ML20135G063
| ML20135G063 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 09/13/1985 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#385-560 82-472-03-OL, 82-472-3-OL, OL, NUDOCS 8509180099 | |
| Download: ML20135G063 (68) | |
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OrtiGINAL
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UNITED STATES OF AMERICA 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 ASLBP No. 82-472-03-OL O
TELEPHONE CONFERENCE 4
Location: Bethesda, Maryland Date: Friday, September 13, 1985 Pages: 8218 - 8282 1
8509180099Ogh$oo PDR ADOCK O PDR T
ANN RILEY & ASSOCIATES Court Reporters
_,[J f 1625 I St., N.W.
kp Suite 921 I
0g Washington, D.C.
20006 1
(202) 293-3950
8218 1
UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
x 5
In the matter of:
6 CAROLINA POWER & LIGHT COMPANY 7
and NORTH CAROLINA COMPANY Docket No. 50-400-OL 8
MUNICIPAL POWER AGENCY ASLBP No. 82-472-03-OL 9
10 (Shearon Harris Nuclear Power 11 Plant) 12
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13 Room 453 14 4350 East-West Highway t
2 Bethesda, Maryland i
16 Friday,. September 13, 1915 1
17 TELEPHONE CONFERENCE 18 The telephone conference in the above-entitled-19 matter convened, pursuant to notice, at 10:15 a.m.
30 BEFORE:
21 JAMES L.
KELLEY, ESQUIRE, Chairman E
GLENN O. BRIGHT, Member 23 JAMES H. CARPENTER, Member.
34 Atomic Safety and Li ensing Board Nuclear Regulatory Commission
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APPEARANCES:
2 On Behalf of the Applicants:
3 THOMAS A.
BAXTER, ESQUI_RE 4
JOHN O'NEILL, ESQUIRE Shaw, Pittman, Potts & Trowbridge 5
1800 M Street, N.W.
Washington, D.C.
20036 6
-and-7 DALE E. HOLLAR, ESQUIRE 8
Associate General Counsel Carolina Power & Light Company 9
P.O.
Box 1551 Raleigh, North Carolina 27602 10 11 On Behalf of the NRC Staff:
12 STUART TREBY, ESQUIRE
's CHARLES A.
BARTH, ESQUIRE 13 JANICE E. MOORE, ATTORNEY-AT-LAW Office fo the Executive Legal Director 14 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 15
-and-16 BRADLEY JONES, ESQUIRE 17 U.S. Nucl' ear Regulatory Commission Region II 18 Atlanta, Georgia 19 On Behalf of the State of North Carolina:
20 H.A. COLE, JR.,
ESQUIRE 21 Special Deputy Attorney General Antitrust Division 22 200 New Bern Avenue Raleigh, North Carolina 27601 r-'g 24 b
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1 On Behalf of the Intervenors:
O 2
JOHN D.
RUNKLE, ESQUIRE
^
Conservation Council of North Carolina j
3 307 Granville Road i
Chapel Hill, North Carolina 27514 4
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WELLS EDDLEMAN, pro se 6
718-A Iredell Street Durham, North Carolina 30309 7
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i PR0CEEDI NGS Q
JUDGE KELLEY:
We are now on the record, starting 2
3 at this point.
Let me first just recite quickly the documents that we have received since our last telephone conference 4
5 so the record is straight in that regard.
6 We got a letter from Mr. Treby dated the 27th 7
of August concerning the fact that they would not be filing 8
on the summary disposition motion, and_ indicating their need 0
9 to 8et additional information.
10 Secondly, there was a meeting composed of ii representatives of the applicants and the staff, which took P ace, I believe on the 5th of September, a week ago yesterday l
i 12 13 if I'm not mistaken.
And there was a transcript made of D)
(ms 14 that meeting, and that was sent out as a board notification 15 that was sent over here.
I spoke Mr. Barth about' it.
He 1
16 sent me a copy early, and then I asked him to send a copy i7 early also to Mr. Runkle.
Have you got that in hand by now, Mr. Runkle?
18 i9 MR. RUNKLE:
Yes, I received it in last night's 20 mail.
21 JUDGE KELLEY:
Well, at least it got there before 22 today's discussion.
23 The other group of papers we received were from 24 Mr. Runkle dated the 6th, last Friday.
And they included 25 a response in opposition to the summary disposition motion-
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i on Whistle Blower 3; a motion to postpone the hearing date
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on that contention; a motion relating to the intervenor's 2
3 inclusion in staff / applicant meetings; and then also a 4
supplement to some earlier discovery.
4 What we propose to do this morning, first of all 5
6 we now have received pleadings on the motion for summary 7
disposition and we're prepared to rule on that.
And we have a
a couple of page statement here which will comprise our ruling which I will now read.
9 The Board has reviewed the submissions of the 10 j
i3 applicants, the intervenor, and the attorney general of North 12 Carolina concerning summary' disposition of Contention WB-3, And has decided to deny applicants' motion in its entirety.
i 13
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Contention WB-3 asserts that drug use is widespread at the i4 Shearon Harris construction site, that applicants have not 15 16 taken~ adequate action'to control drug abuse, and that 37 applicants have failed to reinspect all safety related work 18 Performed by known drug abusers, in Applicants claim that' drug abuse has not been 20 widespread at the Harris site during construction.- To the 21 contrary, a supervisor of drug investigations with the North 22 Carolina State Bureau of Investigation, Ms. S.L. Burch, asserts 23 in an affidavit submitted by the North Carolina Attorney General that drug abuse at the site is widespread, and that 24 the applicants interfered with an undercover investigation 25
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1 conducted in late 1984 in which a State Bureau agent and representative of the Wake County Sheriff's Department 2
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had participated.
Although the applicants have now submitted 4
rebuttal affidavits contraverting Ms. Burch's affidavit in 5
many particulars, her affidavit stands.as submitted.
Ms.
6 Patty Miriello, a worker at the Harris site during the past 7
year whose affidavit accompanied intervenor's opposition, 8
also claims that drug abuse at the Harris site is widespread, 9
and that she has observed the use of cocaine by people who 10 were then performing inspection and analysis functions on 11 the Harris steam generators.
The evidence before us on the 12 issue of the extent of drug abuse at the Shearon Harris site it during the period of construction is in substantial conflict, N/
64 putting material facts clearly in dispute.
15 Applicants assert that they have taken sufficient to steps to control drug abuse among workers at the Harris site.
l'7 The affidavits supporting applicants' motion detail Carolina is Power and Light's program for controlling drug abuse.
This 19 program includes screening of applicants for employment, 20 background investigations of prospective employees, an 21 instructional program for newly hired employees, a managers 22 and supervisors awareness program, and the drug abuse policy 23 imposed on contractors at the site.
Applicants' supportin8 24 affidavits also outline the security measures for the site, 25 including:
security patrols, random inspection of employees
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personal belongings, use of a narcotic detection dog, 2
urinalysis drug testing of employees suspected of involvement 3
with drugs, and observation of employees by managers and 4
supervisors.
Although,the affidavits submitted by the Attorne r 5
General and CCNC do not directly dispute the particular. facts 6
of the applicants' drug abuse control and security ~ programs, 7
'the question of the adequacy of that program is directly 8
connected to the extent of the drug abuse problem at the 9
site.
To state it another way, if the program is working to as envisioned by Carolina Power.and Light, then one would I
n not anticipate drug abuse to be widespread.
If, however, 12 an evidentiary hearing were to lead to a finding of actual 4
S 13 widespread drug abuse, that would raise questions concerning
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14 the adequacy of the drug abuse control program, however 15 impressive that program might appear on paper.
In other 16 words, the issue whether drug abuse.has been widespread is 17.
directly linked to the adequacy of CP&L's overall drug program, is Therefore, denial of summary dispos'ition_on the issue of 19 widespread use requires denial of summary disposition on 20 the program as well.
- 21 Similarly, the CP&L program described by Mr. Chiangi 22
.to detect defective work by drug users, particularly inspectior 23 personnel, may be adequate if it is found that drug use during 24 construction has not been widespread, and that virtually all
' 25 drug users, particularly inspection personnel, have been t..
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's-1 discovered and fired.
But we question whether that program 2
was d'esigned to cope with the effects of widespread drug 3
use, with many users never being discovered.
If such 4
widespread use has occurred, the efficacy of the program 5
to detect defective work should be open to' scrutiny at a 6
hearing.
7 The applicants' motion for summary disposition 8
of Contention WB-3 is denied.
9 That concludes our ruling on the summary disposition 10 motion.
As the next order of business after having the denied i
I 11 the motion, we now anticipate that there will be an evidentiary i
12 hearing on the contentions, so it seems to us the most useful 13 next step would be to talk about Mr. Runkle's motion to 14 postpone the hearing until -- well, the dates he proposes 15 in his motion would be the week of December 2nd for.beginning 16 of the hearing, with a filing of testimony date of November l'7 18th.
t 18 Now I assume that all other parties have received 1
19 Mr. Runkle's motion.
Under the Commission rules there are 20 X days to respond and so on.
I'm hopeful -- the Board hopes 21 that having had this in hand and having said in advance we'd 22 look at timing in this conversation that the parties will 23 be prepared now to speak to that. question.
24 Let me start with Mr. Baxter for the applicants.
25 Are you prepared to respond to Mr. Runkle's motion for U
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1 postponement?
' 2 MR. BAXTER:
Yes, sir.
3 JUDGE KELLEY:
Thank you.
Do you want to go ahead?
4 MR. BAXTER:
Yes, applicants oppose the Conservatio l
i 5
Council's motion to postpone hearing.
We think that the 6
facts have been on the table long endugh and that the parties 7
should be prepar'ed to proceed with a hearing on September 8
30.
We would be prepared to discuss in this phone call in 9
the nature of a prehearing conference, more precise planning to for the hearing and how long it might take.
And I would 11 say at the outset that I do not think it probably can be 12 completed in that week.
But I think we ought to at least i
13 get started on some elements of the case, and that some 14 elements could be completed during'that week with the remainder 15 held over.
J 16 Let me address though'Mr. Runkle's five particular 17 arguments in support of his motion.
Paragraph one of his 18 motion is essentially pleading a case for a staff extension 19 which the staff has not made itself.
And I think if the 20 staff ~needs additional time, of course they can ask for it.
21 And Mr. Runkle's motion should not attempt to rely on another 22 party's need for additional time that hasn't been asserted 23 by that party.
