ML20150B407
| ML20150B407 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 10/12/1978 |
| From: | NRC OFFICE OF INSPECTOR & AUDITOR (OIA) |
| To: | |
| References | |
| NUDOCS 7811010312 | |
| Download: ML20150B407 (69) | |
Text
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u JC im o y;T 1100*;
NU CL E A R RE G UI. ATO R Y CO MMISSI O N-a IN THE MATTER OF:
Docket Nos.
4 CAROLINA POWER & LIGHT COMPANY 50-400 (Shearon Harris Nuclear Power Plant, 50-401 Units 1, 2, 3 and 4) 50-402 50-403 INTERVIEW OF LICENSING BOARD MEMBERS IVAN W. SMITH, GLENN O. BRIGHT, AND J. VENN LEEDS BY OFFICE OF INSPECTOR AND AUDITOR Place - Bethesda, Maryland Date - Thursday, 12 October 1978 Peges 1 - 69 Ybl.101 O 3Q Tw.enon.:
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1 CR9918 1 UNITED STATES OF AMERICA nAAIBEL:mp s ,f dict 2 NUCLEAR REGULATORY COMMISSION 3 - - - - - - - - - - - - - - - - - - -x r: :
4 In the Matter of: :
5 CAROLINA POWER & LIGHT COMPANY : Docket No. 50-400
- 50-401 6 (Shearon Harris Nuclear Power Plant, : 50-402 Units 1, 2, 3 and 4) : 50-403 7 :
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, 8 9
INTERVIEW OF LICENSING BOARD MEMBERS 10 IVAN W. SMITH, GLENN O. BRIGHT, AND J. VENN LEEDS BY OFFICE OF INSPECTOR 11 AND AUDITOR 12 East-West Towers
( 13 4350 East-West Highway Bethesda, Maryland 14 Thursday, 12 October 1978 15 Proceedings in the above-entitled matter were convened, 16 pursuant. to notice, at 3:30 p.m. -
17 i
BEFORE: i 18 ROGER A. FORTUNA, Assistant Director for Investigation 19 g WILLIAM H. FOSTER, Senior Inspector / Auditor 20 DAVID H. GAMBLE, Investigator 21 APPEARANCES:
22 r JOHN H..FRYE, III, ESQ., on behalf of the Atomic Safety 23 .& Licensing Board Panel 2d -GEOR"? * . TROWBRIDGE, ESQ., and JOHN H. O'NEILL, JR., ESQ . ,i
- x. Reporms. inc. S' A. ttman, Potts & Trowbridge, 1800 M Street, N.W.,
25 W hi ,n, D. C. 20036; on behalf of Carolina Power &
Li. e ,c i i
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la mp e 1 APPEARANCES : (continued) :
2 CHARLES BARTH, ESQ., Office of the Executive Legal Director, Nuclear Regulatory Commission, Washington, 3 D. C.; on behalf of the Nuclear Regulatory Staff.
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l 2 e9918 1 PROCEEDINGS N-dpe l' 2 MR. SMITH: Would you take a transcript of this dhvidl '3 proceeding?
- l 4 I intend now to read my statement.
5 On October 5, 1978, the board wrote to Mr. O. Gene i
I 6 Abston, Acting Director, Office of Inspector and Auditor 7 that the board must decline to be interviewed on the subject
- i. 8 proposed by that office in the Shearon Harris remand.
9 Subsequently, through the efforts of Mr. James i
j 10 Kelley, NRC acting general counsel, Mr. Abston, and John 11 Frye, III, who is the boards legal counsel', an arrangement
{
l 12 agreeable :o the board was arrived at to provide for 4 13 interviews.
14 This is why we are here today, i
] 15 We submitted a telegram to the parties in this 16 proceeding in which we advised them as follows: " Members 17 of the . Atomic Safety and Licensing Board in the Shearon 4
18 Harris proceeding will be interviewed by an inspector of the r
19 commission's office of inspector and auditor in matters Y 20 deemed appropriate on October 12, 1978, beginning at 3:30 pm, 21 in the fourth floor conference room, West Towers Building, 22 4350 East West Highway, Bethesda, Maryland 23 Parties to the Shearon Harris proceeding may 24 . attend. The transcript of the interview will be filed in i
\ederal Reporters, Inc.
25 the public record of the proceeding. "
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i david 2- I understand that there are present today among
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- the parties counsel for th3 applicant and counsel for the NRC
- 2 i
i staff.
Are there any other parties present?
! (No response.)
! 5 t 4 '
The arrangement provided that Inspector and j 1
i .~ Auditor would submit the subject matter of the interview '
7 l to the board in advance and in writing; that the board
- j. 8
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- would be interviewed as a collegial body; and that the j- 9 I
l 10 board would continue to feel free to decline to answer '
questions it believed to be inappropriate.
4 11 e
i Subsequently, by memo dated October 10, 1978, 1, 12
- Mr. Abston advised Mr. Frye of two general areas to be
- 13
' covered in the interview. And I will read those, an I 14 exceprt from Mr. Abston's memorandum of October 10, 1978:
2 One. Explore in detail with the ASLB members 3 16 t
- their views with respect to the seriousness of emission
- 17 ,
- 18 of line inspector's views in the written and oral testimony.
! Two. Explore in detail with the ASLB members
- 19 a 1 i how they believe the dissenting view should have been )
- 20 l presented in the licensing proceedings at the time of the j 21
- Shearon Harris hearing.
22
)
i ; Sometimes the organizational position and i 23 function of the office of inspector and auditor is confused I
- with that of office and inspection and enforcement. The i )
4 f~eiavid3 I differences in these offices are important in this case.
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\w) The office of inspector and auditor is under the direct 2
ntrol of the commissioners as a commission and reports only 3
to them. They are charged by the commission's order of September 5, 1978 with conducting an investigation into the subject matter of he boards letter of August 28th, 1978.
7 office of inspection and enforcement is an operational unit of the NRC, reporting to the executive director for operations. Office of inspection and enforcement has the responsibility of making industrial inspectiom and has industrial enforcement functions.
/
p\ It is a part of the NRC staff, which is a party to
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the Shearon Harris proceeding. Office of inspection and I
enforcement was the subject of the board's letter to the l 15 i
i commission of August 28, 1978. l 16 l
I am making that explanation solely so the ;
17 ;
i public record can understand the difference between those 18
.- i, g offices. I know the people present here know that.
v' On the first instance, the members of the board have not to cooperate with the Inspector and Auditor. We !
21 recognize that it has important responsibilities in this 22 l
matter. However, our responsibilities as an adjudicative 23 body are non-discretionary, and we cannot avoid those responsibilities, even where it may be expedient to do so. l
4 I
5
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_ david 4 We believe that we can be appropriately helpful
. 1
. to Inspector and Auditor, and in the process, this interview 2
may assist the board in identifying areas where we have 3
4 t' not made our concerns about the events in issue clear.
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- Moreover, we believe that it is possible that this 5
interview may suggest to the board and to the parties 6
i '. additional possibilities for developing a complete public i 7 record.
. 8 We believe tl.at it is appropriate for the d
9 board to answer questions which might clarify our letter 10
- of August 28 where the meaning may be in doubt. If 11 Inspector and Auditor do not understand our letter, others 12 may not. We certainly want to be accurately understood.
13 Second, the answers to appropriate questions 14 might indicate to the parties areas where we believe the :
, 15 l
, evidentiary record.might be developed. This may be true '
16 with respect to questions which are too subtle or too 4
17 1 complex for immediate response. l 18 Then, perhaps we may issue a memorandum indicating
- 19 f l a need for record application or a memo in direct response to your questions.
l Third, there may be some questions which are not 22
, appropriate for the board to respond to under the 23 circumstances prevailing today, but which may raise issues of l nt Reponm, Inc.
public interest in the Shearon Harris remand. Then we hope 25 ,
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4
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that the board could address those issues in our initial L /
2 decision.
3 In any event, as we indicated, we are without
, authority to submit to any probing of our mental processes 5
in the exercise of our adjudicative duties. Nothing has 6
relieved us of our responsibility to protect the principle of separation of functions 1. the adjudicative process 7
. 8 and to avoid impermissible ex parte communications.
9 Although, with respect to ex parte communications, 10 we don't see that there is any problem surviving, because
- j of the method by which this interview is conducted.
12 Now, gentlemen, we are ready for your interview.
,a
( 13 MR. FORTUNA* Could I please have a copy, sir, 34 of the statement that iou just made, so I could make some 15 comments in reference to it? l l
16 MR. SMITH: It's not entirely complete. There !
17 w re a few asides there.
18 (Document handed to Mr. Fortuna.) l i
MR. FORTUNA: Thank you.
39 f l
20 Permit me a few moments, if you will, so I l r
i 21 can take a closer reading of this document in order to be able 22 to respond to it in a rational and logical manner. l 1
23 (Pause.) !
I 1
24 MR. FORTUNA: I'm now directing my attention to a ;
.r.i n.poners. anc. t 25 written copy of the document that -- is it Dr. Smith or !
7 david 6 Mr. Smith?
y'l I k MR. SMITH: No.
2 3
MR. FORTUNA: Excuse me.
4 MR. SMITH: No. Mr. Smith.
5 MR. FORTUNA: Mr. Smith has just read into the l
6 transcript, and I imagine has no bound into the record.
.. 7 I will read excerpts from the document, and I 8
will make comments on them.
9 The initial introductory comment is followed by 10 " Subsequently, through the efforts of Mr. James Kelley, jj NRC acting general counsel, Mr. Abston and Mr. John Frye, III, 12 the panel's legal counsel, and arrangement agreeable to the 13 board was arrived at to provide for interviews. This is
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34 why we are here today."
15 It continues a paragraph or two later, "the g arrangement provided - " and that's the area that we are j7 interested in here now that I'm discussing'- "that the 18 ffi e f Inspector and Auditor would submit the subject i
39 matter of the interview to the board in advance and in
. ; gg writing."
21 That is correct in a sense -- and I speak now 22 f the office of Inspector and Auditor, Mr. Abston --
23 general areas were t be submitted to the board in writing, 24 but more detailed questions could not be, because, in fact,
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) 25 as we all know, if a line of questioning develops, it's most l
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8 david 7 difficult to anticipate where it may lead us.
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- - 2 So, as far as matters of interviews with the 1
3 board would be submitted in advance and in writing, true, l 4 in general areas.
5 Secondly, the board, through Mr. Smith, has 6
characterized the agreement as stating that the. board would i
., be interviewed as a collegial body. I wish to place 7
g some Clarification on that as the office of Inspector and i .
j 9
Auditor views that and as I view that as assistant director f r that office.
