ML20126B955
| ML20126B955 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/12/1985 |
| From: | Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel |
| To: | EDDLEMAN, W. |
| References | |
| CON-#285-415 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8506140261 | |
| Download: ML20126B955 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
James L. Kelley, Chairman Dr. James H. Carpenter ceCKCTCO Glenn 0. Bright USNRC E JIN 134050 In the Matter of Docket No. 50-400-0Lcrrgt og ggr,,,y c
DOCMET#pa a sgpy CAROLINA POWER & LIGHT COMPANY (ASLBPNo. 82-472-03 OL)ERANCH NO CAROLINA EASTERN MUNICIPAL SERVED JUN 131985 POWER AGENCY (Shearon Harris Nuclear Plant)
MEMORANDUM AND ORDER (DismissingContentionConcerningAllegedHarassmentof Former Employee and Rejecting Emergency Planning Contention)
Last fall during the safety hearings in this case, Chan Van Vo, an engineer and former employee of CP&L, made public a lengthy affidavit in which he alleged both unsafe construction and wrongful conduct by CP&L at the Shearon Harris facility.
Thereafter, Intervenors Eddleman and CCNC proposed several new contentions for litigation based on the Van Vo affidavit.
The Board rejected most of those contentions on specificity and other grounds.
Tr. 7381-7386.
The construction matter to which Mr.
Van Vo had devoted the most attention was rejected as a contention when it was shown that the system involved had no nuclear safety significance.
Tr. 7394-7398.
Nk $No e
I Mr. Eddleman's Contention 41-G, as originally proposed, alleged a r
pattern of harassment of Shearon Harris employees in order to discourage them from voicing safety concerns.
It also referred to specific portions of the Van Vo affidavit as its " basis." Our application of the "five factors" balancing test to 41-G produced a tilt against its admission in its original broad form.
Memorandum and Order of January 14, 1985 at 3.
We noted, however, that "Mr. Van Vo's allegations are serious and the balance is very close."
Id.
Under all the circum-stances, we thought it appropriate to recast and admit a narrower version of original Eddleman 41-G, as follows:
Chan Van Vo was placed on probation and later terminated from his job with CP&L because he had sought to raise nuclear safety concerns about the Harris facility, as he alleges, and not because of poor job performance, as CP&L alleges.
In admitting this narrowed version of 41-G, we emphasized its focus on Van Vo's personal experience at CP&L.
We said that:
This contention should be understood as focusing on the reasons particular personnel actions were taken against a particular individual.
The parties' attention should focus on particular incidents alleged in the Van Vo affidavit -- e.g.,
the response to Mr. Van Vo's concerns about the " cold pulling" of a pipe (paragraphs 9-15 of the affidavit) and about pipe hanger material traceability (paragraphs 18-21).
In admitting this contention, we are not opening for litigation Mr. Van Vo's broader and unparticularized allegations e.g.,
affidavit paragraphs 25 and 26 -- at least not at this time.
And in subsequently denying a motion to reconsider our rejection (at least at that point) of a broader harassment contention, we spoke of the
" narrow, person-specific issue whether Chan Van Vo had been harassed..
Memorandum and Order of March 13, 1985 at 8.
r-
. l In our consideration of Eddleman 41-G, the Board has always assumed that Chan Van Vo would cooperate fully with the Board and parties, that he would be available during discovery, and that he would appear as a witness for Mr. Eddleman.
Mr. Eddleman reinforced that assumption in urging us to accept 41-G as proposed.
He told us that "Mr. Van Vo is I
available.
He is available reasonably promptly.
Tr. 5738.
"The availability of the witness [ Van Vo] is clear...
He is willing to meet with me and his counsel to prepare whatever he would need to prepare...
He has direct knowledge of these matters as stated in his affidavit.
So I think as to having a witness we are OK." Tr. 5742.
