ML20133F370
| ML20133F370 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 08/05/1985 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#385-203 OL, NUDOCS 8508080259 | |
| Download: ML20133F370 (36) | |
Text
ORIGINAL UNITED STATES OF AMERICA (m.y) NUCLEAR REGULATORY COMMISSION In the matter of: .
CAROLINA POWER & LIGHT COMPANY AND NORTH CAROLINA COMPANY MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant)
Docket No. 50-400-OL e TELEPHONE CONFERENCE CALL f
(
Location: Bethesda, Maryland Date: Monday, August 5, 1985 Pages : 8168-8201 ANN RILEY & ASSOCIATES '
Court Reporters fj,h 1625 I St., N.W.
/ \ \ Suite 921 0\\ Washington, D.C. 20006
~
8508080259 850805 yDR ADocK 05000400 PDR
8168
(,,/ 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 TELEPHONE CONFERENCE CALL 5 ------------------------------------X 6 In the matter of: :
7 CAROLINA POWER & LIGHT COMPANY :
8 and NORTH CAROLINA COMPANY : Docket No. 50-400-OL 9 MUNICIPAL POWER AGENCY :
10 (Shearon Harris Nuclear Power Plant):
11 ------------------------------------X 12 4350 East West Highway 13 Bethesda, Maryland 14 Monday, 5 August 1985 15 Conference call in the above-entitled matter t, 16 convened, pursuant to notice, at 3:00 p.m.
17 BEFORE:
18 JAMES L. KELLEY, Esq., Chairman i 19 Atomic Safety and Licensing Board l
l 20 21 GLENN O. BRIGHT, Member 22 Atomic Safety and Licensing Board 23
,A 24 JAMES H. CARPENTER, Member
- 25 Atomic Safety and Licensing Board I
i
i i
1 APPEARANCES:
i 2 On behalf of the Applicants:
3 THOMAS A. BAXTER,esq.
4 Shaw, Pittman, Potts & Trowbridge 5 1800 M Street, N. W.
6 Washington, D. C. 20036 7
3 8 DALE E. HOLLAR, esq.
9 Associate General Counsel 10 Carolina Power & Light Company 11 P. O. Box 1551 l ( 12 Raleigh, North Carolina 27602 13 On behalf of the NRC Staff:
i 14 STUART TREBY, Esq.
15 CHARLES A. BARTH, Esq.
i 16 JANICE E. MOORE, Esq.
17 Office of the Executive Legal Director j
18 U. S. Nuclear Regulatory Commission I
19 Washington, D. C. 20555 20 21 On behalf of the State of North Carolina:
22 STEVEN F. BRYANT, Esq.
23 Assistant Attorney General 24 Post Office Box 629 25 Raleigh, North Carolina 27602 l
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1 On behalf of the Intervenors:
2 JOHN D. RUNKEL, Esq.
-3 Conservation Council of North Carolina 4 307 Granville Road 5 Chapel Hill, North Carolina 27514 6
7 WELLS EDDLEMAN, pro se i
8 718-A Iredell Street 9 Durham, North Carolina 30309 t
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1 PROCEED I NGS 2 JUDGE KELLEY: Let us go on the record.
3 THE OPERATOR: Mr. Baxter?
4 MR. BAXTER: Yes.
5 THE OPERATOR: Mr. Barth?
6 MR. BARTH: Here.
7 THE OPERATOR: Mr. Hollar?
8 MR. HOLLAR: Yes.
9 THE OPERATOR: Steve Bryant?
10 MR. BRYANT: Here.
11 THE OPERATOR: Mr. Runkel?
m k ,) 12 MR. RUNKEL: Yes.
13 THE OPERATOR: Go ahead, please.
14 MR. BARTH: Mr. Kelley?
l 15 JUDGE KELLEY: Could each of you identify yourself
! 16 at the beginning when you speak.
l' 17 MR. BARTH: I'm Charles Barth. With me is 18 Mrs. Moore and Mr. Stuart Treby. Mr. Treby is Assistant Chief
! 19 Hearing Counsel and principally for this call he will set 20 forth what the Staff's position is.
21 JUDGE KELLEY: Okay.
22 And we have Mr. Bryant with us, is th t correct?
23 MR. BRYANT: Yes, sir.
f')]
, 24 JUDGE KELLEY: And Mr. Runkel is with us?
25 MR. RUNKEL: Yes, sir.
l l
8172
') I have also on the line, Wells Eddleman.
1 2 JUDGE KELLEY: You have got him. Mr. Eddleman, are 3 you there 4 MR. EDDLEMAN: Yes, sir, Judge, can you hear me?
5 JUDGE KELLEY: Yes, barely 6 MR. EDDLEMAN: I will shout if I have to say 7 anything.
8 JUDGE KELLEY: Are you on a separate line, or -
9 MR. EDDLEMAN: No. I am on Mr. Runkel's line on 10 another phone.
11 JUDGE KELLEY: All right.
s_f 12 So, I guess that covers the people that we did 13 attempt to reach, I think.
14 Judges Bright and Carpenter are here with me also,
. 15 and we are on the record,* ladies and gentlemen. I think 16 everybody knows everybody else with the exception -- the 17 Board, at least hasn't met Mr. Bryant face to face yet, but
, 18 some of you may.