24 Paragraph two expresses his understanding about 25 an investigation the staff may be doing.
I'll leave it to a
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1 the staff' attorneys to describe what, if any, efforts they 2
are undertaking there.
But I do not believe that it's a 3
fair inference that they are undertaking a full-scale 4
investigation into criminal activity at the site,.if any.
5 And if they were, it still is not apparent why Mr. Eddleman 6
-- or Mr. Runkle needs an extension time if the staff is 7
doing some additional investigation.
i 8
The third paragraph appears to argue that there's 9
no prejudice to applicants from this delay.
And at least 10 it implies that Mr. Runkle thinks we can continue to litigate 11 this contention while we're doing startup testing and low 12 power operations.
13 That, of course, isn't the case.
Under the e~
g 14 Commission's regulations we need a decision from this licensini; 15 board in order to load fuel in March 1986, unless we make 16 a motion, and the Board grents it under Section 50.57(c) 17 allowing us to proceed with low power testing prior to the 18 completion of an initial decision.
1 19 So that it's not the case as Mr. Runkle would 20 imply here that we've got many months after -- during low 4
21 power operation and testing in order to litigate this matter.
22 The relevant time frame is between now and March 11, 1986.
23 We think a hearing starting December 2nd is going to 24 substantially prejudice our capability to start' loading fuel 25 on time and get a timely decision from the board.
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1 As Mr. Runkle acknowledges, if the board directed s
2 additional inspections to be-done, by definition we would 3
have a delay in the startup of this plant, which should be 4
avoided if it's consistent with fairness to the parties and S
then adequate opportunity for hearing.
6 Paragraph four seems to --
7 JUDGE KELLEY:
Excuse me, Mr. Baxter.
On your T
8 point three, could you just -- I think I understand the thrust 9
of your argument, but walk us through the time scenario that 10 you envision.
Let's suppose that Mr. Runkle's motion were 11 granted and we started the hearing the 2nd of December.
12 Just how, specifically, do you see that impacting fuel load?
13 MR. BAXTER:
I think that a hearing would likely
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14 take two weeks leaving it concluding some time in the middle 15 of December.
We then have to have proposed findings by the 16 parties.
If that were done under the schedule provided in 17 the regulations, I believe it stretches out about 60 days.
a 18 That would put us into the middle of February.
19 And then what remaining time exists between the 20 middle of February nnd March 11 is when the board would have-21 to issue its decision.
And if there are any conditions imposed 22 by the board, or if CCNC' prevails, there would not be adequate 23 time for CP&L to undertake any corrective action needed in 24 order to obtain its license on the proposed schedule.
4
'25 JUDGE KELLEY:
From your present perspective,
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1 is the March 11 -- let's say a mid-March fuel load date -
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- are you on track to do that?
3 MR. BAXTER:
Yes, sir, as far as I know we are 4
on track to do that.
We would certainly be the first to S
let you know if that changes.
But that is the current 6
schedule.
7 JUDGE KELLEY:
Okay, go ahead.
8 MR. BAXTER:
Paragraph four appears to argue the 9
board needs more time.
And of course, the board just announced to its ruling on the summary disposition motion, so they don't 11 need more time.
12 As to whether the parties need additional time 13 this month, I think we're in the situation here where Mr.
14 Runkle at least is -- should be very familiar by now with 15 our case.
T. t was outlined in exhaustive detail in the July 5
16 12th motion.
And our response to the Ms. Burch affidavit 17 is also well documented now in the filing on August 16th.
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18 There is not going to be from their standpoint, 19 I would think, a lot of surprise here.
And they should be 20 ready to go.to hearing, we believe.
And should be ready 21 to file any testimony they have by the 23rd, and to proceed r
22 to hearing a week later.
1 23 The final sentence in paragraph four makes reference l
24 to complications from ongoing criminal investigations.
I 25 don't know what Mr. Runkle's talking about.
There's no ongoing 4
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1 criminal investigation that I'm aware of that has anything 2
to do with this hearing.
The eight people that were arrested 3
in January, I think their prosecutions are over with.
4 And the vague reference to the personal safety 5
of his witnesses, again, I have no idea what he's talking 6
about there.
7 The fifth asserts a point of personal consideration 8
I would like to say, we have not made a big fuss about the 9
fact that Mr. Runkle is planning to be out of the. country 10 for a month beginning October 8th, although that is having 11 a substantial adverse impact on the schedule for this 12 contention.
The board and the parties have been attempting 13 to work around that, and I think at this point Mr. Runkle g-wg t
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14 indeed has to be put to the task of making any effort he 15 can to see that this matter gets taken up, to some extent 16 before he leaves.
17 And there should be some give, as well as some 18 take, in terms of the parties accommodating an entire month's 19 outage.
I think given the magnitude of the evidence that's 20 going to have to be presented on this contention, we would 21 like to propose that we split it up, have testimony due on 22 the 23rd on the extent of drug use, and the undercover 23 operation, if the board is ruling that that's a material 24 fact that still should be resolved.
25 JUDGE KELLEY:
I think that's a fair statement.
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Yes, we agree.
2 MR. BAXTER:
And that the hearing on that should 3
start on. September 30th and be completed.
4 I would though propose that we are not going to 5
be able to complete the hearing on all issues in that week, 6
unless I -- we need to hear, I guess, who's going to testify.
7 But that a way to divide it up would then be to have testimony 8
filed sometime later on the construction QA program and the 9
evaluation of the terminated employees.
And that that could 10 be heard starting November 11 after the siren contention.
11 That was Mr. Runkle's proposal in a previous l
12 conference call concerning a hearing on this issue.
And i
13 we think it should be completed that week.
14
.MR.7RUNKLE:
Excuse me,'Mr. Baxter, I did not.--
15
-JUDGE KELLEY: ~ Excuse me that's Mr.'Runkle speaking to now.
But-henceforth,. ladies'and gentlemen, could'you identify i
1:7 yourselves before you; speak?
Go ahead, Mr. Runkle.
18 MR. RUNKLE:
After the construction QA program 19 you said something about terminate employees.
I missed a 20 couple words in there.
4 21 MR. BAXTER:
Well, that part of the case would 4
l 22 be what I would call the construction part of the case.
l 23 It would include our defense of the QA program, and our 24 evaluation of employees who have been terminated or removed 3
i' 25 from the site because of suspected or confirmed involvement L
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1 in drug activity.
2 JUDGE KELLEY:
Let me ask you one question that 3
just occurs to me in your discussion, Mr. Baxter.
And 4
obviously everyone will have a speak to all these points.
5 But with regard to the timing, we have said that the 23rd 6
and the 30th.
Mr. Runkle indicates -- and he'll be speaking 7
more in a minute -- that he may want more time.
8 Would you have any objection to our moving those 9
two dates, let's say a week to the 30th and the 7th or 8th.
10 MR. BAXTER:
Mr. Runkle is leaving the country 11 on the 8th.
i 12 JUDGE KELLEY:
I'm not quite through.
If Mr.
13 Runkle is willing to trade off the first week of his vacation i
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i4 to do that.
Your reaction?
.1 15 MR. BAXTER:
Absolutely, I have no problem with 16 that kind of a delay if Mr,. Runkle can change his travel 17 plans.
is JUDGE KELLEY:
Let's pass on, and we'll go to i
og the staff and then we'll go to the state, and then we'll 20 go to Mr. Runkle.
ANd we'll sort of chew over the whole 21 thing among all of us and see where this all takes us.
22 Mr. Baxter, though, those are your principle points; i
23 is that correct?
24 MR. BAXTER:
Yes, sir.
l 25 JUDGE KELLEY:
Mr. Treby, your response?'
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1 MR.,TREBY:
The staff also opposes Mr. Runkle's 2
motion to postpone the hearing till December.
We believe 3
that, at least with regard to the first two issues, the partie s d
should be able to go to hearing'on September 30th and file 5
testimony on September 23rd.
6 JUDGE KELLEY:
When you say first two issues, 7
is that shorthand for Mr. Baxter's first two issues?
8 MR. TREBY:
That's correct.
What I am referring
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9 to as issue number one is whether or not drug use ir 10 widespread.
And issue number two is whether the utility 11 has taken appropriate action to control drug use.
12 JUDGE KELLEY:
All right, thank you.
Go ahead.
13 MR. TREBY:
With regard to the reasons why we 14 oppose the motion, first of all these dates have been known 15 to the parties.
And while we recognize that they have been 16 indicated as tentative, we did discuss them at the last 17 conference call, and at that time it was determined that 18 they should remain in force for planning purposes anyway.
19 No party at that time moved that they should be changed in 20 any way, i
21 What did occur was that the staff indicated that 22 it needed to get some more'information.
Since the last i
23 conference call the staff has had the opportunity to meet 24 with the utility on Thursday, September 5th.
The board and 25 parties have a copy of the transcript of that meeting.
Staff i
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that based on that information and from additional information 3
which staff asked for at that meeting, namely a matrix, that-4 with th6se pieces of information the staff is now able to 5
fully participate in the hearing.
6 Now when I say fully participate, the staff will 7
be able to participate fully in issues number two, which 8
is whether the applicant has taken appropriate action to 9
control drug use, and three, the question about reinspection to or need for reinspection of all safety related work, 11 Staff is not really in a position to. offer much information on the question of how widespread drug use is.
12
's 13 It's not an area that the staff has any expertise.in, the
~ s 14 means to have the information in that area more appropriately 15 and perhaps more directly should comes-from the local law to enforcement agency.
Both the local and state law enforcement 17 agencies in the state of North Carolina and the utility itself, 18 JUDGE KELLEY:
In that regard, Mr. Treby, of course 19 the attorney general has come into the case and presented 20 the affidavit of Ms. Burch ---but when you say local, like-21 Wake County Sheriff's Department, do you envision calling 22 the Wake County Sheriff, or.are they going to be at the 23 hearing?
What can we expect in the way of information from 24
-them?
25 MR. TREBY:
I don't have any direct information.
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I was anticipating correctly I hope that maybe the state m
2 might have some information on that subjec*..
l JUDGE KELLEY:
Well, we can get to them.
3 MR. TREBY:
Right, but staff has no direct 4
4 5
information as to what participation or non-participation P anned.by the sherif f's department.
l 6
7 JUDGE KELLEY:
You're saying that you did get 8
some information in the transcript, and I guess we've all 9
looked at that.
You haven't yet received the matrix that 10 you asked for?'
u MR. TREBY:
We had requested that the matrix --
12 well, I guess we hadn't set a date.
My understanding was 13 that it might be available today.