And in discussing his own ability to contribute in relation to Van Vo's appearance, Mr. Eddleman stated that "since he would be my witness, it doesn't depend much on my ability to cross,. it just depends on my ability to put him on."
Tr. 5743.
Until recently, Mr. Van Vo apparently has been cooperating in investigations of his allegations.
He submitted to a lengthy interview by the NRC's Office of Investigation in November 1984.
See Exhibit 2, ROI No. 2-84-021.
Although he has since moved to Texas to obtain employment there, he has returned to Raleigh (at the Applicants' expense) to submit to a deposition in February 1985.
Thus, it came as a surprise to us when Mr. Van Vo's counsel, Mr. Guild, first intimated in a telephone conference call on May 29, 1985, that Van Vo might not be available as a witness for Mr. Eddleman in a hearing then scheduled for June 24, 1985.
Tr. 7679-7681.
Our initial response was that we had "very little disposition to hear this contention at all without Mr. Van l
. Yo live on the stand."
Tr. 7683-7684.
We heard some preliminary coment from the parties on the question and directed Mr. Guild to contact Chan Van Vo to determine whether Mr. Guild could make a commitment to produce Van Vo as a witness on June 24, a time certain that Mr. Guild had requested.
Tr. 7689.
On June 4,1985, Mr. Guild reported to the Board Chairman that he could not commit to Mr. Van Vo's availability as a witness on June 24.
Nor did Mr. Guild suggest any other time when Van Vo might be produced.
In these circumstances, the Chairman stated that the Board must assume that Mr. Van Vo would not appear for Mr.
Eddleman as a witness; he scheduled a telephone conference for June 6,1985 for further discussion of the significance of Chan Van Vo's unavailability and whether, as a consequence, Contention 41-G should be dismissed.
Tr. 7730-7731.
In the ensuing telephone conference on June 6, the Board asked the parties to comment in the context of a "five factors" balancing process, on the premise that Van Vo's unavailability would affect factor 3 -- the Intervenor's prospective contribution to the proceeding.
From that perspective, both the Applicants and Staff argued that the "five factors" balance now tilted in favor of dismissing the contention, in light of the importance of Van Vo's testimony to the contention.
Tr.
7733-7738.
The Intervenors argued that there was substantial documentary evidence available (Tr. 7745) and that the " central issue in the case does not hang on the personal knowledge or testimony of Chan Van Vo."
Tr. 7748.
The Board agrees with the Applicants and Staff and disagrees with the Intervenors on this question.
We stress that we would not reach
D that conclusion -- we would not even have raised the question -- if a broad harassment contention similar to 41-G as first proposed had been before us.
Under such a contention, the testimony of any single witness presumably would not have been critical.
But Contention 41-G as it was narrowed and admitted is a different matter entirely.
That contention speaks directly to the unique personal experience, including the subjective reactions, of a single individual -- Chan Van Vo.
A range of important questions arise that only he can answer.
For example, why did he think he was a victim of retaliation for raising safety concerns?
What was said to him, and how was it said?
What did he mean by key words and phrases in his affidavit which (given the language difficulties reflected in his deposition) he obviously did not draft?
And, ultimately, who is the Board to believe -- Chan Van Vo or those he accuses?
It is no answer to say that the parties have had an opportunity to ask these questions in discovery.
The Board, as the decider of credibility issues, would want to put these questions directly.
In our initial weighing of the five factors, we did not speak explicitly to the importance of Chan Van Vo's appearance as a witness.
We focused instead on Mr. Eddleman's prospective contribution to the record.
Memorandum and Order of January 14, 1985 at 3.
But that was because we were assuming Mr. Van Vo would appear and testify -- an assumption inherent in the contention itself and repeatedly reinforced I
by Mr. Eddleman's representations.
Until the question first arose two
. weeks ago, it never occurred to us that we might be asked to go to hearing on 41-G, the "Chan Van Vo" contention, without Chan Van Vo.