19 We are on this call this afternoon for the purpose
- 20 of having basically some procedural discussion about the i
21 Petition for Intervention filed last week by Mr. Bryant on 22 behalf of the Attorney General of North Carolina.
() 23 Did everybody receive that? Anybody who did not?
24 (No response) 25 Okay. Mr. Bryant, let me just ask you first, is the l
8173 O 1 State's interest at least at this point, limited to the WB-3, 2 the drug use contention?
3 MR. BRYANT: Yes, sir, that's correct, Judge Kelley.
4 JUDGE KELLEY: Okay. I understand. Your Petition 5 is phrased in general terms, but in the circumstances I rather 6 assumed that was the case. And we will consider it in that 7 light.
8 Letmeasktheobherparties, viewing the States 9 Petition as a Petition which really was interested in the WB-3 10 drug use contention, does any party have any objection to that 11 Petition?
) 12 Applicants first?
13 MR. BAXTER: Judge Kelley, no, as we read this 14 section that the State has petitioned under, a state is given 15 the opportunity to participate and advise the NRC without 16 taking a position on the issues, and that is what it appears 17 they have done here.
18 I would note though some concern about the timing of 19 the Petition. But we assume that the Attorney General is 20 willing to take the proceeding schedule as he finds it on 21 entering the case, and that there won't be any delay in the 4 22 proceeding as a result of their participation. g.
23 With those comments, we have no objection.
(
24 JUDGE KELLEY: Let me just step back a pace, then,
- 25. Mr. Bryant.
8174 g
1 Mr. Bryant, I think Mr. Baxter is correct in stating 2 as a general proposition when a party seeks entry at a late 3 stage, that they take the case as they find it. That is to 4 say, for example, we wouldn't contemplate, absent some cause
~
5 showing, getting back into discovery at this stage of the 6 game.
7 Is that understanding satisfactory to you?
8 MR. BRYANT: Yes, sir, Judge Kelley.
J 9 JUDGE KELLEY: Okay. thank you.
10 So the Applicants, on the basis of that 11 understanding, have no objection.
) 12 How about the Staff?
- 13 MR. TREBY: The Staff has no objection to 14 participation of the State of North Carolina as an interested 15 state in this proceeding.
16 JUDGE KELLEY: Thank you.
17 Mr. Runkel?
18 MR. RUNKEL: We understand how the Attorney General 19 and the State of North Carolina is coming in.
20 I do think we may need to talk a little bit about 21 where the state of discovery is. If it is closed, or should 22 it -- does it need to be reopened on the basis of the 23 affidavit.
(}
24 JUDGE KELLEY: I don't mean to foreclose a 25 discussion of this.
8175 s
1 MR. HOLLAR: I can barely hear Mr. Runkel.
2 JUDGE KELLEY: Can you try that again, Mr. Runkel?
3 ,
MR. RUNKEL: Sure.
4 I understand how the AG's Office and the State of 5 North Carolina has become involved in this proceeding.
6 I would like to discuss as part of this conference 7 call, perhaps the need to reopen discovery.
8 JUDGE KELLEY: We can get to that and discuss it.
9 Parties can be heard. The only point that we wanted to make 10 right now was the very fact a party like an interested state 11 comes in at this point, doesn't have any automatic effect of (3
( ,/ 12 opening up new discovery.
13 If you think that there is some basis for further 14 discovery, we can hear you on that point.
15 MR. RUNKEL: Yes, sir.
16 JUDGE KELLEY: Okay.
17 Mr. Eddleman, any comment on this 18 MR. EDDLEMAN: No, Judge. As I understand it, an 19 interested state can come in with or without contentions. So 20 it appears that the Attorney General has moved into this 21 proceeding as an interested state, and can participate, I 22 suppose, in whatever the Attorney General deems appropriate.
I~') 23 JUDGE KELLEY: Okay. You, at least, have no N_/
24 objection 25 MR. EDDLEMAN: That's correct.
8176 1 JUDGE KELLEY: Fine. So nobody objects, subject to 2 the comments that wereemade in the course of the discussion.
3 So, we can consider that the State's Petition to come in under 4 2.715 is granted.
5 MR. TREBY: Judge Kelley, I guess I do have a 6 question, though. While I have no objection to them being a 7 participant, we would like,to know the scope of their r
8 participation. That is, do they intend to participate in the 9 sense of putting on witnesses, or do they intend to just 10 observe the proceedings, or cross examine?
11 What is the scope of the participation they are 12 seeking?
13 JUDGE KELLEY: It may be useful to get into that.
14 Can we put that to one side for the moment until we get a 15 little more procedural underbrush cleared to one side. But, 16 your point is well taken, Mr. Treby. We would just like to 17 wait a little bit on it.
18 Let me ask you, Mr. Treby. It is the Staff's 19 custom, as we understand it, when information comes to their 20 attention with some safety implications in this hearing 21 process, that they will then refer that information to I&E for 22 whatever review they deem appropriate.
23 Have you, or Mr. Barth, or Ms. Moore referred
)
24 Mr. Burch's Affidavit to I&E, or do you propose to do so?
25 MR. TREBY: Yes. My understanding is that the
4 8177
- 1 affidavit has been provided to both the appropriate people i
2 down at the regional office involved, that is Region II, and 3 that the I&E Headquarters office has also been made aware of 4 the affidavit.