I don't have any further O
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14 information.
15 JUDGE KELLEY:
Did you envision serving a copy 16 of the matrix on the board and parties?
17 MR. BAXTER:
The applicants would do that.
18 JUDGE KELLEY:
Thank you.
Mr. Treby, Mr. Runkle i
19 in his motion refers to an investigation by the -- well, 20 it's referred to as Inspection and Enforcement and then (01),
21 and that's really two different offices.
But asking you 22 both questions, and the latter first.
23 To your knowledge is OI -- and by that I mean 24 Mr. Hayes' office -- planning to undertake any investigation 25 of this matter?
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i MR. TREBY:
I'm not aware that Mr. Hayes' office 2
is planning to undertake any investigation of this matter.
3 Mr. Hayes is being requested by the staff to use his good 4
services to gather some information from the law enforcement 5
officials.
We thought we would like to ensure that the loop had'been closed between both the sh'eriff's office and the 6
7 State' Bureau of Investigation, to the extent they had a
information as to suspected drug users, and were prepared 1
9 to provide that information.
We wanted to ensure that that to information had been transmitted to the utility, and that it when the utility stated that they were informed of all 12 potential. drug use, that we have assured ourselves that that 13 was an accurate statement.
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i4 JUDGE KELLEY:
Your transmission, at least to 15 us, is a little muffled.
I think we understood the substance 16 of what you said.
I'll just note though that it's not coming i7 through too well.
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18 MR. TREBY:
All right, well, I'll try to speak 19 distinctly.
20 JUDGE KELLEY:
That's better, thank you.
I guess 21 my concern about an OI investigation of this matter -- well, 22 just as background, we've all been on other cases, but it's 23 a matter of record that in the Catawba OL of last year and l
24 the year before, there was a case already to start involving, 25 among other things, harassment of -- alleged harassment of 2
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i employee for raising safety concerns.
And the board is sittin g 2
there ready to go, and at that point Mr. Hayes writes a memo 3
saying he's going to investigate that.
4 So the intervenor, not surprisingly said, let's 5
just wait until he's through and then we can have the 6
information that he will generate.
And on the facts of that 7
case, where discovery and board preparation and party 8
preparation had been going on the better part of a year and 9
we're all down there in South Carolina ready to hear this 10 material.that board denied the motion saying, well, we don't 11 know when Mr. Hayes is going to get through or what he's 12 going to cover.
13 And indeed in that case, Mr. Hayes himself said O
-s 14 to the board, go ahead, don't wait for me.
So we did.
And 15 eventually, long after the hearing, Mr. Hayes finished an 16 investigation.
And our game plan was, if there's something 17 new and alarming in Mr. Hayes' investigation we might reopen is the record.
19 As it turned out, there wasn't anything new or 20 alarming in his investigation so we didn't.
But it's not 21 the most efficient way in the world, 1 guess, to proceed.
22 If we're sitting here now -- my question really that I'm 23 getting at is this, if Mr. Hayes and his people are poised 24 to go out and find a lot of relevant information in the next 25 few weeks, or a month or two, and bearing on such matters O_-
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1 as widespread use or the lack of widespread use, should we 2
wait for him to do that?
I guess we want a staff position.
3 MR. TREBY:
Since there is no explanation -- it's 4
my understanding that the Office of Investigation and 5
specifically Mr. Hayes is not contemplating performing any 6
investigation at this time.
7 JUDGE KELLEY:
In the sense of field work 8
interviewing, you mean?
9 MR. TREBY:
Any interviewing or anything like 10 that.
My understanding is that the bulk of Mr. Hayes' 11 activities would be -- since he is experienced in dealing 12 with law enforcement personnel an* in gathering information 13 from them, just to talk to the sheriff's office and the State s
14 Bureau of Investigation to ensure that there's been no 15 disconnect in the information.
Just verify the facts that --
16 JUDGE KELLEY:
Information about drug use?
You 17 mean, arrests and that kind of thing?
18 MR. TREBY:
Yes, just the numbers.
To make sure 19 that there's been no disconnect in the numbers.
The applicant 20 has advised us that they're aware of 140 -- 173 or some 21 number in that area of people who may have been involved 22 with the use of drugs from any possible combinations.
My 23 understanding is that it's sort of a maximum type number.
24 And that that number includes all information they may have 25 gotten from the local law enforcement agencies.
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i We just want to make sure that there's been no 2
disconnect.
3 JUDGE KELLEY:
So it's like a records check; is 4
that fair?
5 MR. TREBY:
Yes, exactly.
6 JUDGE KELLEY:
Will the results of his efforts 7
-- is that going to be done before the hearing?
8 MI., TREBY:
I can't speak for the -- what schedule 9
Mr. Hayes is on.
My hope is that it can be done expeditiously to but I can't provide you with any assurance at this time that it it will, in fact, be done.
12 JUDGE KELLEY:
Well, let me just ask you this, 13 Mr. Treby.
iou know, your office has bee.. talking -- I have
)
14 not talked with Mr. Hayes directly about this.
I don't know 15 what he has in mind except, you know, what you just told 16 me.
I should amend that slightly.
"s a matter of fact, Mr. Fortuna, 17 I ran into, a
is Ro8er Fortuna yesterday just informally and asked him if 19 they were running an investigation on this and he said, not i
20 yet.
And then in terms of what they might do very little 21 was said.
And I didn't walk away with much of a notion of I
22 what they're doing.
That's not ex parte because he's a 23 Commission level office.
24 But in any event, that's the extent of what we 25 know about it at this point.
8239 o
y i
MR. TREBY:
Right.
I just want to clarify.
It's 2
my understanding that they are not performing any 3
investigation.
Investigation -- not quite a term of art 4
-- but investigation that I understand it means that they're 5
going to go out and do some independent interviewing of people 6
and gathering of facts and write up some sort of report.
7 JUDGE KELLEY:
Okay.
8 MR. TREBY:
My understanding is there's no intention 9
to do that.
My further understanding is that there is a 10 request -- and I'm not sure of the status of this transmittal 11 to Mr. Hayes -- but a request of the staff, the technical 12 staff, Mr. Dircks asking him to do this what you characterized 7-13 I guess, as a records search, just to ensure that there's 14 been adequate communications between the applicant and the 15 law enforcement people.
16 JUDGE KELLEY:
Well, we'll get back to this point.
17 I think I understand you, Mr. Treby, and I understand that 18 you're using the term investigation in a very sort of a narrow 19 way, and I think I used it more broadly.
But in any event, 20 I believe I understand what you're saying about what is 21 envisioned.
I think the board will want to talk about this 22 a bit more and we may get back to this subject a little later 23 in this morning's conference.
24 MR. TREBY:
I'm just -- my statement to you is 25 an indication of what I understand is happening.
By my
8240 i
statements I don't want to be limiting what may happen in 2
the future.
I don't anticipate anything will happen in the 3
future, but there's no way that I can tell you that once a
Mr. Hayes gathers his information and something occurs, we 5
may not have some obligation to look into it.
6 Of course, at that time, if he does advise the 7
board if there was any investigation and as you' indicated, 8
new information might be -- through the ultimate record.
9 I don't anticipate any of those things, I just want to indicate to on this record that I am not limiting in any way what Mr.
ii Hayes' offices does.
12 JUDGE KELLEY:
I understand what you're saying, 13 Mr. Treby.
l MR. TREBY:
Otviously it's not a staff office so --
14 15 JUDGE KELLEY:
I understand.
Might you just go 16 ahead then.
You want to comment on the other points Mr.
17 Runkle makes?
What about the 18 MR. TREBY:
s far as paragraphs three, four and 19 five of his motion, I think I'd just be redundant of what 20 the applicant said.
21 JUDGE KELLEY:
You agree with the applicant?
22 MR. TREBY:
Yes.
23 JUDGE KELLEY:
Okay.
Mr. Cole, let me get your 24 views on the question of timing, Mr. Runkle's motion.
25 MR. COLE:
Your Honor, I have no strong feelings
8241 1
as to his request that it be extended until December.
I 9
2 q
would request.that some additional time be given beyond the FJ 8
23rd for filing.
We are running down some new leads and 4
information that might be of assistance to the court in 5
this matter, and I just don't think we would have that in a 6
posture that would be suitable to the court by the 23rd.
7 JUDGE KELLEY:
This is the possibility of witnesses?
8 We're assuming -- we've been assuming that Ms. Burch would 9
appear as a witness, that you would call her.
Are we correct 10 in that assumption?
11 MR. COLE:
I would assume so, Your Honor, yes.
12 JUDGE KELLEY:
Now as I hear you now you're 18 indicating you may have additional witnesses?
I\\
14 MR. COLE:
Yes, Your Honor.
m 15 JUDGE KELLEY:
Well, when we get a clearer idea --
18 obviously at some point we're going to have to have some 17 names and some information about witnesses before the 18 hearing.
But not getting to that point quite yet, can you 19 give us a little more of a notion of where you are in this process, and -- well, put it this way, if you think the 21 23rd is too early for a filing date, what date would you 23 suggest?
23 MR. COLE:
Your Honor, I would assume, based just M
on the leads that we're following now that you're earlier
/
26 suggestion of a postponement of a week or as much as maybe
8242 I
two weeks should be ample.
2 Again, that's looking at it in the dark.
If this 3
thing doesn't lead into other corridors that, you know, take 4
more time.
5 JUDGE KELLEY:
When you say leads, Mr. Cole, now 6
we've all read Ms. Burch's affidavit and --
7 MR. COLE:
They go beyond that, Your Honor.
8 JUDGE KELLEY:
Okay.
And when you say leads, is 9
your office now in the midst, if I can put it that way, of 10 an investigation of finding about more about actual drug use?
11 Is that where you're putting your effort?
12 MR. COLE:
That would be a proper characterization, 13 Your Honor, yes, l
i 14 JUDGE KELLEY:
And by way of trying to decide when 15 this hearing ought to happen, whether it ought to be on the 16 30th as the applicants prefer or in December as Mr. Runkle 17 prefers, or sometime in between, we want to have as firm 18 a basis as we can for that Judgment.
Can you give us some 19 more specifics about where you are in terms of getting ready?
20 MR. COLE:
Well, if Your Honor please, I would 21 assume that probably some clarification documents would be 22 filed as to Ms. Burch's affidavit, inasmuch as other affidavitt 23 have to some extent contradicted some of the terms, or rome 24 of the statements made in there.
