to clarify our arguments for the record and not 24 rely completely on the oral arguments made today.
25 JUDGE BLOCH:
That response is due about five days
1 4
l 98 i
4 1
after Ms. Garde's response?
2 MS. JEHLE:
Yes.
3 JUDGE BLOCH:
Then we will expect that response i
4 also before we rule.
l 5
Is there any other necessary business?
l 6
(No response.)
7 There being none,'the session is adjourned.
The 8
Board expects to act prcmptly on the motion for an extension 9
of time.
Thank you for being with us today.
10 (Whereupon at 2:47 p.m. the prehearing conference i
11 was adjourned.)
l 12 13 l
4 14 15 a
16 j
17 i
18
.i 9
20 21 22 23 24 25 i
REPORTER'S CERTIFICATE This is to certify that the attached proceed-ings betore the United States Nuclear 6
Regulatory Commission in the matter oft 6
NAME OF PROCEEDING:
Turkey Point Telephone Conference i DOCKET NUMBER:
PLACE OF PROCEEDING: Bethesda, Maryland were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court report-ing company, and that the transcript is a true and accurate record of the foregoing proceedings.
(f /
//' &
Y Abe Michael Paulus-Official Reporter Ann Riley & Associates. Ltd.
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