ML20128K240
| ML20128K240 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 05/29/1985 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#285-324 OL, NUDOCS 8505310116 | |
| Download: ML20128K240 (95) | |
Text
ORIGINgCA UNITED STATES OP
. -5 NUCLEAR REGULATORY COMMISSION In the matter of:
CAROLINA POWER.& LIGHT COMPANY AND NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY Shearon Harris Nuclear Power Plant, Units 1 and 2 9
Docket No. 50-400-OL b
G Location: Bethesda, Maryland Date: Wednesday, May 29, 1985 Pages: 7635-7727 8505310116 PDR 850529 ADOCK 05000400 PDR ANN RILEY & ASSOCIATES g/)'g Court Reporters
.( -
//L 1625 I St., N.W.
1 Suite 921 Washington, D.C. 20006 (202) 293-3950 l
E
cm** 7635-v( 2 UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION 4 -----------------------------------------
5 in the Matter of: :
6 CAROLINA POWER & LIGHT COMPANY and :
, 7 NORTH CAROLINA EASTERN MUNICIPAL POWER : Docket No. 50-400-OL 8~ AGENCY :
9 Shearon-Harris Nuclear Power Plant, :
10 Units 1 and 2 :
11 -----------------------------------------
12 TELEPHONE CONFERENCE CALL O'
- _/ 13 4350 East-West Highway 14 Fourth Floor 15 Bethesda, Maryland 16 Wednesday, May 29, 1985 17 The telephone conference call in the above-entitled 18 matter was convened at 10:10 a.m., pursuant to notice.
4 19 APPEARANCES:
4 20 Board Members:
21 JAMES L. KELLEY, Esq., Chairman l
22 GLENN O. BRIGHT ;
es JAMES. H. CARPENTER C '" '
25 1
7636 1 For the NRC Staff:
2 3 JANICE MOORE, Esq.
4 CHARLES BARTH, Esq.
5 BRAD JONES, Esq.
6 U.S. Nuclear Regulatory Commission 7 Washington, D.C.
8-9 For the Applicants:
10 11 ANDREW H. MC DANIEL, Esq.
fs 12 DALE HOLLAR, Esq.
13 Carolina Power & Light Company 14 P.O. Box 1551 15 Raleigh, North Carolina 16 3
17 THOMAS A. BAXTER, Esq.
18 JOHN H. O'NEILL, esq.
19 DELISSA RIDGEWAY, Esq.
20 Shaw, Pittman, Potts S-Trowbridge 4 21 1800 M Street, Northwest 22 Washington, D.C.
28 24 25
7637 1 For - the Intervenors:
2 3 ROBERT GUILO, .Esq.
4 Columbia, South Carolina -
J 5
6 WELLS EDDLEMAN, Pro Se 7 718-A Iredell Street 8 Durham, North Carolina 27705
.9 l-10 JOHN-RUNKLE 11 Conservation Council of North Carolina 12 307 Granville Road i 13 Chapel Hill, North Carolina.
i 14 ,
. 15 16 17' 18 19 20 i
21 -
i 22 23
,-- 24 25
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7638 1 PROC EED 1 NGS
...V-2 JUDGE KELLEY: Let's start by checking the roll.
3- Who is here for the Applicants, Mr. O'Neill?
4 MR. O'NEILL: .Yes, sir. And Tom Baxter.
5 I will get Ms. Ridgeway when we get to planning.
6 JUDGE KELLEY: Okay.
7 Staff?
8 MS. MOORE: Janice Moore, Charles Barth and Brad 9 Jones.
10 JUDGE KELLEY: Thank you.
11 Mr. Eddleman, are you here?
- 12 MR. EDDLEMAN: Yes.
13 JUDGE KELLEY: And Mr. Guild?
14 MR. GUILD: Yes, sir.
15 JUDGE KELLEY: Anyone else that I haven't called?
16 MR. HOLLAR: Mr. Hollar and Mr. McDaniel are here.
17 JUDGE KELLEY: Right. Thank you.
18 MR. RUNKLE: Mr. Runkle.
19 JUDGE KELLEY: Mr. Runkle, good morning.
20 Anybody else?
21 (No response.)
22 Well, as we said in our last conference, our purpose 23 today was to focus on the 01 report. Let me confirm first f
24 whether everybody received at least the report itself, the 25 ten page document.
7639
[}
U 1 Has everybody got that? Anybody who doesn't have 2 it?
8 MR. GUILD: Yes, sir, I have not received the report 4 and learned of its existence only yesterday. I got the two 5 volumes of exhibits, but learned that there was a report, I 6 gather to you, Judge Kelley, only yesterday, and have not 7 received that.
8 JUDGE KELLEY: My understanding, Mr. Eddleman, you 9 were going to be updating Mr. Guild on what was involved.
to MR. EDDLEMAN: I think I left a message for him out 11 in the Midwest that the report of two volumes were coming to f- 12 him. And then I talked to him yesterday, and discovered that i
18 he hadn't gotten the report.
14 MR. GUILD: I got the two volumes, Judge Kelley, 1 15 just didn't get any report to you. I just learned that it a
16 existed yesterday.
17 JUDGE KELLEY: That's probably because you are not 18 on the Service List.
19 Ue have this situation where it is unclear t o me ,
20 Mr. Guild. You are counsel as to discovery, as to this 21 contention. Is that a fair statement?
22 MR. GUILD: That's the status of it as of this 28 point, yes, sir.
- (~ 24 JUDGE KELLEY: But you have never been put on the 25 Service List to my knowledge, or for that matter, requested to
~ . - - _ _ _ _ _ _ . , _ _. _ _, t-
. 7640 r
r be put on there.
1 2 Between Mr. Guild and Mr. Eddleman, are you prepared 3 to address this matter this morning?
4 MR. GUILD: In a limited degree, Judge. We sort of 5 anticipated that was going to be the subject of this call. I e familiarized myself with the two volumes of the exhibits which
. 7 I now understand support that report. But, as to the details 8 of their conclusions, I have only been informed of them and 9 haven't received the document. I, obviously, haven't had an 10 opportunity to study it.
i 11 I am prepared to address'the general subject. To 12 the extent it is a question of what it said or concludes, my 18 information is limited.
14 JUDGE KELLEY: That's unfortunate, because the
}-
15 purpose of this call is to address the significance of the Of
~
16 report to 416, and whether 41G ought to be expanded beyond 17 its limited scope in the light of 01.
18 1 think the Board is ready to talk about that, t
19 Mr. Eddleman, you have read the report, correct?
J 20 MR. EDDLEMAN: Yes, Judge, 21 JUDGE KELLEY: Okay. Well, we want to go ahead, we 22 want.to hear from all parties, and we want to make a 4
s 23 decision. We are not here for a preliminary discussion. We i
24 are here for a definitive discussion as to whether any 25 expansion in 410 should take place as a result of the 01
7641
() 2 1 report.
MR. GUILD: Well, sir, to the extent that 4
8 Mr. Eddleman has asked me to assist him on this matter, I I- 4 really don't think it is due to any fault of Mr. Eddleman or 5 .myself that we are somewhat handicapped in addressing the 6 merits of this issue.
7- I would just inform you, Judge, that my 8 understanding of the normal 01 practice was that they issued 9 no report. They simply compiled a series of reports of 10 investigative interviews, et cetera. That certainly was the ,
11 approach that they followed, just for example in investigating
- - 12 the welder inspector concerns at Catawba. There was no formal i \
13 report. It simply.was the bound evidence. And I got that, 14 and I exercised what diligence I could in reviewing that in 15 'the time that I had them in my possession.
16 But, I did not understand there was a report to the
, 17 Board and learned of that only yesterday.
J l
18 I think to the extent that Mr. Eddleman has asked i
19 for assistance from counsel in addressing the merits of these 20 issues, and I would like to provide him with that assistance, 21 we are somewhat handicapped. I think it is unfortunate, but 1 22 don't think we are to blame for that, sir, i.
1 23 JUDGE KELLEY: 1 might note, Mr. Guild, that you b
i \s / 24 absented yourself from last week's phonecall, because you were i
25 busy in Chicago. But I said at that time -- had you been on
3 7642 l
, 1 the phone last week, you would have known that there was going 4
(
2 to be a report.
-8 At the conclusion i described what we had and i 4 1 described the report, and just exactly what it was. And 1 -
5 went on -- excuse me a moment, I am looking for the relevant 6 part.
7 (pause)
J 8 I want to direct your attention to pages 75, 96 and 9 97. We have had a discussion of what we got in the way of 2
10 report and who is going to get copies and what we are going to 11 do next week, and then I say at the bottom, beginning at line 12 22, "Now, I would just point out, Mr. Eddleman, that Mr. Guild
'18 felt he didn't need to be in on this phone call, and we will 14 be talking from now on about emergency planning matters, but i e 15 think what has been said here is pretty straightforward. I 4 16 assume you can pass that on to him so that he will be-
. 17 prepared, t
. 18 "We already told him there will be a phone call next 19 week. We will have to change the time. We told him Tuesday i 20 the 30th. We will.have to call him back and tell him the 21 29th. But in terms of what we are going to do, I will rely on 22 you to convey that to him."
28 Mr. Eddleman, you did not speak to Mr. Guild at all i' \ 24 until yesterdays is that correct?
l 25 MR. EDDLEMAN: No, sir, that's not correct. What
. . _ . _ . _ . . . _ . . . . _ _ , _ - . . , _ _ , . . . . _ _ . . _ _ , _ . , _ . _ . . . . _ _ _ . _ . _ _ _ _ _ _ . _ _ , . _ . ~ . . _ . - . _ _ . , . _ - . - . , .
l 7643
'[% ) 1 l'm saying is I think I may have left the information about 2 what was coming to him by mail in a message, and it may have I
8 been a mistake on my part. My best recollection is that 1 4 ' understood he was going to get the two volumes and the report 5 by quick mail where he was in the Midwest.
6 (Je talked otherwise, but I didn't mention it because 7 I thought that it was coming to him.
8 JUDGE KELLEY: Have you and Mr. Guild had any 9 discussion prior to this telephone conference as to what you 10 have got to.say this morning on the significance of the 01 11 report?
-~ 12 MR. EDDLEMAN: Yes, sir.
N.)
18 MR. GUILD: Judge, we talked about it and I had the-14 report to you read to me over the telephone late last night.
15 1 am just simply telling you that I don't think it is as any 16 result of lack of diligence on Mr. Eddleman's part or mine.
17 It's an unfortunate series of circumstances that led to the 18 problem that I don't have the report in front of me and 19 haven't had a chance to study it. But I did have the two g 20 volumes of exhibits. I understood, I think fairly, that those 21 were what 10 did and that there was no report.
22 I learned otherwise only yesterday. I have done 28 everything I could to correct that omission.
% 24 JUDGE KELLEY: If you learned only yesterday that 25 there was a separate, ten-page report about this matter from
7644
( 'h 1 Mr. Eddleman, I think Mr. Eddleman has not exercised due b
2 diligence.
8 MR. GUILD: I beg to differ with you, Judge. 1 4~ think the circumstances that I set out reflects he fairly 5 assumed that those two volumes were it and that there was no 6 ten-page report.
7 JUDGE KELLEY: Well, we have got ten people on the
, 8 phone ready to do business on this main item, and what I am 9 hearing from Mr. Guild and Mr. Eddle.wan is that they somehow 10 aren't ready. We don't think it is j t is t i f i ed . We are going 11 to go ahead anyway. We will considre at the conclusion of the
_s 12 discussions of the respectiv- p.rties what further
\
)
la opportunity, if any, Mr. Guild and Mr. Eddleman are entitled 14 to with regard to the subject of whether the 08 report 15 justifies any expansion in 41G. We will go to the Applicants 16 first 1
17 MR. GUILD: Judge, let me point out one other thing 18 before you go forward. I also understand that Mr. O'Neill or 1
I 19 the Company has submitted a pleading to you with respect to l l
f6 20 the two' matters that were in dispute about an inspector-review l
21 panel and an allegation of harassment and documents reflecting 22 that, and I haven't received that pleading either, learned 23 that it exists but have not seen it er reviewed it.
24 JUDGE KELLEY: I was going to get to that.
25 Mr. O'Neill, was that served on Mr. Guild?
l
. - 1 I
7645 m
{d) 1 MR. O'NEILL: Judge Kelley, I would think that it 2 would have been. If it wasn't served on him, it certainly was
- - l' 3 served on Mr. Eddleman. Again, Mr. Guild hasn't put an
~
4 appearance in. He is not on the service list. I have been 5 trying to send documents to him when it involves discovery, 6 but again, since he hasn't elected to appear in this case, it 4 7 is possible he didn't-get a copy of that letter. Certainly 8 Mr. Eddleman did.
9 MR. GUILD: Mr. O'Neill said he was going to send'it 10 to me. I acsumed, frankly, that there was no such pleading 11 since I hadn't received it.
12 JUDGE KELLEY: 1 view that, Mr. Guild, as a separate 3
D v 13 issue which we will discuss. I will just tell you this much, 14 and I will elaborate on-It. You asked for those documents in 15 discovery in connection with your depositions correct?
16 MR. GUILD: Yes, sir.
17 JUDGE KELLEY: Under 4103 correct? And I in the 18 last phone call tentatively denied the request based on what 1
- 19 had heard, but I said I wanted to see the documents 20 themselves. There are two issues. One is what the Board is 21 going to do in the way of either reaffirming its prior denial 22 or by way of reversing i tself and saying they ought to be 28 turned over. That's one issue.
24 A separate issue is whether the documents ought to i
25 be kept in camera or be made public or be made public in part f
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7646 1 and kept in camera in part. That is a separate issue.
2 As to issue No. 1, on which we have already heard 1
3 argument, having been over the documents, the Board having 4 seen them, we have concluded that those two documents have f
5 nothing to do with 41G and that they were properly denied.
6 I will expand on that n-little more later.
7 But the merits of the discovery question, the result 8 is that they are not reachable on 410.
9 Now we would like to proceed to a discussion of --
10 Mr. Guild, do you want to be on the service list of this case?
11 MR. GUILD: Yes, sir. The Staff have got me on as
-s 12 counsel for 410. I have received their pleadings,
\)
13 MS. MOORE: Your Honor, that is a service list 14 generated in ELD. For Mr. Guild to be put on the service list 15 'down in the Secretary's office, I think he has to file 16 something in writing so that they know. Otherwise, they have 17 no way of knowing he is appearing.
18 MR. GUILD: That is fine, Judge. I simply had this 19 discussion with counsel that I don't want to be inundated with 20 all the various papers in the Harris proceeding. My interest 21 is in 41G. Staff has figured that out. I appreciate them 22 serving me those papers, but I admit they might fall through 23 the cracks otherwise.
(_f 24 JUDGE KELLEY: I would suggest that you take the 25 matter up with the Secretary's office, the keepers of the
7647 l
1 official service list. If they are willing to put you on on
[%)\-
1 2 a limited basis, that's fine with us.