5 JUDGE KELLEY: Okay. Thank you.
6 Now we have accompanying the Petition for l
7 Intervention, a document from Mr. Bryant entitled " Response by 8 the Attorney General of North Carolina to Applicants' Motion
- 9 for Summary Disposition." And perhaps this raises the first
- 10 part of the rather broader question you were referring to, l
11 Mr. Treby, in the sense that the Attorney General has now come i
() 12 into the case, we have granted the Petition to Intervene, and i 13 we have a document entitled " Response to Motion." And l
! 14 associated with that response is what I will call the Burch
- 15 Affidavit. -
16 Let me ask the parties in turn, whether any of them l . 17 object to our allowing this response and treating it as a i 18 response to the pending Motion for Summary' Disposition on i
19 Whistleblower 3.
I 29 Mr. Baxter?
! 21 MR. BAXTER: No, we do not object to your
}
l 22 considering it. I would like to raise later our desire to i
23 respond to the affidavit.
24 JUDGE KELLEY: Right. I thought you might want to 25 when we get to that. But, just as the next procedural step
h 8178 1 then, I understand you are not objecting to its being 2 considered.
3 Mr. Treby, for the Staff, any objection to our 4 considering this response as a response?
5 MR. TREBY: No. The Staff has no objection.
6 JUDGE KELLEY: Okay.
7 Mr. Runkel and Mr. Eddleman, any objection?
8 MR. RUNKEL: No, sir.
9 JUDGE KELLEY: Okay. Thank you.
10 Now, turning to the affidavit from Mr. S. L. Burch 11 -- and I am by no means trying to give a comprehensive O)
(, 12 description of this document, I assume we have all read it.
13 But, for purposes of just the context in which we are looking 14 at it, it dces seem fair to say that Mr. Burch alleges that 15 the CP&L security people were uncooperative in the undercover 16 investigation that led to the arrest.
17 And the affidavit from Mr. King filed in support of 18 the motion referring to the same undercover operation, cites 19 it as an example of cooperation with local law enforcement 20 officials.
21 And then various specifics are given by Mr. Burch.
22 But, it seems to us that the two affidavits, the Burch 23 Affidavit and the King Affidavit are at least inconsistent, in
("'}
v 24 conflict if you will, in various respects. Mr. Burch does, 25 towards the end, state his own view that there were, he
8179
' O 1 -thought, indications that drug use might be widespread at the 2 Shearon darris site.
3 So, there are conflicts in the Motion and the King 4 Affidavit on the one hand, and the Burch Affidavit on the 5 other.
6 Let us then ask, Mr. Baxter, you indicated earlier 7- you may want an opportunity to respond to the Burch 8 Affidavit. Let me ask you, were you aware of Mr. Burch's 9 position about the undercover operation when your Motion was 19 filed?
11 . MlR . BAXTER: First, I need to correct you, it is 12 Ms. Burch.
13 JUDGE KELLEY: Oh, I'm sorry. What is --
14 S. L. Burch, do you know what S. L. stands for?
15 MR. BRYANT: Judge Kelley, her first name is 16 Shirley. I do not know what the middle initial stands for 17 there.
18 JUDGE KELLEY: Okay. Forgive me for my incorrect 19 assumption.
29 MR. BAXTER: To answer your question, Judge Kelley, 21 no, I was not aware of Ms. Burch's position, nor of the 22 impending filing of this document. It was news to us when we
( 23 received it in the mail.
}
24 JUDGE KELLEY: Well, looking at this procedurally --
25 and let me just make a couple of comments, and then perhaps
8180 1 the other parties could, in their own turn, comment on our 2 reactions to this. But, we received r.he filing, like you, a 3 few days ago. And, prior to our receiving this filing, we 4 were, as you know, on a track whereby we had gotten the Motion 5 for Summary Disposition. The Staff's response to it was due, 6 I believe, August 6th. Is that right, Mr. Treby?
7 MR. TREBY: That is correct.
8 JUDGE KELLEY: I think that is right.
9 And then Mr. Runkel's response was supposed to 10 follow on the 16th.
11 And we read the Petition for Intervention, and it
) 12 didcerftous if the Applicants wanted to file some response 13 to the Petition, maybe the orderly way would be for that to 14 happen next before we get further pleadings from other 15 parties.
16 But, one of the reasons we called today was, it 17 seemed we might very well want to alter the schedule for 18 filings and go at it somewhat differently in light of the 19 Attorney General's papers.
20 So, Mr. Baxter, let me just ask you first from th(
21 Applicants' standpoint, have you got a preferred course of 22 action to propose?
23 MR. BAXTER: Procedurally it was going to be my
(
24 proposal to file a responsive affidavit and some legal 25 argument this week on a schedule which I am proposing would
8181 Q
-Q We could get the l not cause any delay in Mr. Runkel's filing.
2 response in his hands by Friday or Saturday of this week, 3 giving him at least seven days to consider it.
4 I don't know that the Staff needs to see our 5 response prior to filing its position tomorrow or not. If it 6 would help I would be prepared -- (Inaudible) -- on this 7 conference call.
8 But that was going to be my proposal. It is that 9 the Staff file tomorrow, that we file an affidavit this week, 10 and Mr. Runkel file his response on the schedule previously 11 set so that the rest of the schedule and the hearing date, if O
( ,) 12 one is needed, would not be impacted.
