ML20125C308
| ML20125C308 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/06/1985 |
| From: | Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#285-467 OL, NUDOCS 8506120004 | |
| Download: ML20125C308 (39) | |
Text
ORIGINAL UNITED STATES OF AMERICA 7} ' NUCLEAR REGULATORY COMMISSION
\.j In the matter of:
CAROLINA POWER & LIGHT COMPANY AND NORTH CAROLINA EASTERN 11UNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant, Units 1 and 2)
Docket No. 50-400-OL TELEPHONE CONFERENCE CALL re-ot 4'
i l Location: Bethesda, Maryland Date: Thursday, June 6, 1985 Pages: 7728 -7767 l
l ANN RILEY & ASSOCIATES (g') Court Reporters 1625 I St., N.W.
i Suite 921 l
Washington, D.C. 20006 8506120004 850606 (202) 293-3950 PDR ADOCK 05000400 T PDR L. m
g, -
Hw 7728 .
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[ -
UNITED STATES OF AMERICA '
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2= NUCLEAR' REGULATORY COMMISSION N
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.x 4 :.
In the Matter Of:
~
i
. 5- l CAROLINA POWER & LIGHT COMPANY.and !
-6
~
-NORTH CAROLINA EASTERN MUNICIPAL i Docket No. 50-400-OL 1 POWER AGENCY- i 7 'Shearon Harris Nuclear Power Plant, !
, iUnits'l and 2 i l 8 8
_ _ _ _ _ _ _ .._ _ _ _._ _ _ _ _.x i- 19 F- 10 l' -
- TELEPPONE CONFERENCE CALL p, 11 - s i ..
I 4350 East-West Highway
" 12 Fourth Floor Bethesda, Maryland-13 v
. Thursday, June 6, 1985 14 l-The-telephone conference call in the above-entitled 16 .
matter.was convened at 10:00 a.m., pursuant.to notico.
i le I'
I ,
17 APPEARANCES: -
18 ' Board Members: _
i 19 -: JAMES L~. KELLEY, Esq., Chairman .
- -GLENN O. BRIGHT
' ~
30 JAMES.H. CARPENTER _
' 21 t
,.- ' 23 :
l- _
i 24 -
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a-- ^ :S ' _ + -
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- 7729' 1 APPEARANCES:
p 2 For the NRC. Staff:
1--
r
(
3
] JANICE_ MOORE,:Esq.
CHARLES-BARTH,.Esq. .
_4
'U.S. Nuclear-Regulatory Commission Washington, D.C. .
-For the Applicants:
6-ANDREW H. McDANIEL, Esq.
7 Carolina Power:& Light Company P.O. Box-1551 8 'Raleigh, North Carolina 8
THOMAS A. BAXTER, Esq.
JOHN H. O'NEILL, Esq.
10 DELISSA RIDGEWAY, Esq.
Shaw, Pittman, Potts & Trowbridge.
11 1800 M Street, N.W.
Washington, D.C.
For the Intervenors:
j].- 13
-ROBERT GUILD,.Esq.
14
-Columbia, South Carolina WELLS _EDDELMAN, Pro Se h 718-A Iredell Street 16 hs -Durham, North Carolina 27705 i ..
~ 17
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- 18. i L
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23
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6 ____ mm_i .___.___i_.._ _ _ _ . . _ _ _ _ _ . _ . _ . _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ . - _ _ _ . _ _ . . _ _ _ _ _ . _ . . _ _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ . _______m_______.-.
7730 1 PROCEEDINGS 2' JUDGE KELLEY: Good morning. This is Judge 3 Kelley here. Judges Carpenter and Bright are also with me.
4 We have a court reporter, so we are on the 5 record.
6 You will recall that in the last telephone 7 conference call when we were talking about' scheduling and 8 related matters for 41G, the question arose whether Mr.
9 Van Vo would be available as a witness.for Mr. Eddleman, and 10 at that point it wasn't entirely clear whether he would or 11 vouldn't be.
12 The Board thought that a significant question, so 13 we asked Mr. Guild to look into that and get back to us
'^}
14 first of the week. Mr. Guild did that and called me 15 originally on Monday. Then on Tuesday we talked, and Mr. '
16 Guild reported that he could not commit that,Mr. Van Vo 17 would be available as a witness on the 24th.
18 My response to that was'that the Board would have 19 '
to assume that he would not be there as a witness and that 20 that meant we should address the concern that we raised 21 last week but didn't discuss in any detail. That basically -
22 was whether, in light of the narrow nature of this 41G 23 contention, it made sense to proceed to try it without Mr.
. 24
,- Van Vo as a witness, whether it made sense to go ahead M without him as a witness or whether alternatively we shouldn't
C 7731
'l dismiss the contention for lack of a necessary witness and
_/ 2 for a resulting unfavorable five-factor balance in terms of 3
the legal theory underlying our concern, which we are going.
4 to ask the parties to address.
5 You will all recall that this is a late contention 6 in the sense in which we use the term " late" here, and it 7
was subject to a five-factor balancing which we performed 8
when we admitted it last January. At that time the Board 9
was simply assuming that Mr. Van Vo,'who, after all, was 10 the person who made these charges in the first place, would 11
.be available to testify and we would then have his personal 12 view on the facts.
13
) That was not stated in so many words, but that 14 was certainly our assumption. It never occurred to us we, 15 would try this contention without Mr. Van Vo as a w!tness.
16 So now that we 'cannot count on his being there, it seems to 17 us appropriaM to take another look at that five-factor 18 balance and see whether the absence of Mr. Van Vo, which 19 obviously tilts against Factor 3, that contribution to the 20 preceding factor, whether the absence of Mr. Van Vo means 21 that on balance the five factors weigh against the continued 22 prosecution of this contention.
23 That states the Board's concern, and we would 24 x, like the parties to address the question. I suggest we hear 25 from Mr. O'Neill and Ms. Moore and from Mr. Guild, if that is
y - -
7732 1 satisfactory.
) ~2 Mr. O'Neill, would you like to speak first?
3 MR. O'NEILL: Yes, sir. I would just pose the 4 question: Is Mr. Guild representing Mr. Eddleman for this 5 purpose and for this proceeding now?- The last time he 6 spoke --
7 MR. GUILD: The answer is yes, John.
8 MR. O'NEILL: I just wanted to make sure I 9 understood who was with Mr. Eddleman for the purpose of this 10 call.
11 MR. GUILD: Judge Kelley, this is Guild. If I 12 could ask a preliminary question before John O'Neill launch'es
(~}
13 into his response to your question, is this a sua sponte 14 matter being raised by the Board, or do I understand this is 15
'a request:for' relief that Applicants or the' Staff seek? We 16 certainly don't' bring the matter to'the Board and, as we 17 stated last time, are prepared to go forward with or without 18 Mr. Van Vo based on our view that we have sufficient evidence 19 aside from Mr. Van Vo's testimony to prevail on this claim.
20 JUDGE KELLEY: The Board is raising the concern 21 sua sponte. The Board never even considered trying 41G with-22 out Mr. Van Vo, and now that we know at this point that he M
is not going to come to the hearing, we are saying in effect
,s 24 this looks like a waste of time, or it may be, and therefore
( )
25 we are going to reweigh the five factors. But we are the one
7733 1 raising the point.