3 MR. GUILD: All right.
4 JUDGE KELLEY: But I think there shouldn't be any
- 5 further slips of this kind, and one way to avoid it is to fix 6 the service list.
7 MR. GUILD: Okay.
O JUDGE KELLEY: Now, as to the significance of the 9 01 report and the main subject of this call, we would like the 10 parties'to take no more than ten minutes each -- by parties, 1 11 mean the Applicant, the Staff, and then Mr. Eddleman and 12 Mr. Guild together --
on this question of whether the report 13 justifies an expansion.
14 We may have some further discussion beyond that, but 15 initially we are going to allot ten minutes apiece.
16 Mr. O'Neill, do you want to begin?
17 MR. O'NEILL: Judge Kelley, I would like to begin by 18 saying the two volumes which are the principal results of the
( 19 investigation, which are summarized in just a few pages, 20 actually, of summary in the report itself make this issue 21 pretty open and shut. Mr. Van Uo admits that he did not see a 22 problem with the safety-related system, and he admits that he 28 did not mean to say someone had deliberately sought to falsify 24 documents in his deposition.
25 He defined " falsify" as not being able to determine
7648
.q- I where documentation is, and in effect has recanted that there
[ f U
2 were really safety problems that he had identified. It is 8 Interesting to note that in his own typewritten corrections to 4 the 01 Interview, he corrects his answer as to why he was 5 being harassed. He does this on page 15 of 19 of his 19 pages 6 of corrections.
7 The first one, he does reiterate that he thought he 8 was being harassed for raising the deficiency of the feedwater 9 pump, but the other three reasons have to do with sort of 10 Interpersonal relationships between various people, nothing to 11 do with safety, and indeed, in the elaborate discosssion of the 12 feedwater pump, he really has not raised that as a safety
~
18 lasue so much as he pointed out what he thought was a 14 deficiency, and others would not follow up on that because ti.e 15 deficiency had already been taken care of.
16 So I believe that Mr. Van Vo's own words demonstrate i 17 that he himself did not believe he was harassed or raising 18 safety concerns, but rather he felt he was being discriminated 19 against for educational reasons or for his race or whatever.
20 That is not something that is the purview of the Nuclear ,
i 21 Regulatory Commission. ,
I 22 Applicant has investigated this in great detail, and 28 Its conclusions are well documented. 01 is now invet.tigating l km 24 it in some detail, and its conclusions are well documented.
25 Indeed, I would think the Intervenors would withdraw the
7649
[b'\ 1 contention at this point.
2 I would like to reserve any time i have left to 3 respond to any arguments that the Intervenors make, but I 4 certainly can't see where the Of report can be argued to 5 justify an expansion of the contention, and I look forward to 6 whatever creative arguments Mr. Guild or Mr. Eddleman would 7 like to come up with.
8 JUDGE KELLEY: Okay. Who is going to speak for the 9 Staff?
10 MS '. MOORE: Janice Moore.
11 Your Honor, Staff does not believe that the 01 12 report leads to a conclusion that Contention 41G should be 3
la expanded in any way. The report contains interviews with 14 various personnel and is supported by extensive exhibits'which 15 indicate a lack of harassment of Mr. Van Vo, and given that 16 fact, there would be no reason to expand the contention to 17 discuss the general subject of harassment.
18 JUDGE KELLEY: Is that it?
19 MS. MOORE: That's it, Your Honor.
20 JUDGE KELLEY: Thank you.
21 Mr. Eddleman, or Mr. Guild first.
22 MR. GUILD: Yes. This is Guild, Judge, 23 Let me start off by saying, while we are 24 disappointed with the obvious flaws in what the Office of 25 investigation has chosen to look at and what they have failed
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1 1
7650 l
{s 1
1 to look at, and what their apparent conclusions are based on ;
2 the failure to look at the evidence that is likely to'be -l l
8 probative of harassment and intimidation, we do believe'that '
4 the results of investigation presented by the Office of 5 Investigation provide additional evidence to support our 6 thesis that Chan Van Uo was harassed and that an atmosphere of 7 harassment and intimidation exists at the Harris plant.
8 We think, as a fundamental matter, that the Board's 9 approach to the harassment issue as reflected in its January 10 14, 1985 Order, page 4, makes the question before the house as 11 follows. If the Van Uo allegations prove to be unfounded as 12 the Board said, and if no other evidence of harassment k
18 surfaces, then presumably the issue of harassment will be 14 closed.
15 We think~that at this juncture, the validity of the 16 Van Uo concerns has yet to be determined, and additional 17 evidence of harassment and intimidation has, in fact, surfaced 18 that we think compels two results. One is, either on the 19 basis of that additional evidence, that the traditional 20 litigation approach be followed, and that is that the 21 Intervenor may be provided an opportunity through its own 22 efforts through discovery to develop cases that follow the 28 lead that now has surfaced for other harassments and 24 intimidations.
25 JUDGE KELLEY: Mr. Guild, discovery, as you well
7651 m
know, in NRC cases doesn't work that way. Discovery goes
'(v) 1 2 under admitted contentions. The only contention in this case 3 is 41G. You may think it's too narrow, but that's the only 4 contention in the case. We don't have an open-ended mandate 5 to sift through everything at Shearon Harris lookirg for 6- something that might look like harassment.
7 NR. GUILD: We understand that is the Board's view, 8 and while we think there certainly was a basis for a general 9 claim of harassment and intimidation, one that is consistent 10 with the Appeal Board's view of what a significant flaw in the 11 QA system under the subject of harassment and intimidation g 12 would look like, we understand your ruling to the contrary.
13 But we also read your Order of January 14th as saying that 14 when additional evidence of harassment does surface -- and
. s 15 this case there is additional evidence of harassment --
that 16 at the very least we should not be limited artificially to 17 pretending that that additional evidence dcasn't exist. We 18 should go out to pursue that.
19 One approach I suggest --
20 JUDGE KELLEY: Just a moment. Let me follow your 21 argument back to my original point, pursuit in the form of 22 discovery depends upon contentions, right?
23 MR. GUILD: Yes, sir.
( - 24 JUDGE KELLEY: Those are our rules. When you say 25 other evidence has surfaced, you have reference to the two
7652 1 letters that came in in response to our notice? Is that what
['R-J) 2 you are referring to?
3 MR. GUILD: In part, sir. I can elaborate beyond 4 that, but let's put those two on the table first. -
5 JUDGE KELLEY: Those two are on the table. They are 6 on the table. They are on Ol's table at the moment. They are 7 going to finish an investigation, presumably, at some point.
8 We don't know when. Then we will consider what t. hey suggest 9 we ought to do, if anything.
10 MR. GUILD: Yes, sir. That's my second point. Let 11 me just complete the whole picture in summary and then return g- 12 to this point.
(
'~
18 I think the traditional approach ought to be 14 followed, and that is that the parties ought to develop the 15 record and not 01 The parties in this case ought to have as 16 additional evidence harassment reflected in an expanded scope 17 of a contention or additional admission of an expanded scope 18 of the contention. But it would be our' task and our 19 prerogative to develop this evidence falling that, and that 20 seems inconsistent with the Board's approach to this issue.
21 JUDGE KELLEY: It is inconsistent. It is directly 22 inconsistent. We decided we would look at Van Uo first; if 23 there was nothing to Van Vo, we would drop it. That has been 24 the law of this case since last Vanuary. Let's not reargue 25 that this morning.
7653
,- m
[ ') 1 MR. GUILD: Van Vo first and then additional V
2 evidence of harassment if it surfaced, and it has. At the 8 very least, Judge, what I would say -- and this is the second 4 point -- if expansion of discovery is not consistent with the 5 Board's approach to this issue, we disagree respectfully. At 6 the very least, there is an 01 investigation pending on the 7 two additional harassment claims that have formally surfaced 8- to the Licensing Board. I was informed by the 01 investigator 9 who is working on this that he projects a June 80'.h comp l et i on 10 date for those two other pending matters, and he thought that 11 was communicated to the Board, although I'm not aware
-s 12 independently whether that is the case or not.
la But at the very least, Judge, we would submit that 14 the two other pieces of evidence of harassment which have 15 indeed surfaced under 41G ought to be pursued by 01 before we 16 reach a determination on trying the issue of harassment at 17 Harris. That is our best summary of our position, either 18 discovery, which you deny, or the additional harassment 19 evidence, or we allow Ol to do what it is going to do and have 20 .before us the results of their investigation, more or less as 21 a substitute for discovery.
22 Now turning to what they have done so far, and that 23 is their investigation of the Chan Van Vo concerns. First as (h
(_) 24 a fundamental matter, the decision by the NRC Staff, whether 25 it be ISE, which looked at these matters and issued inspection
7654
- ,f reports, or 01, another arm of the NRC Staff which looked in O) 1 2 'some fashion at this issue and distributed the evidence or 3 summaries of the evidence that it obtained and apparently this 4 report it has made to the Board, neither.of those Staff 5 conclusions or investigations of the Van Uo matter are 6 dispositive of this issue for purposes of litigation.
7 The NRC is an adversary party in this case, and 8 adversary to this intervenor. So fundamentally, as a matter 9 of law, it seems t o me that the Board can attach no particular 10 significance ~to what the NRC Staff has concluded on a 11 contested issue. The issue has to be resolved on the record.
gs 12 JUDGE KELLEY: Maybe I'm not with you. When you say 13 the NRC Staff, do you mean 017 14 MR. GUILD: Yes, I mean 01 and/or ISE, any portion 15 of the Staff. 01 is the NRC Staff and they'are an adversary 16 party in the litigation. The fact that the NRC Staff, 01 or 17 whatever other office of the Staff reaches a position on a 18 contested matter doesn't dispose of that contested matter for 19 purposes of resolving a claim.
20 JUDGE KELLEY: We can take that as 'g i ven . Okay, I l i
i 21 agree with you. The fact the 01 report comes in -- let's say I
- I
! 22 you read it as saying there is nothing to the Van Uo j 23 affegations, there is no harassment involved where Van Uo is x 24 cencerned. Suppose they conclude that. That doesn't throw the l
25 contention out. If the proponent of the contention, l l
l
4 7655 1- Mr. Eddleman, wants to pursue 416, then presumably he can do s
2 that, and you don't have to convince us of that. We agree.
3 MR. GUILD: All right. Now then, the question, l 4 guess, before the house is you want to hear what status the 01 5 report does have, and since I think it is conceded that the 6 01 conclusion, like the ISE conclusion, doesn't dispose of-a 7 claim, then what status should it be given?
8 I think the question 1 understood the Chair put g before the house is what significance does it have on the 10 issue of whether or not the Van Uo contention, the 418 as 11 framed by the Licensing Board, should be expanded. My view is 12 It has no signific.unce whatsoever for that lasue. That issue
\
13 is strictly a legal issue and, as framed by the January 14 Licensing Board decision, is determined by whether or not 15 other evidence of harassment surfaces.
16 I submit that that lasue has been resolved in 17 the affirmative and other evidence of harassment has indeed 18 surfaced.
tg JUDGE KELLEY: Let me make sure i follow your 20 argument. Are you saying -- let's suppose the 01 report is 21 read to exonerate the Company and undercut Van Vo's 22 allegations. Then you say it has no significance, the 23 ' contention is still there. I understand that.
24 Supposing the 01 report came in, though, with a very 25 different tack, and it sald 1 talked to Van Uo and all these
7656 x_/
) 1 people, and he really was discriminated against, retallated 2 against for raising safety concerns, and I also found ten 3 other people who said the same thing. Would that be a basis l
4 for expanding the 4107 4
5 MR. GUILD: It womad be a factual basis, Judge, but 6 it would be factual basis no different qualitatively than the e
7 factual basis for expansion that already exists. That is, 8 there would be some the factual evidence of harassment that 9 would presumably meet the Commission's standards for being the 10 basis for a contention. I submit that that evidence already 11 exists. !
12 1 mean mechanically the approach can be the Board 13 says, okay, we have got those two other harassment claims out 14 there, we will treat them, and we will treat them as part of 15 'an expansion of 480 as it presently exists. Or mechanically 16 it seems to me that the Intervenor, then, la faced with the 17 prospect to otherwise simply say now we have two other bases 18 for new harassment contentions, consider these before the 19 house.
20 One way or the other, Judge, it seems to me the l 21 approach the Board has taken has to include consideration of l
j 22 the additional harassment evidence that surfaced.
1 23 JUDGE KELLEY: Mr. Guild, though, we have already k 24 discussed that, I think. I understand what you are saying.
25 There is going to be another 01 report somewhere down the line
7657
[
- V
} 1 on those other two letters. When that comes in, we will take 2 a look at it, but let's put that to one side.
( We are looking 3 at something narrow this morning.
t I
4 We are asking you whether we should expand the 410 -
5 contention based on this 01 report that is now in front of 6 you. That is what we want to hear. Yes or no, should we or l 7 'should we not?
8 l'm just trying to get out that question.
9 Mr. Guild, do you have any comment?
10 MR. GUILD: Yes, sir.
l 11 I think the answer to the question is it should be 12 expanded, and to the extent we are looking at the 01 report as la a basis for that expansion, I think the answer still remains 14 yes.
l
[ 15 Let me focus first on the fact that I think there l
16 are obvious facial Inadequacies on what the 01 report looked 17 at. If you want to reach the conclusion based solely on the 18 Of report on whether or not Chan Van Vo's concern about 19 harassment _and intimidation are substantiated, I don't think 20 It is'a reliable basis for reaching a conclusion one way or 21 another on that question.
22 But apart from t h.s t , there is other serious evidence 23 contained in what they have done that we think buttresses the 24 concern that people who he points out as being the source of 25 harassment and intimidation, particularly Alex Fuller, did his
I-7658
~'} 1 business in such a fashion that one should be concerned about J
2 the existence of harassment, of intimidation, of pressure on 3 workers in the hanger ~ area not to voice concerns about
- 4 quality and safety.
5 in that regard, it seems to me what the Of has done 6 is good for us, supports our-concerns and ought to support 7 this. Board's concern for looking further on the question of
( 8 harassment and intimidation.
9 Let me point out on the first point the flaws in 10 the face of the 01 report. The investigator spoke to no one I 11 that Chan Van Vo identified as being potential-witnesses to 12 corroborate the factual basis for his concerns. I don't know
\_sY 18 how they picked the people that they picked, but the names 14 that I see. identified with those who are identified in the.
15 attachments are almost -- they get a person who was identified
- 16 as hostile to him and his claims, as far as he knew. The l
~
17 person's name has never been identified in any of the
[ 18 investigative interviews or the deposition conducted by the
{
l l 19 Company So where 01 got those names from, I don't know, but l
20 they certainly did not speak to the persons that he identified 21 as potentially corroborative witnesses.