10 i jj It was our understanding, and it was the 12 understanding of the office of the Inspector and Auditor that 13 the board members would be here as a group. In addition, j4 Mr. Frye would be here as their legal counsel, but that 15 questions would bedirected at and to the individual board 16 members and that we would be receiving individual
] 37 responses, rather than a single collegial -- if you choose 4
18 to use that word -- position of the board.
39 Moving on, again reading from the understanding of I 20 the board as presented by Mr. Smith of the arrangement: "that I 21 the board would continue to feel free to decline to answer g questions it believed to be inappropriate."
23 This is not -- I emphasi::e -- this is not the 24 understanding that the office of Inspector and Auditor
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A 25 appreciates. We understood and continue to understand that
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!j r*mvid8 1 agreement. to provide that the members of the board would i 2 provide answers to any and all questions covered in the i
I 3 general areaswhich we submitted to the board in writing several
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l 4 days ago.
! 5 of course, I would certainly understand that there '
! 6 are certain areas where people have constitutional rights,
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7 that they would be unable to answer or perhaps certain l
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4 8 inherent rights under the Privacy ACt under which they l j
9 would not be necessitated to answer.
- p) But I would suggest by having this in an open 11 meeting, those rights under the Privacy Act would be i
I
) 12 waived.. I 13 DR. LEEDS: What constitutional rights are you v
- 14 talking about?
i 15 MR. FORTUNA: Any that adhere to or pertain to
, 16 any individual in the body politic of the United States of '
17 America, 7
a l 18 And I'll continue here, one last thing. I 1
19 make reference to the telegram that Mr. Smith -- I think it's 20 a mailgram, to be more accurate -- that Mr. Smith read 21 from into the record -- and there is a statement which says, 1 -
l 22 "The members of. the Atomic Safety and Licensing Board in 23 the Shearon Harris proceeding will be interviewed by an 24 inspector of the commission's office of Inspector and erret Reporters, Inc.
,\sL/ 25 Auditor on matters deemed appropriate by the board on .
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10 nd it'follows as to location and time and place.
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3 That is inaccurate - " matte-s deemed appropriate
! by the board"" in so far as we're concerned when 4
l 5 characterizing the arrangement and the attempt that was 6
made to conduct this hearing here today.
1
, Now, from what I have just read and spoken to 7
i and what Mr. Smith has' spoken to, what he feels that the
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9 agreement and the arrngement is, apparently we're at an l'
g impasse, and. I would at this point ask Mr. Smith if, in fact, i
33 he believes that that's to be the case.
MR. SMITH: My impression would be that I see
! 12 e 13 no obstacle to us proceeding under our different understandings 1
!a 3, of what the. interview is going to be about. You have your j responsibility to ask questions, and we have our 15 j g responsibility to answer them, if at all, in a manner g consistent with our responsibilities as adjudicative
)g officers.
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39 If you want to proceed with your questions, I 20 think it would be appropriate for you to do so, in the
- g interest of saving time. I am rather confident that our g view of the arrangement is an accurate one. l 4
MR. FORTUNA: I'm sure that would be your position, 23 i
24 sir. l 5
MR. SMITH: Furthermore, I didn't understand you --
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. - . - - -. ~. . . _ . . -- . - - . -
11
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david 10 you didn't suggest that I read incorrectly the contents 1
of the mailgram. l MR. FORTUNA: No, no. I'm sorry. I's saying that the characterization -- you read it as the words are l 4 1 written there, sir.. My only point is we do not understand 6
the agreement to in sumand substance say that the board ,
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, would be answering only those questions which it deemed l 1
appropriate.
MR. SMITH: I think that the board -- individual 9
i
, board members might want to take a moment to discuss this,
. 10 {
- . however, because when you introduc'e elements of the 12 Privacy Act and our individual constitutional rights to 1 i
l an interview, it sort of changes the tenor of it, and --
l MR. FORTUNA: I do so in no way --
MR. SMITH: Let me continue, please. l MR. FORTUNA: Yes, sir.
MR.. SMITH: It suggests we're being invetigated 1
, for a possibility of a violation of law and -- '
. 18 MR, FORTUNA: I in no way intended --
MR. SMITH: -- if this is the case, it's long 20 overdue for you to advise of this now.
MR. FORTUNA: Sir, I in no way intended that 22 meaning. If I did, I apologize. l 23 MR. SMITH: How else would our constitutional .
"*'"*""' rights arive? ;
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!- :davidl1 MR. FORTUNA: I was attempting to distinguish, 1
sir, between the understanding that we apprently each have 2
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.a different view of, and the language, " matters deemed
( 4 appropriate .by the board. "
5 All I'm trying to say is that anybody --- any 6
person at any time -- and I'm notsuggesting this is the
't l ., y time or place -- whether a board member or a person that is I
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4 j
8 walking out in front of the building here today, certainly in particular situations can decline to answer any question, 9
i l 10 whether it be asking for the time of the day or .where were .
i i 11 you last Thursday afternoon af 5:00 o' clock.
l 12 I was just trying to distinguish that. That's 13 che only thing.
34 I think -- and you can probably correct me -if i
15 I'm wr ng -- that matters deemed appropriate by the board 16 meant more of the concern that you have in the ex parte area, i
! p adjudicatory process area. I was just trying to distinguish l 18 the from the other, and there was no other meaning, hidden or
, a 1
g9 otherwise, meant by the statement.
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20 DR. LEEDS: Sir, in criminal law, as you may or s
may not know, when you advise a person of his constitutional f 21 i.
22 rights, that phrase is a key phrase. That brings up certain l 23 connotations, and whether you intended it that way or not, I 24 I heard it that way.
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25 MR. FORTUNA: I did not intend it to be that i
13 davidl2 way, and yes, just so the record is complete, I do have a 73 1
(, 2 prosecutor's background, and I am aware of the case law 3
that you're referring to,and I have no intention of making l l
4 any reference to that area. I 5
To be quite frank, if I did so, I would reach l
6 into my wallet and flop out the famous card that we're all 7
aware of, and I have absolutely no intention whatsoever. I l
8 I was st trying to distinguish that there are
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9 certain things that nobody has to answer to as juxtaposed 10 to adjudicatory matters, ex parte considerations -- and 11 I th. ink that's really what we are talking about here today.
12 MR. SMITH: Mr. Fortuna, I guesst that we all I
/^N a 13 have an interest in getting your vary legitimate
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14 business over with, and instead of bogging down on it, i
15 what my understanding -- our understanding of the ! l arrangement was and what yours is,.you do your job and we
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16 17 will do our joic the way we see it, and we just simply 13 cannot feel that we are relieved by anything that has j9 happened from what we regard as a very serious and important I
.' 20 resp nsibility to comport ourselves as adjudicative I g officers.
22 And nothing has happened to change that, and that's 23 the only basis we can answer your questions. I hope you l l
24 understand that when we do it on that basis, it's for no '
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tive to frustrate you or demonstrate any lack of confidence i I
f 14
- vidl3 I in you or anything else. It is simply our duty as opposed 2 to your duty. We have different responsibilities, so I i
3 think it would be better for us to just proceed with your
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l 4 questions.
i -5 MR. FORTUNA: I appreciate what you're saying, i 6 and we will proceed.
' '- 7 Before we get into the specific questions --
- 8 MR. SMITH: Excuse me a moment before we I 9 get into it.
10 (Board members confer privately.)
II MR. SMITH: All right, Mr. Fortuna. Also,
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12 whatever questions you ask, whether addressed to an
- 13 individual or not will be regarded as questions to the board
- 14 and we will try to give you a board answer.
1 i 15 If the board can't arrive at an answer, it's up l 16 to the individual board member, if he wants to, to respond.
17 MR. FORTUNA: Before I get into questioning, s
18 I have to go back, as I was speaking briefly a few moments i .
19 ago, to a procedure that we have established in the office
- 20 of Inspector and Auditor, a procedure which we use in almost 21 all of our interviews with ind-viduals.
22 Clearly, this is somewhat different than the 23 normal interview, but I do feel thatit bears mentioning, l l
24 so that the record is complete.
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25 And this would be something that I would say, or
15 david 14 j any of the raembers of my staff would say to any individual 2 that is - interviewed, which is essentially this: that there 3 is a statute known as the Privacy Act, as all of us in ,
4 this room are aware. There are certain provisions in the 5 Privacy Act which necessitate investigative type personnel 6 to make certain statements to individual interviewees.
. 7 So, as I say this, I address this to all of you, being
. 8 Mssrs. Bright, Smith and Leeds.
9 The first thing is: what. authority do I have 10 here today to come into this room and ask you the questions i
j) that I am about to ask? Essentially, tht: authority is 12 the commission order which we are all familiar with, which 13 is dated Stepber 5, 1978.
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ja I don' t think there's any need to read the 15 pertinent portions of that record, because I think we're 16 all in agreement the commission did issue that particular 17 order, which essentially provided that the orfice of 18 Inspector and Auditor was to go out and collect facts in 19 the Shearon Harrison matter and so conduct a thorough 20 inquiry into the basis for and the seriousness of the alleged 21 mission of the concern of the line inspector from the 22 written and oral testimony of staff.
23 Upon completion o f_ tha inquiry of the office of 24 Inspector and Auditor, they will report to the commission ,
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25 the results of which -- the inquiry will be made public and I
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16 j"f3vid15 i file d with the licensing board to whom we have remanded the 2 Shearon Harris proceeding.
3 That is why we are here. That's the authority 4 that we have to speak with you today.
5 I think also the second requirement under the i
6 section E (3) of the Privacy Act has just been fulfilled in
" that it advised you of the nature of the inquiry that we 7
8 are about to conduct, the general tenor of where it is that we are going with you. I 9
J 10 Thirdly, what we always tell all our interviewees -- l 11 and again, it's covered by the commission er9er -- what are 1
I 12 you going to do with this information. And the answer to 13 that is, well, we will put this into a report of interview.
14 Today, this is facilitated because we have a court transcriber 15 who is documenting everything that we are saying at this 16 point.
17 What use will be made of that vis-a-vis the 18 officeof Inspector and Auditor? This transcript -- the 19 one that's being taken now -- will be incorporated into the 20 report which will be submitted to the commission and 21 ultimately in the public record, and as I understand, you l
I 22 also have a copy of the transcript, and you can make whatever l
23 appropriate use of that that's necessary.
24' So, now we're all aware of how we're taking I eral Reporters, Inc.
/ 25 this information down, where it's going to, and finally,
17 l pd vid16 1 under section E (3) of the privacy Act, it tells us to ask
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\~ 2 all of the interviewees that we talk to if they are giving 3 information about themselves -- and, obviously, when we 4 ask you a question, in many instances, you may be 5 making reference to yourself, and therefore it's governed !
l 6 by the Privacy Act, whether or not you have to speak to us. ;
'- 7 And the answer is: no, you don't have to speak a to us.