_j 2 Mr. O'Neill.
3 MR. O'NEILL: Thank you, sir.
4 During the last conference call, I did articulate 5 as an initial reaction a concern that the Board might just 6- dismiss the contention if Mr. Van Vo were not available 7 as a witness. That was an initial reaction, in part because 8 Applicants believe the facts here are clear and the most 9 conservative approach might well be for counsel to advise 10 the Applicants to simply go forward, litigate the issue 11 because in their view the conclusion is foregone.
12 However, we have looked very hard at the question
- 13 of whether or not it would be appropriate for the Board under 14 the circumstances here to sua sponte reconsider the 15 admission of the contention. Our view is that it would be and 16 that the Board would be justified, first, in reconsidering 17 a submission of the contention as it did back early in the 18 year, and secondly, we believe that the Board could well 19 conclude in its discretion that Mr. Eddleman no longer meets 20 the five lateness factors that justify the admission of this 21 contention and that it could then, in reconsidering its 22 decision to admit the contention, dismiss Eddleman 41G as 23 previously admitted.
24
, y We note first that the Appeal Board has M consistently held that the Licensing Boards have considerable
e 7734 1 discretion in addressing these five lateness factors.
Il- 2 I note in particular the Long Island Lighting 3 Company Shoreham decision, ALAB 743 at 18 NRC 387, 413 to 414, 4 where the Appeal Board found that.it was not disposed to 5 substitute its judgment for that of'the_ Licensing Board 6 insofar as the outcome of the balancing of Section 2.714(a)
~
7 lateness factors is concerned.
8 We went back and reviewed the arguments of Mr.
9 Eddleman with respect to how he proposed to address and meet to the five lateness factors, and we found it extraordinary the.
11 extent to which he did rely on Mr. Van Vo's availability.
12 In the transcript of the oral argument where Mr.
13 Eddleman made his arguments on the'fiveifactors, at Tr. 5738, 14 Mr. Eddleman stated: "Mr. Van Vo is available. He is 15 available reasonably promptly, although'with the schedule 16 change we have heard about from the fuel load being delayed 17 nine months." Going on: "I understand Mr. Van Vo would be 18 available the week of Tuesday, November 13th, and I would be:
19 prepared to put:him on as a witness on these things on that 20 schedule if it were necessary."
21 On the next page, Judge Ke'lley asked, with respect 22 to the scope of the contention and Mr. Van Vo's availability, 23 "But are you saying that what you want to do under these.
24 contentions is bring in 14r. Van Vo and hear his story, or do p__s i )
M
~
you want to go into a contention that is broader than that m _
7735 1 that goes to material traceability and panels of Applicant
> 2 witnesses and who knows what?"
- 3. Mr. Eddleman responded, "Yes, I understand, andt 4 I think that depends on Mr. Van Vo and the schedule a good 5 bit. In other words, if the schedule would generally..
6 accommodate just . hearing Mr. Van Vo on these issues, then 7 I think he lis worth hearing on them because he has direct 8 experience."
9 A little bit later on, Mr. Eddleman again states, 10 "I think what Mr. Van Vo is talking about here is a very key, 11 ~ thing." And then later, one more statement in discussing 12 Factor 3, the third factor, which the Appeal Boards have held 13 is the very important pivotal factor in deciding whether or
'}
14 not to admit a late-filed contention, Mr. Eddleman arguedi
. 15 "The availability of the witness, I think, is clear, but let 16 me just mention that Mr. Van Vo, according to his counsel, is 17 willing to appear. He is willing to meet with me and his 18 counsel to prepare whatever he would need to prepare. I 19 don't know if we could prefile anything beyond his affidavit, l
20 but if we could, I think we would. I would certainly make ,,
21 efforts in that direction. IIe is available and has direct 22 knowledge of these matters as stated in his affidavit. So I 23 think as to having a witness, we are okay."
24 And finally, at Tr. 5743, Mr. Eddleman states:
~s
)
25 "Since he would be my witness, it doesn't depend much on my
4 7736 1 ability to cross. It just depends on my ability to put him
_J. 2 on."
3 Consequently,- it was certainly reasonable for the 4 Board to assume that Mr. Van Vo would be available as a 6 witness and to rely on those representations.
6 MR. Eddleman presumably emphasized his availability 7 as a witness because he was aware of the Appeal Board 8 decision and in Washington Public Power System, WPPS Nuclear 9 Project No. 3, ALAB 747, 18 NRC 1167 at 1177, 1983, which
- 10 emphasizes the importance of the third factor. In that 11 decision,.the Appeal cited with approval ALAB 70'4 in Grand 12 Gulf and stated: "When a petitioner addresses this criterion, 13 it should set out with as much particularity as possible the
']
s, 14 precise issues it plans to cover, identify its prospective 15 witnesses, and summarize their proposed testimony."
16 And indeed, Mr. Eddleman set out to do that in 17 indicating the availability of Mr. Van Vo. The decision, of 18 course, has been cited with approval in the Shoreham decision, 19 ALAB 743, mentioned previously.
8 Now, what about the concern that I raised during 21 the last conference call, the concern that perhaps the 22 Intervenors do have a right to make their case solely on 23 It turns out that in the Appeal Board cross-examination.
24 decision in WPPS that I just discussed with respect to the 8 -third factor, Judge Edels in his concurring opinion addressed
7737 1 that very question. He noted, at 1182 and 1183 of that j>
2 decision, that while in certain circumstances on late-filed 3 contentions, intervenors may be able to make a showing that 4 they can make their case solely on cross-examination, Judge 5 Edels concurred with the majority in the particular circum-6 stances of the WPPS case that the intervenors might not be 7 able to make such a showing and agreed with the remand back 8 to the Licensing Board.
8 Judge Kelley, I believe here we have an 10 extremely unique situation where the whole issue before the 11 Board in the admitted contention is Mr. Van Vo's allegation, 12 his allegation with respect to why he was terminated, why he o
13
) was put on probation prior to termination, and why he viewed 14 he was being harassed.
15 We now have Intervenors telling us that the one 16 person who is in a position to put that issue before you and 17 for the Board to be able to judge his credibility is not going 18 to be available. In those circumstances, we believe that the 18 Board is justified in reconsidering this contention and the 20 Board would be justified in reanalyzing the five factors that 21 it analyzed back in February and in finding that the 22 Intervenors clearly do not meet the five-factors test for late-filed contentions, and that this issue should be 24 em dismissed.
25 Quite frankly, I believe that Intervonors are L
c" '
^ 7738' y
7 'N, j
1 ' derelict in~not havinh brought this.~to our attention -
- 9-5 7 fm/ 2 . earlier. -We.were concerned at the deposition whether we.
3 would'ever see'Mr. Chan Van Vo again, and.it was no surprise
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4 .to us when we found out he would not be available.
'5 . JUDGE!KELLEY: Is that'it,-Mr. O'Neill?
- n LW-6 MR. O'NEILL: Yes,. sir.