-m 25 But the investigation --
8243 1
JUDGE KELLEY:
Let me comment on that, excuse me.
2 Let me just comment on that before we go any further.
b 3
That did come up in the context of the summary 4
disposition motion, you realize, and we've ruled on that.
5 We're not asking you to spin your wheels and go write a 6
whole bunch of affidavits in response to the applicants' 7
affidavits, and then write testimony on top of that.
8 I think we've now decided we have s 3 conflicts 9
here between witnesses, prospective witnesses, and that if to Ms. Burch wishes to expand upon her earlier affidavit in the 11 light of what the applicants have said or whatever light, 12 fine, but just do it in testimony.
Don't send more affidavits 13 in.
14 MR. COLE:
Fine.
Yes, Your Honor, but the problem, 16 the investigation that I was talking about a few moments ago la runs beyond Ms. Durch's affidavit.
I would say in response 17 to your question to Mr. Treby about the OI investigations, 18 it's my understanding they are,doing some interviewing.
19 I have no absolute personal knowledge of that, although I was told they were going to be in the state this 21 week.
So I am assuming that the person who told me that had 22 a reason to know that, and that did in fact take place.
23 But our investigation, to some extent', this other 84 matter we're told delves into some areas other than, per so 25 drug use.
It would be something along the lines of what
-?'
8244 1
occurs because of drug usage.
And some things that may not
~
2 even be drug related at all, that actually go, I guess, to
~_.
3 the Q&A question.
4 JUDGE KELLEY:
But these are all various elements 5
of the contention and I gather your office wants to put in 6
proof on these different elements, and you're a participant 7
and that's fine.
8 I guess I'm still not too clear about -- sitting 9
right here now, I don't think I could say why we would move 10 the hearing from September 30 to October 7 or 15.
It's just 11 not specific enough, and I think my instinct, without speaking 12 for the board at all would be to say, well, good luck, because 13 I don't have enough in the way of particulars to change the 7s
\\
14 date.
15 I mean, is it that you're still literally finding 16 people who worked on the site, haven't even talked to them 17 yet?
Or what?
18 MR. COLE:
Well, Judge, as things become known 19 to other people, we start getting phone calls.
SO you have 20 to weed out a lot of times the wheat from the chaff or the 21 chaff from the wheat.
M To be more specific, there is one other person 23 that we are talking to who -- that is the testimony to which 24 I make reference that there might be a problem to get filed
,9
(
2 by the 23rd.
But if in fact there were to bear fruit, I
8245
?
I would think the court would be.ntorested in that regardless 9
e 2
of when it was filed, if it bears out.
3 JUDGE KELLEY:
Well, don't misunderstand me, we're 4
interested in getting relevant facts on the issue.
And we're 5
certainly not trying to discourage you from pursuing 6
information.
But on the other hand, we're trying to be fair 7
to all parties and set s reasonable date.
And I'm, I guess, 8
still a little -- I guess what we need from you at this point, 9
Mr. Cole, is what's your date?
What date do you propose?
s 10 MR. COLE:
That's not to say that if you stay firm 11 on the date of the 23rd that we couldn't have filed what we 12 anticipate filing.
I guess my point is, it'would certainly 13 give us a little more breathing room, get a little fuller
()
14 statement to the court if we could have possibly a week or 15 so beyond the 23rd to file testimony.
16 JUDGE KELLEY:, Okay.
Any other comments on the 17 question of time?
18 MR. COLE:
No, Your Honor.
19 JUDGE KELLEY:
Thank you.
Let's go back to Mr.
30 Runkle.
Quite a bit has been said on the subject, but we'd 21 like to hear you reply as you wish on the various points that 22 have been made and we may have some questions for you, too.
23 You'Want to go ahead?
24 MR. RUNKLE:
Yes, sir.
In ta,lking to Mr. Baxter's fs 26 comment about the first point of my motion to postpone the
-l
. 1 k
8246 1
hearing, he was saying that he didn't see how CCNC could 4
f 1,
2 ask for an extension based on reasons that the staff should
<(c-3 have when the staff itself is not asking for an extension.
.- _J 4
And it also goes on to what Mr. Treby said about -- that 5
based on information that they have not received yet from 6
the applicants, they felt that they could be fully -
7 participating.
8 Now I read this transcript that came out the 9
other day on that meeting held last week.
And I have other 10 motions in about that meeting.
But on page 59 of that 11 transcript, there seemed to be an ongoing discussion about 12 the applicants' QA program, what actually they'd had in 13 inspections.
- ()
14 Then we get to Mr. Hayes asking fairly specific 15 questions about what was going on and page 59 Mr. Baxter 16 pretty well calls it to a halt to that and said, you know, 17 as this was being transcribed, it's not a deposition, that 18 kind of information should -
.that the applicant was not 19 prepared to give to the staff.
E Furthermore, on page 77 of that transcript in a 21 matrix that the staff had requested from the applicants, l
I 22
}
Mr. Baxter at line 19 states, although we would not like it 23 to provide too much information out of fear that it might 24 not get absorbed in the time frame.
And I raise these points
[i 25 to say that based on just my experience, the way the staff 1
l 8247 I
has prepared for various hcarings, and how this information f.
2 gathering period on this contention is going, I do not feel i
4 LJ 3
that the staff is ready at this point to provide the board 4
any assistance.
5 I would disagree with Mr. Treby that they are 6
ready to fully participate.
7 MR. EDDLEMAN:
Excuse me, I'm still getting a lot 8
of gaps in the --
9 JUDGE KELLEY:
You mean in what Mr. Runkle was 10 just saying?
11 MR. EDDLEMAN:
In other words, I'll hear a word or most of a word.
Like maybe if the word were involvement 12 o 13 I'd hear involve, click.
And I'm just not sure how much I'm
~
i k-)
14 missing.
It may not make a lot of difference, but I want to 15 know if that's happening to other people, too.
16 MR. COLE:
We have a small breakup.
17 JUDGE KELLEY:
It doesn't seem to make much 18 difference.
It probably says something about the tightness 19 of our presentations.
But anyway -- I understand it.
I 20 think all of us are having some problems here and then.
If 21 you just can't hear I think you'll have to speak up and we'll 22 try to go over again.
23 What Mr. Runkle was just saying now was fine on 24 this end.
So I guess all I can say is, I'm sorry that it's
)
25 not all coming through as well as we would wish, and let's
@26@
1 go ahead as long as it seems bearable.
There will be a
~
2 transcript.
Hopefully it will be -- you know, the transcript
)
V 3
will probably have some glitches too for the same reason, 4
but it should be a pretty full account.
And we'll just have 5
to rely on that, I think for the fuller statement.
6 Go ahead, Mr. Runkle.
I think you were --
7 MR. RUNKLE:
Yes.
So I question whether the 8
staff can fully participate at a hearing on this matter on 9
September 30th.
10 As to the Office of -- is it now -- that's OI, 11 that's the Office of Investigation?
12 JUDGE KELLEY:
Yes.
OI is the Office of 13 Investigation headed by Mr. Hayes.
I&E is Inspection and
(
)
14 Enforcement headed by another person, and that is a staff 15 office in the sense that they report to the staff head.
And 16 Mr. Hayes is a Commission office, which reports to the 17 Commission.
18 MR. RUNKLE:
Okay, it was my understanding that it 19 was Mr. Hayes' office, OI, that was conducting an investigation.
N 20 And in the transcript from the meeting last week, on page 70 21 and again on 72, Mr. Novak -- who I understand is the 22 assistant director of licensing stated some of the areas that 2
Mr. Hayes' office was planning to investigate.
24 We would have liked to attend that meeting to, 25 you know, pin down the extent of that investigation, whether
/
8249 1
there was going to be one.
We were prejudiced by the late "N
2 notification on that.
But I think that's a real important (J
3 matter.
4 If the office -- if CI is doing an investigation 5
and can do so in a timely fashion, we would urge the board 6
to consider that in making any ruling here on this motion.
7 I felt that their investigation involved in that matters 8
raised by Chan Van Low, it's very helpful in resolving that 9
issue.
You know, doing the interviewing, checking the numbers 10 and that kind of thing.
11 I was an interested outsider in that, but I felt 12 that, you know, their participation was useful to us in this 13 licensing procedure.
O 14 As to any prejudice to the applicants about fuel is loading date.
I'm sure we could debate whether they're going 16 to meet that March lith fuel load.ing date that they have now.
17 I don't feel that's -- at this time and at this point in 18 their construction and final inspection schedule that's a 19 realistic date for them.
I'm sure that we could debate that 30 at quite some length.
21 And they do have the option of motions -- you know, 22 if that seems to be~a realistic date,.let them, you know, 23 make their motions to go ahead and still do low power testing 24 or whatever.
(G_j But if there are serious safety related problems 25 I
8250 l
i with the plant because of -- that need to be investigated 1
s 2
because of employees and construction workers and what have c
)
_Iw.-
3 you that were either abusing drugs or suspected of abusing 4
drugs, I think it would be very wise for this board to 5
delay that fuel loading date until those problems are 6
resolved.
7 As to the fourth point, I think that's pretty 8
well resolved by your ruling on the motion for summary 9
disposition.
Mr. Baxter was in error on one point, I think, 10 that the eight workers arrested in January have all had their 11 cases resolved.
There is one of the workers still is under 12
-- is under a hearing.
Has not had any trial on the matter.
13 The other ones have been pleaded or dropped or what have you.
\\~Y 14 JUDGE KELLEY:
Let me just ask about, on those 15 people you're referring to right now.
You envision calling 16 any of them as witnesses?
17 MR. RUNKLE:
I have considered it.
They certainly 18 can -- and I was planning on doing it until I heard from 19 Ms. Miriello who is, in our opinion, would be a better witness 20 and would help uc get to some of the roots of the problem and 21 that kind of thing.
So I really haven't made up -- made any 22 decision whether we would call those or not.
23 But that just made the matter for us complicated.
24 We could only get so far with the Wake County Sheriff's 25
(
)
Department.
8251 1
JUDGE KELLEY:
If I understand correctly, you're
[
saying that you belicca that proceedings against one of 2
these people are not yet resolved, but that the others are?
g a
4 MR. RUNKLE:
Yes, sir.
6 JUDGE KELLEY:
Well, then as to seven out of eight 6
if that's what the number is, that's not a problem, right?
7 MR. RUNKLE:
It is a problem in that Mr. Lanier*
of the Wake County Sheriff's Department is limited on -- well, 8
9 I guess he feels he's limited on what he can say because of 10 the ongoing criminal proceedings.
11 JUDGE KELLEY:
But which one?