Contrary to Mr. Guild's argument (Tr. 7742-7743), we do not believe that a " late" contention, once admitted, can only be resolved by summary disposition or hearing.
An argument that a mistake, once discovered, must be perpetuated has little to comend it.
On the contrary, once it becomes apparent that the "five factor" balance has clearly swung against continued litigation of a contention, the Board has discretion to reconsider that balance.
Here, factor 3, the " contribution" factor,
~
has changed dramatically against the Intervenors because they cannot produce the person they once recognized as their chief witness.
This means, as the Board sees it, that further litigation of Contention 41-G would never get to the heart of that contention and would result only in wasted time and resources.
The Intervenors complain t at they were required to make a "five factors" argument concerning kr.
Van Vo's unavailability without adequate notice.
Tr. 7741-7742.
While the Board did not explicitly cast the issue in "five factors" terms before the last conference call, the Intervenors have no legitimate complaint on that score.
The unavailability of Van Vo under " factor 3" and its effect on the five factor balance were the only things at issue.
The Intervenors were certaintly on notice and had a fair opportunity to address that narrow issue, and they did so.
With written testimony due shortly thereafter, time was pressing for an answer.
The Board might have afforded more time to the issue, possibly including a round of pleadings, had the
O Intervenors given us and the other parties more notice of Mr. Van Vo's unavailability.
There remains for us to consider only whether the Board should call Chan Van Vo as its own witness, at the taxpayers' expense.
We decline to do so.
While we do not think we are required to make a
" serious safety" finding under 10 CFR 2.760a as a precondition to calling a witness, at least in the present circumstances some significant safety concern should be present before we would take that action.
For example, had the Office of Investigations report on the Chan Van Vo allegations found substance in them, we wo'ld have given u
1 serious consideration to calling Mr. Van Vo ourselves.
But that report essentially exonerated CP&L and, reading Mr. Van Vo's affidavit in light of his subsequent deposition, we have no other substantial basis for calling him.
Contention 41-G is dismissed.
There is presently no harassment contention in this case.
- However, the Commission's Office of Investigations is presently investigating certain allegations we received in response to our notice to Shearon Harris employees of last winter.
After the OI reports are received, we will hear comments from the parties and consider whether the reports support admission of a contention or other action.
New Emergency Plan Contentions.
On April 29, 1985 Mr. Eddleman l
l proposed two new emergency plan contentions -- 227-CC and 227-00 --
i i
t based on the EPZ map and evacuation route portions of the Applicants' l
brochure.
The Applicants and Staff opposed admission of these contentions on various grounds, and Mr. Eddleman subsequently withdrew 227-00. Tr. 7719.
Proposed Contention 227-CC faults the brochure because it does not give complete directions or specific maps to the shelters located outside the 10-mile EPZ.
We agree with the Applicants' general proposition that:
[T]he purpose of the brochure is not to address in detail all possible contingencies, and to describe at length the " whys" and " wherefores" of all protective action options.
- Rather, the emphasis is on the provision of " basic" information through the brochure.
The Commission's concept of operations contemplates that
- further, detailed, accident-specific information and instructions would be provided to the public l
by emergency workers and the EBS system at the time of an accident.
We think that the kind of detail Mr. Eddleman seeks here is not required
- as part of advance preparation for some future emergency.
His concerns relate to matters outside the EPZ and therefore outside the area where more detailed planning is required.
Furthermore, his concerns take no account of the provisions in the plans for traffic control.
See r
Applicants Response, p.
9.
It is reasonable to assume that those i
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Proposed Contention 227-CC is rejected.
THE ATOMIC SAFETY AND LICENSING BOARD Owe Jq)MINISTRATIVE JUDGEMesL.Kelley,Chairmaf AJ br g
A t/. James H. Carpenter ADMINISTRATIVE JUDGE 6.h&f?
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Glenn O. Bright
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ADMINISTRATIVE JUDGE Bethesda, Maryland