13 JUDGE KELLEY: Well, that is straightforward. Let's 14 hear the other parties.
15 Mr. Treby, do you believe the Staff can file its 16 response prior to hearing whatever the Applicants wish to say 17 about the Attorney General's file?
18 MR. TREBY: I don't believe so, Judge Kelley.
19 The State's Affidavit was a surprise to us in the 20 sense that we were not aware of that information before the 21 time that we received it on, I believe it was like the end of 22 last week. We view it as new information on this matter from
() 23 24 certainly a reputable source, the State of North Carolina.
And, to be very honest, we have not yet factored all of it 25 into our consideration of the Motion for Summary Disposition.
8182 0 1 Because, to continue my candor --
2 JUDGE KELLEY: Please do.
3 MR. TREBY: -- before we received it, our 4 inclination had been to support the Motion for Summary 5 Disposition. I think we would like to consider this in light 6 of this new information that we are getting.
7 JUDGE KELLEY: I understand. Okay.
8 MR. TREBY: We would be interested in hearing i
9 whatever the Applicants had to say in response as part of our 10 consideration.
11 JUDGE KELLEY: Mr. Runkel?
12 MR. RUNKEL: Yes, sir.
13 If we would have responded on August 16th with an 14 affidavit from Ms. Burch saying the identical things that is 15 in the Attorney General's -- along with the Attorney General's 16 Petition, the Applicants would not have had the opportunity 17 to submit a response to affidavit and counter argument.
18 Procedurally, I don't see how the' Applicants can 19 request -- be allowed the permission to give a counter 20 affidavit on this matter. I think it is outside the process.
21 We could have done the same thing that the Attorney General's 22 Office did.
r 23 MR. BAXTER: Judge Kelley, I would somewhat question
[~
s_ /) l 24 that that is possible. But nevertheless, we are faced with an .
25 unusual situation which is that a new party has entered,
. 8183
!n)
' 1 following the filing of our motion.
2 Had the Attorney General's office been a party 3 earlier and participated in this contention, they might have 4 well been the subject of discovery by Applicant. But we could 5 not have been expected to be able to anticipate that this 6 Petition would be filed after our Motion was filed with the 7 parties.
8 So, I don't think Mr. Runkel's point has any merit 9 at all, and I question whether he could have obtained and 10 filed the affidavit on his own. If so, he would at least have 11 been required to be subject to discoveries on it at some (n) 12 point.
13 JUDGE KELLEY: The Board is certainly interested in 14 getting a full layout of the facts. It may be that when the 15 facts, according to various affiants, get laid out here, that 16 summary disposition will not be available, because people 17 just don't agree with each other. But, we don't know that 18 yet.
19 Mr. Baxter, at the time he filed indicated he didn't 20 know that this was coming.
21 I think, Mr. Runkel, the argument that the Board 22 ought to then stick with an incomplete picture of the world 23 We certainly have discretion to allow (d T is not very appealing.
24 a supplemental filing. We are concerned because the 25 statements in the Burch Affidavit are certainly serious L
8184 p
1 statements. And to proceed without any answer from the 2 Applicant doesn't seem to us to be the right way to go.
3 I think the question is -- if your argument is, you 4 know, the Applicants are stuck with what they filed, we are 5 going to reject that.
6 I guess the issue to you is, if we get a further 7 filing from the Applicants focusing on the Attorney General's 8 filing, when is it reasonable to expect to hear from you.
9 MR. RUNKEL: No, sir. My raising the issue was not 10 that you should make a decision.
11 I think at this point, it is clear that this
() 12 contention needs to be litigated. And any counter affidavits 13 probably would do best to be aired in a hearing. I certainly 14 think that for this issue to be satisfactorily resolved, we 15 can be passing affidavits back and forth for quite some time.
16 JUDGE KELLEY: Well, we are talking about one 17 further filing, I believe, Mr. Runkel.
18 MR. RUNKEL: Yes, sir.
19 JUDGE KELLEY: And, Mr. Baxter, are you prepared to 20 file whatever you want to file by the end of the week, did you 21 say?
22 MR. BAXTER: That's correct.
23 JUDGE KELLEY: What day do you propose?
(}
24 MR. BAXTER: Friday, the 9th.
25 JUDGE KELLEY: You propose you can file by Friday.
I l
-s 8185 1 All right. The way it had stood, and the way it 2 stands right now, Mr. Runkel, you were to file on the 16th.
3 If you get some additional filing from Mr. Baxter 4 this coming Friday, what date do you propose for a response?
5 MR. RUNKEL: Sir, at this time I would like to 6 discuss about reopening discovery. With Ms. Burch's 7 Affidavit, there is an awful -- I would say three or ' 'ar 8 areas where there are discrepancies between what Ms. Burch is 9 saying just on pure factual matters, as to what I received in 10 response to my discovery request to CP&L.
11 I would suggest that at this point we have another
/O
( ,) 12 round of discovery and get the Attorney General's Office as 13 part of that.
14 JUDGE KELLEY: Well, it is going to have to be a bit 15 more -- we will have to flesh out your proposal a little bit 16 more than that, I think, Mr. Runkel.