7 JUDGE KELLEY: Thank you.-
8 Ms. Moore.
9 MS..MOOREs- Staff also agrees that the five 10 factors considered by the Licensing: Board in the first 11 instance in orde'r to: determine.the. admissibility of this 12 contention now weigh against its admissibility, principally 13 - for the same reasons that the Applicant has just articulated,
.(~}~
x.
+ 14 and-that'is that the argument was made with regard to the-15 - , third factor, the-ability to contribute to a sound record, 16 'that Mr.-Van Vo would be'present to both assist Mr. Eddleman 17 and participate as a witness in the hearing.
18 It l's our, understanding now that.he will no-longer 19 be present, and therefore, Intervenors have not demonstrated 20 an ability to contribute to a sound record. This' factor 21 weighed in~ balance with;the'other factors should weigh against '
22 the admissibility of_the contention. I don't believe there 23 is any reason.to restate the arguments Mr. O'Neill has
.24 .already made,'and we concur with those arguments.
7s
( 'I"
- - JUDGE KELLEY: Thank you, Ms. Moore.
A
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7739 o ..
<1 Mr. Guild.
, , 5 %
[ 2,. MR. GUILD: First, Mr. Chairman, we.think it is F,
f., .
? 3 inappropriate for'the Board to consider this point in the fd 4 fashi~n o thatitt has. We think that clearly in substance 5~ this is a makt;er that is being raised by the Applicants and D .
.the Staff. They are the beneficiaries, if you will, the 6
{
- 7. adversar/ parties. The-appropriate vehicle for them.to do 8
this is by pleading,.by motion, which gives us as a party 9 the opportunity to respond to it.
10
. Frankly, we knew only what was on the table was
'11 what to do in. light of my inability to certify that Chan 12 Van Vo would be present on a date certain, June 24th, despite
'~
- (q'.)i -.
13 myreitebtionthatweintendtocall.himasawitnessand 14 desire to.have him as a witness but cannot certify that he 15' will, in fact,+be there. That is.the extent of our problem
- . 16 at this point.;
17 -
JUDGE KELLEY: Let 's stop there,1Mr. Guild. ' ' Let 's
- 18 be real clear. You told me on the phone, and correct me if 19 I ' th wrong , that you c ould not ma'.<e a ' commitment that Mr. Van Vo w
20-would come to the hearing. Correct?, .
xae 72L MR. GUILD: Exactly, cas D- '"
22
-JUDGE KELLEY: Now, we can get into a big inquiry 23 about-doesn'.t he:want to come, haven't you got enough money, ;
K ,m, . - s 24 and^dll of that. That doesn't seem terribly useful. Our 25
- issue is.we are interested in having Mr." Van Vo there, and DI'
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7,
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7740 1 if you can't make a commitment, we have to assume he isn't 2 going to be there. Your calling him and his not coming 3 just muddies the water, it seems to me. 5 -
4 MR. GUILD: That was indeed your response, Judge; 1
5 and it should be clear that Mr. Chan Van Vo is a volunteer.
6 Mr. Chan Van Vo has been to Raleigh at least two times at .
l
=
l 7 the behest of the NRC and the Applicants to participate in =
l 8 this proceeding, to cooperate, to provide evidence. He has i i
9 been cooperative up until now. I think it is incredibly -
10 disingenuous for Mr. O'Neill and the Applicants, after I 11 browbeating him for over ten hours, to then seize upon 2 12 the fact that they have succeeded in reducing his stamina 2 13 somewhat as a basis for chortling now that he indeed has not 14 committed to returning once more to be subjected to their -
15 harassment. 5 16 The fact of the matter is the state of the record _
17 as it stands right now is that upon the direction of the 18 Board, I conferred with Mr. Chan Van Vo and asked if he could 19 commit to be present on the date certain that the Board -
20 provided for his testimony. He could not, and I cannot "
21 certify that he will be present. The status of the record, i 22 sir.
23 JUDGE KELLEY: Okay. Let's move on from there. 3 24 MR. GUILD: Now, my fundamental point is that the O 25 relief, in essence, that Applicants and Staff support and -- ;
I
=
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4 7741 m.
1 I submit.-- seek:is either by way of summary disposition-i t
- 1) 2 of.this contention or by way of a motion to dismiss on the 3
l pleadings. -They-have not brought that to this Board. The 4'
~
Board has. raised---
5 JUDGE KELLEY: Let me repeat, Mr. Guild, what 6
I thought'was clear when I said it to Mrs. Moore a few 7
misntes ago about the posture of the thing, who is raising 8
this. The Board is' raising this.
8 ~
MR. GUILD: I understand, Judge.
10
. JUDGE KELLEY: The Board on its own motion is
~
11 reconsidering the five-factor balance. That is the. posture 12 of the matter. ,
es F
-() 13 MR. GUILD: And I submit,' sir, that the proper way I4 for.this matter-to be before the Board is on motion by the 15 parties who seek this. relief, and I understand Applicants
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t .
16 to seek this relief; that in order for this party, Mr.
r 17 Eddleman,'to be given a fair opportunity to be heard on the 18 matter, that he should be provided, as the rules require, 18 an opportunity-to' review the matter by pleading and to respond._in due course.
JUDGE KELLEY: Isn't it the case, Mr. Guild, that
'22 this very issue was raised very clearly by the Board, by me
' 23 i
r a week ago on this phone with you and Mr. Eddleman on the 4
q phone?
> 1
\_/ '
25 MR. GUILD: I submit, sir, that --
E 7742 1 JUDGE KELLEY: When I said that I am concerned
_) 2 Mr. Van Vo may not be here, and as far as I am concerned, if 3 he isn't going to be here, there may not be any hearing.
4 So I hardly think you aren't on notice that the Board is 5 thinking about reweighing this thing and dropping the 6 contention. We said that quite explicitly.
7 MR. GUILD: Sir, I submit we had no prior notice 8 whatsoever that the Board intended to recast the balance of 9 the five factors' test. The only issue that was raised for 10 our consideration today was what do we do in light of my 11 inability to certify his presence.
12 Now, my view, and I have stated this as clearly as
[^)
v 13 I possibly can, is that this matter should be brought before 14 the Board by the Applicants or the Staff since they seek this 15 relief, by motion, and we should be given an opportunity to 16 respond by pleading. We should be able to go do some 17 research on the question, we should be able to go and 18 address the cases that~Mr. O'Neill has cited. orally on the 19 record. That~is the orderly way to approach this.
20 In substance, my response is this. I believe it 21 is inappropriate for the Board to rebalance the five factors 22 at this stage. The contention has been admitted. The U contention having been admitted -- overrourfobjection to the 24 narrowing of the contention,iin the. face of a motion to
(
)
M reconsider -- it still was admitted as 41G recast by the
7743 1 Board, and aus such, the burden of proof on that contention
'%/ : 2 is with the Applicants under Section 2.733 of the Commission's 3 Rules of Practice and rel'ated authority. They have the 4 burden of: going forward and demonstrating-that they prevail 5 on that< contention.
6 They can meet that burden of proof either by i
7 ' going to hearing'.on that contention and offering evidence 8 that this Board' finds persuasive, or they have available 9 to them' should they feel,they can prevail short of hearing, 10 by seeking summary disposition of this claim or portions of 111 this claim on the pleading, and that procedure is available 12 sto them by way of summary disposition under Section 2.749,
/~) 13 a settled method for them to be able to establish that:they
%.)