22 JUDGE KELLEY. Where are these potentially 23 corroborating witnesses identified by Mr. Van Vo?
24 MR. GUILD: I can't give you page and line
.5 ,efe, enc..
7659 1 MR. EDDLEMAN: I can.
2 JUDGE KELLEY: All rights where?
3 MR. EDDLEMAN: On Exhibit 2 of Ol's notebook on page 4 32, and also on page 6 of 19, which is renumbered page 7, of 5 Exhibit 3 Van Uo mentions an inspector named Ward who he 6 asserts was removed for having found too many problems.
7 JUDGE KELLEY: Okay.
8 MR. EDDLEMAN: He also -- let's see. On, I believe 9 it is, pages 67 and 68 of Exhibit 2, he mentions a person 10 named Roy Settle, S-e-t-t-i-e. I was just trying to 11 double-check that list of people interviewed. Of course,
~s 12 there are some who were anonymous, but I don't see Settle on 13 the list. And this is a person that he, Van Vo, alleges that 14 Willett told Settle concerning the pump problem. "I don't 15 want to hear that problem no more. If something happens, 1 16 will get you first." That is Van Vo's statement of-what 17 Willett said.
l 18 He mentions Thomas French as talking about CP&L 19 having a poor management and lacking expertise, pages 15 and 20 16, renumbered 16 and 17 on Exhibit 3. He also mentions l
f 21 through this --
I don't have a page cite on that exactly -- Ed l
l 22 McLaine as a person that he worked with, and he knew about 23 some of these problems and he was told about some of the
\_/ 24 problems.
25 He also mentions on pages 103 and 104 of Exhibit 2
7660 1 an inspector named Vincent, U-i-n-c-e-n-t, who he says was 2 fired. As I say, I don't know because the three or four of the 8 interviews, one was deleted in its entirety and a number of 4 the others have the names deleted. But I think there are more 5 of these people right here than there are del'etions. So I 6 would be real surprised if they could have gotten all of them.
7 Also it appears that most of the interviews took 8 place on site, and anybody who had been fired, it would be 9 very unlikely that they would be interviewed on site.
10 JUDGE KELLEY: Okcy, Mr. Guild. I think my pending 1'1 question to you, and I want to move ahead --
I think our time 12 has about run. I nave interrupted a lot, but you have been on s
V 20, 25 minutes.
18 My question is this. I was asking you, what '
14 would you point to in the Of investigative material as 15 supporting expansion, supporting the Van Uo allegations?
16 You mada some comments about Mr. Fuller. Could you 17 give us specific --
I don't know what you are referring to.
18 MR. GUILD: I think there are inadequacies 19 otherwise. Mr. Eddlemen has pointed out witnesses who weren't 20 spoken to. There are several others, other inadequacies on
! ~
21 the face of the report, but in terms of what the report has to 22 say that we think supports the notion of asking the Board to a
23 be motivated further on harassment, six of the 13 witnesses, I
(/ 24 understand from the account that was related in the cover 25 letter to you, speak critically of Mr. Alex Fuller, the man
~ _ __
7661
[ '\ 1 who was in charge of the hanger program during material points (v / )
2 in time.
8 Three of the witnesses requested confidentiality, 4 and I submit that the 01 only grants confidentiality when a
- 5 claim is made by a witness out of fear of retribution or 6 reprisal, and where the information will not be given to 01 7 other than with a grant of confidentiality. That grant.of 8 confidentiality is not offered. It has to be made on request 9 of the witness. I submit that three witnesses requested 10 confidentiality, and the presumption had to be it is out of 11 fear of reprisal.
- . 12 One witness, rather a stalwart character, Exhibit
\
13 20, a Mr. Jerry Lee, says he feels retribution from CpSL and 14 Mr. Fuller, by name if what he has told the NRC gets back to 15 CpSL or Fuller, and he mentions'specifically in passing that 16 experienced nuclear workers that he is aware of had to handle r 17 safety matters in spite of --
and the language is his -- in 18 spite of Mr. Fuller. ,
i 19 He relates in essence that Fuller -- he and others
- 20. relate in essence that Mr. Ful'ler was, as alleged by Mr. Van l
21 Vo, inexperienced in nuclear safety matters, a hardliner and l
22 one who was not receptive to contributions or suggestions from l 1
23 his subordinates.
0 24 (Je submit that that evidence corroborates in 25 significant detail the evidence that so far has come solely w - e , , -- - , - - - - , . - -- ~
7662
/cm 1 from Chan Van Vo since he is our only source of information
'\
< s-2 with respect to how the hanger program worked and what 3 Mr. Fuller's performance was like.
4 Now, the fact that Of concludes that.there was no -
5 knowledge of horassment and intimidation among the folks who 6 were i n t erv i eweed is not troubling except that it suggests a 7 lack of investigative effectiveness, in my view, since the 8 claim of harassment and intimidation is founded on what 9 Mr. Fuller did by way of putting Chan Van Vo on probation and 10 then terminating him, and that action certainly must have been 11 common knowledge to those who worked with Chan Van Vo. But.
- 12 the retallatory character of that action is based on 18 Mr. Fuller's motive, and that is not a question that is 14 subject to corrcboration by an individual.
15 So the fact that these people say I have no 16 knowledge of any facts of harassment and intimidation of Chan 17 Van Vo lands little to reaching the conclusion of whether or 18 not the retaliatory motive existed.
19 Let me conclude by saying that, most significantly, 20 there is no treatment whatsoever in the 01 investigation that 21 we can tell of Chan Van Vo presenting concerns and proposals
.c 22 for restructuring the organization of the hanger program to 23 the senior officials of the company, to Mr. Utley and n
(_/ 24 Mr. McDuffy. His contacts with Utley and McDuffy loom very 25 large, in our view, in motisvating the retaliatory action by
. . . ~ . _ _ _ . _ . _ _ . _ _ , _ _ . _ . _._ .. _ . . _ _ - - , _ , _ _ . _ _ _ --- - _ _ . , , , _
7663
/mT- 1 Fuller and Willett towards Chan Van Vo.
D 2 It should be apparent on the face of it and is borne a out by witness' responses to deposition questions that we 4 posed that no line worker had ever come to visit these 5 individuals. They were taken aback by it. They communicated 6 the fact that he wanted to speak to them directly back to the 7 site. That communication got to Fuller and Willet. They well O knew that Chan Van Uo was meeting --
9 JUDGE KELLEY: I understand your point, Mr. Guild.
10 Let me just ask you this question. I think you said it 11 before, but so we are clear, you are not arguing at this point
% 12 in light of this report that the Contention 41G be expanded; i
d 13 correct?
14 MR. GUILD: Yes, sir, I am. I am arguing that the 15 basis of what it discloses from the investigatory interviews 16 of persons regarding Alex Fuller and regarding the 17 responsiveness of Fuller to suggestions and concerns by people 18 who worked under him, that corroborates in substantial part 19 Chan Van Vo's claims; that-this should certainly be the basis 20 for expansion of the harassment a n'd intimidation contention to 21 look at least at the existence of harassment and intimidation 22 within the area of work supervised by Alex Fuller.
23 JUDGE KELLEY: Well, if you are urging, then, as I
( j) 24 take it you are, an expansion of the contention, what would 25 you have it say- exactly? Co you have any language ready to a
7664 i i
(
(
1 offer?
2 MR. GUILD: I don't, except I can paraphrase. The 8 scope is certainly supported in the face of the 01 4 4 investigative results, that is, to review harassment and 5 intimidation against workers who raise safety or quality 6 concerns in the hanger' department. That appears to be the 7 scope of the investigative interviews that 01 conducted.
8 They characterize these people as 13 co-workers.
9 They all appear to be hanger engineers. We don't know what 10 exists outside of hanger engineers, but that is who he has 11 talked to, and we think the results of those interviews, six 12 .of the 13 are significantly critical testimony or statements
\~
18 against supervision in the hanger department. It bears on 14 harassment.and intimidation.
15 MR. EDDLEMAN: Judge?
16 JUDGE KELLEY: Mr. Eddleman, you want a few minutes?
17 MR. EDDLEMAN: I will be as brief as I can. I just 18 wanted to add to that, if you want language for expanding the a
19 contention, I would think that the possible harassment and 20 firing of this person, pote Ward, and Vincent, and also the 21 possible intimidation of Roy Settle over the pump issue are 22 things that should be looked into.
23 i frankly was surprised after reading through, at 24 first when you have the interview with Van Vo, where he lays 25 all that stuff out and there is follow-up, when I got all the
7665
[( \
1 way through to the end, I said: wait a second, where is the 2 follow-up on these issues?
8 So I think it provides a basis for raising these 4 issues. They come from Van Vo's recollection, and 01 5 apparently didn't follow through on that, one way or another, 6 and there are certainly issues of harassment and --
7 JUDGE KELLEY: It is my understanding -- by the way, 8 Mr. Eddleman, this issue has cropped up repeatedly. I thought 9 this was an issue that has come up at various points. My 10 understanding was the 01 guy was going to go out and determine 11 whether Van Vo had been retaliated against for raising safety
- 12 concerns, and that that was really what he was looking for.
s
\,.
13 (Jhy do you prof ess surprise that he didn't follow up on 14 something else?
15 MR. EDDLEMAN: Maybe that is what he was looking 16 for, but I thought the NRC was supposed to, if a claim that 17 someone had been harassed or fired for raising safety-related 18 concerns was made, that somebody in NRC was supposed to follow 19 up on it. Maybe it's not 01. What I'm saying is they seem to 20 have uncovered this inFormation.
21 MR. GUILD: Two points, Judge, it is evidence that 22 corroborates Van *Uo's view that harassment was a motivating 23 force behind his dismissal, and second, as 1 think the i i
\ 24 Chairman observed, in the course of their investigation if 25 they uncover other evidence of harassment, that i t see l f will be
7666 rx \
/ 1 the basis for considering expanding the contention. If others Q) 2 say, I was harassed, too. And here is evidence discovered in 3 the course of this investigation that leads logically to 4 inquiring into harassment of other individuals for both these 5 purposes.
O JUDGE KELLEY: All right.
7 MR. GUILD: Judge --
8 JUDGE KELLEY: Make it short, Mr. Guild. You time 9 is long since up.
10 MR. GUILD: if I can, let me just put the subject on 11 the table, and that is a response to Mr. O'Neill's
-% 12 characterization of Chan Van Vo as having recanted his
~_/-
13 concerns. If 1.can just speak to that one point.
14 JUDGE KELLEY: Go ahead.
~
15 MR. GUILD: I would like the record to be clear en 16 that. First, in the course of the Company's deposition, one 17 should understand the context. Reading the context, reading l
18 the deposition should make clear that there was a very I 4
19 significant language problem during the entire course of the 20, questioning. Oftentimes, it is apparent that the witness 21 simply doesn't understand the question. Sometimes he says so, 22 and sometimes his answer makes clear that he doesn't i
28 understand. So one should not read an isolated answer out of A
'\_e) 24 context.
25 Second, at the end of an incredibly long, difficult j l
7667
' .m I day, late in the evening, Chan Van Uo simply wanted to go 2' home, and I submit to you that at the end of the deposition, 3 under Mr. O'Neill's zealous and effective examination, Chan 4 said, well, I will leave it to you. If you have resolved -
5 these technical questions to your satisfaction, fine; I simply 6- raise them as concerns -- and words to that effect.
7 That really is the point here, Judge. Of said he 8 had no bona fide safety concerns. He had what were to him 9 ' good faith, sincere concerns about the quality and safety of 10 the Shearon Harris nuclear power plant. He did what ha 11 thought he should do to voice those concerns, and in his 12 judgment..he was retaliated against, mistreated, and 13 ultimately fired for having pressed those matters.
14 We think the 01 investigation does nc khing to 15 dispose of that question and corroborates in substantial part 16 concerns by his co-workers that Mr. Fuller, among others, 17 managed his people in just such a way as to cause one to have 18 a fear of reprisal for having voiced those kinds of questions.
19 JUDGE KELLEY: All right.
20 Mr. O'Neill,~any response?
.21 MR. O'NEILL: Just'briefly.
22 Judge Kelley, I think the ma)erity of what Mr. Guild 23 said really doesn't go to the issue 1 understand is before us, 24 and i don't feel compelled to respond to what is outside of 25 the scope of this argument, that is, whether or not there is
7668 1 anything in the 01 report that argues for expansion of the 2 41G.
3 1 think'that Mr. Eddleman and Mr. Guild have 4 searched hard through two volumes to try.to find something 5 that might. support the allegation. While a number of the 6 interviewees may have said something critical about their 7 supervisor as to his management style or whatever, none of e
8 them said that he had ever harassed anyone, and indeed, they 9 made on the whole rather positive statements about his 10 management style and his fairness and the way he treated 11 people. He was described generally, according to 01 on page s
12 8, as professional, unemotional, unbiased and hardworking.
~
13 it was rather clear from all of these interviews 14 with the co-workers of Mr. Van Vo that there was no i
15 substantiation that there was any harassment, and indeed, 16 Mr. Guild has really admitted there was no safety concerns
\
17 that Mr. Van Uo really had. Those were ones that he may have 18 perceived were safety cotcerns. And that really goes to one 19 of the reasons he was eventually terminated, that he did have 20 some problems with putting things in perspecttve and i
21 identifying what were real concerns.
22 Therefore, I think if you look at the information 23 01 put together, that there was no basis for any further
.(,) 24 indictment of Mr. Fuller individually.
25 (Ji th respect to other names that Mr. Van Vo may have
~.n, , - . , , , . , - _ . . - . , , , , . - . - . - , - ~ ,m... . - - , - - , , - - - - _ . . - - .,..,e , . . - ,
7669
- mentioned in his interview, Mr. Ward or Mr. Settle or ff'h 1
\
2 Mr. French or Mr. Vincent, again there~is no evidence here 3 that there was any harassment or intimidation of any of these 4- Individuals because they raised safety concerns.
5 It isn't really very clear. As Mr. Guild mentions, 6 Mr. Van Uo does have a language problem, and the question has 7 to be extremely clear in order to be sure that you are getting 8 a responsive answer. Some of the investigator's questions, 1 9 think he got a lot of non-responsive answers, and some of the 10 discussion about Mr. Ward or Mr. Vincent went off on 11 tangents. It isn't clear what point he was making. And the 12 corrections he made to his transcript, 19 pages, don't have 13 very much, quite frankly.
4 14 1 do point out the one that seems to make it clear 15 --
and again, I think it is perhaps the most significant set.
16 of evidence in this whole document with respect to harassment, 17 that if you look at his own typewritten, carefully thought-out IS version of why he was being harassed, he raised things about 19 that he thought Mr. Willett had told him he had been a captain 20 in the Navy, and then he found out he wasn't a captain in the 21 Navy and therefore since he knew that, and perhaps Mr. Willett 22 had lost face, that's why he was being harassed.