17 Do you want to make a motion that we reopen 18 discovery?
19 MR. RUNKEL: yes, sir.
20 JUDGE KELLEY: Okay. If that were granted now, when 21 would it be closed?
22 What kind of discovery are you talking about? I
(} 23 can't grant this motion in the abstract to start discovering
%d 24 again. We have got to have some specifics. Assuming we are 25 going to grant any further discovery at all, we have to know
i 8186
('N V 1 what it is. So, we need a rather specific proposal.
2 MR. RUNKEL: I would prefer to make a specific 3 proposal on paper, if that is possible. And I would serve it 4 sometime this week on the parties.
5 JUDGE KELLEY: Mr. Baxter, what do you say to that?
6 MR. BAXTER: Well, Mr. Chairman, we are trying to 7 expeditiously resolve any procedural changes that have to be 8 made as a result of this unexpected State Petition. I assume 9 that is why the Board has called us all together here.
10 If Mr. Runkel can't articulate today any basis for 11 his motion, I think that, on its face, displays why it should (3
( ,) not be considered seriously.
12 13 There has been no showing by Mr. Runkel, or a 14 statement that he has made any attempt, since this contention 15 was filed, to obtain any information from the State Bureau of 16 Investigation. And the fact that he has sat in his office and 17 now received this in the mail and is now interested, I don't
. 18 think is grounds for reopening discovery which was closed on 19 May 1st.
20 JUDGE KELLEY: Staff, do you have any comments on 21 Mr. Runkel's proposal that he file a motion to reopen 22 discovery later this week?
() 23 MR. TREBY: Well, I think that the efficient management of the proceeding dictates that we ought to 24 25 maintain the current schedule unless there is good cause shown
8187 f_ '
for not doing so.
1_
2 I'm not sure that Mr. Runkel has shown us good cause 3 why he can't set forth his discovery schedule now as opposed 4 to waiting sometime later this week. And then if all the 5 parties have to file responses, it seems to me that we would 6 use up the time between now and September 9th when testimony 7 is due.
8 For those reasons I would propose that Mr. Runkel 9 ought to set forth whatever discovery schedule he winhes at le this time, and for us to take it up at this time.
11 One factor that I guess I am interested in with O
\ ,/ 12 regard to any discovery schedule, again goes back to what 13 role, if any the State of North Carolina envisions playing at 14 any hearing. To the extent that North Carolina was proposing 15 to put on any witnesses and actively participate, I guess I 16 would like to know that because it is conceivable that under 17 those circumstances the parties might want to have some 18 discovery just so that they could be more fully informed as to 19 that participant's views and positions at the time that they 20 filed their testimony.
21 JUDGE KELLEY: I sense this is all getting a little 22 unruly. But, maybe that is the nature of the beast we are 23 dealing with this afternoon.
(
24 We had a Motion for Discovery, and now there is a 25 suggestion also that we have a written motion later in the
-s 8188 7
t
' ) 1 week. And now we are back to the issue of what Mr. Bryant 2 proposes for his participation. And it is all sort of up in 3 the air.
4 Let me go back though, to Mr. Runkel. Mr. Runkel, 5 when you ask for discovery, are you asking for what, 6 specifically, in the way of discovery?
7 Are you asking for interrogatories; are you asking 8 for depositions; are you asking for documents? What do you 9 have in mind?
10 MR. RUNKEL: Well, sir, I had submitted a series of
~
11 interrogatories and got responses. And several of those (G,) 12 responses are in direct contradiction to this new Burch 13 Affidavit. I would like to clarify up some of those problems, 14 because it may be easier to clarify up under interrogatories 15 and perhaps a deposition or two, than using the time at 16 hearing to clear up those problems. And it certainly would 17 help me in any Response to Motion for Summary Disposition.
18 JUDGE KELLEY: Well, Mr. Baxter has said that he 19 will make a filing at the end of the week that responds to the 20 Burch Affidavit, and I should think that that would, in large 21 measure, answer your questions as far as what the Applicant's 22 position is.
('
V
) 23 Now, on the question of Ms. Burch, have you talked 24 to Ms. Burch?
25 MR. RUNKEL: No, I have not.
.. . . . - - - ~ _ . - . _ . . - . - _- , _ _ _ . _ _ -
8189 1 JUDGE KELLEY: After all, the real new information 2 here is the affidavit from Ms. Burch. If Ms. Burch is 3 available to talk to you at various times outside the 4 discovery context, but just available to answer questions, do i 5 you need discovery to do that? I would think not.
6 MR. BAXTER: Judge Kelley, Mr. Runkel has twice said l
7 that he perceives conflicLu between our interrogatory 8 responsel and the Burch Affidavit. But, I have yet to hear a 9 specific concrete example of what such a conflict might be.
10 And, I participated in preparing those responses and I have j 11 read the Burch Affidavit, and I fail to be able to guess at
() 12 what he is speaking of.
13 JUDGE KELLEY: Well, Mr. Runkel, Mr. Baxter -- you 14 heard his comment. My question to you was, if Ms. Burch is 15 cooperative in talking to you -- and I have no reason to think 16 she wouldn't be -- why do you need discovery to deal with her?
17 MR. RUNKEL: 'Well, I don't really need discovery to 18 deal with her, sir.
19 In responding to Mr. Baxter's comment, let me give a 20 specific. In Applicants' answer to our interrogatory, they 21 listed, without using names, which is all right with the way 22 the question was worded, 12 workers at the Shearon Harris 23 Plant that were fired because of abusing drugs while on the
. (G~)
24 construction site. That is page 9 and 10 -- actually pages 8 25 through 10 of their answers of May 20th, 1985.