9 So, at this point I will break off and speak 10 to you individually rather than corporately.
11 Mr. Bright, do you have any objection at this end 1 12 point to us continuing with the line of questioning?
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. / 1 MR. BRIGHT: I have no objection as long as you
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2 understand --
3 MR. FORTUNA: You're reserving your right?
MR. BRIGHT: You have to understand oc.e thing.
4 No.
5 It's a peculiarity in this particular situation. Of the 6 four gentlemen on this side of the table, one of them is not a I 7 lawyer. The.t's me. So I must say that if any problem of a 8 legal nature comes up, I will have to confer with my legal --
9 MR. FORTUNA: Why don't I start at the other end of 10 the table and work back. Maybe that will help you out.
11 Mr. Leeds?
i s 12 DR. LEEDS: Yes?
\ MR. FORTUNA: At this time are you willing to proceed
/ 13 14 and allow us to ask you questions?
15 DR. LEEDS: Within our letter and the agreement 16 that I understand, yes. But I certainly reserve the right 17 under those agreements not to answer you.
18 MR. FORTUNA: Understool.,
4 .
19 Mr. --
20 DR. LEEDS: I'm not waiving that.
21 MR. SMITH: I think we've already said it.
22 MR. FORTUNA: Fine. Let's proceed then.
23 I'll address this first to Mr. Leeds.
24 MR. SIIITH : Do you understand my point, that the ,
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,\'- Board will accept any questions that you address, questions l 25 l
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', 1 to the Board?
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Yes, I understand it.
2 M R .- FORTUNA:
3 MR. SMITH: And so it would probably save some time 1 i 4 if you just asked the questions to the Board. l l
5 MR. FORTUNA: It's my understanding you will not 6 answer individually?
I 7 MR. SMITH: That's right, unless we cannot answer 8 as a board, then it will be up to the individual. But first 9 we are going to approach this collegially, whether you
) 10 ! understood that's to be the arrangement or not. We are sitting i
l 11 now as menbers of the Board and we are all going to cry to 4
12 formulate Board responses. Everything we have done so far f
13 now has been a Board effort in this case.
14 MR. FORTUNA: Do you see any serious difficulties 15 between the notes of Mr. Floyd Cantrell and Mr. Daniel and 16 Mr. Brownlee's testimony, other than what you noted in your I
17 8/30/78 letter?
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- 18 MR. SMITH
- No. We stated our concerns in the letter 19 along that line. If, as indicated in the opening statement, l- 20 certain statements made in the letter are not clear to you, 21 we want to clarify them. But we gave you all thainformation 22 we had in the letter. We gave the Conmission in the letter l
23 of August 30 all the information that we had. l
< l 24 MR. FORTUNA: Let me just read for a moment from !
[hmasi neoo,im. ine. f
\s,/ 25 page 4 of the letter that you gentlemen sent to the Commission l 1 l 1 l
l
ar3 20 I on the 30th. Do you have that in front of me, so we're all 2 tracking it together.
I'm reading now from the top left-hand side here 3l 4 on page 4. It says: -
5 " Supervising inspectors' testimony:
6 "One, there has been a high turnover of middle
~-
7 and upper management in the past three years, personnel met 8 or exceeded the minimum of qualifications rc. quired by the 9 facility technical specifications."
10 1 And now I'll read from the opposite side:
II "Line inspectors' notes."
12 We are still taking the 0/30 letter where it says:
13 "The plant has experienced a high turnover of 14 middle and upper management personnel in the past three years.
15 As a result, persons have been promoted or reassigned to 16 positions for which they are not qualified as the tech spec 17 or FSAR may imply "
18 Would you please provide us with your views or 19 view, as the case may be, with respect to thr. seriousness 20 of the differences between the supervising inspector's 21 testimony and the line inspector's testimony?
22 MR. SMITH: Of course, you recognize that the entire 23 subject matter relates to safety. That permeates our entire 24 concern, so that will be true of all of our ansvers, because g
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V 25 the entire subject matter relates to the ability of the l 4
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ar4 21 Applicants to construct and operate a plant safely,
\0 1 either 2 directly or indirectly.
3 With respect to the specific questions and specific 4 comparison item No. 1, we regarded the answers on the face 5 of them as far as they went as being contradictory.
6 MR. FORTUNA: Could you help us understand the
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7 contradiction? Would you point it out to us.
8 MR. SMITH: I can't help you. Well, let me give a
9 you --
10 1 MR. BRIGHT: I could merely make the observation 11 that if I'm interested in safety, if a statement comes out 12 that says that as a result persons have been promoted or reassigned to positions for which they are not qualified, that to me is --
( 13 14 it doesn't say the same thing as was said in the supervising 15 inspectors' testimony, in which you read this:
16 " Personnel met or exceeded the minimum qualifications, 17 et cetera, et cetera.
18 This is I'm okay, you're okay sort of thing, 19 whereas the other one would raise a flag, to anyone in this 20 business.
21 MR. FOSTER: Could you give us some help or 22 clarify for us what the line inspector is talking about when 23 he says what the " tech spec" may imply?
-- 24 MR. SMITH: We can't elaborate upon it. See, we
( nel Regiorters, Inc.
\ 25 pick this languaga up, as you know, from the testirony l
l l
4
ar5 22
['
l i and the notes, and we can't elaborate further on it except L
2 to say that our view of it is something that would have prompted 3 us to inquire further, and we certainly believe it was.
4 MR. FOSTER: I see. ,
l 5 Let me be a little more specific. l 6 DR. LEEDS: Mr. Foster, just a second, please.
-^ l 7 MR. SMITH: You understand that as of the time l 8 we wrote this to the Commission and today, we have never 9 l seen this line inspector, so we know nothing more than what l 10 1 those notes say and nothing more than what we sent to the 11 Commission, and that is it. That is entirely it. We know 12 nothing more and we wouldn't know anything about it until we
,~
( 13 have a chance te hear this man testify. '
14 MR. FOSTER: I can appreciate that. But again ani 15 I to understand --
16 MR. SMITH: We don't accept the notes as true.
17 MR. FOSTER: Fine. But am I to understand then .
I I l 18 that one of the differences here between what appear in the i 19 supervising inspectors' testimony and what appeared in the 20 line inspectors' notes was one was saying tech specs require 21 and the oth:r was saying tech specs imply?
22 MR. SMITH: We told you earlier that the statements --
23 we reviewed the statements as being contradictory.
24 MR. FOSTER: I guess what I'm asking is, what
,es e :mmal Heoorters, Inc.
ku v/ 25 are the contradictions?
l l
i ar6 23
_ /"' 1 MR. SMITH: Mr. Bright told you what they are, and
'\
2 the contradictions are that the line inspector said that
. 3 persons have been promoted or assigned to positions to which I
4 they.are not qualified; the supervising inspectors say personnel 5 met or exceeded minimum qualifications. These are contradictory 6 statements. At least we thought they were, and we thought 7 they were solely to the point, and no further, in which we 8 believe further inquiry should have been made.
9 MR. FORTUNA: I'll repeat it just one time and 10 we'll drop it. The trouble I'm having is trying to understand l l
11 supervising inspectors' testimony, ' Personnel met or exceeded 1
12 the minimum qualifications," whatever thLy may be.
13 The other chap, the line inspector, is saying in 14 his notes, "As a result, persons have been promoted or assigned 15 to positions for which they are not qualified," modified by 16 "as a tech spec or FSAR may imply."
l'7 I guess I'm having difficulty understanding does a 18 tech spec or FSAR apply anything.
l 19 DR. LEEDS: Mr. Fortuna, may I make a suggestion l 20 here. I think that question is misdirected, because I can't 21 put myself in the mind of that gentleman whom I have never i
22 seen. You have in your hands the same document that we have.
l 23 I might wcll want to ask him that question whe. T see him --
24 Mr. Cantrell -- but at this point I can't tel. .ou what he
, stal Reporters, Inc,
, \s / 25 thought, as Mr. Smith has said.
I I
1
ar7 24 7g 1 MR. FORTUNA : But there is language there that you (N/ )
2 say in your mind -- in the mind of the Board -- is a contradic-3 tion. I'm just trying to appreciate what you perceive the 8
i 4 contradiction to be.
5 DR. LEEDS: As far as I'm concerned, the two documents 6 speak for themselves. We read them and we said it raised a 7 problem in our mind, and that's where it is.
. 8 MR. FORTUNA: Okay. Let's move on. I'm still 9 making reference to the 8/30 letter that you gentlemen directed 10 1 to the Commission, and I again read, under item No. 2,
, 11 under supervising inspectors' testimony:
12 "The start-up and operations of the two Brunswick
/ 13 Units was demanding and resulted in extended work weeks that N >)l e
14 continued from weeks to months. Recognition of staffing needs 15 may have been not fully recognized."
- 16 And now I jump over to item No. 2 on the line 17 inspector's notes , and in your letter you stated
18 "At Brunswick they apparently underestimated the j l
l 19 problems and the need for people. As a result, personnel
. 20 were assigned extended work weeks that continued from weeks 1
21 to months and in some cases to years.' l 22 And I'm wondering again, please, if you could
.23 provide us with your views and view?
24 MR. SMITH: You will note that, Mr. Fortuna, in some ,
I
(Npeal Remnen, Inc.
(_,/ 25 cases, the " years" was underlined and emphasized. The fact
! I I
i
25 CR9918 j that we had it underlined is noted also.
'/Noe 2I
\s / 2 MR. FORTUNA: I see. I'm sorry. In other davidl 3 words, that is the key, the difference between those.
4 MR. SMITH: Yes. We thought that was a significant 5 difference that would have warranted, further inquiry.
6 MR. FORTUNE: Okay. We'll move on then.
.. 7 Now, let's take a look further down on the same
. 8 page of the 8/30 letter and under the supervising 9 inspectors' testimony it begins: "CP & L management has 10 increased visibility and participation, made organizational 11 changes in management to use QA management capabilities.
12 (Written testimony, page 15) Nucleus of trained personnel
(g 13 is available for Harris plant. QA/QC procedure for Harris V 14 reflects experience from Robinson and Bruswick."
And now I go across to the line inspector's l 15 1
-16 notes. "CP & L probably can obtain the technical manpower 1-7 and develop the management need forthe Harris plant, if 18 commission requires specific improvement as a condition of 19 the license. "
, 20 Then there is a note making reference to the !
21 line inspector's notes at page 1, and then it continues:
22 "CP & L management still does not appear to have committed 23 the required manpower and financial resources to assure 24 that plant problems are identified promptly."
- p:terol Reporters, Inc.
() 25 And it continues on. Could you help us understand l
i
26
,' avid 2 1 the distinctions between those two as perceived by you --
_ - 2 you, the board?
3 MR. SMITH: Mr. Fortuna, we think the difference 4 between the -- unless there is some confusion about the 5 organization of this letter -- the difference between all of 6 item number three which continues on to the next page of
~~
7 the supervising inspector's testimony, and the difference 8 between that and the line inspector's notes are clear on their 9 face.