23 That does not go to harassment for raising safety 24 concerns; it goes to this particular individual who 25 Intervenors are touting as their witness here, and I think it
7670
' \/.
[ 1 'makes a'very clear case which we can decide here that there 2 was no harassment. Certainly there is nothing here that would 3 go to the expansion of this case.
4 Just briefly, the two other-issues 01 is 5 investigating, one, Judge Kelley has stated on the record he 6 didn't see anything in the pegeuse letter that went to 7 harassment.
8 The other one, we don't know anything about, but 9 Mr. Guild sure does, since that is his client. 'And if he had a
10 another contention that he wanted to put forward based on 11 some other individual's claims, he could have done that months
~
12 ago, and he didn't.
18 If Of comes back from an investigation of an 14 anonymous letter and finds harassment, that that might serve-15 as the basis of some contention. But certainly it doesn't say 16 anything about an expansion of 41G.
17 The only evidence that the Intervenors have managed 18 to put forth are Mr. Van Vo's claims. A thorough 19 investigation by the Applicant and by the Staff on a number of 20 different aspects of that c-laim show them to be without any 21 foundation.
4 22 We should go forward with a hearing on this issue as 28 soon as possible. Because, to let it linger like this is 24 simply the tactics of Mr. Guild to try to find someone else 25 and to expand this issue, and as the Board suggested, try to
7671
/-
(y get discovery, further discovery of the Harris plant to seek
' V) 1 2 out something else where there is nothing.
3 JUDGE KELLEY: Anything else from the Staff?
4 Mrs. Moore?
5 MS. MOORE: Staff has nothing to add to its prior 6 statements. We stand by those.
7 JUDGE KELLEY: The Board is going to mute out our 8 and for a few minutes. Please don't go away.
9 Well, you can take five_ minutes, if you wish. It is 10 11 o' clock just about sharp right now, according to my clock.
11 Could you pick your phone up.again at 11:05.
p
.t 12 Thank you.
13 (Recess.)
14 JUDGE KELLEY: Hello, this is Judge Kelley back on.
15 Can you hear me okay?
16 (Chorus of affirmatives)
-17 JUDGE KELLEY: Okay, thank you.
18 We have considered the comments of all parties on 19 the auestion of whether the 01 report on the Van Vo 20 allegations now that is in hand, warrants our expanding the
-21 present Contention 41G, And we conclude that it does not 22 justify any such expansion.
23 It seems to us that while you can go through the
\w- 24 report and find some statements perhaps out of context that l 1
25 may look the other way or indicate a look in the other 1
I i
i l
l 7672
( ) 1 direction, under any balanced reading of this report it 2 exonerates the company and does not support Mr. Van Vo's 8 allegations in any material way.
4 And that is really what we had in mind. Overall. -
5 what is the message from 017 And the message is, there is 6 nothing to these allegations. Therefore, that report doesn't 7 indicate a broader look.
8 Now the report itself, of course, as we have said 9 before, isn't dispositive of the contention. It isn't even 10 evidence in the case. We haven't had a hearing. It simply 11 represented a way in which we might have expanded it had the 12 report come to a very different conclusion, one incriminating
/-s s G 18 the company and supporting Mr. Van Vo.
14 Now, in due course we will be getting reports from
-15 Ol on those other two letters we have referred to, but it 16 seems to us that under the circumstances, as we said-before wo 17 would try t'e h Van Uo allegations if it came to that stage in 18 the process. And the idea that we should sit back now and 19 wait for Of to come in with the other two reports while other 20 reports possibly are generating somewnere, doesn't seem to us 21 to be an efficient approach. After all, the Van Uo 22 allegations have started this whole area of inquiry, and we 23 have been saying for months we will find out whether the Van f' ^ %
(m 24 Uo contentions, whether the Van Uo aslegations are well i
25 founded, or whether they are not well founded.
7673 in .
1 So, we see it as the Board now being in a position 2 to go to hearing on the Van Vo contention as presently a drafted. And we understood the Applicants before to-say that 4 they would prefer going straight to hearing rather than the 5 summary disposition approach.
6 1s that still the case Mr. O'Neill?
7 MR. O'NEILL: We think that is the most efficient 8 way to dispose of it in the quickest possible manner. I think 9 the contention lands itself to summary disposition, quite 10 frankly, but we do have a hearing scheduled for June and it is 11 rea!1y not much different as far as putting on the case by s 12 affidavits and testimony, and we think that we would prefer 13 doing that.
14 JUDGE KELLEY: Your proposition, as I recall it,.was 15 to go to hearing on this contention the week of the 24th, 16 possibly first, rather than second. That is, starting on 17 Monday and getting that heard before the emergency planning, 18 if.that was a convenience to the Intervenors or others.
19 1 think you indicated some flexibility in that 20 regard?
21 MR. O'NEILL: We certainly are willing to go any 22 time during that period that you have reserved for hearing.
< 23 My suggestion to go first only was in deference to s, 24 Mr. Eddleman's concern that he have Mr. Guild available to i 25 assist him if that becomes important to him. And Mr. Guild
7674 1 suggested that he had a vacation the first part of July that
[JT
~
2 he didn't want to miss.
3 So we said under those circumstances we would be 4 willing to go first with the Van Vo contention, so that 5 Mr. Guild can go on his vacation if Mr. Eddleman desires to 6 use him.
7 But, if that is not a consideration, then we have no 8 real preference for the order. Maybe Mr. Baxter would Ilke to 9 put on Emergency planning first. But I am not sure.
10 MR. BAXTER: This is Tom Baxter. I mentioned during 11 the last conference that I understand some witnesses will not g- 12 be available after the 4th of July. So, we were contemplating V la that if the Van Vo contention were heard first, that we would 14 still be able to finish that contention and the two Emergency 15 planning issues before t he 4th.
16 JUDGE KELLEY: I think the Board would share that 17 expectation.
18 Staff, do you agree we are in a posture to go ahead 19 on hearing the Van Vo contention? And, do you agree with the 20 time suggested, or do you have a different one?
l 21 MS. MOORE: Your Honor, we agree that we could go to I
22 hearing on the Van Vo contention and that we could go on the 23 24th. Because as the Staff reads the contention, it is b
24 related to the harassment of Mr. Van Vo and the sole evidence 25 that the Staff intends to present in the 01 report. There
7675 A) '.1 will not be an Of witness present.
2 JUDGE KELLEY: You are assuming that the 01 report a would not be objected to, and if objected to, would get in 4 anyway?'
5 MS. MOORE: Yes, sir, that is what we are assuming.
6 JUDGE KELLEY: I am not tipping a Board ruling. It 7- just seems to me that that is a question any lawyer would ask.
8 MS. MOORE: I understand that, your Honor, and we 9 are prepared to argue when we offer the report that it should 10 -be admitted as evidence.
11 JUDGE KELLEY: Okay.
.12 Mr. Eddleman?
13 MR. GUILD: This is Bob Guild, Judge.
14 The last point first. I think it is fair to say 15 that a hearsay objection would be lodged against the 16 admissibility of the 01 report without a sponsoring witness.
17 Even with a sponsoring witness, you are talking about somebody 18 relating what someone else told them.
19 And I think it really defies belief that the NRC
, 20 would suggest that they could put in an 01 report without even 21 having a sponsoring witness, it is certainly inconsistent 22 with all of the rulings I have seen in terms of the need to 23 sponsor the NRC's investigative or inspection products.
O
\s- 24 So, we would oppose that and just put them on notice 25 that we would expect them to have a witness to sponsor -- ;
l l
l
7676 1 JUDGE KELLEY: It might be -- we haven't even 2 thought about this --
it might be wise to brief that legal a question at least briefly before we even go down there. We 4 can think about that a little more.
5 Okay.
6 MS. MOORE: Judge Kelley, may 1 interrupt for a 7 moment? What I understand Mr. Guild saying is that his 8 objection to this evidence is that it is hearsay?
9 JUDGE KELLEY: Yes.
10 MS. MOORE: Thank you.
11 JUDGE KELLEY: I guess. That is what I think the p~ e 12 objection would be.
> \
13 1 think you will have a tough time getting that 14 report in, frankly, Ms. Moore. That is one personal 15 'unresearched inclination.
16 What about the timing, Mr. Eddleman?
17 MR. GUILD: Judge, this is Mr. Guild.
18 I appreciate Mr. O'Neill's efforts to accommodate.
19 I hcpe he appreciates my efforts in the past to have 20 accommodated his family schedule and that sort of thing. l-21 really don't think it is necessary for him to lard the record 3 22 with personal considerations that bear on scheduling. And i 23 will not do that as it bears on my accommodations of him in N 24 the past.
25 But the 24th in the abstract is fine. The problem ,
-y-, . ,, , . - - . .._ ,.,_ ,----.-r=- - . , _ - - . - --,, ,- ,, . - - - - , . , . - - . , , _ _ - - - , - - - , , . , - , - - - - . - - -
7677
[]
. %,J
-1 we have Judge, is that the evidence wo would have in support 2 of even trying the contention as it now stands won't be 3 available to us by the 24ths namely there is significant 4 corroborating evidence that we believe will be the product of' 5 the NRC Ol's ongoing investigation of at least one of the two.
6 harassment complaints that the Board has received.
7 JUDGE KELLEY: I'm aware of that one, Mr. Gdild, and 8 i don't think it has anything to do with 410.
t
- 9. MR. GUILD: Well, Judge --
10 JUDGE KELLEY: The objection will be sustained --
11 MR. GUILD: I was on the telephone talking with the 12 01 investigator as late as last -- as recently as last night.
.(
13 And I can only tell'you sir, without divulging confidences of 14 my client, that I believe it does, and submit to you that to i
15- try the Van Uo issue without that evidence.which we believe is 16 corroborating in character, will simply be one additional 17 aspect of depriving us of a fair opportunity to prove even the_
1G narrow contention as.it now exists.
19 1 just simply for the record would state to you 20 that we believe that the subject matter of the pending 01 21 investigation of the confidential witness is linked to the Van
)
-22 Vo concerns, contentlen, and would likely lead to the
- 23 identification of corroborating evidence.
Ok 24 JUDGE KELLEY: I am just flagging it. You don't 25 want to try lawsuits in advance, Mr. Guild, until you see
.p 7678 9
f"%
( \ 1 things. But my reaction, having read the letter.from the
\s/
2 person in question, let me ask you this: I am not aware, for 3 example -- maybe I'm wrong -- did that person worked for Alex
, 4 Fuller?
5 MR.' GUILD: Without divulging identifying 3
6 information, and I think answering that question would, I can s
7 only state that a number of people that Chan Van Uo identifies 8 as involved in acts of harassment, are similarly identified by 9 the confidential witness. And that information is not 10 apparent on the face of the letter to the Board.
11 But, as an officer of the Court, I can tell you that 7- ~g 12 there are common witnesses and there are common concerns that
- r -
18 are the subject of the pending 01 investigation of harassment 14 claim number 2.
15 JUDGE KELLEY: Of course we had that problem in the 16 Catawba case, where you on behalf of Palmetto Alliance wanted 17 'to stop the hearings until Of finished all their' 18 investigations. And we rejected that motion. I think we 10 would do the same in this case.
20 MR. GUILD: Yes, sir.
21 I guess I would submit that if Ol's investigative '
22 work is to have significance on the down side for Intervenors, 23 it ought to have significance on the up side, too. And the i g !
\ 24 evidence that they adduce on the harassment issue as it bears l 1
25 on 410 ought to be available when it helps us as well as when
7679 p
i lt hurts us. And my information is that that evidence is Q) 1 2 going to be available the 30th of June.
3 JUDGE KELLEY: Let me add one point, Mr. Guild.
4 Now you know we can present the Van Vo case 5 essentially, and it may be that in the context that is there 6 developed you will have something you want to bring in that 7 isn't ready for the reasons you suggest. And we really can't 8 argue that now.
I 9 But one approach is to just not finish, but go ahead 10 and hear as much as we can and get through as much of 41G as 11 we can. And it is the Board's disposition to do that.
s 12 MR. GUILD: We would oppose that, Judge. But if the 18 Board's view is to go and approach it in a way that we think 14 is placemeal and deficient for that reason, we are at your 15 pleasure and would be prepared to do the best we can with that 16 scheduling approach.
17 JUDGE KELLEY: Let me ask you, what about the 18 witness of principal interest to the Board? What about 19 Mr. Uun Vo? Is he available then?
20 MR. GUILD: I'm not certain, Judge. I haven't got a 21 commitment from him for that particular time. He is, to the 22 best of my knowledge, willing to assist and testify given the 28 general contingency of his work obligations as he related in 24 his deposition to Mr. O'Neill 25 1, frankly, have been hopeful that the Board would
7680 m
\ 1 not commit to trying.the Van Uo issue during that week in
(
2 June, given the pending 01 investigation of the other two 3 matters. But now that I know otherwise, I will find out.
4 MR. O'NEILL: Judge Kelley, I think i deliberately,
- 5. during the last two conference calls, alerted the parties and 6 the Board to what Applicant's preference would be and what we 7 would argue. And I suggest that Mr. Guild's failure to check 8 with his only witness or start witness as to his availability, 9 is somewhat irresponsible under the circumstances.
10 And clearly he --
11 MR. GUILD: That's not the case, Judge, 12 t-;R . O'NEILL: --
would try to delay this whole 4 \
la thing. But, I think he does have an obligation to be prepared 14 to respond to what the obvious question was, whether his 15 witness is going to be there.
16 1, quite frankly, would be surprised if Mr. Van Uo 17 comes back, and he made that clear during the deposition.
18 JUDGE KELLEY: Gentlemen, let me interrupt.
19 My recollection is that this very question of 20 Mr. Van Vo's availability came up last week and we asked 21 Mr. Eddleman to check with Mr. Van Vo to see if he could come 22 on the 24th.
23 Did you do that, Mr. Eddleman?
, \ 24 MR. EDDLEMAN: No, sir. I don't know how to get in 25 touch with Mr. Van Vo, so I asked Mr. Guild to get in touch 4
~ - , . - - , - . , - - - -, , . - . + , - ., - . - - - . . _ -. , . - - . - r , . , , a - - , - , - , - - . . -
7681
~/ 1 with him.
2 MR. GUILD: Judge, I don't recall any such request 8 form Mr. Eddleman, with all respect, Wells.
4 The point is, I have informed him of the general 5 progress of scheduling this contention for trial. I have also 6 informed him of my position, that the Board, I understood, had 7 committed to await the results of the 01 investigations on not 8 only his concerns, but on the two other concerns that it 9 received.
10 JUDGE KELLEY: That, Mr. Guild, we nevar said.
11 MR. GUILD: Sir, I recall you denying a motion by fs 12 CpSL'that expIlcitly sought to separa>.e out the Chan Van Uo 08 (d
\
13 work from the other two and said they should be considered 14 together because the question of a pattern of harassment was 15 what was significant.