14 - 'can prevail on this claim as a whole, the' contention as a 15 whole or various subclaims,: and it wouldithen z give us, under 16 .the Rules, an opportunity to respond to eachc of:the material 17 facts that they claim are not genuinely in dispute,'by way
-18 of affidavit or other admissible evidence..
18 ~
We submit.that:if-they were compelled to follow 20 that' process, that it.would be absolutely-clear that there 21
.is' abundant evidence' absent the live.testimcny of,.Chan Van Vo, 22 - assuming he will not be available for hearing, that would
'M -amply support and require going to hearing on this contention 24.
f3 1becauce there are significant material facts that would i !'
T_/
25
. remain in. dispute.
l
7744 1 Let me just pursue that line a bit. After the
) 2 contention was admitted, properly, although narrowed beyond 3 the scope that we believe is appropriate, the parties 4 conducted discovery. Extensive discovery was sought and 5- obtained by Mr. Eddleman from Applicants. That discovery 6 represents several thousand pages of documents, including 7 myriad documents from Mr. Van Vo's personnel file, documents 8 reflecting the Company's reviews of his expression of safety 9 and quality concerns, documents reflecting how they responded 10 to those safety and quality concerns.
11 Mr. Chan Van Vo came to Raleigh at the behest of 12 the Office of Investigation and submitted to a lengthy
- 13 investigative interview, the transcript of which is now s
.J 14 appended as an exhibit to the OI report and has been identifiec 15 as an intended hearing exhibit-by the NRC Staff. ' "
That. reflects 16 his sworn testimony.
17 MR. EDDLEMAN: i This is Eddleman. It's not sworn'.
18 The OI interview was not sworn.
- 19 MR. GUILD: I stand corrected if that is the 20 case. In any event,lit's Mr. Chan Van Vo's statements to an 21 investigative representative of the Office of Investigation 22 and to a technical representative of the NRC Staff.
23 Further, Mr. Chan Van Vo responded to a subpoena 24
,s duces tecum, traveled from Texas, where he is presently a 25 residing and employed, to. stand a deposition on the 26th of CL
. 7745 1
February at the noticed of Carolina Power and Light. He s' 2 was cross-examined extensively and identified extensive 3
documentary exhibits that were identified by the Company.
L4 So Mr. Chan Van Vo has, in fact, responded 5
abundantly to the demand that he cooperate in this proceeding 6 in substantiating his concerns. In addition, he has 7 submitted two affidavits which have been considered, at least 8 in the record, as support for pleadings on this contention, 9
sworn affidavits of Chan Van Vo related to his concerns.
10 Now, the juncture we are at right now is simply 11 the question of whether or not we can certify that he will 12 be present for hearing. We submit that the issue to be 13 decided, even as framed by the Licensing Board, does not on 14 its face ~ depend upon Chan Van Vo's testimony, let alone his 15 live testimony,.in'.the face of therabundant prior statements 16 by Chan Van Vo that are reliable and probative.
17 JUDGE KELLEY: For example, Mr. Guild, the 18 interview with OI. Are you proposing to put that in to 19 this Board?
20 MR. GUILD: That is a prerogative we would have.
21 Wo.could do that, yes.
22 JUDGE KELLEY: You told me last week you were 23 going to object to the OI report on a' hearsay basis.
24 r -- MR. GUILD: Judge, I told you last week that I 25 would object to the OI report on a hearsay basis. That doesn't
.. c ., -
,y,,
7746
- 1L
- mean the portionslof an exhibit.that' happened to be~
-;,3
~
E d_)E 2 appended'to.that report, which'in this case include an 3 investigative interview.with Mr. Chan Van Vo, aren't-4 of probative.value, aren't relevant and shouldn't be admitted
-5 in the proceeding.
.6 Th'at is not a position that-I should be required
'7 .to take at this point _in time in any event.
- .I simply; submit-
' ^
8- to you that if you are interested in what he-has to say, if 9- ' that. is: material', that ther e are abundant sources that are-10 ' reliableEthat reflect what he has to say on these contentions.
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11 I_ submit to you that in order to carry the day r,
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12 ' onIthis contention, it is not even~necessary-to consider'any f(} 13- of those, but if the Board's-concern is you want to. hear his 14 : .-story, you have_got his story. .You have'got his story from A
- 15) 'any number of sources. You have got his story where the 16
[ . Applicants had' full opportunity to cross-examine him at-17 . great 11ength, and they did.
- 18 . JUDGE'KELLEY: Th'e Board'is very interested. .I f J 19 - .Ne were'toItry.this contention,'IEc'an tell you that this T
[ 20 [ Board is 'very -interested in Mr. ' Van Vo's story. We want to Sear itlface'to fac'e.
~
121- I~can tell you that I would be asking Mr. Van.Vo_a number'ofIquestions.
22 Now, as it is, I have no 23 assurance that the man will come, and.so-how am I.to judge-24- his credibility? That is what it comes down to. How do we j,--
(. E' Lget the' credibility?'
k
7747 1 MR. GUILD: Let me submit'this to you. I think
, y f 2 that -- given this contention is focused on why action was 3 taken against Chan Van Vo, that the way the Board Chairman 4 framed the contention, it now appears as was Chan Van Vo 5 put on probation and terminated because he sought to raise
'6' safety concerns or because, as the Company says, he was 7 guilty of poor work performance -- that, it seems to me, 8 turns on a question of what was the motivation by those who 9 took those actions against him? Was it retaliatory or was it 10 in response to legitimate concerns about his work performance?
11 -
I want to cite to the Board the case of Alice 12 Bishel State Cancer Hospital v. Marshall, an Eighth Circuit 13 decision, 1980.
) -It was decided in amplification of the 14 Energy Reorganization Act Employee Protection Provisions.
15 It reported at 629 Fed 2nd 563. I direct the-Board's atten-16 tion to page 566, where it made clear that a demonstration of-17 retaliatory. motive is not dependent upon the personal knowledge 18 or direct. knowledge of retaliatory motive on the,part of.the:
II Complainant.
20 That makes all the sense in the world, Judge,'that the fact that Chan Van Vo puts two and two-together, given a 22
-series of facts that have occurred, and draws the inference 23 that retaliatory motive is the likely explanation for the q actions they took against him,.is the same inference we would have you draw, the same inference we would have any other
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.+
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7748-1; -observer, draw.becausefth'e.. focus is on the motive of those T'$ . . . .
5_/ .2 'who take the action, let's say particularly, in this case, 3 Alex Fuller.
4- It's clear that the authority that has passed on-5 'this question of how this Board'is to weigh the action 6 against Chan Van Vo excludes the necessity for direct
=7 knowledge or testimony from the victim as-the source of 8 establishing what that. motive is. In fact, it makes sense
-9 that the victim would be the last person to have such direct 10 knowledge. " Absent-a confession to him by the perpetrator of
~
11' 'the harassment, there would be no other basis for direct 12 knowledge on the part of the. complainant.