12 MR. RUNKLE:
On the eighth one.
13 JUDGE KELLEY:
You mean the fact that one person iV 14 hasn't finished up yet, if that's the case, keeps him rrom 15 saying anything about any of the eight?
16 MR. RUNKLE:
Yes, sir.
Because it was all related.
17 Now the Wake County Sheriff's Department has agreed that they 18 would respond to any subpoena by any of the parties.
So if 19 there was a hearing and any one of the parties or the board 20 requested they would attend and give their -- would report 21 of their investigation of the matter.
22 JUDGE KELLEY:
All right.
Let me ask you about, 23 you refer to concerns for the personal safety of your 24 witnesses.
I'd like you to expand on that a bit.
Have there 26 been threats against these people, or what leads you to say
8252 1
that?
2 MR. RUNKLE:
I raised that in -- that was one of
{)
3 the things that was complicated last week.
I have no 4
experience with drug abusers at construction or, you know, 5
drug sellers and that kind of thing.
I had concern for 6
Ms. Miriello and finally got in touch with somebody in the 7
State Bureau of Investigation whose opinion was that that 8
witness would not, you know, our witnesses would not be in 9
personal safety.
I mean, their personal safety should not 10 be a concern.
11 1 felt as an attorney I owed it to the witnesses 12 to investigate that, just to make sure that any.of the people 13 that were buying, using or selling drugs were not the type zs
(
)
' ~ '
14 that would make the threats or would, you know, take revenge 15 against our witnesses.
16 JUDGE KELLEY:~ If I understand you correctly, now 17 you do not have concerns for the personal safety of your 18 witnesses; is that correct?
19 MR. RUNKLE:
Yes, sir, I think that would be a 20 fair way to put it.
21 JUDGE KELLEY:
Fine, thank you.
22 MR. RUNKLE:
So I would think that most of the issue s 23 raised in -- the issues in number four of our motion are 24 pretty well resolved.
gs
)
25 As to the fifth point, I finalized plans for my s_,
I
8253 1
trip to Europe after I thought we had a final day of 2
September 24 for this hearing.
And that was put off a week 3
to allow the response affidavits from the applicants 4
responding to Ms. Burch's affidavit.
5 I'll take issue with Mr. Baxter in saying that 6
it's a vacation.
7 MR. BAXTER:
I didn't say that, Judge Kelley did.
8 JUDGE KELLEY:
That may be my mistake.
Could you 9
-- maybe you could tell us, not a lot of detail, but you're 10 going to be out of the country for a month about, as I 11 understand.
Could you just tell us briefly why you're going?
12 MR. RUNKLE:
It's the -- actually the first part 13 of the trip -- I'm a member of the National Friends of the
/
's
'\\ /
14 Earth board of directors, and I'm going as their delegate 15 to an international meeting in London.
And that meeting 16 will take place from the 13th through the 18th.
And during 17 that time I will give at least one workshop and that kind of 18 thing.
19 So that first week of the -- I will be -- I 20 consider it a business trip.
And then while I'm there I will 21 spend some more time and be visiting other people.
But most 22 of the remainder of the two to three weeks will be vacation M
time.
24 JUDGE KELLEY:
Well --
)
M MR. RUNKLE:
And I, in all good conscience, I cannot
8254 1
-- and I guess I will not postpone that trip further.
I
/T 2
just cannot do it.
And I would feel very prejudiced if we O
3 would push it back, push any hearings back another week.
4 JUDGE KELLEY:
Well, let me explore this with 5
you just a couple of minutes.
And I don't mean to indicate 6
any view on my parn about what we ought to do at this point, 7
I'm just trying to see what the options are.
8 We have heard the state say through Mr. Cole that 9
a little..,more time for them would be a good thing.
So you 10 indicate that you have a 13th through 18th commitment in 11 London.
Then is it an option for you to come right back after 12 the 18th and start a hearing on the 22nd of October?
In 13 other words, cancel the pleasure part of the trip.
14 Not very palatable, I grant you.
But I assume 15 it's -- what I'm weighing here, if this was just you against 16 some other lawyer in a divorce case then I guess we wouldn't 17 be in this at all.
But we're in a nuclear power reactor 18 case with lots and lots of people involved and very complicated 19 schedules.
And so I'm trying to work out something reasonable 20 and I guess my own feel is that people's vacations sometimes 21 get cut in on or sacrificed in the interest of moving these 22 things forward, regrettable as that may be.
23 Do I assume that you would prefer to attend the 24 London conference portion and come back for the 22nd, and
/N
(,)
25 postpone the case from where it now stands to cut into l
8255 1
London?
Or do you find the two equally unpalatable?
\\'~ s 2
Well, I guess the third point is simply this, 3
you know, if you're going to preserve your schedule for 4
going to London and having your vacation, just going to 5
hearing on the 30th.
File on the 23rd, go to hearing on 6
the 30th.
Can you indicate an order of preference between 7
a hearing on the 30th, a hearing on the 7th, or a hearing 8
over on the 21st of October?
9 MR. RUNKLE:
Between those three choices a 10 hearing on the 30th, I mean, we certainly can be prepared 11 for a hearing on that date.
I think that there's plenty of 12 testimony that we can present.
We can make any, you know, 13 deadlines for the filing of testimony.
14 I am very concerned though, that we'll have a 15 hearing on this matter, even if it's in two parts.
You know, 16 do one part on the 30th and then wait for the another part 17 until November that that -- you know, bifurcating the 18 procedure like that can lead to. problems of, you know, 19 calling a witness, having them say -- having him or her say 20 something that may fit better into another part and just 21 trying to draw both the issues together, between, you know, Z2 the two issues that Mr. Baxter presents.
23 JUDGE KELLEY:
I understand that, sir.
24 MR. RUNKLE:
If this -- you know, if this hearing m
)
25 would take two weeks, it seems to me that it would be easier v
8256 1
on all parties to have the two weeks together.
To call I
one witness and to describe the extent of the drug use, how ew 2
.\\v) 3 that affects the construction and QA, and how, if there 4
is a need for reinspection based on any kind of an evaluation 5
of terminated employees.
6 JUDGE KELLEY:
Okay.
Ladies and gentlemen, we've 7
been on this question of the time for a hearing for about 8
an hour.
It is complicated as we all have grown to see.
I 9
think -- I'll check with my colleagues -- I don't have any 10 further questions.
Gentlemen?
11 (No response.)
12 JUDGE KELLEY:
Any further comments, brief comments 13 that any other, any party wants to make before we simply
~)
14 adjourn here for a few minutes to consider what's been said?
15 Judge Carpenter has something.
16 JUDGE CARPENTER:
Mr. Runkle, this is Judge 17 Carpenter.
I'm mindful of your point about your workload 18 with respect to the appeals and want to ask whether you are 19 the only lawyer resource available to the Conservation Council?
20 Is there any possibility that someone else may be available 21 or can become involved in this proceeding?
22 MR. RUNKLE:
That's a real financial considerati6n.
23 The Conservation Council's financial resources are, at this 24 time, that we could not pay anybody else to do it.
There
(;)
25 may be a possibility of a volunteer.
I haven't investigated l
l
8257 I
that at this time.
You know, that is a possibility.
2 It would be hard to get somebody fresh into this V) 3 stage of the proceedings to understand the intricacies of 4
hearings before a licensing board.
So to answer your question,
5 I don't think that's a realistic possibility.
6 JUDGE CARPENTER:
Thank you, I just wanted to have 7
that on the record.
8 JUDGE KELLEY:
Any further brief comments from 9
anyone else before we go off the record for a few minutes 10 as a board?
11 MR. BAXTER:
Yes.
On the question of OI's 12 investigation, both Mr. Cole and Mr. Runkle have made 13 unspecific refere..
- to their understanding of what OI is
[,.
?#
14 doing and not stating what the basis for that is.
I think 15 that we're -- the board is entitled to rely on Mr. Treby's 16 representations as to the scope of their work, given that he i
17 at least works for the NRC.
18 And I would also add.that what Mr. Treby described 19 is consistent with Mr. Novak's comments at the transcript 20 Mr. Runkle cites, which is that OI is going to look at our 21 list of implicated employees and ensure for themselves that 22 we have all the names that the SBI and the sherif f 's 23 department has.
And of course, we have that assurance, but 24 OI is simply going to check that for the staff.
7,
)
25 Just briefly on Mr. Cole's observations.
I would
8258 1
remind the board that when the attorney general's petition b_.,I
/
2 was granted we had a discussion about the attorney general 3
accepting the proceeding as they found it, and I think that 4
includes the schedule.
And while I don't think that ever 5
elininates their opportunity to seek additional time if they 6
need it, I think they have an obligation to attempt to 7
work within the schedule that we have here.
8 And in the absence of some specific information 9
that they're coming up with information that is going to be, 10 I would s$y, material to this hearing as opposed to their 11 other independent enforcement obligations, I don't think that 12 just the desire for some more time ought to be honored by
(%
(,)
13 the board to any great extent.
14 And if, indeed as Mr. Cole says, what they're 2
looking at is perhaps quality assurance charges, I would 16 remind him that my suggestion was that testimony be due later I
17 on the quality assurance part of the case, if indeed it 18 looks like we've got more to do the week starting the 30th 19 than can be completed in one week.
20 JUDGE KELLEY:
With regard to the state's desire 21 to have a little more time, thr. Baxter, and building somewhat 22 on your comment, if we took the following approach:
suppose 25 that we were to stick with the present date for filing, but
(s 24 we were to acknowledge that somebody, particularly the state 25 which referred to it, may for a particular witness need a
,~.
8259 I
few more days to file testimony.
But they'd file everything 2
they could on the due date.
(j 3
In other words, you come in on the due date with 4
whatever you've got and then you, at the same time, file a 5
little good cause statement, why you want to file Joe Smith 6
or Mary Jones' testimony X days later.
And then you could 7
respond to that if you opposed it.
Is that an acceptable 8
kind of arrangement for you?
9 MR. COLE:
Judge, yes, that will be fine.
10 JUDGE KELLEY:
Mr. Baxter?
11 MR. BAXTER:
Well, of course, if they can get it 12 to us as early as they can.
And as I said, my proposal would 13
(J}
have had the QA testimony come in October anyway.
14 JUDGE KELLEY:
Right, and your point about the M
QA testimony is correct.