--,_._,c - . _ _ , , _ _ - . - _ . - - - _ - . , , - _ - , - , - , _ , , - - - - . _
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1 1
8190 '
- 1 Ms. Burch's testimony says that there were 51 2 workers whose names were given to CP&L, and as far as 3 Ms. Burch knew,,or the report that she had, they were all j 4 fired.
! 5 And I think that kind of discrepancy, just the 6 numeric of how many people, and what kind of jobs that they i l
- 7 did, I think that is a discrepancy that I certainly at the 1
8 hearing will raise the issue. But, I think that we need to 9 look a lot closer at that.
10 MR. BAXTER: Mr. Chairman, there is no discrepancy 11 at all. If Mr. Runkel would read his own interrogatory and m
12 the Motions we just filed, it explains the situation 13 perfectly.
14 His question was a narrow one as to how many 4
15 employees had been identified as having used drugs on the ,
16 site. And that is discussed in our Motion itself as having 17 been 13 people that were actually caught consuming the drugs.
18 We then go on to identify that there is a larger number who ;
l i
record positive results on a drug screen and there hac 'ueen a 19 20 total of 173 employees terminated since the project began, for 21 involvement in drug activity. Suspected involvement in drug i
22 activity. i 1
() 23 24 So, there is no discrepancy with the Burch Affidavit having identified other people who were fired. And our Motion l
25 -- in fact, our Motion said it is 173 people, because that ,
g 8191
1 includes a lot of people that were terminated prior to this 2 undercover operation which Ms. Burch is not aware.
3 JUDGE KELLEY: The Board really is in no position 4 this afternoon to -- it certainly can't rule on these alleged 5 discrepancies. The documents you are quoting from, some of 6 them aren't in front of us. For the record, I suppose we have 7 gotten both sides giving an example or refuting an example, 8 but that is about as far as we can get.
9 I think we would like to shift gears for a moment.
10 What we intend to do, ladies and gentlemen, is talk this 11 through a little bit more and then the Board will have to
() 12 retire and see how we want to proceed, and then we will come 13 back on the phone after the break.
14 Let me ask Mr. Bryant; Mr. Bryant, assuming that 15 this issue, this contention about drug use could go to a 16 hearing sometime -- well, it is set now for late September --
17 what do you envision in the way of your participation, and do 18 you envision calling Ms. Burch or other witnesses?
19 MR. BRYANT: Judge Kelley, assuming that there was a 20 hearing -- I still realize the Motion has not been ruled on, 21 and we still have the responses -- we haven't made a final 22 determination and for right now I don't think we could until i
(
23 we know if there is a hearing.
24 But for today, I think we would be obligated to 4
25 present the testimony of Ms. Burch, the SBI supervisor. And I
. . .= . .._ . _ . .._.---- -- .- _ .-
8192 1 guess depending on your hearsay rules, we might be obligated I
2 to present Deputy Hinsley.
3 JUDGE KELLEY: Why do you say -- oh, I think I 4 understand what you mean. Hinsley is referred to in the Burch 5 Affidavit, and so if there was some hearsay problem you might 6 produce Hinsley also? Is that what you are saying?
7 MR. BRYANT: Yes, sir. That's right, Judge Kelley.
8 JUDGE KELLEY: Okay. So you would envision 9 presenting perhaps those two witnesses in a hearing?
10 MR. BRYANT: Yes, sir, based on what I know right 11 now.
A)
(, 12 JUDGE KELLEY: I don't mean to bind you to it. I'm 13 just trying to get an idea.
14 MR. BRYANT: Yes, sir.
15 JUDGE KELLEY: The other parties, Mr. Treby was 16 saying he would like to get as clear an idea as he can about 17 what you have in mind, and that is what I was really after.
18 Mr. Treby, with that description'of what Mr Bryant 19 has in mind, does that help you in deciding whether you want 20 to ask for discovery or not? Or in any other respect?
21 MR. TREBY: Well, it gives me something to think 22 about. I guess I'm not prepared at this moment to indicate 23 whether the Staff wishes to take any party's deposition. We
(
24 might make that determination after we consider the affidavits 25 and filing a little bit more carefully, and perhaps also after
8193 k
1 we see what kind of response the Applicants intend to make by 2 this Friday.
3 JUDGE KELLEY: Okay.
4 Now, with those factors in mind, Mr. Treby, I don't 5 think you said before, what would you suggest as a different 1
6 filing date for your response to the Motion?
7 MR. TREBY: I think we would like to have four i
8 working days in which to respond to the Applicants filing.
9 JUDGE KELLEY: Did you say four?
19 MR. TREBY: Four.
1-4 11 So that if they made their filing on the 9th, we
( 12 would be prepared to have in your hands, a response by the 13 15th.
14 JUDGE KELLEY: 15th.
4 15 MR. TREBY: That's a Thursday.
16 JUDGE KELLEY: Can you get that into Mr. Runkel's 1
17 hands on the same day?
l 18 MR. TREBY: I don't know how we would.
19 JUDGE KELLEY: Next day?
29 MR. TREBY: Certainly by the next day.
21 JUDGE KELLEY: We'll say the 16th.
22 MR. TREBY: Because, we could certainly serve them i
23 by Express Mail on the 15th.