13 We submit-to you that the clear authority is on'the f%)) .
14 face'of it-that the central issue in the case does not hang
'15 ~ on the personal knowledge or testimony of Chan' Van Vo. We 16 would submit that the way to resolve this issue is by putting
.s _.
17 u Applicants on their burden of! moving, by way of motion for 18 summary disposition, where each claim as to.which they submit-19 we'cannot' prevail in the absence of Chan Van Vo's testimony 8- can be the basis of material. facts not in' dispute. We then n
21
~
would have an opportunity t'o respond, to turn to the depositior 22 recordings, which we have the opportunity to transcribe, to 8 say we can. meet that material fact that you claim is esta-24 es blished, we can meet that fact through the testimony of one
- ( ') 25 of the six witnesses we deposed, plus to turn to the thousands
7749 1 of pages of documentary exhibits that were -- documents i) 2 that were produced in discovery and to be able to say the 3 fact'that Mr. Chan Van Vo met with Mr. McDuffy on such and 4 such a date and transmitted this document on such and such 5 a date, and the facti that Mr. McDufffy communicated with the 6 site management about Mr. Van Vo's visit, and that Mr. Fuller 7 learned of that visit, is established by this document or 8 that piece of testimony, all matters which we believe are
~
9 extrinsic to the testimony of Chan Van Vo.
10 That, we believe, is the orderly and appropriate 11 way of proceeding on this point. We think it is inappropriate 12 and unfair and unsupported by any authority that 1we.are
/ 13
- aware of to permit this Board to at this stage, when hearing J
14 has been scheduled, when Applicants have foregone the 15 ~
opportunity for summary disposition, to reach back and say,.
16 for a party who doesn't bear the burden of proof, that since 17 you can't' certify that a witness who is not in'your control 18 and your employ will be absolutely present for trial, that
. 19
-we are going to go back to the pleading stage and recast the question of the admission of this contention. We think.
21 that is inappropriate.
22 Addressing that balance, though, it is clear'--
23 JUDGE KELLEY: Let me note, Mr. Guild, in terms 24 7~ of time, you have had more than anybody else. Can you wrap 25 this up pretty soon?
7750 1 MR. GUILD: It is clear that the Board expressed
.) 2 no reliance.on the testimony of Chan Van Vo in weighing the 3 five factors when it was admitted. The Board focused on, in 4
its balancing of the five factors, solely on the contribution 5 it expected from Mr. Eddleman as the proponent of the 6 contention.
7 I direct the Board's attention to its January 14th 8 Order at page 2 and 3. It concluded, when it admitted the 9
contention, that the factor of contribution weighed against to Mr.-Eddleman, so it never credited him with prevailing on 11 -
that factor, with or without Chan Van Vo's testimony. In 12 fact, the only observation that it made that was favorable
~ .
13 s
l on that point was that the trial of a quality assurance v
I4 contention as a general matter did not appear-to require any 15
.particular expertise, and I assume that meant-as contradis-16 tinct from a physics contention or welding contention or I7 something of that sort.
18 So we submit to you that in no prior consideration 19 of the balance was Chan Van Vo's appearance and testimony 8
weighed in that balance, and that it is even more inappropri-21 ate at this point to recast that balance again including that U
factor against Intervenors when it wasn't considered explicitly 23 at all in the prior balance, 24 j~ -
I will conclude by saying that we think that if
't :
25 Applicants were put to the test of demonstrating through an
r, ,
7751 1 ; orderly proce'ss,~and that'is summary disposition, that y=3 A 2 we_could not) prevail or are not entitled to a hearing absent' 3% 'Chan. Van Vo's testimony, that a record would exist'that would make it: abundantly clear that that is simply not the result;
'4
. ~
5 that we, in fact, could prevail, would prevail' and should J6~ gol forward to h' earing with or without this particular piece-
.7 -of evidence. We think-it is highly irregular and untoward
'8 that'a' party who:doesn't bear the burden of proof runs the 9 risk'of losing.a contention and having_'it dismissed-without 1 10 a Ikearing,.without any opportunity to offer evidence simply 11- 'because a volunteer witness that they would seek and want to 12'- have available, his-presence cannot be guaranteed at this
?($1 13 dat e.
%f
~~
14 So we oppose any recasting of the balance at this
~
'.15 ~ -point. . We would ask that if Applicants want dismissal,:that J16- .they do'so by pleading and seek-summary disposition.
1
~
17 : JUDGE KELLEY: I would suggest'that we.take ai ,
.18 '
_ short break ; at:- this point, ~ and the Board will consider the -
19 . argument that we have just heard. s
, 20 Mr. Guild, you indicated an_~ interest in seeking.
$ 21 some means of _ taking the broader harassinent issue to~ the'
~
22 : Appeal-B'oard, and'I won't characterize it any more than;that, ,
- 23
.but?I indicated your interest.to the parties and indicated 24 : further.we might'have some discussion of that also.
fs .
1 .
25 MR. GUI'LD: I guess as a preliminary matter,md J
. . . 4 e
- ,. ~
4
____:____:_z. - -
a
7 Ay 7752 11 -it may not be'of' significance procedurally, but before you
(..~
k._/ . 2- make a decision on this issue, now that the. issue is on the 3 table,JI gather that one option'would'be to certify the 4 -questionnand not make the decision. 2.718(i) seems to give
~ ~
f 5' .you that. authority,.and Appeal Board authority suggests, I 6 guess, that you.could not decide the question and simply.
7 crefer it to the Appeal Board or Commission to_ decide.
8' Thattseems to be a procedure that is taken 9~ extremely rarely, and I read the authority to suggest-the
~
10 Appeal Board would desire your views on the matter in any 11 event.
12 So I put that before you before you make a
( j. '13 decision'on the matter and would ask an opportunity, assuming tJ 14 .you decide adversely to us,-to raise the question of 15 1 referral.
5 16 JUDGE KELLEY: Well, we can wrap that in. You
'17 are interested, are you not, in the broader question. ;That 18 .. is what I was first referring to.
19 MR. GUILD: The point I tried to raise was that11 20 would like to have the question of the Board's consideration 21 of this contention essentially reflected in the request for
'22 reconsideration filed-by Mr. Eddleman, the issues that are-23 set out there -- andJthat::is the-February 4th Motion for 24 . Reconsideration -- but also including the procedural decision
' -s I )
v
- M -the Board has made sinceithen tx) refuse to expand the scope 6
w.m,-
-- - ;- ~
c 7753 1 'of that contention on'the basis of the additional harassment
.s i
I V 2. evidence,Eand then I guess whatever consideration the Board 3 intends,to make'today on the' basis of --
4- JUDGE KELLEY: You want to talk about certification
.5 of our-denial of Mr. Eddleman's petition for reconsideration 6 of our decision to cut back on 41G.
7 MR. GUILD: You already made that decision.
8 JUDGE KELLEY: I understand that; but you want to 9 talk about getting that. certified? Is that right?
10 . MR. GUILD: Well, I don't know. The distinction 11 -may not make any difference, but I read certification to mean 12 sending it up before you decide.it. So you have decided.it
); 13 already,. and I read referral to mean sending it up af ter you
[(
14 have decided it.
15 That is correct;.and all we ever do^
JUDGE KELLEY:
16 is refer. We-always decide things.