10 And we simply cannot make it any clearer.
Il MR. FORTUNA: Let me ask you a more specific l
12 question, then, As I read through both item three in your
!O) 13 letter -- both the line inspector's notes and the V
I4 supervising inspector's note -- I went back into documents to 15 try to read all the material that surrounded the information 16 that's here in your letter under three, and I'm wondering if 17 you could explain to us now why references -- and this is 18 under supervising inspector's testimony -- references to 19 construction and engineering were dropped -- under supervisory 20 inspector's testimony, when you paraphrase it, there is no 21 reference to construction.
I 22 MR. SMITH: I don't know -- your point -- I 1 I l 1
1 23 wish you would elaborate on your point, because it may be l l
24 helpful to us. i
/' twere nexrteri ine. ,
-- 25 DR. LEEDS: Excuse me. You mean --
l l
1 i
27 vid3 1 MR. FORTUNA: Maybe it would be more helpful 2 if I read the whole thing. l 3 DR. LEEDS: Why don' t we get back to where we 4 were talking about. You must have some reference in the ,
l 5 original document which we supplied with our letter to the l
l 6 commission.
7 MR. FORTUNA: The specific reference to which (
8 that question was directed is the first paragraph under 9 item three of the supervising inspector's testimony.
l 10 In the paraphrasing of this paragraph here, all references 11 were dropped to construction engineering, and we would like 12 to know why.
[) 13 MR. SMITH: You make a reference to "all v Would you point out specifically 14 references being dropped."
15 where they were dropped?
16 MR. FOTUNA: What I'm doing now is going into l
17 the pack of material that was attached to the letter that you '
18 gentlemen sent to the commission several weeks ago. And l
19 it's page 15 of the written testimony which was handed out l 1
20 by the inspectors and bound into the record in the Shearon 21 Harrison CP hearing.
22 Take a few moments time here to be able to --
23 I'll read from this so that we have it in the
,_ 24 record and it will be before all the people in the future
/ w .r i k _ / m namnen,inc.
25 when they sit down and read it, so they won't have to thumb !
I l
28
/qvid4 1 through documents.
-s 2 Page 15, as I said earlier, of the written 3 testimony of the inspectors that came to testify. It's 4 under the conclusion section, and it begins: "During the ;
5 last 12 to 18 months of construction work on BSEP Number One, 6 CP & L management increased their visibility and participation i l
7 in the decision making activities, due in part to the !
8 high cost of 'ime and money for the corrective work at the i l
l 9 Brunswick . CP & L has made organizational 10 changes in mana, to better utilize the engineer 4.r.g 11 and construction L .tanagement capabilities.
12 CP & L is now assuming complete management of l 1
[ 13 the construction and QA activities for the Harris project,
\
14 which the did not do at the Robinson and Brunswick 15 facilities. -
16 The slippage of both the Brunswick and Harris I
17 project scheudles has resulted in a nucleus of trained 18 personnel being available for use on the Harris project.
9 19 The QA/QC procedures for the Harris project reflect the
~
. 20 knowledge and experience gained through the construction 21 phases of the Robinson and Brunswick construction programs.
22 The licensee has met the need for training i 4
l 23 welders, QA/QC personnel, and others needed to produce l 6
24 qualified workers for relative remote sites, such as l
~^'w.r.i n.=ner.. ine. l s,,) '
25 Brunswick and Harris." l
_ _ _ _ _ _ _ _ ~ _ _ . - ._ _ _
29
vid5 i That's the whole piece, as it were, and then 2
we get over here under item three in the 8/30 letter --
3 I'm sorry, it's not the 8/30 letter to the commission i i regarding CP & L management.
4 5
What I'm trying to understand is -- and let's take 6
aquick look over on the righthand side under "Line 7 Inspectors Notes." "CP & L probably can obtain the technical 8
manpower, and develop the management needed for the Harris 9 plant, if commission' requires specific improvement as a 10 condition of the license."
11 Contrasting the two 3's back and forth against 12 each other, the reader may consider that the type of s
13 management that the line inspector speaks of and the type 14 of management that the supervisang inspector is talking 15 of are the same type of management; yet, when I go back 16 through and-take a look at the full verbiage here in the 17 written testimony provided in the Harris hearing, I find that l
18 the supervisory inspectors that were sponsoring this I 19 testimony were addressing construction management, and it
." 20 appears from item number three in your. letter to the 21 commission, making reference to the line inspector's notes, j l
22 that he's making reference to operational plant type l l
23 manangement. l 24 MR. FOSTER: The line inspector was the principal ,
wei nmorters, ine. (
25 operational inspector. l 1
30 -
a.vid6 )
MR. SMITH: I think your observation might be helpful to us to inquire. I might say that there was 2
no effort on the part of the board -- you use the word, 3
! " drop." We did not drop anything, nor did we purport to have ,
4 the verbatim quote from the report.
5 In fact, that is why we burdened the letter to 6
+ the commission with the entire package. and with references 7
g to pages.
So, in direct answer to your question, nothing 9
has been dropped.
10 1 l 11 Now, you may quarrel with the way we have 12 excerpted material from the reports, and we want ta hear 13 what you think about it, because if we have misunderstood it, l j4 that certainly should babrought to our attention before i
15 the remand. But in direct answer to your question: nothing 16 was dropped. Perhaps something you thgouth should have been included wasn't included, but nothing has been 17 18 dropped.
19 MR. FORTUNA: Do you feel it's a valid comparison 20 to compare- the personnel being discussed by Cantrell in 21 his-notes -- plant management operational type personnel 22 with personnel being discussed by Dance and Brownlee, 23 construction type personnel?
24 MR. SMITH: We'll have to go back to our original ,
teei nwomn. sm, 25 - answer. The only thing the line inspector's notes did for
--w. w - - - c . . , - -w- , , ~ + , ' v -
31 i
! david 7 us was to tell us that. Had we known about the notes,
.1
!~
we would have inquired further. .
2 '
MR. FOSTER: Were you aware at the . time of the
. 3 4
August 30 letter that: Mr. Cantrell was the principal '
3.
,. operations inspector?
l 5
! MR. SMITH: When?
i> 6
~
., MR. FOSTER: At the time you drafted your q 7 3
August 30 letter.
4 8 MR. SMITH: No. What do we know about him ?
9 10 We know about his notes and we knew what Mr. Barth said about i him in his letter.
- DR. LEEDS: We have a letter from Mr. Barth i I containing Mr. Cantrell's notes, and that letter is contained as an appendix or an addendum to our letter to the commission.
4 2 MR. FOSTER: Excuse me. Let me ask that again.
3 15 a
16 At the time of your August 30 letter, were you aware that b,
17 Floyd Cantrell was a principal operations inspector at Brunswick?
- 18 a .
- MR. SMITH: The answer to the question is: I don't 19 i recall being aware of it at any one given time, no. l
- 20 l 4
DR. LEEDS: I don't.
21 MR. SMITH: I know one thing about his -- that he was quoted very heavily throughout the supervising 74 inspector's report, so I assume his notes were germane to the
""' "" *"" *g report.
I l
i
-- . < . , ,, . . - . .. .,. -. . , . n . . , , ..
4 32 david 8 1 MR. FOSTER: I guess what we're trying to '
) 2 clarify here is again, do we have a good basis for comparison -
3 here or are we talking about apples and oranges?
( 4 MR. SMITH: Exactly. We don't know, and that is :
5 exactly what the board would want to inquire about. It 6 seemed to us that in comparing the attitudes of two people 7 further inquiry was needed. We certainly don't prejudge 1
8 how it will come out. We don't know. The only thing 9 we know is there was enough in our view to inquire further.
10 MR. FORTUNA: Let me just make a reference 4
11 briefly to the first page of Mr. Cantrell's note, which I've 12 dated 9/16/77, in which he states, "the following information 13 is submitted in response to your request to provide 14 information of the operating experience of Brunswick."
l 15 Whatever that's worth.
h 16 Let me move on --
17 DR. LEEDS: Wait a minute. You brought this up, 18 and I want to say something to the point.
end 2 19 MR. FORTUNA: Yes, sir.
. 20 J
21 j
- l 22
)
23 24 erst Reporters, Inc.
i t
i j
33 CR9918 f- s tape 3 1 DR. LEEDS: Let me tell you this: that is I
(
\~ ' avid 1 2 got a letter like this containing information that I saw 3 in here, that would raise my concerns so that I should 4 inquire further. I don't care who it came from. I wouldn't 5 care if it came even unsighed.
6 If I had something that raised the safety
. 7 concerns, as I view my task on these boards, my duty is,
. 8 once something comes to my attention, so I should inquire 9 further, that.'I ask.
l 10 Now, this particular letter here came to our 11 attention when we were in a very unusual posture, as you i 12 know. We had written our final decision, and as I understand 13 it, I -- and correct me if I'm wrong -- we concluded we had 14 lost a jurisdiction. If we had not lost jurisdiction, we 15 would not be in the posture we are today, and I think when 16 you start saying, do you know what it is, I don't know 17 who this man is.
18 And we have said that to you a couple of times, 19 and we did not do that just because he said it. I don't .
I l 20 even know he exists. I have Mr. Barth's word that he was --
21 I think he said he was an inspector. I'm not sure. But l
I i
22 I have nothing more than the piece of paper you have here,
{
23 and to push further and ask me what I think he said, I think j i
i 24 is just clearly inappropriate.
w ee n.corw .inc.
y ) 25 We're not making a decision.
l l
i 34 david 2 y MR. FORTUNA: I'm sorry if you misunderstood 2
what we're trying to get to. Again, we were working with 3
the same documents you were working from, notes versus 4
4 written testit ny.
5 DR. LEEDS: They speak for themselves.
6 MR. FORTUNA: Again, what we're trying to 7
clarify here in our own mind, were. we .: talking about 8
two different types of personnel here? Are we comparing
-9 construction personnel to Mr. Cantrell's exposure to the 10 operations personnel, which may not be a fair comparison 11 to site as differences.
12 MR. SMITH: That's a good point. That's a point 13 thatI think we thank you for, and it's a point that we ja will want to inquire into. But I just want also to point 15 out, among our concerns, the supervisory inspectors in 16 supplying their testimony to us, relied very heavily upon 37 the report from the line inspector.
18 S , whatever the relevance and the line inspector's 19 note to the supervisory inspector's testimony -- whatever
- 20 it may be, at least the witnesses recognzied some relevance 21 themselves.
22 DR. LEEDS: And the second thing is I have a' letter '
23 from Mr. Barth: "It has come to our attention that one of 24 the inspectors at the applicant's Brunswick facility felt a.i n.porms. anc.
25 that his views on the management capabilities of applicant to I
l t
E 35 l
. david 3 j staff and operate the Harris facility had not adequately been !