(}
24 JUDGE KELLEY: All right.
25 Mr. Runkel, we are now on a -- I think we are going
.< 8194 1 to change the present schedule, but the present schedule says 2 6th and 16th for filing dates for the Staff and yourself
-3 respectively, which means a ten-day gap. Now, if the Staff 4 got their filing to you on the l'6th, can you file by the 26th?
5 MR. RUNKEL: Yes, sir, no problem.
6 JUDGE KELLEY: Hold on just a minute, please.
7 (Discussion off the record) 8 JUDGE KELLEY: Ladies and gentlemen, I am back on.
9 Why don't you give us five minutes. Don't hang up 10 because you will lose the connection. You can just leave your 11 phones for about five minutes, and we will pick up then and
() 12 see if we cannot deal with some of those base points.
13 Okay 14 MR. EDDLEMAN: Before you go off, there is a couple 15 of questions that occur to me. I don't know where they might 16 fit in.
17 For example,'I don't know how the hearsay rule might 18 apply to confidential informants.< You may want to be looking 19 into that.
20 I'm still not really clear on Mr. Baxter's earlier 21 statement about the affidavit, whether they are saying the 22 Applicants did not know any of the facts in the affidavit, or 23 have ideas that some of those statements in th~e affidavit --
)
, 24 they knew some of the statements in the affidavit or not.
25 JUDGE KELLEY: All I asked Mr. Baxter was whether
- . - = - - _ . . , . . - . _ _ . - - . - - -
) a 8195 l
he was aware of this position or not. He indicated he 1
2 wasn't. I'm not prepared to go beyond that this afternoon.
3 Whether other people knew what and when, all those 4 kinds of questions, might come out at some later date.But 5 this afternoon, I don't think that is before us.
6 So, let's take the five minutes, and we will pick 7 back up at about 18 minutes of. Thank you.
8 (Recess) 9 JUDGE KELLEY: Ladies and gentlemen, are you there?
10 (Chorus of responses) 11 JUDGE KELLEY: We are running a little late, but we f%)
\_, 12 are back.
13 We have arrived at a couple of procedural bottom 14 lines, and we will tell you what they are. And then, if that
.15 leaves questions in your minds, as it might, we can hear from 16 you individually.
17 First, Mr. Bryant, with regard to the possible 18 witnesses of Ms. Burch and Mr. Hinsley -- Ms. Burch first, who 19 I understand is a State employee, is that right?
20 MR. BRYANT: Yes, sir, she is employed by our State 21 Bureau of Investigation.
22 JUDGE KELLEY: Is she generally available in the 23 next few weeks to answer questions about her affidavit,
(}
24 whether it is in a discovery context, or whether it is an 25 informal discussion with one or more or all of the parties at
8196 L) 1 once? Can such a thing be worked out, as far as you know?
2 MR. BRYANT: Yes, sir, Judge Kelley, as far as I 3 know. We just might n,eed a little advance notice, because she 4 does travel throughout the district. She is available, you 5 know, depending on the time, certain days of the week.
6 JUDGE KELLEY: I realize Mr. Hinsley works for the 7 County. Is that correct?
8 MR. BRYANT: Yes, sir. He is employed by the Wake 9 County Sheriff's Department.
10 JUDGE KELLEY: So, I don't know if you can speak 11 about him quite as definitively. We know he is not a
) 12 confidential informant, we know where he is. One might 13 assume that he could be talked to also.
14 The Board for this afternoon -- we don't have any 15 formal discovery motion before us. Mr. Runkel has expressed 16 an interest in filing such a motion. Mr. Treby indicated he 17 might think that he needs further discovery. But in any case, 18 we are not going to grant any further discovery this 19 afternoon.
20 Under all the circumstances we have some doubt 21 whether much or any further discovery is going to turn out to 22 be necessary, but we are not going to prejudge that question.
/~'\ 23 It seems to us that the sensible way to proceed is b
24 for all parties to first await Mr. Baxter's further filing 25 which will be made at the end of this week. We think that all
8197
)
\~# 1 counsel should work out among themselves what I will call 2 access to Ms. Burch and Mr. Hincley. It may well be you could 3 all sit down together or separately. We don't know. But, it 4 seems to us that that kind of thing is negotiable.
5 So, we are suggesting to you that insofar as you 6 feel you want to talk to either or those people, or other 7 people, that you attempt to work that out first on an informal 8 basis.
9 So, we are not granting discovery this afternoon, 10 and we don't want to entertain discovery requests, at least 11 until after the Applicants have filed their responsive
) 12 pleading at the end of this week.
13 Now, following that process, if the Staff or 14 Mr. Runkel or Mr. Eddleman, if they feel that they still need 15 further discovery, we are going to ask you to first of all, 16 call me up. And if I am not in at the time, as I may not be 17 for a while, call either Judge Bright or Judge Carpenter and 18 just alert us to that. And we will then wo'rk out some 19 procedure for considering the request.
20 Apart from that, we are going to set new days as 21 discussed, for filing Responses to the Motion for Summary 22 Disposition.
23 The Staff's response will be due on the 15th, with
)
24 the understanding that you will, by Quick Mail or some 25 expedited means, get your response down to Mr. Runkel on the
8198 1 16th.