17
-MR. GUILD: Exactly. That is why I --
'
- 18 -
JUDGE KELLEY: -That is what they want us to do,
~
. 18 - and that's what we do.
MR. GUILD: Exactly.
y21 JUDGE KELLEY: And we-have-already made a decision.
22 Now, .you want to talk abouti referral of the 23 r earlier denial'of reconsideration?.
-24
-MR. GUILD: Yes, s ir '. - Maybe the best thing --
JUDGE ~KELLEY: And you want to do that without a C :_.
. . . . ~ - . . .
+- .
=A s
7754
- 1- pleading;.right?
ii# ,: -
(_);
-2 MR. . GUILD: Let's take this question after you --
3 Jyou; wanted to' reach a' decision on a pending matter and 4 address this whole matter after that, and that would be fine
.5 by me.
6 JUDGE KELLEY: But you want to do.that without
~7
.a pleading, without any motion of any kind, just you want to 8 talk about it on the phone; correct?
9 MR. GUILD: I would like to talk about it on the 10 phone if the Board can give us -- if the Board is not 11 disposed to consider the matter, a simple "no" would help,
. 12 and then we would file some pleadings with the Appeal Board,
'T 13 Judge. We understand that time is of the essence and that r(G 14
-is why we are.having to take up this matter on th'e phone
-15 instead of by way of pleading.
16 JUDGE KELLEY: I am just noting your complaint 17
-earlier _about a~ lack of pleadings here on this earlier i 18 question that-.we-talked about at some length, and noting that 19 you don't seem to have the same prdblem with this approach 20 that we are' going to.get--to.after the break. That is my 21 '
only. point. .
^
22 MR. GUILDi Well, Judge, you know, I kind of 23 figure when it is used_to disserve us, that we should have 24 pm the opportunity to avail ourselves of the same vehicle that
.t :
25 .
- is being used to the benefit of the Applicants and the Staff.
, i
'7755-
.3 ,
- . y
.1- I would prefer that we put-all these matters in pleadings and d 2 that we not decide any of these issues on conference calls i
3 where the public can't' observe and participate.
4 JUDGE KELLEY: Mr. Guild, I think that is-the
~5 most hypocritical statement I'have ever. heard you make in 6 .this case. You are the chief asker of informal procedures, 7 . telephone calls, anything that will avoid formal pleading, 8 and now this morning you want it all on paper. ~ I resent
, 9' that.
10~ We are going to take a five-minute break. We 11 will be back on at 10:45.
12 MR. GUILD: I will be happyfto have it by way of
/
9 ) 13 pleading, Judge, is the final point. If you want to do it V
-14 1by pleadings,'I would be happy to do that. ' Just give us 15 enough time to do it, and we will. be happy to' do it.
16 JUDGE KELLEY: We are going to-take our break 17 now.
18 -
'[ Recess]
19 JUDGE KELLEY:. Ladies and gentlemen, this'is Judge 20 Kelley back'on'. Can youLhear me?
21 '
MS . ' MOORE v eye s p 4 :
E MR. GUILD: Yes.
23
- MR. O'NEILL
- Yes.
24
.eq 7
J DGE KELLEY: We have considered your arguments 9 25 this morning, our own knowledge of the papers and facts,_and
- ~ -
, m I
D4 ~
1 Lwe'have decided that.we-are, going to reweigh the five 3 ,
~
N>f 2 factors, and~our conclusion is that the balance has changed 3 '~ ;and'that-we'are going to and we do now dismi'ss 41G on the-
, L4 basis _of fan : unfavorable 'five-factors balance flowing from the 5~ fact that we do not have any commitment and no guarantee 6 that.Mr. Van:Vo will appear.for hearing an'd therefore we have 7 to~ assume that he won't. In.that posture, we reject 41G, or
,8-
. dismiss'it.
'9
' ~
We are going to write a short Memorandum and Order
- 1
-10 . on that,.probably next week,,so right-now this morning we are 11 just_ going to give-you the bottom line. That will be followed
.12 up, then, by a more full statement of our reason.
{f~'T ! 13 We had some discussion-earlier just before we went J
'14- off the phone about certification. Mr. Guild,-I think what 15 .~we need is perhaps a restatement, but a statement by youiof
& .16 .your proposition, what,you-would like to.~see done, an'd then 17 we can talk about it.
18 Could you give us your proposition first?
19 MR. GUILD:- Yes, sir. Based on the Board's
- ~
20 displeasure just before the break, perhaps the best thing for 21 me'<to do woul'd be-to simply _put it in writing and get'to the r- ,
22 Board thati way. - I would do that.
23 JUDGE KELLEY: All right.
24
< .MR. GUILD: It would be helpful to have your order
% f- 25 before-I do that. I just would flag the parties and the i s --
2.- __ N
7, 7757 1 " Board that we would intend to seek review of the handling of 2 this harassment contention by the Appeal Board, and that 3 should include all the significant procedural decisions 4 the Board has made narrowing the scope of the contention and 5 limiting discovery, as well as dismissing it on the reweigh-6 ing of five factors.
7 I will put.that into a pleading and have it 8 circulated.
9 JUDGE KELLEY: I would jus't suggest -- and frankly, 10 I am thinking out loud a little bit. We have written an 11 opinion back in -- the original one was January when we cut 12 back 41G, and then we had another opinion in March denying 13 reconsideration. Now we have decided to submit 41G as (a')
14 modified. So there are Board opinions on those issues.
15 I will put it this way, Mr. Guild. This Board 16 wouldn't be offended if you just went ahead and- sought 17 direct certification. The opinions are there. You can come 18 back and file a pleading asking us -- not certification.
19 Referral is the right term. You could come back to us and 20 ask for referral. We can think about that. We may or may 21 .not do it. Or you could go straight to the Appeal Board, I 22 would think.
M- The Appeal Board has said in the past they want 24 to know what the Licensing Board thinks, but they usually 25 say that on certification where there is no opinion. They want to know what our view is on the: merits of the issue.
.f 7758
, l' But-I-just;suggest that as a tactical matter, you certainly 6
-[ 2' ;would notfhave any -- the Board.would take no umbrage if you 3 'took the' certification straight to the Appeal-Board, and you
'4 lcan decide that for yourself.
5 That, then, raises a question of scheduling. We 6 did have Mr. Van Vo'and that part of 41G on' Monday the 24th.
7 In fact, we were going to have all of 41G starting Monday the 8 24th..
9 Is Mr. Baxter with us at this' point?
10 MR. BAXTER: Yes, sir.
- 11 JUDGE KELLEY: Well, what about the proposition 12 of' reinstating.those two emergency planning contentions for
["')
NJ 13 Monday morning the 24th. Is that doable and desirable?
14 MR. BAXTER: Yes, it is , Judge. Our witnesses 15 will 'txa available, and we would _ propose to start that Monday.
s
~ 16 . morning first with our case on Mr. Eddleman's contention on 17 L the' protection factors _and. complete'that contention and go
~
- 18 7-into the joint contention on bus drivers.
~19 JUDGE KELLEY: Okay. Staff, do you agree with 20 - that?
'21 MS.. MOORE: That~is fine with the Staff, Your 22 Honor.