2 presented to the licensing board."
MR. SMITH: Your question suggests that we made l -
3 L,
4 an inadequate analysis of the inspector's notesc 5
compared to the witnesses' testimony. j l
', 6 MR. FORTUNA: That wasn't meant in our 4 i
- .. submission, j 7
MR. SMITH: The fact is we have made no analysis 8
i for the purpose of making any judgment in an adjudicative j
, 9 10 decision. We know that the line inspector was requested to 11 provide information in anticipation of testimony before us, I
12 and this is what he said. And he said some things that we l
)
13 believe were inconsistent with the testimony, and it could 14 be from a different vantage point. We do not know. But I 15 our point was simply that these are points that should be 16 pursued in the evidentiary hearing.
17 MR. FORTUNA: Again, our reason for asking the 18 question was ;to clarify the significance of these items 19 as you layed them out here in the letter.
. 20 MR. SMITH: We thank you for that, because that's a' point that is worthy of pursuing. I'm sure that we'te 21 22 g ing to hear abou* it in the evidentiary hearing. If the 23 vantage point was different, we want to hear about it, 24 and furthermore, if we have failed to do it, want to invite mi n.ponen. inc.
25 you also to provide us with other areas that you think might I
c 36
" tid 4
)
be worthy of inquiry.
2 MR. FORTUNA: Okay.
y MR. SMITH: Or anything else you want to bring 4 to our attention.
5 DR. LEEDS: I am sure that you know in our 6 Proceedings that we have notices to the public that invite 7
them to make written or oral statements and to ask questions 8
they'd like to have answers to, and often the board 9 directs the parties to respond to these things.
10 MR. FORTUNA: Let's proceed on. ]
11 Yhe nest question is: do you view Dance's and/or 12 Brownlee's omission -- well, say alleged, for the sake of 13 conversation at this point -- of Cantrell's recommendation ja of conditions in the CP as significant?
15 MR. SMITH: Significant enough to write a letter 16 to the comp.ission. In the adjudicative sense, it's 17 Premature to say. We haven't heard.
18 MR. FORTUNA: In your view, do you believe it is 19 incumbent upon the region to recommend conditions in a 20 license? Is that appropriate? Is that typical? Is it 21 something that's normally done?
22_
MR. SMITH: I don't know. I think your 23 reference there is the f act that Cantrell in his notes made 74 .areference to conditions.
' eral Reporters, Inc.
25 MR. FORTUNA: Yes.
I I
l 37 d*, yid 5 MR.~ SMITH: Again, we want to tell you, we
)
i 2 did not take Cantrell's notes as being dispositive of 3 anything other than a suggestion or a hint. More than 4
a hint; a strong requirement that this board find out 5 what the man is talking about.
6 If an inspector believes that conditions are 7 needed, we don't write his conditions into a permit. We 8
find.out why he thinks --
9 MR. FORTUNA: Let me now read from the supervising 10 inspector's testimony. I'm referring to page 17 of the 11 written testimony which was bound into.the record and 12 Sponsored by the two testifying inspectors from region II.
[~ \ 13 And it begins: " Region II inspection of the b
14 licensee's activities does not result in the. maintenance 15 f a tabulation of the number of engineering and/or QA 16 personnel utilized by the applicants. Rather, adequacy of 37 the performance has been our concern. CP & L construction 18 and QA have been staffed adequately for the status of the 19 Harris project.
20 Additional CP & L and constructor (Daniel 21 Construction).are programmed to be available when authorized 22 to initiate construction activities.
23 Region II is not aware of any additional operations 24 personnel thathave been added to manage the Harris plant, O gn. n.ponen, Inc.
(,,/ 25 nor would we expect any additional operations personnel at l
l
i t
38 I O vid6 I this early date."
2 l
Now, let's move on to Cantrell's notes. In your 3
letter to the commission -- and I'm reading under Cantrell's 4
notes, being a line inspector'.s notes -- I'm reading under 5
number three: "CP & L probably can obtain the technical 6
- manpower and develop the management needed for; the Harris 7
! plant, if the commission requires specific improvement as 8
, . aacondition of the license."
9
! MP. FOSTER: I think what we're trying to get to here again is.in reference to the written testimony where
- 11 we have region II is not aware of any additional operations 12 personnel that.may be.added to manage the Harris plant, nor 13 would we expect any' additional operations personnel at this Id early date.
15 Would this part of the written testimony have 16 been a more valid comparison to make, in view of the fact i
I7 1 that Mr. Cantrell was an operations inspector?
18
, Is this the type of personnel he's talking about? (
t 19 DR. LEEDS: You have to ask Mr. Cantrell the i 20 kind of people he's talking about. That's what we'll do 21 when we talk-to Mr. Cantrell. You can't ask me.
MR. SMITH: Bear in mind, every question we put --
we were aware that Mr. Cantrell was writing in response to a 24 N ,
request from his supervisors who are testifying in the V 25 construction permit proceedings. He was asked for his views I
i-i
i 2
39
- avid 7 1 in the construction permit proceeding.
l 2 MR. FORTUNA: Let me rephrase the question.
i 3 Given the fact that Mr. Cantrell's experience <
- { l 4 was primarily as opeJations inspector at Brunswick
]
5 II and I -- !
i l
6 MR. SMITH: Nye , where does that fact appear? l l
7 MR. FORTUNA: In his notes. The first line. )
~
8 MR. SMITH: Show me. l 1 <
9 MR. FORTUNA: The first line. We made i
10 reference to it earlier.
l 11 MR. SMITH: His experience consists primarily ;
i l 12 of what?
4 1
- 13 MR. FORTUNA: He was the principal operations i
14 inspector. i 15 MR. SMITH: That's not what you said.
4 5
16 DR. LEEDS: Are you talking about the first 17 sentence of his notes?
18 MR. FORTUNA: "The following information is 19 submitted in response to your request to provide information
~
20 on the operating experiece of Brunswick."
t 21 MR. SMITH: Do you know what the board question 22 was?
23 DR. LEEDS: You're making an interpretation of 24 what he's'saying, and I haven't made any interpretation of -
\mi n.coners. ine, )
25 what he's saying. I don't know what Mr. Cantrell's experiences, 1 d
40
('^ t 1 e prior to, during, after this letter was written.
2 He may have been on the construction part also.
3 You don't know, do you, from this letter?
4 MR. FORTUNA: From the letter, no, sir.
5 DR. LEEDS: And I have only seen the letter, 6 so I can't possibly know. !
7 MR. SMITH: We have no information otherthan
, 8 this.
9 MR. FORTUNA: Let me just read again under l
10 supervising inspector's testmony, item three: "CP & L 1
11 management has increased visibility and participation, ;
1 12 made organizational changes in management to use QA l (h
%s'
/ 13 management capabilities."
1 14 And there's a reference to written testimony, j 15 page 15. The next sentence: " Nucleus of trained 16 personnel is available for Harris plant. QA/CC procedure 17 for Harris reflects experience from Robinson and Brunswick."
18 And I stop there. And the only point I'm trying 19 to make to better understand thacomparison is, again, it does 20 not appear on the supervisory inspector's testimony that the 21 reference was to construction.
22 MR. SMITH: Nor was the question to which they 23 were responding limited to construction.
g-w 24 MR. FORTUNA: I'm talking about written testimony.
, Iderel Reporters, lx. I
" 25 MR. SMITH: I'm talking about thenquestion to l l
t l
i' david 9 41 which the written testimony responded.
i i 2 MR. FORTUNA: The' written testimony -- let's 1
3 take this out and. take a minute with this.
MR. SMITH: Let me give you a general answer
! 4
! 5 to your question. Even if I had known that Mr. Cantrell --
6 which does not appear here in any record -- has no experience 7
other than as an operating inspector -- even if I had known i* 8 that, it would not have changed my view one wit.
9 It would have been a sorry thing if we tried 10 to ignore this based on the fact that the man is in a little 11 bit different discipline.
4 1
12 DR. LEEDS: I'll repeat what I said earlier. I l
13 don't care what his position was. If I had received that !
j j, letter, adn I was in a position to act, i.e., I was in
) 15 session and hadn't written my decision, I would have had 16 Mr. Cantrell in, and I don't care whether he was a line
- j7 inspector, operating inspector or just happened to be walking 18
.by one day.
19 Those letters raise serious allegations which I 20 think we should have ventilated in the hearing, and it would 21 be our duty to complete the record.
22 MR. FORTUNA: Let me announce again -- I think we briefly touched on it earlier. That informaticn was not 23 24 received'by-the board at any date. I'm talking of the e n.por wi,'inc.
25 hearing time now, other than the line inspector's conclusions.
) ,
,. . , ,,e ., , .c
e 42
'wyid10 1 This is Cantrell we're talking about. What 2 information was not received by the board at the time of 3
3 the Harris hearing, other chan theline inspector's j 4 conclusions with respect to CP & L's management i
5 commitment to required manpower and financial resources and 1
- 6 the resultant conclusion drawn by the line inspector that
! 7 a condition be placed in the license requiring specific
!* 8 improvement?
9 DR. LEEDS: Mr. Fortuna, with all due respect, 10 that question I can't even answer, because it's not 11 logically correct. What information was not received. If l 12 I don't know about it, how can I possibly -- i
,rm s l
, ; 13 MR. FORTUNA: Let's do it this way. Here's l 14 what we're trying to get at. And maybe I did it rather i
- 15 inarticulately.
! 16 There were certain things raised in the letter, 4
17 as I read it, a general concern that we want some more l 18 information, that certain things weren' t aired; had they 19 been raised earlier, we would have taken a further look.
- 20 Okay.- I'm just curious and wondering, other than the 21 conclusions of the line inspector and his- ultimate. conclusion 1
I 22 there should be a condition in the CP, are we talking about 23 anything else within the confines of the information before 24 you?- You know, the notes or any other type of thing. .
['_sk m i ne m rteri,ine, l
\/ % 25 MR. SMITH: We had no information other than his i
I l
43 vidll 1 notes.
2 MR. FORTUNA: Just the notes?
3 MR. SMITH: That's all we had.
4 MR. GAMBLE: Is there anything in the notes, 5 other than the conclusions and his recommendation of 6 conditions that you did not have at the time of the hearing?
7 MR. FORTUNA: Was something else left out by
} 8 the testifying supervisory inspector?
9 MR. SMITH: I guess each will have to answer i
10 individually on that, and I don't mind that I read all of 11 the notes. And I think that we had a consensus. ZWe l
12 were wondering if we weren't burdening the commission already
(
t 13 with too much information. And I wouldn't be prepared to 14 anwer that now, without going all the way back through the 15 notes.