16 And that is what I recall, to aaraphrase the
, 17 Cleairman's respense to denying a motion by CpSL, in the last ta conference call that I was a part of. And I communicated that 19 result to Mr. Van Vo.
.20 What I also tried t o ccenmun i ca t e a moment ago was.
21 that he is a volunteer, he has had a hard time getting work i
22 because of CpSL's harassment, and the fact that they fired him I 28 and he was unemployed for a long period of time. He is in s 24 Texas. And he has said consistently t o me , and he said to 25 Applicant's counsel after a day of very hard questioning, that
._,,-_,.m,. - . - - , . - . , . _ , _ _ , . . , _.__-.,,,_e .- - - ,
(
4 s
7682
[ 1 he would be available to the extent that he could do so b ~
2 without losing his job.
'?
a Now I have told him what the scheduling decisions 1
E 4 have been so far. I do not have an iron-clad commitment for*
5 him to be available on a date certain, and I don't think that 6 it is at all irresponsible not to have extracted such a
- 7 commitment from him, given the pr ios- rulings of this Board 8 that they were going to await the other 01 investigations 9 before they --
10 JUDGE KELLEY: Mr. Guild, you and I just disagree on 11' that. But, let's just march on, t -
12 What is in my mind not responsible, is that G 13 Mr. Eddleman was explicitly charged with determining Mr. Van 14 Vo's availability on the 24th of June. Now it is you and he, 15 and something slipped between the two of you. But the fact 16 remains that I am being told today that no, that hasn't even 17 been done.
j 18 We are going to leave this discussion, I can assure 19 you, with a short turnaround very definite response to that i
20 question. And without'Mr. Van Vo -- the Board's attitude is 21 this issue goes to trial with Mr. Van Vo, but not without him, 22 and fairly soon.
23 MR. GUILD: Judge, I hope that you haven't made a 24 decision on that point. Although I am not expressing any 25 question about his availability, it seems to me that it would
l 7683 y
1 be premature to make any decision about what evidence is J
2 necessary as a threshold matter to go forward on this a contention.
4 There is thousands of pages of. documents, and 5 there are any number of witnesses who have established -- who 6 can establish the elements of this claim, or establish 7 important elements of this claim regardless of Chan Van Vo's 8 testimony. And I would hope that we would have the 9 opportunity to address that legal question of whether or not 10 -- what significance his testimony has or doesn't have, apart 11 from that other evidence, without simply a ruling, in effect,
~~ 12 from the bench on that point in this conference call.
\
13 JUDGE KELLEY: Well, we are going to establish this 14 now, and we will hea- from the other porties briefly. It is 15 not a real big i snues , it is a fairly simple issue. '
16 We had Mr. Van Uo come forv.ard with a lot of serious
)
17 charges, they have been Investigated to seme extent, not to 10 everybody's satisfaction, but a lot of vork has been done on 19 this. We have an-awful lot of people on this phone this 20 morning trying so resolve this matter.
21 1 appreciate tir. Van Uo lives in Texas, but part of 22 getting involved in this process is that it takes a fair 23 amount of time, and it is inconvenient, and that is just the 24 way things are.
25 This Board has very little disposition to hear this
7681
[ '
1 contention at all without Mr. Van Vo live on the stand.
2 Any comment from the Applicants?
8 MR. O'NEILL: Yes, sir, Judge Kelley. We, I guess, 4 are prepared to go forward without Mr. Van Vo, because we 5 have a lengthy deposition transcript where we had the 6 opportunity to cross-examine him in some detail A 7 deposition, of course, can be evidence, if the witness is not 8 available, and we certainly are prepared to go forward with 9 our case and to refer to Mr. Van Vo's statements on the record 10 under oath if he is unavailable.
11 And we believe, quite frankly, in Ilght of the eg 12 Staff's problems in obtaining a witness, we think that it 13 probably would be preferable to'have upon the record for any 14 appellate review, Mr. Van Vo's case, und we think we have that l- 15 in the form of his deposition.
L 16 JUDGE KELLEY: Then why don't we just do the whole 17 thing on paper? You ship in the depos! tion. The Staff will 18 file its report, and the Intervenors can write up some t
19 affidavits or something, and we will do it that way.
s 20 Why should we go down tnere to Raleigh to listen to 21 somebody read.a transcript? What's the point of that?
22 MR. O'NEILL: I'm not saying we have to listen to 28 anyone read a transcript. We can have it accepted into the
< .O
\s / 24 record as if read.
i 25 JUDGE KELLEY: Okay,
7685
[m
\j k
1 MR. O'NEILL: Then we can have our witnesses put on y7,, 2 their case,-and they can be cross-examined, because the 8 Intervenors have an opportunity to make their case by 4 cross-examination.
I 5 l think the evidence is overwhelming on how it's 6 going to come out, and we will ha.ve a record that will be not 7 subject to any argument on appeal as to whether or not we 8 should have gone forward without Mr. Van Vo.
9 1 think that would be a safer position to take for l
10 appellate review.
11 JUDGE KELLEY: Staff, do you have any view on the w 12 necessity or not of Mr. Van Vo as a witness?
13 MS. MOORE: The question would be, if Mr. Van Vo, as 14 I understand it, is their only evidence, and it seems to me l
15 important that he be there. Whether he is necessary or 16 whether the contention would have to be dismissed without him, 17 it would depend upon that other evidence which he alleged, and 18 it's unclear to the Staff at this point whether intervenors 19 have other evidence, or they are attempting to make their case 20 on cross-examination at this point.
21 JUDGE KELLEY: So what's your response? Should we 22 regard Mr. Van Uo as a necessary witness or not?
23 MR. GUILD: Are you asking me, Judge.
24 JUDGE KELLEY: I'm with the Staff at the moment.
25 MS. MOORE: Without any further clarification from
t 7686 i
.f -
1 Intervenors, I think he is a necessary witness, Your Honor.
r 2 JUDGE KELLEY: Okay.
n L 13 Mr. Guild, you raised this, and then l got in on l
, 4 it. Any further comment you want to make?
5' MR. GUILD: I would only say that as an abstract i
6 . point at this point in time, we desire to offer Mr. Van Vo and l
7 will make every effort to make him available. We don't think O that our case on it is dependent on his testimony as an r l 9' abstract proposition, because you compelled us to address the 10 point. We think it should be -- if it's reached at all in i
i.
11 this case, it should be on the basis of a much more thorough 12 analysis than I am capable of presenting on the spur of the 13 moment in a telephone conference call.
14 But suffice it to say that fundamentally we are
~
15 entitled to make our claims through cross-examination. .There 16 is abundant documentary evidence in this case that we think 17 supports our view that Chan Van Vo was a victim of improper 18 harassment and intimidation, and counsel for all parties have L 19 spent a lot of time going through that documentary. evidence.
20 in addition, there are any number of witnesses who l
/ 21 presently work for the company or who are available in the 22 locale who have personal knowledge of his concerns under the 23 circumstances of his termination, who, we believe, can offer 24 evidence in support of our claims.
25 Some of them are likely to be hostile witnesses in
i l.
7687 i' (~N
() 1 the sense that the testimony would have to be compelled, but 2 we think there is significant additional evidence beyond his t
L 3 testimony.
4 We know we would oppose any preliminary ruling by 5 the Board that views his attendance and testimony as a 6 precondition to being able to go forward in trial of.this 7 contention.
i' 8 JUDGE KELLEY: I guess what troubles me is, you are
.9 talking about allegations in the harassment and retallation 10 area. These things are very subjective. Sure, we've got a 11 transcript of the deposition. We've got an affidavit. But it
, 12 is going to be, one would expect, at least, some just ,
I \ -
! 18 conflicts in testimony, credibility problems. We have a 14 witness in'Mr. Van Uo who does have some communications or-15 language difficulties. It's not always clear from a cold 16 piece of paper just exactly what he means. And if he - i:s on 17 the stand and you can clarify these things and g o,t it 18 straight; having to go with a cold record is, to me anyway, 19 rather unattractive.
20 There is an analogy, perhaps --
and I'm not saying 21 it's a precise analogy by any means --
but we do have a rule 22 on late contentions, which has to do with Factor 8, but in any 28 case, I think we all know that the case law says that you may 24 have to have an expert for certain kinds of factors and be 25 able to produce somebody who can really add to the record.
i.
7688 A
if ) 1 The idea of trying Mr. Van Vo's allegations without
% ./
2 Mr. Van Vo strikes me as, at best, unrewarding, quite possibly S. a waste of time.
4 I can understand why the Applicants might want to
- 51 get all this on the record, but from the Board's standpoint, I 6 sort of wonder whether it's a useful expenditure of our time.
7 You are right, Mr. Guild. It may be moot, because 8 maybe Mr. Van Vo can come.
9 Now is there any reason why you can~'t --
I know it 10 has to be best efforts, but you can track him down in the next 11 couple of days and advise us by next Monday whether he can fg 12 come?
( l
%./
IS MR. GUILD: Judge, now that I know that the Board 14 intends to try this case during that week, I will contact him 15 again, and I will put that to him.
16 JUDGE KELLEY: Why don't we do that as the next 17 step? We have heard the 24th week put forward. We have all 18 been on notice about that week for some time, and it is our a
19 disposition to go ahead and try it then.
20 Now whether it should'be first or second in order 21 between that and emergency planning, I suppose we can work 22 that out finally a little bit later.
23 So we would ask you, Mr. Guild, to contact Mr. Van n
( s/ 24 Vo as soon as possible and certainly no later than next 25 Monday.
J 7689
( , 1 MR. GUILD: Judge, a date certain would be M/
O 2 preferable.
3 JUDGE KELLEY: What do you prefer? The 24th, 4 Monday, or later in the week?
5 MR. GUILD: The 24th, Monday.
6 JUDGE KELLEY: The 24th, Monday. Does everybody 7 agree to that?
8 Apparently so. Okay. Would the Staff?
9 MS, MOORE: Yes, Your Honor, a
10 JUDGE KELLEY: All right, 24th, Monday, for 410. ,
y . 11 And Mr. Guild will let us know -- just a phone call is all i
12 right --
by Monday whether Mr. Van Uo can come.
13 Now we would need some profiling of testimony and 14 exhibit dates. Do you have a proposal --
perhaps other dates 15 -- Mr. O'Neill? Do you have dates to propose?
16 MR. O'NEILL: I would suggest June 14th.
17 JUDGE KELLEY: Just a minute.
18 MR. O'NEILL: If all parties would agree to that.
19 JUDGE KELLEY: Now you are saying the 14th for 20 testimony. Exhibits also?
21 MR. O'NEILL: Yes, sir.
22 JUDGE KELLEY: What about designation of witnesses 23 beyond -- if you've got people who don't have profiled?
24 MR. O'NEILL: Certainly.
25 JUDGE KELLEY: When?
i 7630
~ [' ) 1- MR. O'NEILL: I think the same day. I don't really y/
2 understand the question. Any witnesses we will put on 8 obviously will have profiled testimony, and I would assume ,,if ,
a D 4- Mr. Van Vo were to appear, he would have pref.iled testimony, 5 and the Staff, if they have a witness, will have at least some 6 brief testimony along with their professional qualifications.
7 l'm not sure who those witnesses who don't have testimony 8 might be.
9 JUDGE.KELLEY: Okay. That's Mr. O'Neill's 10 proposition.
11 Staff, do you have a reaction to that date?
-,- 12 MS. MOORE: The Staff has no objection to that 13 date. I would note, however, that if someone is going to 14 request subpoenas of witnesses, it ought to be by that date as 15 'well, with a proffer of what they are going to testify to.
16 JUDGE KELLEY: Subpoena requests, as well as a list 17 of witnesses.
18 MS. MOORE: Yes.
19 JUDGE KELLEY: All right.
{
l 20 Mr. Guild, what do you think of that date?
21 MR. GUILD: That's fine, Judge, given our objection 22 to going forward during this period, t t.a t profiling date is 28 fine.
D 24 JUDGE KELLEY: All right.
l 25 MR. O'NEILL: The subpoena requests, the Staff
I
~
7691
[d S 1 suggested not being until the 14th, that doesn't seem to leave
. 2 very much time, particularly with two weekends in between 3 there, for the Board to resolve any arguments with respect to 4 subpoena requests. -
5 It would seem t o me , if a party plans to subpoena a 6 witness, we ought to know about that pretty quickly, so that 7 we can resolve that on paper, so a conference call isn't 8 necessary after filing, rather than at the last minute before 9 hearing, so the parties won't know whether or not they are 10 going to have to prepare for cross-examination of a surprise 11 witness or not.
-~g 12 I think maybe we have plenty of time to do that 18 sooner rather than later. -
14 JUDGE KELLEY: What date would you propose?
15 MR. O'NEILL: June 1st.
16 JUDGE KELLEY: Mr. Guild?
17 MR. O'NEILL: Maybe that Monday.
18 JUDGE KELLEY: June 3rd?
-19 MR. GUILD: Judge, this is Guild. I held my tongue 20 as. opposing the 14th as a profiling date, although it's ten 21 days in advance of the hearing. That causes us some 22 hardship. We need as much time as we possibly can have.
23 But frankly the idea of Intervenor, who by (s) 24 definition has to rely in part upon documents and testimony 25 from hostile witnesses who come from the company, that we have i-
7692 1 to have our case prepared earlier than the company does, with
[v}
2 its greater resources.
3 I think it's highly unfair, and we submit that'the 4 14th is amply in advance of hearing to provide all parties a 5 fair opportunity to get their case together and to review the 6 case profiled by the other side.
7 We would submit that the 14th should be the date 8 when we not only submit profiled testimony and exhibits, but 9 subpoena requests. We could quickly dispose of those issues, 10 it seems to me, in a conference call a day or so after the 11 documents are actually received, without any loss of time.
12 I submit the company, with all the people they have 13 working on this case, can easily review those proposed 14 witnesses,.the subject of-the testimony, and prepare if they 15 are going to be illed, without any undue hardship. The 16 hardship would be on the intervenor to have to file any 17 earlier, sir.
18 MR. O'NEILL: It seems t o me the Intervenor can make 19 a decision within the next few days what witnesses they might 20 _ want to call, and that goes to the NRC Staff' witnesses, too 21 There may be some interesting legal questions if they were to 22 try that, sir.
23 I think we really need to have some advance notice 24 with respect to subpoena requests, so that we have adequate 25 time to brief the issues and argue them without endangering
7693
[%_ \~ 1 the beginning of the hearing on the 24th.
2 JUDGE,KELLEY: Well, the 14th is on a Friday. l 3 MS. MOORE: Your Honor, may I interrupt for a 4 moment?
5 l would have to say, if anyone intends to subpoena 6 01 personnel, for example, that has to be done through OGC, as 7 opposed to the Staff attorneys. That might be a 8 consideration, if anyone intends to do that. I just point 9 that out. OGC would be dealing with those requests.