If we go down the road and we 16 split it up the way you suggested, and I believe the staff 17 at least has agreed-- Mr. Runkle does not agree, I realize --
18 but if we did that, then there wouldn't be any pressure 19 to file QA testimony until later on.
That's right.
And just finally in 21 response to Mr. Runkle that we might not be able to always r
22 precisely divide up things, that may end up being the case.
23 We can deal with that.
24 But I think that at this late point in the litigatic n:
(,
26 of the hearing, throwing up hypothetical kinds of problems l
t i
m
8260 1
like this -- and we're all trying to work around Mr. Runkle's 2
personal schedule -- isn't really fair.
We're doing the p.
3 best we can under the situation.
I for one can say right 4
now that my witnesses on the drug abuse policies are personnel 6
kinds of people.
My witnesses on the investigation are 6
security kind of people.
They're not going to have things 7
to say about quality assurance and the construction process.
8 They're quite different kinds of witnesses than people that 8
are going to be involved in those presentations.
10 And to throw out hypotheticals about, well, the 11 sheriff's department may or may not be willing to talk to 12 me, and I may or may not want to use one of these eight 18 people that were arrested nine months ago, we've been hearing 14 this all summer.
I think you ought to know by now, what 18 if anything, he's planning to put on in the way of a case is here and not just throw out hypothetical problems that obstruct 17 things.
JUDGE KELLEY:
Quest $ ion to Mr. Treby just to see 18 18 if I understand correctly.
I am somewhat concerned about 8
knowing more precisely just what OI has in mind and what 21 they're doing.
If I understand right now OI does not have 8
underway a formal investigation.
They may, as you understand 8
it, Mr. Treby, never do what you can an investigation.
They 8
may do some sort of lesser thing like a records check.
But in any event, the parameters of what they are
8261 1
going to undertake to do are yet to be set, and they'll 9
~,/
2 probably be in a letter from someone in staff to Mr. Hayes
(
)
.u-
- s.
3 saying please look into the following.
And this is the 4
kind of thing that could be provided to the board and parties, 5
and presumably will be drafted and sent sometime in the 6
next several days, I suppose.
Week or so.
7 Is that more or less accurate?
8 MR. TREBY:
Essentially that's accurate.
As to 9
the -- what it would be that the staf f is requesting, I think 10 Mr. Runkle identified it.
It is on page 70 and 71.
11 JUDGE KELLEY:
Okay, sure, from the applicant 12 that's already there.
Oh, you're sa,,cc 70 and 71 is the 13 staff request to OI?
8 14 MR. TREBY:
No, that is not the staff -- that is 15 not the formal request, but that is sort of the thrust of 16 what the request is.
17 JUDGE KELLEY:
Thank you.
Okay, I understand.
18 MR. TREBY:
And let.me, while I am also speaking, 19 indicate that it is correct, we are supporting the fact that 20 we can go forward on issues one and two.
And we think that 21 testimony on issue three could be filed later.
22 JUDGE KELLEY:
Thank you.
It's 25 after 11:00.
23 Let's be kind to ourselves and take 10 minutes.
24 MR. EDDLEMAN:
Excuse me, I just wanted to throw 7_
)
25 in a couple of things, if I could.
N' l
l
8262 1
JUDGE KELLEY:
Okay, briefly.
2 MR. EDDLEMAN:
First, I'd like to go back to the
' [% '
3 position that I took, and I think Mr. Runkle took in the 4
last call when we were setting dates to --
5 JUDGE KELLEY:
Let me be clear again, Mr. Eddleman.
6 You're hear as an interested intervenor.
It's not your 7
contention but you plan to ask some questions; is that right?
8 MR. EDDLEMAN:
That's right.
9 JUDGE KELLEY:
Okay, go ahead.
10 MR. EDDLEMAN:
Also we can define one or more 11 witnesses at this point.
I'm not sure I'll have them or not.
12 But I'd just like to recommend again'that we put the whole 13 thing in November.
Do the siren thing first and then do the
~
(a 14 whole drug situation because this thing seems to be fluid 15 enough and we're not really sure what these investigations 16 will be or will turn up."
And I don't know how much complicatinc 17 matter there'll be.
18 Also, just from an intervenor's point of view, 19 Mr. Baxter may be able to have one witness for this and 30 one witness for that, but information sure doesn't come to 21 me in such nice, neat forms.
And it would raise a complicatior 22 about filing, I would think.
23 JUDGE KELLEY:
Okay.
We'll take 10 minutes and 24 go back on the squawk box about 25 to 12:00.
Thank you.
)
25 (Brief recess.)
O 8263 o
1 JUDGE KELLEY:
Back on.
Can pecple hear me?
sr~x
(
)
2 (Chorus of yeses. )
3 JUDGE KELLEY:
Mayb5 I'll cuickly call the roll.
4 Mr. Baxter?
5 MR. BAXTER:
Yes.
6 JUDGE KELLEY:
Ms. Moore and Mr. Barth?
7 PR. BARTH:
Yes.
8 JUDGE KELLEY:
Mr. Hollar?
g MR. HOLLAR:
Here.
10 JUDGE KELLEY:
And Mr. Treby I heard.
Mr. Cole?
11 MR. COLE:
Yes, Your Honor.
12 JUDGE KELLEY:
Mr. Runkle?
13 MR. RUNKLE:
Yes, sir.
14 JUDGE KELLEY:
Mr. Eddleman?
15 MR. EDDLEMAN:
Yes.
16 JUDGE KELLEY:
And Mr. Jones?
17 MR. JONES:
Yes.
18 JUDGE KELLEY:
Mr. O'Neill?
19 MR. O'NEILL:
Yes, sir.
20 JUDGE KELLEY:
Okay.
We have considered the points 21 that you've all put forward on the pros and cons of the 22 auestion of a date for a hearing.
We're not going to attempt 23 to restate all those factors.
Suffice it to say that we 24 don't think sufficient cause has been shown to change the s
' _/
25 date previously established, at least for the beginning of
\\
l
3264
+
1 a portion of the hearing on Whistle Blower 3.
W).
2 13e not, in that connection that with some
)s cualifications all parties have stated that they could go 3
4 to hearina on that date.
And that seems to us to be pretty 5
weighty in light of the reasons for so doing.
I'll now state some rulings in sort of rough form, 6
7 if you will.
We do intend to issue probably by Tuesday a formal order setting forth with as much precision as we can e
9 muster just what the issues are and related matters.
But 10 I think we can say enough now to give you the substance of 11 where we come out, and that will allow you to plan on that 12 basis.
13 We are going to adhere to the previously established s
14 order for a filing date of testimony on the 23rd of September 16 And if I'm not mistaken, our prior order said that that 16 filing should be in the. board's hands -- let me just say, 17 make a best effort to do that, and we'll mention that again is in the order.
N We are also adheri'ng to the date of the 30th of 20 September as a commencement of hearing date on the contention.
21 We have had proposed by the applicants and endorsed, at least 22 by the staff, the notion that we bifurcate this hearing into 23 basically two parts.
And we think that's a sound concept.
24 And therefore, what we envision for filing and hearing on 25 the 23rd and 30th respectively, is testimony on the auestion I
l
{
8265 of whether or not there has been widespread use at the site.
1 And also on the efficacy and the nature of the applicants'
()
2 3
program to prevent and deter widespread use.
So that's the 4
focus of that hearing.
As subsets of those rather broadly stated issues 5
we would just mention the two specific affidavits that have 6
7 been brought forward.
We have the Burch affidavit which, one, alleges widespread use in association with i~particular a
g undercover operation.
And also I think it's fair to say alleges lack of cooperation between the licensee and the local 10 authorities in cooing with the drug problem.
11 Also the more recent affidavit from Ms Miriello 12 13 is a widespread use type of affidavit, and we would expect to hear testimony on the particulars of the matters she 14 2
refers to also.
We would then set later dates for the remainder 16 17 of the hearing on the contention.
Let me ask -- we weren't is quite clear and didn't have the:right piece of paper here --
the current date for commencement of hearing on sirens, is 19 30 that the 4th of Novemberi can anybody tell me?
21 MR. EDDLEMAN-That's right, Judge.
22 JUDGE KFLLEY:
Okay.
So we are going to set 23 the 4th of November also as a filing date for testimony on 24 the second part, if you will, of Whistle Blower 3.
We also want a specific date for the commencement of hearing on that.
25
8266 A week later, Monday is November llth, which is 1
widely respected as a holiday for one reason or another.
So (J
)
2 Q.;
our inclination is to set the date for the 12th, Tuesday, 3
rather than the 11th.
4 Now the issue that -- the basic issue weisee 5
involved in the second part would be the nature and efficacy 6
of the licensee's corrective actions,,reinspections and 7
8 things of that nature.
Matters going directly to issues of safety, as opposed to the issues of abuse we'll be talking 9
10 about in the first part.
Let me stop at that point.
I say the 4th and the 11 12th. That's the first time I think we've really surfaced a 12 specific date without getting into a lot of argument about
/~')
13 t's J 14 those dates.
Is there any problem with those soecific days 15 that anybody can point to?
16 MR. BAXTER:
My only suggestion would be that 17 the filing date for testimony by earlier than that.
The regulations do provide for 15 d.ays unless all parties agree, 18 19 I think.
I would suggest October 25 as the filing date.
20 JUDGE KELLEY-Staff any comment on that?
21 MR. TREBY:
Either date would be accentable to the 22 staff.
23 JUDGP KFLLEY:
Okay, Mr. Runkle?
24 MR. RUNKLE:
Sir, I'm having a little problem
\\
,a 25 understanding what the second issue is.
Could you go over x-1
^
8267 1
that one more time?
f 2
JUDGE KELLEY:~ Well, let me say again that we're k
3 going to issue a written confirmatory order early next week 4
in which we will choose our words with more care than I'm 5
able to choose them now.
To give you general notice, one, 6
we found persuasive the applicant and the staff position on 7
this kind of bifurcation, and generally where they would a
split it up.
l 9
I'd state it now roughly as being concerned with 10 the applicants' program for corrective action once they l
11 find that somebody has been using drugs, whether and to what 12 extent they reinspect, things of that sort.
In a more direct 13 sense you could call it the safety part of the hearing because 14 use, per se, has got nothing to do with saftety.
It's iust 15 the consequences of use.
16 And we're talking now about e,onsequences and 17 steps taken when use is uncovered.
Does that help?
18 MR. RUNKLE:
Yes, sir.
So in brief, once somebody 19 is found or suspected to be a user, what happens then.
20 JUDGE KELLEY:
That's a rough restatement.
