ML20203M865
| ML20203M865 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 08/29/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-623 OL, NUDOCS 8609050081 | |
| Download: ML20203M865 (121) | |
Text
UN11ED STATES p
NUCLEAR REGULATORY COMMISSION ORIGINAL IN THE MATTER OF:
DOCKET NO: 50-456 OL 50-457 OL COMMONWEALTH EDISON COMPANY (Braidwood Station, Units 1 and 2) r y
LOCATION:
CHICAGO, ILLINOIS PAGES: 11769 - 11389 DATE:
FRIDAY, AUGUST 29, 1986 OI l
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATCMIC SAFETY AND LICENSING BOARD 4
__________________x 5
In the Matter of:
6
(Braidwood Station, Units 1 8
and 2)
__________________x 9
10 Page:
11,769 - 11,889 11 United States District Court House Courtroom 1919 12 219 South Dearborn Street C)
Chicago, Illinois 60604 13 Friday, August 29, 1986, 14 15 The hearing in the above-entitled matter reconvened i
16 at 8 : 00 A.
M.
17 BEFORE:
18 JUDG E HERB ERT G ROSSMAN, Chairman 19 Atomic Saf ety and Licensing Board U.
S.
Nuclear Regulatory Commission 20 Washington, D.
C.
i 21 JUDG E RICH ARD F.
COL E.
Membe r, Atomic Saf ety and Licensing Board 22 U.
S. Nuclear Regulatory Commission Washington, D.
C.
23 JUDG E A.
DIXON CALLIH AN, Member, 24 Atomic Saf ety and Licensing Board j
U.
S. Nuclear Regulatory Commission l
25 Washington, D.
C.
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APPEARANCES:
2 On behalf of the Applicant:
3 MICHAEL I. MILLER, E SQ.
JOSEPH GALLO, E SQ.
4' ELENA Z.
KEZ ELIS, ESQ.
Isham, Lincoln'&1Beale 5
Three First National Plaza Chicago, Illinois 60602 6
On behalf of the Nuclear Regulatory 7
Commission Staff:
8 STUART TREBY, E SQ.
ELAINE I.
CH AN, ESQ.
9 GREGORY ALAN BERRY, E SQ.
U.
S. Nuclear Regulatory Commission '
10 7335 Old Georgetown Road Bethesda, Ma ryland 20014 11 on behalf of the Intervenors:
O 12.
ROBERT GUILD, ESQ.
13 14 15 4
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1 TESTIMONY OF LEORNARD G EORG E MC GRB3OR 2
PAG E 3
CROSS E.\\ AMINATION i
4 (Continuing. )
BY MR. GALLO:
11,772 5
EXHIB ITS 6
l APPLICANT' S EXHIBIT NO.118 ID 11,845 7
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1 JUDGE GROSSMAN:
The -hearing is reconvened.
2 This is the 59th day of hearing.
3 We lef t off with a request for further argument on 4
a question or series of questions -posed to the witness.
5 on further reflection, it doesn't appear necessary.
6 to hcar the argument.
7 The questions were beyond the scope of what was 8
asked on Direct.
9 My recollection is that no one went as far as to l
10 ask questions with regard to the Neisler-Mendez report.
i 11 Fur thermore, the witness was called as a fact 7g witness and was asked for his past positions, where he
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12 13 had taken them and answered f actually as far as we know, 14 including, perhaps, questions on what his opinion had 15 been at the time.
16 JIe has indicated that he hasn't formed an opinion I
17 now; and, apparently, Mr. Gallo, you would like to make 18 him an expert and ask him to form an opinion on the 19 report and then tell you what his opinion is.
20 We don't intend to brainwash any witnesses.
If i
21 expert testimony is solicited, that's a matter of 22 voluntary compliance by a witness.
We don't force a 12 3 witness to give expert testimony.
l 24 If he has already formed an opinion and as a 25 factual matter with regard to that, within the relevance Sonntag Reporting Service, T.Ed _
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1 of his testimony, that's another story; but he is 2
apparently unwilling to form an expert opinien and offer 3
you the expert testimony.
4 So for that grounds, too, we don't wish to compel 5
any brainwashing here.
It's a hearing, not an 6
inq uisi tion.
7 We will certainly hear argument on that, Mr. Gallo.
8 MR. GALLO:
Judge Grossman, there was 9
certainly no intent and no objective on my part to 10 brainwash this witness.
11 I believe my questioning that uncovered the 12 witness's conversation with Neisler on the subject of f, j) n 13 the Neisler-Mendez report was developed through proper 14 Cross Examination, well within the scope of Direct.
15 I think I am permitted to follow up to determine 16 whether or not that conversation that was held between 17 the witness and Mr. Neisler dwelled on the substance of 18 the Neisler-Mendez report.
19 My first line of questioning seemed to indicate it 20 did not.
In the answer to a subsequent question, the
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21 witness seemed to indicate that, perhaps, my 22 understanding was incorrect.
It was on that basis tha t l
l 23 I was following up.
24 The witness refused to divulge the substance of the
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25 conversation and it was at that point that I asked that l
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1 the witness be directed to respond to the question.
2 The chair first wanted an answer to the legal 3
question of whether or not there was some sort of rule 4
in-law or privilege in NRC practice that prevented one I 5
and E inspector from commenting on the work of another 6
inspector.