2 And then Mr. Runkel's response will be due on the 3 26th, with the understanding that he can get his papers to 4 CP&L, at least, on the 26th. Then make a Quick Mail type of 5 arrangement to the Staff as well.
6 That is where we come out for this afternoon.
7 Let me ask you individually whether you understand 8 that, whether it is unclear, whether you want to make further 9 comments.
10 Mr. Baxter?
11 MR. BAXTER: No, I have no comment or questions.
) 12 JUDGE KELLEY: Okay. Mr. Treby?
13 MR. TREBY: That is clear, Judge Kelley, I have no 14 further questions on that. However, before you end this 15 conference, Ms. Moore wishes to raise another matter.
16 JUDGE KELLEY: Okay. Mr. Bryant?
- 17. MR. BRYANT: Yes, sir.
18 JUDGE KELLEY: Does it sound satisfactory to you 19 MR. BRYANT: Yes, sir.
20 JUDGE KELLEY: You may well be hearing from the 21 parties, I suppose, about arrangements to talk with Ms. Burch 22 and Mr. Hinsley, and I leave that to him.
23 Mr. Runkel?
(
24 MR. RUNKEL: Yes, sir, I think that will work out 25 very good for the next couple of weeks.
F p 8199 G 1 JUDGE KELLEY: Okay.
2 MR. RUNKEL: I would request something additionally, 3 though.
4 Can you send me the couple of pages in the 5 transcript after the break? It takes quite some time for it 6 to show up in our PDR.
7 JUDGE KELLEY: I'll send you the whole transcript.
8 MR. RUNKEL: That will be excellent.
9 Thank you very much.
10 JUDGE KELLEY: Mr. Eddleman 11 MR. EDDLEMAN: Nothing further, Judge.
12 JUDGE KELLEY: I think then that will cover that 13 part of it. ,
14 We had a couple of other things to mention 15 ourselves, which I will just do quickly. Then I understand 16 Ms. Moore has another point.
17 As a point od information on two separate subjects, 18 we have a pending FOI request. Mr. Baxter, you have a 19 pleading, and Mr. Guild does also. I think you know what I am 20 referring to.
21 And I just want to mention, as I mentioned to 22 Ms. Moore earlier today, we issued today a request for Staff's
() 23 24 views on certain questions. You will be getting that pleading in the mail. But, I just wanted to tell you that it was 25 forthcoming.
O 8200 1 On the question of a decision on the safety matters, 2 we are getting along on that, and we expect to issue a partial 3 initial decision sometime this month -- I can't say just 4 when, but sometime this month. And it likely will not cover, 5 all of the safety issues. But it will cover the bulk of those 6 issues.
7 Then, whatever we don't get done in that particular 8 partial initial, will come'along presumably with the emergency 9 planning decision later on.
10 Ms. Moore?
11 MS. MOORE: Yes, Judge Kelley. I was trying to O 12 determine whether the Board has any availability problems in 13 the week beginning October 1st.
14 I anticipate having to file a request for an 15 extension of time to file testimony and for postponement of 16 the hearing on the siren issue. I have talked with 17 Applicants' counsel, I was unable to reach Mr. Eddleman. And, 18 if he could let me know where he could be reached this 19 afternoon, I would be glad to talk with him some more about 20 it.
21 I think we will have to file a motion, and I was 22 going to request some kind of a postponement until the week of O
(,,,) 23 August ist. I wanted to check as to whether the Board will 24 be available in that timeframe.
25 JUDGE KELLEY: Just a minute.
8201
(}
V 1 MS. MOORE: I'm sorry, October 1st.
2 JUDGE KELLEY: Just a minute.
3 (Discussion off the record.)
4 JUDGE KELLEY: Judge Carpenter notes a problem on 5 the leth and the lith.
6 Judge Bright and myself, as far as we know now, 7 don't have a problem.
8 That is not to suggest that we are prejudging 9 whether it ought to be moved from the present date. But, just 10 to answer your specific question, I think it would not be a
,s 11 matter of Board availability, subject to those two days that
-' 12 Judge Carpenter has.
13 MS. MOORE: Thank you. I will file the appropriate 14 formal motion when I have spoken with all the parties.
15 JUDGE KELLEY: Okay.
16 Anything else from anybody 17 MR. EDDLEMAN: Ms. Moore, you can call me at 18 Mr. Runkel's, because that is where I am right now.
19 JUDGE KELLEY: The usual orders for transcripts are 20 in, I take it.
21 Anything else along that line?
22 (No response.)
) 23 Thank you very much. We will proceed as outlined.
24 (Whereupon, at 4:00 p.m., the telephone conference 25 was concluded.)
O t )
N/ 1 CERTIFICATE OF OFFICIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings 6 before the United States Nuclear Regulatory Commission in the 7 matter of: Carolina Power & Light Company and North Carolina Company Municipal Power Agency (Shearon Harris a Nuclear Power Plant) 9 Name of proceeding: Telephone Conference Call 10 11 Occket No. 50-400-OL place: Bethesda, Maryland
[v) te 13 cate: Monday, August 5, 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.
is .
7 4/ ,
(Signature) ,g j /Aj I (Typed Name of Rep 6'rter) Mimie Mefdzer 20 21 22 29 Ann Riley & Associates. Ltd.
24 25