23 JUDGE KELLEY: Mr. Eddleman?
- 24 MR. EDDLEMAN: Judge, I don't have a problem with f-q O Wl that. I'think we probably ought to check with whoever is lead g:
7759 1 counsel for' Joint Intervenors on bus. drivers. I don't know i
1_- 2 if it would be more convenient for them to go Monday or me 3 to go Monday. It doesn't make a lot of difference to me.
4 JUDGE KELLEY: Incidentally, I think we tried to 5 reach Mr. .Runkle. The main thing here this morning was what 6 we'have already talked about.
7 Now, lead for Joint Intervenors on the bus 8 drivers. Is that Mr. Reed or Mr. Runkle?
9' MR. BAXTER: It's Mr. Reed.
10 JUDGE KELLEY: Mr. Baxter, could you undertake to 11 reach him as soon as possible and miaybe report back to us on 12 whether that'is okay with him?
.(i; ,
13 MR. BAXTER: Yes, I will.
14 JUDGE KELLEY: Now, we decided various states and 15 procedures last week, and theyrare in the transcript of that 16 discussion. I did say I would do a confirmatory order, and 17 then when we got into this issue over Mr. Van Vo's appearance, 18 we waited on that. In other words,.we haven't sent one yet.
19 We can send one, I suppose, first thing Monday. .I am just 20 going to be out tomorrow, and it may be up in thesair with i
21 Mr. Reed for a li'ttle bit.
22 Can we simply restate the basic points here with 23 the understanding that the Board will put out a confirmatory 24 -
r~ order next Monday?
25 We had certain dates for filing of witnesses and L
r _
j f .
7760
~
^
1 " subpoena requests and also a date for that. We havefa date
-f' 3/
l --2 for; testimony and: exhibits'. They were, as I recall,-the
- 1. 3 - illth and the l'7th'.
4 Mr. Baxter, isLthat your recollection?
5 MR. BAXTER: That is correct.
6' JUDGE KELLEY: .Okay.
7 Now,-just for refreshing our memory on all this, 8' we said 10 a.m. in Apex at the Ramada Inn, and that is set 9- up already.
10 Is'there anything else that we should restate 11 this morning so people know what steps are under way?
- 12 MR. BAXTER:- Judge Kelley, I think I might have 13 - spoken too quickly. I don't have the entire transcript-here.
})
14 - I think the 17th -- the llth and the 17th were dates that
-15 had been set'for 41G. ,
16 ' JUDGE KELLEY: Only 41G?.
'o h 17 MS. MOORE: I believe that is correct. In the:
18 . conference call the-21st, we agreed on the 10th for emergency 19 . planning testimony.
iE JUDGE KELLE'Y: The 10th for testimony and
- 21 ' exhibits?
-J .
22 MS. MOORE: .Yes. e.
M MR.'BAXTER: Correct.
24 JUDGE KELLEY: I frankly; don't remember.-
U. 25 Have_we.got-a written -- we do have an order out
-
- w
- 7. _
'( a ..
7761
[
-, '1:- -on that, do we not?
7m jw,) ~ '2l MR. BAXTER: Yes, sir. I believe that is a
'3 Sconfirmation'of about'three conferened calls ago.
-4' JUDGE KELLEY: That's what my problem is.
5 Mr. Eddleman,.does that sound right to you?
6 MR.'EDDLEMAN: Yes, Judge.
7 JUDGE KELLEY: So the. testimony and exhibits are 8~ on the 10th, and the hearing now is reinstated for.the 24th.
9 Is there anything else really that we need?
.101- MS. MOORE:- Judge, I would like to note for the
- 11. record that the Staff was required by the Board last week to provide a memorandum to them on the admissibility of the
~
12 f%)-) 13 OI report.
14 JUDGE KELLEY: I was going to mention that. I 15 can add -- let's stick with emergency planning for a moment.
16 In terms of emergency planning dates, deadlines, filings and
' 17 'the like, is everything' set? Mr. Baxter, is there~anything) 18 else.you can think~of?
-19 MR. BAXTER: I have nothing else, sir, no, not o'n
.n 20 . emergency planning.
21 JUDGE KELLEY: Ms. Moore, anything else on
}"
H emergency planning?
M ~MS.: MOORE: No, sir.
gy 24 JUDGE KELLEY: Mr. Eddleman?
1.
25 MR. EDDLEMAN: I just want to make sure. As I
---..<---w- -- - - . - - - - - - - - - - - . - - - - - . - - . - - - - - - - - - - - - .
.. 7762
> - _~
p 1 ' understood the 10th, Judge, that was just to file it. That
}_l: 2 wasn't'a Quick Mail requirement or anything; it was just
- 3. ' filing.' Is.that right?~
4 JUDGE.KELLEY: I think so, Mr. Baxter. Ms. Moore, 5 is that'just a service date?
6- MR.-BAXTER: That is.my understanding.
7l 1 MS. MOORE: That is my understanding as well.
8 MR. EDDLEMAN: That's what I' wanted-to clarify.
9 Thank you.
- 10 JUDGE KELLEY: So that's what it is. Okay.
11 So.if that puts us on track for that purpose, let 12 me note again that we did say in that confirmatory order j(~ } ' 13' that we would do a limited appearance session that evening 14 -in' Apex, if-the parties would do whatever'they can in 15 ' disseminating that word. We did issue a press release. I 16
~ don}'tknowtheextenttowhichithasbeenpicked'up. It li twould.be useful.to.let. people know about that..
18 If there is nothing else'on emergency planning, 19 there was-one other thing.
We raised the question ~last week
' 28) on-the' admissibility of the OI report without a sponsoring 21 witness, and we asked Ms. Moore for a pleading, originally-22 -
by yesterday.. When I spoke to her Tuesday about today's call, 23 "Iistated that she could put that in suspense until we had g
24 ~
this discussion-today.
- (. , s) s_/.
25 -
I might just add that yesterday I received or the f
.P __._J
. 'C 7763 1 : Board,'all three-of us, received a short letter from Mr.
Ld.l 2 ~ Hayes which -- I can read it to you. It's short.
i- .
- 3
" Dear Administrative Judges. We have been 4 ~ advised by the Office of the Executive Legal Director-that 5- parties to this proceeding have requested that a member of f
6 the Office of Investigations Staff be made available for p
7 hearing scheduled later this month. We have also been i
8 . advised that this OI Staff member will be testifying both
'9 to.the conduct and the contents of the OI report of investi-10 gation recently provided to you.
- 11 "In that this request is a matter of first L 12 ' impression', OI respectfully requests a three-week extension 13 in time so that we can-consult with our counsel, OGC, and
- [v^Y' 14 other members of the' Commission to arrive'at a conclusion i'
15-regarding our testifyingsat a contested' licensing hearing.
I 16
" Sincerely, Ben' Hayes, Director of OI."
17 A couple'of' comments. When I got this yesterday,f L 18 knowing that.we were going toLhave this discussion today,
-f, 19 it occurred to:me that the need for resolving this issue 20 ~
might not obtain if we decided to-dismiss 41G, as we have now 21' - done. Ek) it seems toLme that now this issue that Mr. Hayes.