16 Has anything .been left out that.could be 17 germane? That's entirely possible. Our purpose right then 18 was to demonstrate to the commission there were some matters a
19 we felt were important, that had been omitted and that 20 we would want to inquire. There could be other points in there, 4 21 but right now I don't remember them, i
22 DR. LEEDS; One thing about this is you've got 23 to realize that these notes, if I can sort of cast this 24 in the frame we have been in -- if we had not written our (h
ww.i nmorteri. ix. I s/ 25 decision, those notes would have triggered in my mind a need l
l l
! 44 43vid12 3 acquire . further -- where this inquiry would have.. led me,
! 2 I don't know.
} 3 I can't possibly guess what that would be, but b ,
! 4 it _ would have triggered that. It came in afterward.s, !
l i
5 after we had issued our decision. If the record had been 5 6 Open at that time, i.e., we had not issued our decision, 7 I would have in quired further.
,- 8 It was a triggering mechanism. But I find in 9 your question you're wanting to say, is there anything 10 else in there? All I needed to be was triggered into :
i '
l 11 inquiring further, and then the-mechanism for this
! 12 inquiry is for thaboard to direct questions to the parties, i
l 13 hold another hearing.
/
14 There are all kinds of mechanisms on that. It was i 15 a triggering situation.
1 l 16 MR. FORTUNA: I can apprecate thr.t, doctor. Let
- . 17 me explain a little bit more what we're trying to get to here ,
i ,
l 18 again. One of the items we are charged with is determining the l !
19 seriousness of the omission. Okay. And the purpose of our i
- l. question was: is there anything else besides what we have
,. 20 ,
)
- 21 highlighted here in your letter, in Cantrell's notes, that '
i
- 22 did' not appear in the' written or oral tesdmony that you
, 23 received? l i l 24 And if you are not prepared to answer that at j
! f\_,/
8 x .r. n coners. Inc. this point, fine. But any forthcoming information in this 25 t
i i
45
[ 'yidl3 1 regard we would appreciate.
2 MR. SMITH: I will simply say I do not remember 3 myself. I thought we picked the highlights of it enough 4 to demonstrate our general concern. But as for taking 5 further details, I don't remember. Nothing occurs to me 6 right now.
7 MR. FORTUNA: At the time of the Shearon Harris
^
8 hearing, was it your understanding individually or board, 9 whatever, that you would receive any staff views that 10 I would differ from the testimony given?
II MR. SMITH: Are you talking about the entire 12 testimony?
Ch 13 MR. FORTUNA: Yes.
V) 6 Id MR. SMITH: I think we have to point out to you 15 that you're coming into an area now where you would come l l
16 quite close to commenting on testimony outside the I7 adjudicative process. Now, if you want to move on, as I 18 thought you would, to what we think should be the ..
l 19 general position of staff in dissenting views, that's another 20 matter. l l
21 MR. FORTUNA: Let's try it a different way, i 22 MR. SMITH: Let me point out, maybe the answer 23 can be found in our letter. The first two paragraphs --
24 the first two numbered paragraphs of page 3, particular .
(G foral Reporters, Inc. I 25 the first full paragraph.
i r E 46 vid14 I MR. FORTUNA: The pargraph beginning, " Board 2 member Leeds inquired"?.
3 MR. SMITH: Right.
i i' I
d Wait a minute. Give me your question again.
5 Maybe I misunderstood it.
i 6 MR. FORTUNA: What was the board's position at 7 the time of Shearon Harris? What did you guys expect to l ", 8 receive in the way of testimony with respect to staff 9 dissenting views?
i j 10 MR. SMITH: Oh, we didn't know about any staff
\
11 dissentirg views .
l i
12 MR. FORTUNA: In general, we're talking about l
O a
- g. 13 not in this particular case or this situation. In 14 general, you walk into a hearing and you feel staff testimony 1
15 would include dissenting views? Do you feel this would 16 happen if there were any dissenting views?
l
! I7 MR. SMITH: I think that is something that that J
18 individual borad members might have a feeling on, and that's 19 about all it is. It is a feeling. i
]
- 20 MR. GAMBLE
- Could we get your feeling on it?
i 21 MR. SMITH: Again, your question is about the 22 Shearon Harris?
23 MR. FORTUNA: Still talking in general. During
. 24 the time frame 1977 and let's winnow it to the summer,
.r., n.no,t.ri, inc.
25 the fall, is there anything on.the books in NRC -- is there j i
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i any' understanding -- is there any proceedinguthat you vidl5 1 3
2 or any other board member had as to how something like 3 this would be handled?
I
( 4 ~ MR. SMITH: Well, I'm not -- I'm not aware 5 nor am I aware right now of any specific rule which requires
' 6 a witness to give the views of somebody who isn't present,
- 7 so I couldn't answer the question in a general way. It 8 would have to be in the context of a piece of testimony.
9 Just bear in mind that these witnesses come in and we don't 10 place under oath the staff of the Nuclear Regulatory II Commission. I 12 We place under oath a man who comes to the A
13 hearing room and raises his hand and says, "I swear to I4 tell the truth," and we assume that the facts, unless he 15 states otherwise, the facts he gives are his testimony.
16 Okay.
MR. FORTUNA: Let's just assume that you I I7 put a body on the stand and you swear him and you begin, -
18 either yourself or theboard or one of the attorneys or l9 one of the parties to the hearing develops a 'line of 20 questioning and answers come down on the record.
, 21 In any hearing like that -- let's put in back
- 22 in the ' 77 time frame -- was the expectation of the board --
23 you fellows, or any of the board members for that matter --
24 that an individual was charged with a responsibility, if he ;
evei nwomes, \ c.
25 was aware of what he was saying, was drawn from the input I l
~ , - --. . . , - . - - - -,- , , - = . , . ,, .,. - - -
1 I .;
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vidl6 1 of maybe five to'10 people -- whatever the number may be --
2 if one of these individuals, or several of those individuals
- 3 had a view different from the view that this individual
(
4 i was espousing, if he was charged with the responsibility 1
5 l of comin g forward and saying, "I am Joe Doe; here's what r
} 6 1
yeve got to say, but by the way, I have to also advise 7
l you in the testimony that I bring to you is based on the 8
input of several other people, whatever number it may be --
a f.
9 l don't entirely agree with me. And I now will present to you l 1
10 that view or views." l
' MR. SMITH: I couldn'.t answer that in a vacuum.
12
- And I think this is individual expectations again. I think, l
- 13 speaking generally, that one thing that I am confident of, 1 '
Id
] that if a witness is asked if there are opinions or !
i 15 evidence inconsistent with his testimony, then I expect i
j 16 him to tell me if there is, or expect him at least not..to a
17 say that there is not, because that would be perjery.
18
, Whether he has an affirmative duty to come forward and
, volunteer to the board testimony or information that he 20 7 has which he doesn't believe in, I would have to -- I 21 couldn't answer that in a void. I 22 1.d want to see it. Certainly, there has to 23 )
be a point where the information he has inconsistent with I 24
- n. pore rs,Inc.
his testimony he regards as insignificant, and there has to !
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be a point where it's very important. It has to be anwered i
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4 idl7 in the context of specific subject matter. That's my 2 i view. I'm not answering far the board here.
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,D';d sl j DR. LEEDS: I think that's a difficult question to i )
2 answer in general, unless there was a specific rule for the 3
person to come forth with it.
I 4
MR. FORTUNA: Let me tell you why we asked the 5
question. Can I refer you to page 6 of your August 30th 6
letter, first paragraph?
7 "We believe that the omission of the concerns of g the line inspector from the written and oral testimony raises y serious questions as to whether the testimony before us was 10 i the product of insufficient candor, negligence, or a result 11 of an ill-conceived policy of presenting the consensus views 12 of the staff in the form of sworn personal testimony."
r" (N)
V 13 MR. SMITH: Okay. That's what I'm coming to.
14 Sometimes staff testimony and generally will clearly 15 indicate at the outset that the witness is coming forward 16 with a staff policy. And then I have had cases where I have ;
j7 been presiding and where I've asked a witness, well, in f i
addition to -- aside from being a staff policy, do you 18 l 19 yourself support this testimony? l l
20 And I am inclined to think that's a pretty good {
l 21 idea. But if the witness is testifying concerning a staff l
22 Policy, then I think that should shine through in his l 1
23 testimony somewhere, if his views happen tc coincide exactly l 24 with the staff policy; no problem.
t Muni Reporters, Inc. j 25 But a witness I don't think should come to a l l
l i l
51
,' A Ads 2 i hearing and testify as to, it is his professional opinion e
! 2 that certain conditions exist.when he does not believe that.
3 That is simply perjury, isn't it? I mean, as I understand it.
4 But if he comes to the hearing and states that he S
is presenting the testimony of the staff, I don't have any 6
problems with that.
7 Now, as to whether the staff has the responsibility
- 8 to come forward with a dissenting opinion, or have had at the 9
time when this came up, I think there is no way you can 10 divorce from that individual, profession judgment.
11 MR. FORTUNA: Was it-your understanding with 12 respect to Mr. Dance's and Mr. Brownlee's testimony that they 13 were presenting the staff posision?
14 MR. SMITH: They stated early in written point of 15 view and the written testimony that their tE.stimony reflects 16 the views and records of the office of inspection and l
37 enforcement. That's what I understood it to be.
l 18 MRL FORTUNA: I see. '
19 MR. SMITH: I had no understanding other than 20 that.
21 MR. FORTUNA: Let me ask then, based on this 22 premise, would you fully have expected Mr. Dance-and Mr.
23 Brownlee to come forward then with a dissenting view?
MR. SMITH: .I want to point out to you -- no, I'm l 24
'htsrel Reporters, Inc.
25 not going to answer that, because I think that's inappropriate,
- i i
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52 kds3 3 because we have to go back and judge this.
2 But I want to point to you in addition to the 3
written testimony there were the questions of Dr. Leeds 4
which we provided, and I commended those to you.
5 DR. LEEDS: Let me make one comment about this.
6 When you talkiabout the duties and coming forth and 7
everything, I'd like to explain why I think we cannot answer 8
that in the abstract.
I 9
I think Mr. Smith made it quite clear, but I 10 think I want to try to say it for my own self also. There ;
l it certainly is a - spectrum of things that one would say you l l
12 would not have to bring forth.
/ It's a spectrum of things where I think one might 13 want to bring forth; and in between, there's going to be a i ja ;
i 15 gray area. And I think that's a kind of situation that you 16 have in these situations all the time.
I j7 And, as he said, there are some things that are l
18 insignificant.
19 MR. FORTUNA: Did I understand from that, Dr.
. l 20 Leeds, it is up to the judgment of the people testifying l what they should include or not include?
21 l 22 DR. LEEDS: See, that's what I'm trying --
23 MR. FORTUNA: These gray areas?
24 DR. LEEDS: See, I'm trying to avoid that kind of i f \ cuss nnmnm. Inc.
\ ,/ 25 question, because there's a very -- is it up to the judgment? l 1
i
53
'%kds4 j I don't know whether this person you are talking about has 2
the authority to make that decision. I don't know what his 3 responsibility is, because I don't even know who this person 4 is.