10 I can provide a name at OGC who has been 11 representing -- who represents 01, if anybody needs it.
12 JUDGE KELLEY: Okay. I want to get back in a 13 minute, Ms. Moore, to the question of the 01 report.
14- Why don't we compromise. The 14th is a Friday.
15 That is the dmte for testimony and exhibits and the 16 designation of witnacses, along with some brief description of 17 their area of testimony.
18 Your argument is, we should move the subpoena date l
' ~
19 back to the 1st, and there are good reasons on both sides.
20 MR. GUILD: Judge, excuse me. I'm sorry to i
21 interrupt. '
22 It just occurs to me that in addition, that gives 1
) ,
23 the Applicants the opportunity to review our direct case in
$1EN_/ 24 part before they have to commit to what their direct case is, '
25 and that is an additional element of prejudice and unfairness.
7694 1 that we don't have the benefit of knowing who they will 2 designate as their direct case before we select ours. They
. 3 will have, in part, the ability to do that with us, because we 4 have to rely upon the witnesses.
5 MR. O'NEILL: l'Il tell Mr. Guild right now who the 6 witnesses are, if that's a concern to him. He has taken quite 7 a few depositions. He's reviewed all the documents. He knows 8 our direct case.
9 JUDGE KELLEY: Gentlemen, we understand the 10 considerations here. We're going to say June 10th as the day 11 for subpoena requests. That's four days before -- well,
. f-~ 12 that's Monday, and the 14th is Friday.
iN 13 Now when we say June 10th --
14 MR. GUILD: Can the company identify at least the 15 witnesses and thei'r subject matter at that same time, so that 16 we'll have the benefit of knowing at least what they will have 17 the benefit of knowing from us?
18 JUDGE KELLEY: That seems reasonable. June 10th, 19 all parties are to identify the witnesses they expect to call 20 and request any subpoenas that they want to request. That's 21 not a malling date. That's an in-hands date, in the hands of
. 22 the Board by the 10th, those names.
23 And then on the 14th will be testimony, exhibits.
24 We've already got the designation of witnesses moved back to 25 the 10th.
7695
. ,m is that clear to everybody?
(V) 1 2 MR. GUILD: Yes, sir.
3 MR. O'NEILL: And that will be the 14th as an 4 in-hand?
5 JUDGE KELLEY: Yes, make that "in hands" also.
6 MR. EDDLEMAN: Judge, I guess we can get it 7 Quik-Mailed or Federal Expressed or something to guarantee 8 delivery on Monday. That's going to be moving us back to 9 Friday, the 7th.
10 JUDGE KELLEY: Friday, the 7th?
11 MR. EDDLEMAN: In other words, if we send it Express
.(~g 12 Mall as opposed to Federal Express or something l iian that, N, Y 13 which we might could do -- you normally can't get Express Mail 14 on a Saturday.
15 MR. GUILD: Judge, if we can get the 11th, that will 16 give us --
that will take advantage of overnight delivery on 17 Monday. As Mr. Eddleman points out, I'm not sure we can get 18 weekend pickup. Therefore, our effective deadline would be 19 Friday.
20 Could we have the 11th, and then we can get it~ln-21 hand that day?
22 JUDGE KELLEY: Yes. And for that matter, the 23 ' testimony, we said the 14th, that's a Friday. If you can get t
\_ 24 it "in hands," you can do it on Monday, the 17th. That's 25 "In hands" the 11th for witnesses and subpoena requests and
-- --I
7696
( T . .1 "in hands" for testimony and exhibits the 17th.
\.
2 Okay. Now are there any other dates or similar 3 procedural matters that we ought to settle at this point?
4 MR. BAXTER: Tom Baxter. I almost hesitate to go -
5 back to it, but I'm trying to think of the practicality of the 6 emergency planning contentions.
7 We do have the witnesses all scheduled to be there 8 for that Monday and Tuesday, the 24th and 25th, and give 9 Mr. Guild's semi-hostile reaction to our courtesy about his 10 vacation, which he raised on the transcript of the conference 11 call, not us, I would certainly like to say that we would nN
12 13 prefer to have those two contentions firmly done on those two days, because we know how long they're going to take.
14 We've got a lot of uncertainty here about how long 15 it's going to take to try this Van Vo contention, and it would 16 certainly be more inconvenient for FEMA, the Staff, and the 17 Applicants and the State witnesses involved to be on hold, 18 essentially, for whatever period of time it takes to try 410.
i 19 1 would like to find out if it really makes a 20 difference to Mr. Guild or Mr. Eddleman whether we start on 21 the 26th or the 24th, because our preference would the 26th.
22 JUDGE KELLEY: Mr. Guild?
28 MR. GUILD: Yes, it does. The 24th would be 24 preferable to us. Just, for example, we know that Mr. Van Uo 25 is a volunteer. He's going to have to take time off work.
7697 3
{~'j ' 1 He's not paid to be there, as would be the case with a FEMA U
2 witness or the NRC Staff and company witnesses. I want him 3 available to work with me over the weekend, if I can get him 4 up here earlier than Monday. I plan to spend that time 5 preparing, and that's the only way I know to save him from 6 losing additional days off work.
7 1 am going to seek to get him up here on a date 8 certain, committed to be here Monday the 24th, but it will be 9 much more difficult for us to effectively utilize him if he 10 came up later in the week, and then i didn't have the advance 11 preparation time.
12 JUDGE KELLEY: How long do you think it would take 13 to try this contention, Mr. Guild?
14 MR. GUILD: I just.can't give you an intelligent 15 answer right now, Judge.
16 MR. EDDLEMAN: Judge, Wells Eddleman. Just one 17 other matter concerning Mr. Van Vo that has come up in 18 conversations that Mr. Guild and I had about the possibility 19 of trying to get an interpreter.
20 Of course, the interpreter would have to be 21 technically knowledgeable, as well as know the two languages, 1
22 English and Uletnamese.
23 We're not sure how beneficial that might be. But in l
l 24 view of the language difficulty, it is something i ought to l l
l 25 bring up now.
l l
7698
[' S 1 JUDGE KELLEY: (Jhat do the other parties think about I'
2 the suggestion to have an interpreter?
. 3 Never having heard Mr. Van Uo live, it's kind of 4 hard. I don't have much of a reaction. I thought, reading 5 the deposition, there is a problem,.and it does come up from 6 time.to time. I guess I didn't think again when 1 began 7 reading cold paper that it was that difficult a problem.
O But I will defer to others' reactions. You have 9 dealt directly with Mr. Van Vo.
10 Mr. O'Neill, what do you think?
11 MR. O'NEILL: I guess my first reaction is somewhat 12 amusement. if he really needed an interpreter, then it
) 18 certainly would be clear reason for the company to have 14 terminated his position, other than the other allegations that 15 Mr. Van Uo may have raised.
16 But we see pieces of paper that he has attested to 17 and places of paper that he has written, and while the style I
18 is certainly awkward and his use of the language is not always 19 clear, you can talk to him. You can ask him questions. You 20 can ask them clearly and slowly, and he can answer them. And 21 I think for a person who has been in this country as long as 22 he has, to get an interpreter certainly wouldn't be 23 justified. And quite frankly, his ability to communicate goes 24 to his ability to progress on his job over a period of years.
25 1 think he should be able to respond in English.
= - - w.-. --rn- ,
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7699 j 1 And we had a full day's deposition where he did do N
2 that, so I think it would not be necessary to provide.
3 JUDGE KELLEY: Any thought, Ms. Moore?
, 4 MS. MOORE: Mr. Barth will speak to this, since 1 5 have not dealt with Mr. Van Vo directly.
6 MR. BARTH: Your Honor, this is Charles Barth, 7 I sat through the deposition of Mr. Van Vo, and also e asked some questions. He has various degrees from American 9 Schools. He has Jue l d a semi responsible job with Carolina 10 Power and Light, in which he had to ihnteract with other 11 people, which is part of the issue.
("'g 12 And, it seems to me preposterous to suggest that he d
13 .is so bad in English that he can't talk to any Licensing Board 14 of the NRC withcut an interpreter. If that is the case, he 15 has pretty well made the case that he wasn't harassed. I can 16 see no reason for an interpreter.
17 I would agree with Mr. O'Neill that part of the 18 reason to have direct testimony and cross-examination is for 19 the Judge to observe the demeanor and responsibility of the 20 witness. I have great confidence that that would be helpfu'l 21 in this case. I see no reason for an interpreter.
22 MR. GUILD: I think it is quite desirable that you 23 have a chance to see and evaluate Chan through live 24 testimony. Certainly I desire to present him as a witness.
25 We think Mr. O'Neill's observation about being amused at the
7700
[m} 1 matter is somewhat disingenuous, given the fact that they V
2 hired this man, they had him working designing hangars for 3 five years. It certainly cuts both ways. There is no 4 question there is some language difficulty, but he was 5 adjudged a competent and capable engineer over a long period 6 of time and promoted by CpSL.
7 This is simply a matter, I think, that we had best 8 deal with as a matter of trial strategy. I don't think there 9 is a clear answer to it, but I don't think it is something the 10 Board has to decide right now.
11 JUDGE KELLEY: Among the three of us, just briefly,
,s 12 there doesn't seem to be any sentiment in favor of the 13 Idea here, unless there is a real problem of understanding, 14 which we don't expect would take place, so that is our 15 reaction at the moment.
16 MR. EDDLEMAN: Judge, if I may just clarify, I was 17 not saying Mr. Van Uo couldn't make himself understood in 18 English, but I think being cross-examined by professional 19 attorneys is a very different thing from communicating with 20 your own force of words. What I was trying to do is to find 21 some way of to diffuse the confusion that might result in 22 questioning and answering in a language which is not his 23 original language.
s_/ 24 1 don't want to imply in any way that he is not able 25 to understand English. I think he clearly is. But that was
r u 7701
-[)
\ s ,/ .
1 the reason for my bringing it up. I understand what the Board 2 is saying.
8 JUDGE KELLEY: Okay. Also, if you use an 4 interpreter throughout, it would take twice as long. You might 5 have somebody around there on a spot basis for some subtle 6 concept that was hard to convey. I any event, I appreciate 7 your raising it, and it doesn't strike the Board as something 8 we will likely have to have.
9 Well, is there anything else that we should 10 establish at this point? Well, we have a pending question on 11 whether to do emergency planning first or second.
gs 12 MR. O'NEILL: On that question Mr. Baxter raised, t
18 and then Mr. Guild's response, it appears t o me that if 14 Mr. Guild's concern was really the time that Mr. Van Vo would 15 spend, that he would want emergency planning to go first and 16 have Mr. Van Vo's appearance set for July 1st because the 17 Applicants will have a number of witnesses that we are putting 18 on. Normally the applicants go first. Mr. Guild, we learned 19 through deposition, is capable of many, many hours of cross 20 examination, and wa suspect that if we started out with 21 Mr. Van Vo on that contention on Monday, Mr. Van Vo might not 22 get on the stand for two or three days.
23 MR. GUILD: Judge, what i envisioned and what l l 24 thought the Board was responding to was the request for a date 25 certain for Mr. Van Vo, and recognizing that applicants have
l 7702 o
j- the burden of proof and generally go first, the contention was
[V 1 2 evidently going to be profiled. There are no surprises. We 3 understood and would hope that the Board would agree to taking 4 Mr. Van Uo on Monday, the 24th as the date certain, and gn.
5 recognizing that would be out of order technically, it is 6 somewhat of an artificial concept of who physically goes 7 first given the profiling.
8 MR. O'NEILL: I think if he wasn't available on the 9 24th, the 1st would be another option that would be consistent 10 with Mr. Guild's concerns about the amount of time. I don't 11 think we have an objection to having Mr. Eddleman put on his s 12 case first. Really, it does go entirely to Mr. Van Vo's 18 allegations that we are simply responding to.
14 JUDGE KELLEY: In terms of the sequence, do you 15 envision, Mr. Guild, that after Mr. Van Uo has been on the
?S stand, he would likely be recalled?
17 MR. GUILD: No, sir, I don't. In part that is 18 because I believe that there is evidence extrinsic to his 19 testimony that supports large parts of our claim.
20 So in short, I think it's a matter'of putting him up 21 first Monday the 24th as a date certain, excusing him subject 22 to recall for cause if need be, but then in essence going to 23 the applicant's case and completing it without Mr. Van Uo O 24 waiting around.
25 JUDGE KELLEY Okay. Hold on just a moment. We
7703 m
will check off here and talk about this for a minute.
( 1 2 [ Recess.]
3 JUDGE KELLEY: Hello. Kelley back on.
4 We would like to balance things this way. Let us 5 begin Mon, day morning at 10:00 with Mr. Van Vo as the first 6 witness. That would give him a time certain Monday 7 morning. We don't know how long he would be on, but we would 8 expect sometime that day he would be through on cross, and 9 then in the expectation he may not be called again, he could 10 leave if he wanted to. We are bearing in mind the fact that he 11 has got a job in Texas and i t is a bit of a hardship, and 12 trying to set it up so as not to inconvenience him too much.
O 13 The thought would be to put him on the stand, let 4
14 him finish, and then we could do one of two things. We could 15 keep going on the Van Vo allegations and go right through it.
16 On the other hand, if the parties wanted to pick up the 17 emergency planning right there because of witness availability 18 considerations, we could do that. The Board i s willing to do 19 it either way.
20 1 think as to point one, though, we will just say.we 21 will hear Van Vo first on Monday morning at 10:00, and then we 22 will go with the parties' pleasure when Van Vo is through.
I 23 is that okay with you, Mr. Guild? '
T !
\_) 24 MR. GUILD: Yes, sir, and I think you know our view 25 as to which we would do, and that i s to go forward on r--e-,----ere,e.w>w---e ey. .-w-- .w, .y+-g-e----c.-, is--g -m.-er --wwy-y--.yg ------g- -.mw- -ei-ee----'im e 9--e------v*'----ei--gwy mgy- -r------ey
7704
[}
- V-1 completing the Van Uo contention.
2 JUDGE KELLEY: Okay. And the Applicants -- we.were 3 just thinking if you got all these people notified, they are 4 all cranked up to come down there. If that is a problem, this 5 might be less of a problem. That is to say, going right into 6 emergency planning maybe late Monday may be less of a problem t
7 than being less definite about it. But we looked at this now 8 as it is a party convenie.nce, as you will do what you want to 9 do.
10 Mr. Baxter?
11 MR. BAXTER: I guess we would prefer to go back to 12 emergency planning Tuesday morning and finish those issues up.
7-s 18 MR. GUILD: I can't hear you, Tom.
14 MR. BAXTER: We would prefer to go back to emergency 15 planning Tuesday morning, I frankly would be surprised if we 16 would get started on Monday.
17 JUDGE KELLEY: it wouldn't do much. So Tuesday 18 morning -- wherever you get to on Monday, you just stop. And 4
19 by the way, we have a'n emergency planning limited appearance ,
20 session Monday-night in Apex that was noted in that last order 21 we sent out, but then Tuesday morning we go into emergency 22 planning, do that on presumably Tuesday and Wednesday, and 28 then pick back up with the Van Uo contention on Thursday '
Ot
\m ,/ 24 morning.