And 21 I'm not trying to be precise here, but just to give you a Et notion.
Again, we'll give you an order next week which will 23 give us the benefit of reviewing the whole transcript before 24 we write it, and reviewing the contention and thinking about
()
25 it a little bit more.
4 8268 1
MR. RUNKLE:
I understand the distinction now.
1 We would have no problem with prefiling on the 25th.
,(,)
2 s.
JUDGE KELLEY:
Okay.
The state -- what do you 3
4 say, Mr. Cole?
I heard the November 4th date and then MR. COLE:
5 the reauest to move it back.
Was that other date October 25th?
6 JUDGE KELLEY:
Right.
7 MR. COLE:
No problem with that, Your Honor.
8 JUDGE KELLEY:
Then I guess it's unanimous, and 9
we'll make the testimony filing the 25th of October, keeping 10 the hearing commencement at the 12th of November.
11 Let me say one further thing, and we can have 12 some comment on this if there's a problem with it.
It seems 13 lg to us that this may be a case where there might be several 14 witnesses who are subpoenaed or who are simply called but 15 16 don't have any prefiled testimony.
If you envision witnesses of that kind, then we would expect you to file -- and we'll 17 spell this out again in the written order -- the names of 18 the people you expect to call by the 23rd in the case of the 19 And at least a brief outline of what it is you 20 first part.
expect to elicit fron these people in the hay of testimony.
21 This is just simply so that we'll know -- and 22 everybody will know somewhat in advance who's going to be 23 So that's called and what they're going to be talking about.
24 l
1
\\
'Y 25 an additional requirement, if you will, for parties who
a 8269 1
intend to have witnesses without prefiled testimony.
)
2 MR. HOLLAR:
Judge Kelley, what was the date on g
3 that?
4 JUDGE KELLEY:
Same dates, 23rd.
Same date as 5
prefile, okay?
6 I think that's the substance of what we want to 7
say in terms of a ruling on the motion.
There's one further 8
thing.
We are concerned that at this stage we don't have 9
a really firm fix on what the OI people intend to do and 10 whether they're going to do any investigating in the sort of 11 narrow sense of the term, or whether they're just going to 12 be doing records check.
13 And beyond that, when they're going to do it.
And 14 we're not comfortable entirely in just going ahead in the 15 dark on that.
So the board has decided, we'll simply write 16 Mr. Hayes a letter sometime next week asking him to tell us 17 that information.
And our expectation is that if he's doing 18 anything very extensive he probably won't be done by the 19 30th of June, but that if his -- 30th of September -- but if 20 he does conduct an investigation and come up with relevant i
f 21 information presumably at a later date that will be available l
22 to us.
And if it has a bearing on the issues and meets the 23 tests usually applied to motions to reopen, presumably we l
24 would entertain such a motion, and look at what he had found.
O l
\\~-
25 But that's the approach that we intend to take I
8270 to -- at least for the sake of neatness -- find out what's f
1
[
)
2 happening with regard to OI.
i 3
We have a remaining motion from Mr. Runkle 4
relating to, say in shorthand, access to staff meetings.
Yes 5
Mr. Runkle's motion, captioned' motions related to staff 6
investigation.
And it's a fairly narrow point, I think.
It 7
may not take us too long to discuss it.
But if the staff 8
could speak to that, please?
9 MR. TREBY:
Yes, Judge Kelley, the relief that 10 Mr. Runkle asked for on page two by point -- written recuest 11 for information from the staff will be provided to Mr. Runkle, 12 as with all parties.
I can't speak for the responses being 13 provided by the applicants, but my experience has been, and 14 Mr. Baxter in this conference call has indicated that, for 15 example, the response to our request for a matrix will be 16 provided to the parties.
I suspect that that's the normal 17 way the applicant works.
18 The second request that all telephone calls, 19 direct meetings between the staff and the applicants be 20 duly transcribed and timely served on all parties, the staff 21 would be opposed.
There's no regulatory rea.uirement that 22 our meetings be transcribed.
23 We try to give timely notice of meetings.
As to 24 the very promptly--sometimes a record is kept of that meeting l
1
)'
25 and transcribed.
But that's done on a case-by-case basis.
l 1
1
8271 We would object to some-requirement that all telephone calls 1
s) and all direct meetings between the staff and the applicants 2
3 be transcribed.
With regard to relief number three, that timely 4
notice of at least 10 days be given to the parties.
As I 6
stated the staff practice is to attempt to give timely notice, 6
7 although I'm not sure that timely notice is:10 days.
It may 8
be a greater or lesser period.
That is our intent to give timely notice.
And g
if find that the time is short, we always attempt to have to 11 telephone calls made to the parties so that they're aware of 12 the -- I might just mention with regard to meetings that
(~'
13 these meetings between the applicant and the staff are held
(
so that the staff can conduct its review and we try to conduct 14 15 this review in the open so that people are aware of what 16 we're doing.
17 So the extent that other oarties do attend these un meetings, they are attending them as observers and not as le participants.
So that while we'believe that they should be
~
20 given notice, they are not an active participant in the 21 meeting.
To that extent, when we hold a meeting, such as 22 the one that was held on Thursday and a transcript'gets made 23 they're in much the same position they would have been if 24 they had been there in person.
26 With regard to relief number four that all meetings
8272 1
of the staff regarding this matter be transcribed'and served S
)
2 on the parties, I'd object to that.
There's no regulatory i
3 requirement that meetings.between the staff with no other 4
party involved by made public or transcribed.
That's part of the staff's internal process, and other parties are not 5
6 entitled to attend them -- made aware of their substance.
7 JUDGE KELLEY:
You're not coming through very 8
clearly, Mr. Treby, unfortunately.
I don't know if it's g
the way you're speaking into the mike or the phone or what, 10 but maybe you could raise your voice a bit.-
11 MR. TREBY:
Do I need to~ repeat the last one?
12 JUDGF KELLEY:
No, just go ahead.
~
13 MR. TREBY:
Well, I've reached the end.
The 14 last one is any other relief that the board deems proper.
t 15 That's vague.
I don't know what's implied there, so I really 16
'can't speak'to.that one' 17 JUDGE KELLEY?
Okay, it seems'this matter is 18 primarily between the intervenor, CCNC, and the staff.
Mr.
1 19 Baxter, any comment on the matter?
30 MR. BAXTER:
You're right about that except it 21 would, if granted, substantially inhibit communications 22 between staff and applicants and no other parties to the 2
case.
I would add for the board's factual understanding l
24 that Mr. Runkle got notice of the meeting on September 5 on tT 25 the same_ day that the applicants got notice of it.
And I l
l
8273 think there is unavoidably going to be occasions like this 1
. -~
7 where meetings have to be held on short notice, (m,)
2 w
NRR does have a policy about trying to notify
~
3 4
intervenors.
But as far as I know, that's a discretionary matter not reauired by law.
ANd Mr. Runkle would essentially 5
shut down communications between the NRC staff and the 6
7 utility on this matter.
And I don't think the public health.
8 and safety would be advanced by that, so we oppose it.
9 JUDGE KELLEY:
Okay.
Mr. Cole, any comment?
10 MR. COLE:
Well, the meeting that was held on the 5th, Your Honor, I would only say that the letter dated 11 12 September the 4th, and we didn't receive ours until the 9th.
But even had we gotten it the next day -- and of course it 13 states as its purpose, discuss' contention on drug allegation.
14 Now I can envision several times where the staff 15 16 and the applicant would get together on matters that were --
17 or other concerns other than the state or the intervenors.
18 But it would seem that they could get out notice a little 19 bit sooner than the day before the meeting would be held.
20 JUDGE KELLEY:
I think they usually try.
Do you 21 feel you're -- now that you've got a transcript of what got zt said, and if you agree with Mr. Treby that if you came there 23 yourself, or somebody from your of fice came there you would 24 just be sitting in, do you think you're prejudiced?
c~s
[
I MR. COLE:
I have not seen the transcript, Judge, 25
8274 vr 1
so I could not say.
2 JUDGE KELLEY:
Well, if you take my assumption A-3 that it's a verbatim transcript of what was said?
4 MR. COLE:
All right, sir.
5 JUDGE KELLEY:
Mr. Runkle, any other comments you 6
want to make?
7 MR. RUNKLE:
We would drop the fourth point there.
8 When Mr. Treby explained what that would do them, I would 9
agree with that.
10 JUDGE KELLEY:
Okay.
11 MR. RUNKLE:
We just feel that if something --
12 an ongoing contention is under litigation, and do something 13 as substantial as develop the whole staff -- staff's whole 14 position on the matter, we should have been notified so that 15 we could have somebody there.
16 JUDGE KELLEY:
But what would they -- if they were 17 just sitting in listening, what does that add to just getting 18 a transcript?
19 MR. RUNKLE:
Sir, iust to be able to -- there is so a difference in having a transcript of what was said., and 21 there's a difference in how it was said.
And I think we Et need to draw conclusions whether people are hiding something 23 or -- I mean, there's a whole lot you can get out of watching, 24 you know, personalities interact.
25 JUDGE KELLEY:
You lose some atmospherics, I I
(
t g
l l
8275
)
1 suppose that's right.
)
2 MR. RUNKLE:
And also, I'm not real convinced g
that if we had been there we wouldn't have had at least 3
4 the opportunity to at least make a short statement.
And that's something that we certainly would have requested.
5 6
There were some things that, in our opinion, were 7
misleading statements.
Eut not havi'ng read the whole 8
transcript in that kind of detail -- I think that we might 9
have got an opportunity to at least say something.
10 JUDGE KELLEY:
Okay.
Mr. Treby, I think Mr. Baxter s
11 referred to'it.
Doesn't the staff have someplace a published 12 policy statement governing these kinds of interactions, la published in the Federal Register or someplace?
14 MR. TREBY:
Yes, there is a Federal Register notice 15
- a policy statement that indicates that -- the shorthand name 16 for it, I guess, is the open meeting policy statement, which 17 indicates that the staff tries as best it can to hold all 18 of these meetings --
19 JUDGE KELLEYe I was just wondering, if that's su fairly short, a page or two, could you just serve it on the f
l 11 parties as a matter, and then the board, iust as a matter 22 of information?
i 23 MR. TREBY:
Yes, we'll do that.
24 JUDGE KELLEY:
Okay.
\\ l 26 MR. TREBY:
Let me also indicate that with regard
8276 1
to one of th>
statements Mr. RUnkle made, it is possible that f
' /~'s 2
had he been to the thing he could have made a short statement b
3 at the conclusion of the meeting.