L 22 -
l wants to get resolved will probably get resolved in some L
7#
'oth'er case of some other contention'and-not here. I will 24 s~c let him know what we did here'today..
xjI l
[- .Beyond-that, though, his statement -- and this may I!
g
[.
-q
_,_.____a-._-m
. .Q - b,
E
_ W., s .
- 4 . ,
^
' . ~7764 -
w r , ,,,
'l not be too important -- but for the record, his first
- j-3%// 2' sentence ~ says parties ,to this proceeding - have requested
- 3
~
.that a member'of the Office of' Investigations Staff.be made "4 'available:forahNsring"andsoontotestifyatthehearing.
5 That is'not,-strictly speaking, whati happened, as I. recall,
, 6- 'and I would be happy to be corrected. But Ms. Moore-simply.
7, stated her-intention to use the OI report as the Staff's
+.
.8. ' direct casd,;and the Board then anticipated that some party
~
9' -might well object to that for lack of a sponsoring witness,
~
' 10 a'nd Ilbelieve Mr. Guild indicated that he probably would.'
- 11 '- And I indicated ~that I ha'd a. doubt about whether one.could get
^
12'-
~
.in such a report for its substantive effect without a spo'nsor-g
?%- i - 13 - ing witness. That was the issue that we were raising.
.u/
14 s _
.Now, as a practical-matter, assuming the Staff
- 15 wantsto'have-a direct. case'in'a matter like this, they ma'y-
- w very1well-havetoputinthereportand. bring]theOIJinvesti--
E16
'17
~
. gator in. I.'m not saying'that wouldn't happen; probably-it' 18 would. But at least in'the posture we were'in, it had not come
'I8
)to that.- Nobody had. asked for any particul'ar witness, and
~
~"- conceivably one.could-get-into an issue of this kin'd where-an J 21 OI report was in existence'and,you simply) called the witnesses 22 who were-interviewed or some or'most of them and you nevei 23 -
do put the report-in but it still serves the purpose as a
- 24 '~
source of-informa' tion for parties.
3 ,
25:
. gg -7. simply want to note that the posture of ,it
~ ..r L l.
. . , . w
'7765 1 .was, as I" understand it, as I have just stated and not that
(_.) 2 we had0any specific request of some' named investigator to
- 3. .show upLfor the hearing. s 4 In any case, we will tell Mr. Hayes-that we 5 have dismissedL41G and that, Ms. Moore, your obligation to-
- 6 file a pleading on the question should be dismissed along
,7 with it, so:that we won't have any pleadings on that point.
8I Doe s that cover it, in your mind, Ms. ' Moore?
9 MS. MOORE: Yes,-Your Honor.
1CF I would just like to note for the record,~too,
. 11 : .that I agree with you -- the Staf f agrees- that it was not communicated to OI, as far as I know, that it was a party,'s L(')
w 13 request. I believe Mr. Hayes has just made somewhat'of an 14 erroneous statement. I have not seen the letter, and-we f
15 'were not consulted before the letter.was sent.
t
- 16 JUDGE KELLEY: I might just. add - that a't the a
17 ~ bottom of the letter, it says, cc S. Chilk, Secretary, H. .
, , 18 Plaine,'OGC,.and E. Cunningham, OLD. So7it may,not have been 19 distributed beyond that.
20 MS. MOORE: That's' correct, and.we did not see it 21 before the letter was sent. He did not consult with us before 22 it was sent.
23- MR. GUILD: Judge, this.is Guild. I wonder if~you 24 - could circulate a copy to the parties, at least.who are-f, XJ~
25 interested in 41G,-for the record.
4
, _ _ 4 .
2 x 4 7766' 1 JUDGE:KELLEY: I' don't see any_ reason.why not.
(i )' 2 He d'idn't serve it. I just read it into the record anyway, 3 so I.might aslwell send you a copy..It 'oesn't d say confiden-4- tial.or anything'. What it is is a request for an extension 5 laf time. ~ That is really all it comes down to. So sure, I 6 will send you a. copy.
- 7 The Reporter.is asking me,-for NRC, Ms. Moore, in 8 addition to_you is Mr. Barth there?
9 MS. MOORE: Yes, Your Honor.
- 10 JUDGE KELLEY: Jones isn't, though?
11 MS. MOORE: No, sir.
12 JUDGE KELLEY: It is just you and Mr. Barth, is
[]
Rs
~13 that right?
14 MS. MOORE: Correct.
15 JUDGE'KELLEY: Anything else from the Applicants?
16 'MR. BAXTER: No, sir.
'17 JUDGE'KELLEY: The Staff?
,18 MS. MOORE: No, sir.
- 19 fJUDGE KELLEY: The Intervenors, Mr.~ Guild or Mr.
.20 _Eddleman? '
'21 .MR. GUILD: Judge, one other matter.
We do want a
. 22 to preserve the record on 41G for whatever further proceedings 23 by way"of appeal or efforts to seek review on an interlocutory 24 basis, _ and in.that regard, the Board Chairman, we understand,
~
WL has possession of a couple of disputed documents that were.
- r. ? :. .
[7 7767 G
~
E ,
1- sought in discovery on-41G,'and'we had'been asked to - .or e s. ,
~
N.l ,2 we had been given the opportunity.to respond to authorities'
, 3 cited by Applicants in a letter to the Board.
r-
,4..
c JUDGE KELLEY: Right.
n, .
5 MR. GUILD:
We would still like the opportunity to I reshbndtothatandintendtorespondtothat, and.would ask
$p .'y.
7
.that the Board Chairman simply secure those documents until 8 t you have a chance to rule on the question.
8
- JUDGE.KELLEY:
~
Yes, we have the documents,-and n
10 I. suggested you think about just where you send a referral or 11
, '%f.- ce'rtification pleading, ut whatever you do in that regard,
^ '
12 could you. include at the shme-time your response on-that 13' . point?
,f(y s
14
- ?
- MR. GUILD: That would-be finc.
16 (r/: JUDGE KELLEY: Do that. We have the documents
~d-16 '
4 ,-
n- 4,(here, and we will ab'ide' the receipt of all pleadings :and
+ 1.
. then we will-- decide ;t-hat, 50o.'
18 Anything else?
19
[No:responsel r
i,j ", '
We .will t$ien see at least: most of you on the 24th
[ 21
^
. of' June in Apex. Thank you very much.
, ; [Whereupon, at 11:05 a.m. the conference call
, 23 9 1
-4 4 ' twas concluded. ]-
24 -
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- ( ,) 1 CERTIFICATE OF OFFICIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings 6 before the United States Nuclear Regulatory Commission in the
, 7 matter of:
CAROLINA POWER & LIGHT COMPANY AND NORTH CAROLINA e-EASTERN MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant, Units 1 and 2) 9 Name of proceeding: Telephone Conference Call 10 t
11 Docket No.
12 place:
f}
<- Bethesda, Maryland 18 Date: Thursday, June 6, 1985 i
14 1
15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
i 18
, 9. A[ _
(Signature) 4 /%
(Typed Name of Repo'rter) Mimie MelVzer 20 21 22 g 29 Ann Riley & Associates, Ltd.
'\J 24 l 25 l
- _ _ _ _ - _ _ _ _ .