5 So I don't think you can answer these questions in 6 the abstract. That's what my problem is. If you give me a 7
.real live person, tell me what his duties are and so forth and 8
so on, tell me what he did say, and didn't say, then I might 9
be able to answer the question for you at that time; but I 10 t can't answer it in the abstract.
jj MR. FORTUNA: Am I to understand Mr. Smith 's 12 position is that would be inappropriate to pursue, specifically with the Shearon Harris matter here?
) j3 ja DR. LEEDS: Yes. That's the problem.
15 MRL FORTUNA: Let's move on to the area Mr. Smith i
16 commended to us somewhat earlier. The next question is based l l
j7 on this area, which is -- am I correct in stating that is the 18 letter that you folks sent to the Commission that you believe 19 that you were mislead by the testimony of the supervisory 20 inspectors?
21 DR. LEEDS: What does the letter say?
22 MR. FORTUNA: Page 3.
23 MR. SMITH: Page 3, the final sentence in the 24 second paragraph.
I
\is'Muel Reprters, inc. MRL FORTUNA: "We now believe we were mislead." I 25 i
i
54 ds5 . I' Iftnink it's clear, but I just want to make sure at this-2 jumping off point.
3 MRL SMITH: We selected those words advisedly.
4 MR. FORTUNA: Let's see if we can't focus in on 5 the transcript of the testimony and extract out from that 6 those portions which would lead us to the conclusion that --
7 FW2. SMITH: You are entering into an area here l "
8 which most certainly is going to be inappropriate, but I 9 won't --
10 MR. FORTUNA: Well, let's reference the letter 11 then, because we have characterized the letter.
12 MR. SMITH: I didn't want to foreclose you from 13 asking your questions. You can ask your questions. I just 1
14 wanted to warn you that it's a very difficult area for us to 15 get into.
16 MR FORTUNA: All right. Let's start of f this 17 way then. Let's go to the beginning of the letter here --
18 and it begins with, " Gentlemen;" and then the second para-19 graph: "Although this is an administrative, not an 20 adjudicative communication, the time within which ALAB-490 21 may be reviewed is still running." l 22 What we are talking here to is it's characterized 23 the letter as administrative rather than adjudicative; so ,
24 'now let's make reference back to page 3. And in there we do ,
\ceesnwonm.tn l
l s/ 25 have references to portions of the transcript. !
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f
_ ___________.m.___._ . _ _ _ . _ . _ _ . _ _ _ _ _ _ _ . _ _
55 r skds6 And it says on page 3, "While the transcript f 1 2 indicates that witnesses were not always directly responsive 3 to Dr. Leeds' questions" -- and we get an e.g. in there --
( transcript 2077, lines 18 through 25 - "the voice inflections, 4
S' emphases, and. general demeanor of the witnesses were such that 6 the board believed them to be assuring us that no significant
~
7 management problems existed at the ti of the hearing with 8 respect to Shearon Harris."
9 Therefore, let's address ourselves, since we make 10 ; reference to it in the letter, to the transcript page 2077, 11 lines 18 through 25.
12 DR. LEEDS: What is your point about adjudicatory l
13 and administrative? You highlighted that sentence.
14 MR. FORTUNA: Yes. All right. And the reason 15 being that you gentlemen very politely and understandabl:y 16 from the position that you are taking say, look, Roger, and 17 the other gentlemen here at the table, there's going to be j i
18 certain point where you may be touching on points where we
?
19 may be unable to answer. I'm not trying to give you a hard .
I I
20 time, but we just view that as our obligation.
21 MR. SMITH: Sure.
22 MR. FORTUNA: All right. I go to the letter 23 though, which the introduction -- and you correct me if I 24 misunderstand -- is characterized as administrative, rather omi n.ponm. inc.
25 than an adjudicative' communication, and you reference into the f, l
l l
56 kds7 j transcript page 2077, lines 18 through 25; so I'm now d 2 focusing this on page 2077 of the transcript, lines 18 3 through 25, feeling confident -- and you correct me if you ,
i 4 feel differently -- that we are able to discuss this.
5 DR. LEEDS: Well, the problem I have with that, 6 sir -- let me explain. Maybe I don't understand why you are 7
highlighting this question, but I think I understand why you g are highlighting adjudicatory / administrative statement you 9 made.
10 And at this point in time when we wrote this letter 11 we were not in any control whatsoever of the Shearon Harris 12 proceedings. Right now we have a remand on our hands, and
[N 13 it puts us in a different posture.
ja MR. FORTUNA: But if we can skirt the remand 15 issue, are we all right then?
l 16 MR. SMITH: We can't get into this testimony. He 17 can expand upon this and tell you why we believe testimony l
l 18 was credible or not credible, or discuss the demeanor of the l
\
19 witnesses, or impressions of them at all, because these very j l i
. 20 people may come before us.
21 Furthermore, there's an equally important point in 22 that we did the most that we thought that we could do j i
23 administrative 1y, consistent with our adjudicative position. (
i 24 We cannot permit you to probe into the mental processes by Oemi n.oorem, inc. l V 25 which we function. We can't do it. That's flatly unlawful. l
_ _ __ _ _. - _ .__ _ . ~ _ . __.
I 4
l 57 i kds8 )
MR. FORTUNA: Not to be disrespectful, but to 2
Perhaps bring this back into focus -- and I emphasize "not 3
to be' disrespectful," but so all of us can understand -- as s
4 I recollect earlier this month -- in fact, just a few days 5
ago -- a communication which you have ccpies of, because you 6
attached it to your letter to us on October 5th, was sent 7
from the Office of Inspector and Auditor to the Office of
. General Counsel; and a memorandum was sent back from the 8
9 Office of General Counsel under Mr. Kelly's signature, back 10 to the Office of Inspector and Auditor.
ji And this memorandum provided that in fact the 12 ex parte adjudicatory problem, and an interpretation was 13 rendered, as I understand, of a formal opinion. And as I
\
i4 also understood it, the Office of General Counsel and the 15 commissioner are the only two bodies that are able to render 16 formal binding opinions as to what a regulation means.
37 And again, as I understand it, ex parte is the j l
18 topic of one of those regulations and, in sum and substance, 19 Mr. Kelly said there is no problem; therefore, proceed.
. 20 Therefore, could you help us understand why the 21 Position that you now take would be different from the ruling 22 that Mr. Kelly handed down several days ago?
23 IIR . SMITH: I dcn' t tnink this is going to be 24 helpful to you. In the first place, I won't acquiesce to I
P)5,.in.imnen.ine.I t 25 your statement that our position is different than Mr. Kelly's.l 1
I ,
58 skds9 i Second, we rely upon our understanding of why Mr.
(
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??? 2 Kelly has worked out this arrangement with Mr. Abcten.
3 MR. FORTUNA: You'are saying then that the formal l
' opinion rendered by the Office of General Counsel is vitiated?
4 5 MR. SMITH: In the first place, i'm not calling it 6 a formal opinion. I'm not going to discuss Mr. Kelly's 7 opinion. . He doesn't need my judgment of his opinion. He's j
8 a general counsel. I'm not going to acquiesce to your calling 9 it a formal opinion or anything.
10 I MR. FORTUNA: Well, let's read the opinion.
11 MR. SMITH: You read the opinion. I have read it.
12 ME.!FCRTUNA: Perhaps that makes the case, or at
[ 13 least it will help us understand the case.
D ja MR. SMITH: I read the opinion. Mr. Kelly did 15 not tell us to answer questions about the testimony, and I'm l l
16 not going to; and I recommend you move on to another subject l I
- 7 matter.
l 18 MR. FORTUNA: Okay. Let it be clear at this point j l
. I 19 again, one of the things -- the purpose of the interview is !
t I
20 to determine the seriousness of the omission from written and .
I' 21 oral testimony; and we can't really do that unless we can !
22 discuss this with you.
23 MR. SMITH: That may be one of the heavy prices l l
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l 24 the Nuclear Regulatory Commission pays to preserve its I I !
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25 im:. I adjudicative process. That is our responsibility, and it's }
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kds10 different than yours. 59 3
O 2 I'm sympathetic to your problem. See, you are 3 miscing two points: One is that Kelly talks about ex parte.
4 Okay. I didn't even mention ex parte in my answer. That's 5 an entirely different point. But I don't want to get into 6 a debate with you on the law, nor do I want to defend our 7 decisionmaking process.
g And I won't do it, and I am telling you we can't 9 comment upon the credibility of those witnesses. !
l 10 MR. FORTUNA: fet, you did so in the communication ,
I 11 to the Commission. )
12 MR. SMITH: The letter speaks for itself.
13 MR. FOBTUNA: And the letter, and only the letter, 4
i 14 and no further elaboration on the part of you gentlemen? l 15 MR. SMITH: I have nothing more to say. j i
16 MR. FORTUNA: Was the oral testimony given to l I
17 you by Mr. Dance at page 2078 of the transcript, lines 7 l i
through 15, one of the bases for concluding that you had been 18 l 19 mislead? l l
t 20 You made reference to page 2077 in your letter 21 to the Commission. You said that you were mislead, as a l l l 22 conclusion, and above that, a sentence or two above, you made {
l 23 reference to the transcript at page 2077.
24 Is it fair for us to infer or to assume from that, I D mmi n.ponm. inc.
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U 25 that line or lines was one of the areas in the oral testimony l
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60 upon which you base your decision that you were mislead?
1 }kds11 3
- j. d 2 And then I move on again and I say, let's take a
) 3 look at page 2078, lines 7 through 15. And are those lines 4
i 4 another one of the bases for concluding that you had been 5 mislead?
6 I'm not asking you to interpret it or anything, j 7 but just to focus in on the portion of the transcript. I'm ,
g not asking you what thought went through your mind other than
}
9 those two areas, at least two of the areas.
10 MR. SMITH: We believe that in sending to the l 11 Commission the papers that we did, we sent to them everything 12 that was desirable and necessary for them to understand our l
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! 13 position; and we didn't send them anything more superfluous.
1 J
l 14 As a matter of fact, we didn't have anything more i
i< 15 to send; but we sent them what we thought was the entire 1
- 16 package. . We didn't send them things we did not feel were l j7 unnecessary or irrelevant to our concerns.
18 So I think from that you can infer that the entire
$ 19 thing, taken in context, when points are compared against i.
l 20 points, that everything is the basis.
I 21 But I don't want'to comment upon specific testimony.
4 22 MR. FORTUNA: So, in other words, if I asked you 23 the question: What was misleading about Dance's or Brownlee's l
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24 testimony -- l MwW Reorwrs, Inc. j
,l 25 MR. SMITH: Don't ask. l ;
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- 1 MR. FORTUNA: All right.