That is a courtesy that 4
the staff generally intends to -- serve as a meeting.
5 But I would add that the staff is sensitive to 6
discretion.
We do try to give reasonable notice.
This 7
particular meeting --
8 JUDGE KFLLEY:
Are you there, Mr. Treby?
Is 9
anybody there?
Okay, you're back.
We lost you here for 10
'a minute, Mr. Treby?
11 MR. TREBY:
I guess my point was, the staff is Et sensitive to the question of giving reasonable notice.
We 13 do try to do that.
This particular meeting came up very
[,lh
\\u 14 quickly because that was the'date that the senior members who 15' attended the meeting were available.
As Mr. Baxter rtated, 16 the applicant was also notified on the 4th that this meeting 17 was being scheduled.
18 And we in no way scheduled this meeting, you know, 19 sometime earlier and then just got around to giving notice 30 at the last minute.
We go notice to all parties at the same 21 time.
22 JUDGE KELLEY:
Okay.
The board's just -- we'll 23 make a ruling on this probably in our written order next 24 week.
We're not going to rule on the motion right now.
h M5 One other housekeeping type thing.
It's that
8277 4
1 old question of having a decent place to hold a hearing
()
2 down around Raleigh.
We're now a little over two weeks away.
A
-~
3 Is that right?
What's today?
It would be a week from next 4
Monday that we would be on course to start a hearing.
6 We have not taken steps to find a place.
I daresay 6
we can find a place like the Ramada Inn in Apex.
I don't 7
know if we can do any better.
Do the applicants have any 8
feel for availability of rooms down there?
Mr. Hollar, 9
any thought on that?
10 MR. HOLLAR:
Judge Kelley, we have not tried to 11 ascertain the availability of any space.
I can certainly 12 ask Don Hall our paralegal to do that, if you'd like.
(~ ~
13 JUDGE KELLEY:
I just don't like to lean on you
\\v 14 for that, but frankly it may be easier for somebody down i
15 there who's just closer to the situation than it would be 16 for our secretaries.
If you wouldn't mind?
17 What I'm thinking of is, I suppose it's wishful 18 thinking -- the convention center's probably taken.
That's is certainly good.
We good check the bankruptcy court, which so would be fine, and we have a contact there, and it's a 21 federal facility.
So why don't we do that.
I 22 But if you or your secretary could check into 23 the convention center or anything else that looks pretty 24 good that occurs to you.
Not, I hardly need add, that a
2 conference room over in 'the post office.
But whatever else i
l J
l
8278 1
you might think of, we'd appreciate it.
If intervenors have
'[)
2 any thoughts --
p'
_h' 3
MR. COLE:
How many people would you anticipate 4
you would have?
How big a place, I guess, is what I'm asking.
5 JUDGE KELLEY:
Well, there has not been a high 6
level of public interest in terms of attendance in this 7
case to date, I think it's fair to say.
Most of the time 8
when we've been discussing the status of pipes and TLD's, 9
it's just the immediate participants.
The public hasn't 10 shown up.
Maybe one or two people.
11 So that means, I stand corrected by anybody, 25 12 or 30 people is really all you need in the way of people 13 space.
Do you happen to know the bankruptcy courtroom, 9
14 Mr. Cole?
15 MR. COLE:
Not offhand, Your Honor.
I was thinking 7 16 we have used the bar center, which is down on the mall.
It's 17 probably halfway between our building and the CP&L building.
18 We have a large hearing room in there.
19 JUDGE KELLEY:
Is that right?
20 MR. COLE:
Yes, sir 21 JUDGE KELLEY:
I don't know if we even knew about 22 that.
I didn't.
23 MR. COLE:
We've held some seminars there and it's 24 been -- it's been about a year or so, but it would be big l
/~N
(,)
2 enough for that if it's available.
l 4
8279 i-JUDGE KELLEY:
It sounds like -- can you give us 1
a little more description of what it's like?
()
2 MR. COLE:
Judge, I'm having to think back.
It l'
3 was -- it lookeG like a law school room with rows and rows 4
f long table, you know for students to write on.
And if I
5 4
I'm n t mistaken, it has a raised long bench up at the front.
6 I would assume that room would hold 150, 200 people.-
7 JUDGE KELLEY:
Sounds good, sounds promising, 8
When you've seen some of the cases we've been in this case, j
g it sounds a lot better.
Would you mind checking on that, 10 Mr. Cole?
gg t-MR. COLE:
-No, Your Honor.
g JUDGE KELLEY:
So Mr. Cole if you could take a
- O 13 look at that and maybe Mr. Hollar could let us know about 34 the convention center or anyplace else.they think of.
We'll f
g take a look at the bankruptcy court.. If you'd give me-a l
i 16 4
i j
g7 call as soon as you can next week.
i MR. COLE:
All right, sir.
g MR. HOLLAR:
Be glad to do that.
3 SD JUDGE KELLEY:
Anything else anyone wants to raise 21 at this point?
Mr. Baxter?
22 MR. BAXTER:
Yes, sir, I'm afraid I'm going to-33 stretch everyone's patience.
One request and one comment.
The request has to do with the parties also 34 including on the.23rd, notification of any subpoenas they as I
8280 1
want to issue.
? think it would be very useful if counsel
+
'(~')
2 could exchange on the 20th, the previous Friday, the
.V j
3 identification of the witnesses who they will prefile testimon/
4 on, so we would all know on Monday the 23rd who we might 6
need to subpoena.
This could be done informally on the 6
telephone, but it's not worth my time to write out why I 7
want to s'ubpoena someone and what they're going to testify 8
to if Mr. Cole, for instance, is already planning on producing 9
them.
10 JUDGE KELLEY:
Well, that seems like a modest, 11 reasonable suggestion.
Mr. Runkle, any problem with that?
Et Sound okay to you?
13 MR. PUNKLE:
On the 20th?
I'll be out of town
\\ /
14 on the 20th.
But earlier than that would be fine, too.
Maybe us I can give you a -- I could probably give you a call on the 16 20th and just let you know who we're going to call.
We would 17 Probably be the ones that would benefit from this the most ul because there may be some of your witnesses that we'd want 19 to subpoena from all the affidavits that you've filed.
30 JUDGE KELLEY:
Well, okay, that sounds like you 21 two can work it out.
Mr. Treby, sympathy with this notion?
22 MR. TREBY:
Yes, I have sympathy, sir.
23 JUDGE KELLEY:
And Mr. Cole?
24 MR. COLE:
Yes, if Mr. Baxter would just call me 26 also on the 20th, we can just exchange information.
8281
^
i fr 1
MR. BAXTER:
Thank you.
4
)
3 JUDGE KELLEY:
Why don't we leave that informal, 4, -
3 gentlemen.
I think you all can work that out, but. I think l
4 it's a good idea.
Anything else, Mr. Baxter?
5 MR. BAXTER:
Just one comment so that it's not a
construed later that we -- our silence was relied upon.
.f 7
Mr. Eddleman made some reference to his witnesses, and I want a
to make it clear.that I'm not asking for a ruling here, but 9
it's the applicant's position that he is not entitled to r
1 10 Present a direct case on this contention since it is'not his.
i i
11 JUDGE KELLEY:
Okay, well then, Mr. Eddleman, you
)
Et can be on notice on that point.
And we're not making rulings,;
la but just the fact that you will probably receive an objection.
14 to witnesses.
i Hb LMR. BAXTER:
That's all I have.
i 16 JUDGE KELLEY:
Mr. Runkle',' anything else?
17 MR. RUNKLE:
Yes, sir, I'd like the record to lt i
NB reflect my appreciation to.the board and the other parties 19 for working around my travel plans.
I'm sure my wife 4
1 30 appreciates it also, i
l 21 JUDGE KELLEY:
That's fine, and we -- I said to 1
22 my colleagues, I-didn't know whether I had the heart to do 28 that.
But we didn't have to.
34 MR. RUNKLE:
It is appreciated, thank you) 4 4-26 JUDGE KELLEY':
Okay, fine.
Mr. Treby, anything 1
_____4-,--.._-m,--m.-.,_..m_#,
,__.m.__
8282 1
c12n?
f%
2 MR. TREBY:
Nothing further.
3 JUDGE KELLEY:
Mr. Eddleman?
Mr. Eddleman?
Mr.
4 Cole?
5 MR. COLE:
No, Your Honor, unless you want tv 6
change any notification address to make it mine.
I think 7
the record reflects an attorney that may not even still be 8
with the Energy Department.
9 JUDGE KELLEY:
So you're likely the attorney who 10 will actually be handling this, and not Bryant?
11 MR. COLE:
I suspect I have becoming the lightning 12 rod, Judge.
13 JUDGE KELLEY:
Okay, that's fine.
,_)
14 MR. COLE:
My name and address would be H.A. Cole, 15 Jr, Special Deputy Attorney General, Antitrust Division, 16 200 New Bern, N-e-w B-e-r-n, Avenue, Raleigh, 27601.
17 JUDGE KELLEY:
Thanks for mentioning that and 18 we'll try to get our lists revised accordingly.
19 MR. COLE:
All right, sir.
20 JUDGE KELLEY:
- So I think that's it.
Anything 21 else from anybody else?
So we'll thank you and say goodbye, 22 and we will issue the order I spoke of probably Tuesday and 23 you'll get it later on in the week.
But it should just sort 24 of spell out more clearly what we've already said.
26 (Whereupon, at 12:13 p.m., the telephone conference was concluded.)
0 O
Q 1
CERTIF1CATE OF OFF1CIAL REPORTER 2
3 4
5 This is to certify that the attached proceedings i
6 before the United States Nuclear Regulatory Commisslon in the 7
matter of:
CAROLINA POWER & LIGHT CO'iPANY AND NORTH CAROLINA COMPANY MUNICIPAL POWER AGENCY (Shearon Harris 8
Nuclear Power Plant)
P 9
Name of proceeding:
Telephone Conference to 11 Docket No.
50-400-OL'/ ASLBP No. 82-472-03-OL O}
l 12 PIace:
Bethesda, Maryland I
la Date: Friday, September 13, 1985 14 f
15 were held as herein appears and that this is the original l
I 16 transcript thereof for the file of the United States Nuclear l
17 Regulatory Commission.
i 18 (Signature) g (Typed Name of Reporter) QPamela Brigg&& -
20 21 22
[
23 Ann Riley & Associates. Ltd.
j m
24 j
25 l
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