25 is that okay with the Applicants?
j
/
. - _ - , .,,c . . - . , . , , , - . ,,
- _---..-,.,-...y ,e. - - - - . - . , _ . - _ . ,--.-.-_m_---.-_. -.m. . _ ,
i
/
- 7705 Ih k~ ,/
1 MR. BAXTER: Yes.
2 JUDGE KELLEY: Staff?
8 MS. MOORE: I have no strong feelings. I think it 4 would make an easier record to follow if we finished one of 5 the contentions, and that is Van Vo.
'6 I have a, question, and that is: We are talking about 7 putting Mr. Van Vo on. There is no indication -- we don't 8 know yet whether intervenor is going to have other witnesses.
9 Are we saying that we would come back, then, on Thursday and 10 finish the Intervernor's case, then pick up with the 11 Applicants,and Staff? It makes it a little confusing.
12 JUDGE KELLEY: It doesn't have to be. Your questions O
i 13 is legitimate. We don't know how long Mr. Van Uo will take.
14 We are guessing that he will take the better part of ,
15 Monday. You don't get him on the stand and get under way until 16 10:45, and so it seems to me it takes that day. We should be 17 able to finish with him, though. .That again is a guess, and j 18 you are going to know on the 11th of June what other witnesses 19 Mr. Guild is going to have under the deadlines we just set.
l l
20 MR. BAXTER: Mr. Chairman, Tom Baxter.
l l 21 ,
I think I am going to change my mind. I think 1 27 agree with Ms. Moore that it would make for a better record if 23 we ' just go ahead and finish, and we will hopefully, after the 24 subpoena requests come in and testimony is filed, be able to 25 maybe talk to Mr. Guild and Mr. Eddleman and get an estimate s
- . . , _ . . ,----------,.,_...-..,,n. - ~ - - - , - - . - - , _ . . . _ . - . , , - . , . . .- c --- . - - - , , - - -- ,- . - ,
7706 L
(
1 of the length of time and be able to schedule our emergency 2 planning witnesses around it.
3 JUDGE KELLEY: 'You are saying go ahead and do 410.
4 MR. BAXTER: Yes, assuming, as we said in the
- 5 beginning, all this can be done before July.
6 MR. GUILD: I didn',t hear you.
7 MR. BAXTER: Assuming all this can be done before
- 8. the 4th of July.
9 JUDGE KELLEY: The Board assumes that can be done.
10 Okay. I guess that's unanimous. We will start first with 11 410 and Mr. Van Vo and go on through 41G, and then we will go i
12 to emergency planning. Okay?
13 MR. GUILD: To be clear, what i envision is taking 14 only Chan Van Vo out of turn and then going to Applicant's 15 case, as would be customary, and to the rest of the parties in
' 16 l turn.
17 JUDGE KELLEY: That's what I understood you to be i
l . 18 saying. Okay?
19 MR. GUILD: Yes.
20 JUDGE KELLEYi Anything else we should cover now?
21 Groundrules, procedural rules?
22 MR. EDDLEMAN: Judge, the same requirements for 23 bringing in cross exhibits that aren't pre-filed? Do they 24 apply to Van Uo as we said for emergency planning earlier?
25 JUDGE KELLEY: Good question. I think the answer
7707 m) lV 1 ought to be yes. Any party think otherwise?
2 MR. GUILD: Judge, I do, to the extent that I know 3 what Wells is speaking of. It seems to me, as I understand 4 the approach that was followed in the last trial we went 5 through in the Catawba proceeding, the obligation of a party 6 on cross is to have sufficient copies of proposed 7 cross-examination exhibits, or aids, for that matter, to serve 8 on the other partles; if it is going to be offered in 9 evidence, enough copies to meet the reporter's requirements.
10 But to maintain some degree of spontar.elty and the 11 effectiveness of cross-examination, I submit it would be 12 unfair to require long advanced profiling of cross-examination t
18 exhibits that require one to be able to make decisions in the 14 course of cross-examination.
15 The Board can require cross-examination plan, if it 16 desires, for the Board's use alone, but I would submit that it 17 would be unfair and disadvantageous to a party that has to 18 rely on cross to have to disclose all documentary aids and 19 exhibits it might use in advance of hearing.
20 MR. BAXTER: Mr.' Chairman, Tom Baxter.
21 It is my recollection a week ago today in the 22 telephone conference, at which Mr. Guild was not in 23 attendance, we already decided this question, that it would be O 24 applied at the emergency planning hearings as it was at last 25 fall's hearings, but to this issue as well. I don't see why
7708
-m j
i 1 there ought to be a distinction. I think any benefit to
\s-}
2 spontaneity is far outweighed by the delays we have 8 experienced in previous instances in this case. And the rule 4 that was estsblished last week was the night before. Not a 5 long filing in advance, but the night before.
6 JUDGE KELLEY: Anything else from the Staff on this 7 point?
O . MS. MOORE: Staff agrees with Applicant. That was 9 our recollection, too. This rule was established for whatever 10 hearings took place in June. It was the night-before rule.
11 JUDGE KELLEY: I believe that is correct. In any f- 12 caso, we will just rule now again that the night-before rule k) 13 will be in effect for cross-examination materials. We already 14 said the exhibits are due on the 17th in hand delivery, and 15 that is a balanco as this Board sees it. Mr. Guild.
16 1 recognize the rule at Catawba is different, but 17 we think this is the better approach.
18 MR. EDDLEMAN: Does that mean anything, in essence, 19 sworn in the record has to be profiled in hands on the 17th?
20 JUDGE KELLEY: That's correct.
21 MR. OUILD: I thought the night before was what you 22 said, Judge.
23 JUDGE KELLEY: I will say it once more. I am sorry.
\_s/ 24 Mr. Eddleman, you were here last week. I thought we got this 25 straight. Exhibits that you are going to put in the record
i 1
7709 l
/
(
1 have to be filed with the testimony. Material you are going x
2 to use as the basis for cross-examination which you are not 8 going to put in the record as an exhibit but just use as a 4 basis for questions has to be made available, copies of it, to ;
5 the opposing parties the night before. Two different 6 deadlines, two different types of documents. Okay.
7 Anything else to be raised?
8 MR. GUILD: Judge, two matters I may attempt to 9 return to otherwise, but I missed a little part of the ruling 10 when you came back on the record. There were two matters you 11 Identified beforehand that you were going to take up. One was 12 a clarification --
they were both clarifications of your
(
13 ruling on the discovery question.
14 JUDGE KELLEY: Right. Okay. I will get to that.
15 There is one other point that I want to raise once 16 more with Ms. Moore.
17 Ms. Moore, if I understand you, you contemplate 18 offering the 01 report in evidence and not producing a witness 19 to sponsor its is that correct?
20 MS. MOORE: That's correct, Your Honor.
21 JUDGE KELLEY: It is my personal view that you can't 22 do that, that that's lilegal. That's just a personal view, 28 it's not a Board ruling. But I think we have enough doubts O) i x_/ 24 about it, so would you submit a memorandum to the Board by 25 --
let's see, this should get resolved by the Board one way or
e 7710 r
( 1 the other far enough in advance so we know who the witnesses 2 are going to be. Can you have a memorandum in our hands by 3 next Wednesday?
4 MS. MOORE: Next Wednesday, Your Honor?
5 JUDGE KELLEY: Yes.
6 MS. MOORE: Yes, we can do that.
7 JUDGE KELLEY: Now, maybe the way to approacn this 8 is if the other parties want to file memos at that time, fine, 9 or you may want to file a reply. Mr. Guild, I expect you 10 might very well want to reply to the Staff position. Let's set 11 a date for that, too. Can you quick-mail that document, 12 Ms. Moore?
'~'
18 MS. MOORE: Yes. Your Honor.
14 May I seek a clarification for a moment? I would 15 'like to specifically understand the issue you want us to 16 address.
17 JUDGE KELLEY: I am assuming the following 18 scenario. The issue at the hearing is whether Mr. Van Vo was 19 harassed and retallated against --
let's just say harassed --
.20 on account of his seek.Ing to raise safety concernn, and was-El terminated for the same reasons. I am really paraphrasing P
22 41G. And then that the Staff would come in and say the Staff 23 case is this report, which we offer as Staff Exhibit 1.
\ 24 Then the Board would says Do you offer that to prove the truth 25 of the matters asserted therein, the old hearsay formulation?
7711
( ) 1 I assume you would say yes, whereupon Mr. Guild would object, 2 'as he indicated earlier, and the Board would have to rule.
8 And that is the issue.
4 Can you get in that report not.for proof of the fact 5 that it exists --
nobody cares about that. Nobody disputes 6 that. It's not like an ACRS letter. What this is is a 7 substantive document which purports to prove that 410, the 8 allegations in it, are not well founded, and that is the 9 issue.
10 Do you understand it?
11 MS. MOORE: Yes, Your Honor. Thank you.
/~g 12 JUDGd KELLEY: Okay. So Ms. Moore will do a memo,
$.v]
13 and it doesn't have to be exhaustive sort of thing, but 1 14 might mention there is a ruling that has some bearing on this,
~
15 1 think, in the Catawba case, where that Board disallowed a 16 Staff report for lack of a sponsoring witness. We are also 17 Interested in the implications of the Appeal Board's ruling in 18 the San Onofre case where the Appeal Board reversed the 19 Licensing Board because it let in an FSAR as substantive 20 evidence, and that discussion la pertinent.
21 There may be other cases, but those are two that we 22 happen to know about. The other parties would get that memo 23 Thursday or Friday of next week, presumably under a quick-mail 24 arrangement, and we ought to have that in hand -- how about i
25 the 12th, Mr. Oulld?
7712
/ \- 1 MR. GUILD: That would be fine, Judge.
N 2 JUDGE KELLEY: Okay. So that's in hand by the 3 12th, if you can quick-mail it like on Tuesday, that should 4 do it. .but that we have the papers in and we can make a ruling 5 up or down on the question by around the 14th or 17th, and if 6 we rule against it, then the Staff can consider whether they 7 want to bring a witness, and if we rule in favor of it, we 8 will at least know that the issue has been settled for this 9 Board for this case.
10 Okay. Shifting gears a little bit, the question we 11 want to speak to belefly is t h i s '. We received from
- 12 Mr. O'Neill his letter of May 20, 1985, and the transcript
/s\
13 will reflect prior to that we heard argument on whether two 14 documents -- actually, Mr. Guild's requests for documents were 15 a bit wider. On page 1 of Mr. O'Neill's letter, he cites the
.16 documents and the transcript reference from which this 17 description comes, tran:scr ipt 7559 and 7563, and the Board in 18 rosponse said, well, just send us two things.
19 So Mr. O'Nelli did that, and they are as follows:
20 copies of the " Final Report, SHNPP'QA/QC Construction 21 Inspector Review Panel," dated August 30,.1984, and four 22 documents consisting of a total of eight pages relating to an ' ,
23 investigation of an allegation of " harassment" by a QA/QC
~w g
\,,) 24 inspector, l 25 Those are the two documents that we got. We have
7713
/ \ 1 reviewed them and we indicated earlier in this conference that b
2 we were adhering to our earlier tentative ruling that these 3 documents were outside the scope of Contention 410, and 4 moreover, not calculated to lead to admissible evidence as se-5 that formulation is found in.the NRC discovery rules.
6 f3o w e are not directing that they be turned over in 7 discovery. The basic point to be made is that they simply 8 don't have any direct link to Mr. Van Uo and his allegations.
9 The eight pages about a particular " harassment" 10 ' incident was not so far as far as the documents disclosed.
11 harassment in the sense that we were using it. That is to 73 12 say, discriminating against, or terminating somebody on (J 18 account of raising safety issues.
14 The bigger document, the report of the task force 15 does contain a lot of discussion of a lot of different 16 concerns of different QA/QC inspuctors, we find no link with 17 Mr. Van Uo who is not a QA/QC inspector. And so that is the 18 discovery ruling. .
19 Beyond that there was a question whether this 20 material should remain in camera. And Mr. O'Neill requests 21 Indeed, that the mhterial be returned to CpSL.
22 in that connection we have got a pending pleading 23 from Mr. O'Neill. And we talked earlier about gaps in the t
( ,,/ 24 Service List, and the fact that Mr. Guild didn't get served 25 with this document that 1 just referred to. And it seems to
7714
[h
\.s/
1 me that that is a separate question, and Mr. Guild should 2 have an opportunity to respond to the May 20th letter.
3 I would just suggest that Mr. O'Nelli, that you 4 quick mail a copy of that to Mr. Guild directly. And, if 5 Mr. Guild wants to respond to it, you could include a response 6 along with your response to Ms. Moore's paper on the 7 admissibility of the 01 report. But, if you do want~ to 8 respond to it, then we have to wait, to give you an 9 opportunity to do that.
10 Do you want to do that? -l 11 MR. GUILD: Yes, sir.
-s 12 JUDGE KELLEY: All right. Well, as to that we will b 18 then await your response and then we will rule on this. Time 14 is not of the essence here, but it does govern whether it will 15 be one, in the record, and two, available to Mr. Guild for.
i
! 16 possible appellate purposes if he wishes to contend that we i
i 17 are mistaken in not turning it over as a discoverable matter.
18- And, we will just have to rule on that after we get I
19 your pleading.
20 I would like a moment just to look at my notes, j .
[ 21 (pause) 22 On an entirely different subject, the Board received 23 discovery responses, copies of them from Mr. Runkle, and also 24 from the Applicants on the drug contention. And when we 25 talked about this before, I believe we said we would wait to
7715 m
} 1 determine any next steps until after the discovery was closed.
2 Do those responses now close discovery, Mr. O'Neill?
8 MR. BAXTER: This is Tom Baxter.
l 4 Yes they do, as far as we are concerned. We have l 5 received along with Mr. Runkle's discover responses in 6 yesterday's mail, the motion by him to stay proceedings on 7 that contention.
8 We will be filing a response in opposition to that 9 stay request as soon as we can get it prepared. And we would 10 inform the Board and parties of our current intention to file 11 Motions of Summary Disposition on this contention on a e
g- 12 schedule such that should it be denied in whole or in part, wo 18 would be ready for trial in September, along with the siren 1
l 14 contention. l l
l c l m 15 JUDGE KELLEY: So we will be getting a pleading from i
16 you fairly shortly, and it will be a matter of the other 17 parties responding to your pleading, correct?
18 MR. BAXTER: No, I am responding to Mr. Runkie's 19 motion.
20 JUDGE KELLEY: All right. You are not asking for.
I. 21 separate alternative relief, you are just responding to the 22 motion?
23 MR. BAXTER: Right.
(_) 24 JUDGE KELLEY: In any event the issue of what next 25 will be joined by that as I understand what you are
i 7716 1 describing.
u/
2 MR. BAXTER: That's correct.
3 JUDGE KELLEY: That's right.
. 4 MR. BARTH: Your Honor, this is Charles Barth. .