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V DR. LEEDS: I think in addition to the f act that 2
3 we sent everything to the Commission, the Commission has a 4 copy of the entire record itself already. So you know, j l
5 there's nothing that I know of that is not in the public i 6 document or in the Commission headquarters.
7 MR. FORTUNA: All right, we will move on.
. 8 Let me ask the board what they consider evidence 9 in the construction permit hearing. Any, not this particular i i
10 I one.
11 MR. SMITH: You are asking me the legal definition 12 of evidence that comes into the record? Of course, I don't A
think you need our explanation for that.
k) 13 Why don't you get 14 to the point.
i 15 Your point is, you are wondering how that word l i
i 16 was used in the testimony. That's why you are asking that i 17 question.
18 MR. FORTUNA: That's correct, ,
19 MR. SMITH: Well, we are not going to tell you. l l
20 We are not going to answer questions about that testimony i 1
1 21 either directly or indirectly. ;
I 22 HR. FORTUNA: I didn't ask you questions about the f
23 testimony.
,, -s 24 MR. SMITH: Is that why you asked the question, werei neporters, inc.
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25 what we believed evidence to mean? !
62
'd y MR. FORTUNA: I don't have to explain to you the
{/
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basis for my questions.
3 MR. SMITH: Well, yes, sir, you do, if you want
'- an answer from me.
4 5
MR. FORTUNA: All right. Fair enough. We are 6 near the end.
7 MR:. SMITH: Gentlemen, I tell you, I am personally 8
disturbed that you approach us in this manner.
9 MR. FORTUNA: I apologise. j 10 i MR. SMITH: And I think it's a direct threat to li the adjudicative process, and I hope the Commission pays close 12 attention to this.
13 MR. FORTUNA: Yes, sir.
v 14 MR. SMITH: You have one more question, is that 15 what you said?
t 16 MR. FORTUNA: No; I said we are near the end.
17 MR. SMITH: All right. l 18 MR. FORTUNA: I am making reference now to the l two questions which were asked by Dr. Leeds, essentially, !
pp l
20 the "no evidence" questions.
21 I think we are in the ball park, and we understand which questions we are talking about.
22 l i
23 You believe those two questions that were asked j
'g 24 will be construed to being able to tell the witness or
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25 elicit from the witness that you were looking for -- you, I
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. 63 P,dsl4 1 the board -- a response of whether there were any dissenting 4
2 staff views?
l 3 MR. SMITH: We are not going to comment on that, 1
4 Mr. Fortuna. I want to avoid all the ill feelings we can.
j 5 I can assure you that every question you ask is comment
! 6 upon how we view the evidence is going to be. We may give i-
! ' 7 it to you in our initial decision, but we are not going to
!, 8 give you.our impression of the testimony and what we meant i
- 9 by evidence.-
f 10 1 MR. FORTUNA: I understand that, believe me. We t
11 are not trying to be disrespectful, or_ argue with you in any i
i 12 way, shape or form.
1 ti 13 Gentlemen, we have'no further questions. We i
j 14 appreciate your time, we appreciate your candor.
15 MR. SMITH: Let me ask you, Mr. Fortuna, one of 16 the reasons why we granted this interview was that we wanted l 1 i i 17 to satisfy your -- help you discharge your responsibilities. l 1
i 18 We also wanted to leave open the. possibility that your i :
, 19 questions might suggest to us areas in which the record 20 could be developed. ,
, i 21 And it is my view that each of your questions --
.r I 22 the tenor of them, the tenor was with respect to each of l 23 your questions that there was something wrong with our letter I'
24 to the Commission; perhaps an. observation, in each instance
- ttrol Reporters, Inc.
25 that my letters to the Commission was not justified.
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!. 64 j
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Do you have any ~ advice 'for us in the othet.
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2 direction, any advice for us which suggests we should go in i
! 3 the direction of being concerned here?
i ,
l' 4 I mean, is there any questions that you might ask l
5 us, why we didn't express a concern here; why didn't we 6
express a concern there? Do you have any information that i . 1 7
will lead towards a development of a full record? )
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MR. FORTUNA: Sir, what we are -- l
!. 8 l
9 MR. SMITH: Each of your questions had implicit i
i 10 in them that something that we did in this letter was not i i
. 1
! 11 justified by the record you looked at. You never pointed to i
! 12 anything which anybody could infer suggested that maybe we 5
1 i 13 ought to inquire a little bit further along this line.
i ja Is there anything that we overlooked that maybe 15 you can help us with?
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/N I v) t l MR. FORTUNA: Sir, what we were trying to do and we
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2 were tasked by the Commission to do was to find out about the 3
seriousness of this, and the Commission will receive a copy of l
4 the roport, and it will be available to the public, as we all i 5 '
know. We were trying to go through with each and every individu-6 al that was involved in this situation, asking a line of ques-7 tions.
9 It dcesn't make me feel good or make me happy to 9
4 come in here, and certainly, I was not attempting to browbeat 10 !
or - -
II MR. SMITH: No, it's not a question of that.
12 MR. FORTUNA: The point we're trying to make is: ask.
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\ I3 all of the tough questions of anyone and everyone so there will Id be a complete record available to the Commission so they can 15 make whatever determination they deem appropriate, i
I0 MR. SMITH: I understand your purpose. That wasn't I7 exactly my point. My point is: the tenor of your questions was 18
- on the side of, well, maybe this wasn't justified or maybe that I I9
. wasn't justified or maybe we overlooked this explanation.
20 But none of your questions went to the direction of 21 we overlooked a more serious problem or something is there and 22 why didn't we inquire further.
I 23 '
I mean, none of it was in any direction except to 24 lO V
Merel Reporters, Inc.
suggest that our concerns expressed in this letter were not 25 founded. That was the tenor of each of your questions.
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MR.'FORTUNA: Mr. Smith, we 're limited to the context vr 2 of the letter, for all intents and purposes.
3 MR. SMITH: I just wonder. My question..is: have I
- d overlooked anything or have you overlooked anything that could
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5 be helpful to the Board?
6 MR. FORTUNA: You have sort of set the pace. I am 7
not happy, but I understand how you -- we're kind of operating i .
8 within your framework, so if we kind of got stuck with what we 9
did ask you --
10 MR. SMITH: Well, we advised you to ask any questions i
U you wanted, and we have the responsibility for not answering. l I2
{ Have I miscast your questions? Have I been unfair l 13 to you in describing them the way I did?
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) MR. FORTUNA: You a!" entitled to whatever your l
15 j opinion of our questions is, sir. I certainly don' t want to 1
16 argue with you about them.
j I7 MR. SMITH: It's clear the tenor of your questions 18 was to see if you could develop a basis suggesting that some-I9
., thing is wrong with the letter to the Commission.
20 J
MR. FORTUNA: We wanted to know how serious the mis-i 21 sions are. That's all. And in order to explore and try to 22
. develop and help the Commission understand, and we hope that we i 23 '
have. Perhaps we have not. We take a poke and a look and a 24 question and in every possible area. That's all.
- Ital Reporters, Inc.
' 25
- DR. LEEDS
- Let me cite two examples to you. If I t
h
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pv3 67 y-ss I remember from this afternoon, an hour and a half of conversation,
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) 2 one was your opening comment which contained the legal phrase:
3l "your constitutional rights."
t' 4
MR. FORTUNA: I thought I explained that, and I 5 apologize if --
6 DR. LEEDS: You did. But the question came first, 7 and then you explained.
8 The second instance that I remember specifically was:
9 you read to me once or twice a statement about the administra-10 tive thing and then you said -- but you commented on the evi-II dence in the letter and tried to imply that we were inconsistent 12 in the letter or that we were doing wrong or something like that.
13 That's the implication I took of that.
I4 MR. FORTUNA: Let me again explain jt to you. :
I 15 DR. LEEDS: Wait a minute. The problem I have is: !
16 I when you say to me you want to explain it to me, then you explain 17 after I have already gotten a view of one direction. I had a l
18 view again today in this discussion that you were, in a sense, j 19 saying to us what we had done was wrong.
1
. 20 MR. FORTUNA : Let 's go back to the -- l 2I DR. LEEDS: I think our duty, as I tried to say to 22 you earlier, is: I don't really care who brings it to my atten-23 tion as a Board. When I am sitting as a Board, we would have 24 inquired into this matter.
([)'ppst Reprters.
25 Inc. MR. SMITH: Of course, we're not seeking your '
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pv4 68 1 approbation of what we do. We're just wondering if there's any
- 2 help you can give to the Board.
3 MR. FORTUNA: I think at this point it may be pre-l 4 mature since we have a lot of other folk to talk to.
5 MR. SMITH: You have to file your report.
6 MR. FORTUNA: I would just like to answer a question 7 raised by the Doctor. And that was: why did I on several 8 occasions make reference or try to or attempt to,or whatever the 9 word is, characterize the letter that you wrote to the Commis-10 sion as administrative rather than adjudicatory. Because that's II the language that we used in the letter.
12 What I was attemtping to do, to be quite honest, is:
13 if the letter was characterized as it was and as I understand it 14 to be in the opening paragraph, as administrative rather than 15 adjudicatory, then it was perfectly appropriate to get into and 16 discuss the lines 18 through 21 of page 2077, and your response 17 was that at that time it couldn't. And now it's before us 18 again.
l9 DR. LEEDS: Well, I think my response was: we were
. 20 in a different posture at the time, and I'am not so sure we 21 could discuss it even further with you at that time, except that 22 we discuss in this letter, I think, as much as we thought we 23 should discuss so that the Commission's attention would be 24 brought to these matters. And we were careful to include all of w a.i n.pon.ri,inc.
({) 25 the pieces of information in the appendices so they could decidej i
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i' pv5 69 m I for themselves.
2 MR. FORTUNA: And, again, as I say, because I think, 3
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as far as I am cancerned, it is important that it be reiterated, I
j
(' d that line or the nhrases I was referring to so we could, on 5
behalf of OIA, try to develop those sections of the transcript 6
] which were made reference to in the letter.
7 I hope I didn't try to in any way say that you j 8 shouldn't have put a reference to page 2077 or anything like 9
that. I was just attempting to get into discussing page 2077. ,
s i 10
} That's all.
II And I think you characterize my reference as somehow 12 l inferring that you had done something wrong. No, I was just 4
13
- y trying to get into a discussion on 2077 because Mr. Smith had
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! said: adjudicative, no; other things, yes. So, I was attempt-15 l ing to try to convince you that since page 2077 was in the let-16 l ter that was characterized as administrative rather than adjuci-4 I7 cative, it would be perfectly appropriate to discuss those, i
18 If I left with any other impression, I apologize.
19
- - Thank you very much.
4 20
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i (Whereupon, at 5:15 p.m., the interview was concluded..)
! 21 end#5 * *
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