5 Mr. Runkle and I talked very briefly after our last 6 conversation with the Board and parties on discovery. They 7 owe discovery, response discovery on the drug contention to O Staff. Mr. Runkle had stated that he would be able to file 9 that.today, Wednesday, and that is acceptable to the Staff.
10 So, we haven't gotten that yet.
11 tJe will be filing a response to the May 24th, 1985 12 Motion to Stay. Our general response will be in the nature O 18 of, there is no reason to stay. Mr. Runkle, by-the 2.714 i s' 14 required to have a basis and specificity for his case. Since 15 he doesn't have a basis for his case, then he should not have 16 a contention. And there is no reason to stay the proceedings 17 to look for a basis i n the future. That i s the general 18 nature. We will be more specific in the answer.
19 JUDGE KELLEY: Okay, fine. So, we will get your 20 pleading and then Mr.'Runkle, any further comment?
21 Or initial comment?
22 (No response) 23 is Mr. Runkle there?
24 (No response) 25 Mr. Runkle was here earlier. I didn't hear him sign
, ,e e - - - , - - - - - - - - , - , -.we- , ,- -w-----m-w---nm -----.-,-g --,..--------,-o--, s,- v,.
7717
~x
( 1 off.
2 MS. MOORE: ! think he might have hung up, your 3 Honor.
4 JUDGE KELLEY: Okay. Thank you.
5 But in any case, we understand. There are pleadings 6 coming in and we wiiI just have to addrass them.
7 Anything else from the Applicar,ts?
8 MR. O'NEILL: Judge Kolley, just a procedural 9 question.
10 Are the two volumes which are the backup to the 01 11 report in the record? You provided copies to certain of the ew 12 parties. It wasn't clear to me whether you provided a copy to f
13 Docketing and Service so that would be part of the appellate 14 record.
- 15. JUDGE KELLEY: As far as we are concerned, they are 16 in the record of the case. They are not in the record of any 17 evidentiary case.
18 MR. O'NEILL: Understand.
19 JUDGE KELLEY: But, yes, we --
if we haven't, we 20 will see to it that Docketing has a copy, too. We just cut 21 down on service because there are so many people and so much 22 paper.
23 Anything else?
24 MR. GUILD: Judge, this is Mr. Guild.
25 in that connection, are there any portions of those
7718
( 1 01 documents that are available to the Board that have been --
2 either were sanitized for the benefit of other distribution?
3 JUDGE KELLEY: No.
4 Available may be the wrong word. We don't have it,
~
5 and we haven't asked for it. In fact, when they contacted me 6 saying they had this report ready, I asked them if they had 7 any confidential sources in there. And they said, yes, a 8 couple.
9 So, we asked them, well, scrub them on out. We 10 don't want.them.
11 We might decide later we want them, but we would
- (^s 12 rather just give you whatever we have got. And it seemed to
-' t, 13 us on reading it that that was a wise judgment, at least at' 14 this point.
15 MR. GUILD: One other matter I wanted to flag, the 16 somewhat cryptic reference in the exhibit to an Exhibit 4, i 17 believe, that was withheld at the request of the Department of 18 Labor, and I am sort of simply left in the dark to guess what 19 that consists of.
20 I wonder if the Board is awaro?
21 JUDGE KELLEY: We don't know. And you know if you 22 or the Board or somebody ought to try to find out, maybe one 23 could. But, we just in fact don't know.
24 MR. GUILD: Well, I just want to flag it as a 25 point. If now I hear that the Staff intends to offer this as
E' 7719 cm 1 an exhibit, and in part because it is a basis for their 2 conclusions on the contention, we would ask that the full 8 basis for those conclusions be made available to the parties.
4 I have no objection to entering into a protective 4
5 order to protect the confidences of people whose 6 confidentiality is being protected.
7 And in addition, don't know what the basis is for 8 the Department of Labor asking to withhold a portion of that 9 exhibit, would ask that it be made available to parties, as 10 well.
11 JUDGE KELLEY: Could you look at that, too, gs 12 Ms. Moore, and just comment on that when you file?
f I V 13 MS. MOORE: Yes, your Honor.
14 JUDGE KELLEY: Thank you.
- 15 Ms. Moore, anything else?
-16 MS. MOORE: No, sir.
17 JUDGE KELLEY: Okay. Thank you very much.
18 MR. EDDLEMAN: Excuse me, Wells Eddleman.
i 19 We went back and forth on this and you asked whether 20 I would have any comments on 227CC and DD, the contingency.'
21 JUDGE KELLEY: Oh, yes, right.
22 MR. EDDLEMAN: I would like to be very brief about 23 this.
b
\ss/ 24 I withdraw 227DD. I think the argument about timing 25 is probably correct.
7720
[ t On 227CC, my response briefly, the Applicants
-(/
2 concede that it meets the five factors test, and then they 3 apparently attempt to go the merits of it and say you can 4 complicate things too much and so on, to actually give 5 directions. But I think that is a matter'that you would have 6 to actually either try or resolve informally between the 7 parties if the contention is admissible.
8 Now the Staff's reading of the five factors would 9 dispute a couple of things. They said that my interest is 10 protected by the planners at FEMA and I don't think that is 11 true. 1 think that they have been adverse to every interest I
- 12 have shown in this proceeding.
'\,,l ^
18 And the sound record argument, they say I don't have 14 expertise in emergency planning.
15 The question is, is the document clear? Does it' 16 have the information people need?
17 And on that, if I could cite to you the Applicants' 18 argument on pages 6 and 7 -- it may not be what they call 19 argument -- but pages 6 and 7 of their pleading, they cite a
.20 point and it says "two serious omissions from the distributed 21 material." And I think the location of the shelters or a 22 description of how to get to them is a potentially serious 23 omission.
l
(_/' 24 It also says that " educational material just be 25 judged in its entirety." This is in citing the Appeal Board
l 7721
[v t in Metropolitan Edison Three Mile Island on page 7.
2 I think that in what I am trying to do. I think I 8 do have the adequate training to examine on the question of 4 whether information is provided, and whether it is clear -
5 enough. I am, after all, a teacher.
6 So, I dispute the Staff's reading of the five 7 factors in that degree. Also, I am not sure it would delay 8 the proceedings, since we have got our Emergency Planning 9 Hearings now set up for September. And, as I said before, 1 10 think the nuclear plant is going to be delayed again anyway.
11 That in all tFe response that I think i need to make f 12 on that. Thank you.
13 JUDGE KELLEY: Let me make sure I am clear on --
is 14 it 227CC that has to do with including directions?
15 MR. EDDLEMAN: Yes.
16 JUDGE KELLEY: Now my question was this. I wasn't 17 entirely clear from the text of the contention, but from 18 reading the pleadings I came out with the understanding that 19 the thrust of this contention is not toward a person's -- a 20 person lives in the EPZ, let's say, and they are going to 21 leave via some evacuation route. Let's say that they leave --
22 as I understand it, they have got a map from where they are to 23 get out of the EPZ.
24 But they are told, for example, go to Sanford, or go 25 to Farina, or one of those other towns and go to the high
7722 I school because that is where the relocation point is.
.V) 1
, 2 As I understand it, where there aren't maps, is once 3 you get to that town outside the EPZ, there aren't directions 4 from the town, whether it is the edge of. town or downtown or 5 _ wherever to the high school 6' Is that the part that is the focus of concern?
7 MR. EDDLEMAN: It is that and another thing. And 8 that is that in the actual pages of the brochure that were 9 suppIled, it simply IIsts like the name of the school. And it 10 is not even real clear whether it is, for example, in Raleigh 11 or-in Perry, if you are going up U.S. I to the north and so 12 on.
a 18 And it is both of those things. It is basically a 14 question of,-once you are out of the zone for which directions 15 are supplied, then there is another column that says where the 16 shelters -- it lists the shelters. And it doesn't give any 17 location information for them at all in that place.
18 That is what I am saying they should provide. Or, i
19 if the contention were admitted, they could try to put on a 20 case that says this information 's i not necessary, or would.be 21 confusing.
22 They could do that. Or, possibly we could reach a 23 settlement.
24 MS. RIDGEWAY: Mr. Chairman, this is Lisa Ridgeway ,
25 for the Applicant.
7723
/)
%/
1 The thrust of what you said is correct, and that is 2 that given the instructions that are.in the brochure, those 3 instructions take you well out of the EPZ, and to a point 4 where you only need street directions from the route indicated 5 in the brochure to the precise evacuation shelter.
6 And the point of our response is not to go to the
'7 merits, but rather to point out that given the record that is 8 available to Mr. Eddleman, which includes the Off-Site 9 Emergency Plan, the State Plan, Mr. Eddleman can not establish 10 a need for those street-by-street instructions because of the 11 fact that as the plan makes it quite clear, there are f- s 12 personnel that are available to give those street-by-street U 13 directions.
14 So, our position doesn't go to the merits, it simply 15 says that there is no need for it, that that evidence is 16 already on the record.
17 JUDGE KELLEY: You mean the plan itself calls for-18 people to be, like standing there with a flag waving people 19 down the right trail?
20 is that the way it would work?
21 MS. RIDGEWAY: That's correct, your Honor.
22 JUDGE KELLEY: And that's in the plan?
23 MS. RIDGEWAY: That's correct.
24 JUDGE KELLEY: Doesn't that take care of it.
25 Mr. Eddleman?
7724
' ~
1 MR. EDDLEMAN: Judge, I don't think it does, because 2 it is not clear that they are going to be able to handle the 3 volume of traffic through there that you are going to have.
4 And also, there are other people that may not be 5 coming from within the zone, may not be evacuating, but will
! 6 need to get to those places to pick up their children and so 7 on. ,
8 JUDGE KELLEY: Suppose there is some confusion, is 9 that a safety hazard?
10 MR. EDDLEMAN: Judge, I think it might prevent 11 people from following the plan properly. It might cause
,-w 12 people to try to get back into the zone to establish that bh 18 their relatives or friends are out of it, if they can't find 14 the shelter.
15 There is a lot of possible implications. All 1 16 am saying, the complete information should tell them how to 17 get to the shelters.
18 JUDGE KELLEY: Okay. Fine, thank you.
19 I don't think we have anything else.
20 MS. MOORE: Your Honor, this is Janice Moore. I 21 believe we have a quick answer to Mr. Guild's question in the 22 cover letser to the report. That was the cover letter to l l
23 you. If you would permit us, I would like to have Mr. Barth A
i)
(,, 24 read it~into the record to see if that would answer 25 Mr. Guild's question about what was left out of Exhibit 4.
I
.. . . .. . . - . - ~ . _ -
7725
[' 1 JUDGE KELLEY: All right.
2 MR. BARTH: Your Honor, in the May 20, 1985 3 memorandum to.you from Ben R. Hayes, Director of the Office of 4 investigation, the concluding paragraph reads as follows:
5 "In addition to the sanitization to protect pledges 1
6 of confidentiality, Exhibit 4 has been deleted from the 7 report. This exhibit contains copies of documents belonging 8 to the Department of Labor (DOL) DOL has indicated they 9 would prefer to control release of these documents themselves.
10 They have no objection to the summarization of these documents 11 contained in the enclosed report being released."
s 12 That's i t, your Honor, s
13 JUDGE KELLEY: That sheds some light, I guess.
14 MR. GUILD: I guess I can address that in response a
15 to Ms. Moore's memo, that I expect at a later point.
16 it just seems clear to me if that is in part the
.i 17 basis for Ol's conclusion, I hear no substantial asserted '
18 legal grounds for withholding that, except the preference of 19- the Department of Labor. And, that doesn't seem to be very l 20 persuasively explained.
21 We would, of course, object to the admission of j 22 only a portion of their report as purporting to reflect the 23 basis for their conclusion. Just to get it on the table, I i.
24 would ask that the Staff supply us with whatever documents 25- have been deleted from that exhibit.
4
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7726 r 1 JUDGE KELLEY: Okay. Ms. Moore, maybe you could
(\
2 check on that. That might be the simplest thing, to see if 3 Labor just won't let it go. And then beyond that if they 4 don't want to, or you don't think they should, you can say -
5 something in your memo.
6 MS. MOORE: Yes, sir. '
7 JUDGE KELLEY: Okay.
8 MR. GUILD: One other procedural question.
9 Could I get a copy of the transcript of the Board's 10 rulings in this conference call so I will have it in front of 11 me and be clear about what we are being told to do?~
12 JUDGE KELLEY: Yes.
('
13 The Board will issue -- it may be a couple of days, 14 but we will issue a Confirmatory Order on'these various 15 dates --
if we see some gaps, as we probably will, we will try 16 to fill-those in -- procedural type orders setting us up for 17 the hearing.
18 Okay?
19 MR. EDDLEMAN: I would like to request a copy of the 20 transcript, too, please?
21 JUDGE KELLEY: Well, I only hand out so many free 22 transcripts. You will get a copy of the Order. I sent you l 23 two transcripts, Mr. Eddleman --
I hope you got them -- the
. m 1
24 last two times.
25 MR. EDDLEMAN: I did, Judge.
_- . - -- - .=
~
I-7727 f~N 1 JUDGE KELLEY: I will send one to Mr. Guild in this J
2 instance. But, everybody gets a Confirmatory Order.
S MR. O'NEILL: Judge Kelley, I take it in your 6 4 Confirmatory Order, it will reflect communications from i' 5 Mr. Guild about Mr. Van Vo's availability that you have asked 6 him to relate to you. But, I didn't'know that there was any 7 statement on you- part about how you would convey that to the
- 8 rest of the Parties.
9 JUDGE KELLEY: That's a good idea.
10 I will be hearing from you by Monday, right, 11 Mr. Guild?
+
12 MR. GUILD: Right.
\
13 JUDGE KELLEY: Okay, I will put it in there.
14 Okay. Thank you very much. If we have to have 15 another one of these in the next couple of weeks, we will do 16 it.
1 17 Thank you. Goodbye.
18 (Whereupon, at 12:30 p.m., the conference call was 19 concluded.)
20 21 22 23 24 25 1 ,
s '
1 e
- ~ ~ - - - - - - - - - - - - ~ ~ - - - - - - ' - ' ' ~ - -
1 CERTIFICATE OF OFFICIAL REPORTER 2
3 1
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 Eastern Municipal Power Agancy 8-9 Name of proceeding: Shearon Harris Telephone Conference Call 10 11 Docttet No. 50-400-OL 12 Place: Bethesda, Maryland la cate: Wednesday, May 29, 1985 14 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.
te !
"S jl,_
,g (Signature) .. ,(
(Typed.Name of. Reporter)
/(-( -
Mimie Meldzer 20 21 22 23 Ann Riley & Associates, Ltd.
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24 25