7 I think that's all proper Cross Examination; and 8-within the proper scope of questioning by Mr. Guild.
9 This witnesu has been quite critical of the -- in 10 his testimony of the -- activities at least of Mr.
11 Mendez and of the activities of the region.
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j 12 The real issue here is whether or not this V
13 Neisler-Mendez report is an adequate document and 14 reflects the results of an adequate inspection.
15 Over obj ection, this witness was' permited to 16 tectify with respect to his involvement in this matter; i
17 and I believe it's appropriate to ask this witness to, 18 over the holiday -- we know the next time we will 19 convene, which is some for four or five days -- to 20 review the Neisler-Mendez report and tell this Board and
'21 the parties whether or not he, based on his notes and 22 recollection of the allegations made by the inspectors, 23 as to whether or not he agrees or disagrees with any of 24 the conclusions reached.
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25 The witness has testified that the Mendez-Neisler Ronntag Repor ting Se rvice. Ltd.
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1 inspection report was based on the memorandum drafted or 2
written by Mr. Weil, Intervenors' Exhibits 42 and 42(a),
3 and that he thinks that the Weil memorandum does not 4
accurately reflect a complete recitation of the 5
allegations; and by inference, the Mendez-Neisler report 6
is inadequate, at least in that respect.
7 I intend to propose to probe in that area later on; 8
but it seems to me that what we should do is get right 9
at it and I should be allowed to get an answer to my 10 question about the Neisler-witness conversation, as well 11 as question this witness, ask this witness to review the O
j 12 report until our next session and provide his opinion N.s 13 with respect to it.
14 JUDGE GROSSMAN:
Mr. Gallo, even though the l
15 conversation between the witness and Mr. Neisler was 16 after, that is, with regard to time, the matters 17 questioned by Mr. Guild with regard to this particular 18 inspection, we did allow questioning as to the 19 conversation, the matters covered by the witness and Mr.
20 Neisl e r.
That is not in issue now.
21 The witness indicated that he recalled what he 22 recalled, which was almost nothing, of that 23 conversation.
He indicated the brevity of that 24 conversation.
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25 That's not what the question is before us.
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' question before us is as to whether you can go further
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2 and ask the witness, who indicated that he has 'not yet 3
formed an opinion as to the conclusions reache'd in the 4
Neisler report to -- whether we can force him to form an 5
opinion and to tell us what that opinion is 'here.
6
.And that is the area that I think is beyond what we 7
_ought to be able to compel, with or without a. thumb 8
screw.
9 If the witness is unwilling to offer expert 10 opinion, I don't think we ought to force it, aside from 11.
the -fact that it does. go beyond what was - covered.
12
_ Now, he. did testify with regard to. his position on 4
'13 the draf t by Mr. Mendez ; -and my recollection is that~
_14.
that was factual testimony.
15 He was-asked _to perform a job or he was presented-16 with a report as part of his functions.
He ultimately 17 took a position on that report and conveyed that l-i 18 position to his superior.
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19 He was asked factual questions on that and he was 20 asked for the position that he took on that, which he 21 had already taken, and he answered those questions.
2
'1 hat's an entirely different matter than requiring l
l 23 him to form an opinion under compulsion and then to j
24 of fer that opinion.
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25 So it is not the same matter.
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The Staf f would indicate that it 2
agrees with the Chairman.
3 We believe that there is quite a dif ference between 4
an' inspector reviewing a draft, which is presented to 5
him by another inspector, and reviewing an inspection 6
report, which is issued by the region.
7 These inspection reports which are prepared by 8
inspectors, then go through a revieu process within the 9
region.
This review process includes a management 10 review.
11 The report that is issued represents the collegial
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12 view of the region.
It becomes the official Staf f v
13 position.
14 It is quite a different thing to ask a Staff member 15 to review the firm Staff position.
There is ne -- the 16 Staff agrees with the Board's Chairman that the witness 17 should not be compelled to do something like that.
18 MR. GALLO:
Your Honor, it seems to me this 19 breaks down into two or three dif ferent types of issues.
20 I believe that inferences are going to be drawn 21 from this witness's testimony that was elicited on 22 Direct by Mr. Guild with respect to the quality and 23 character of the Neisler-Mendez report.
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24 It seems to me that if we are not permitted to seek 7_s
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itself, then all of that testimony by this witness would
-2 be stricken.
3 I will be glad to go through the-transcript over-the recess 'and point out the sections where I believe 4
5
_the inferences will spring, which, unless I am permitted i
6 to have this witness provide his judgment and opinion-7-
with respect to the Neisler-Mendez report, would be
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8 prejudicial to my client.
9 JUDGE GROSSMAN:
Mr. Gallo, your recollection 10 of what the witness testified to is different than mine.
I 11 With regard to this matter, my recollection is that
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} _12 he testified that he -was asked to look at the draf t of 13 the or was given a draft of the Mendez report and found i
14 that it was inadequate, in that it did not cover all of 15 the allegations that had been heard; that he conveyed 16 that information to his superiors and they then decided
'17 to augment the inspection.
18 Now, you have indicated that he was critical; that t
19 he offered opinions as to the content of the report.
20 My recollection is that he was testifying to the f
21 facts of what he had expressed and what he had expressed 22 at that time, i
23 Now, it does not -- I do not recall any critical 24 comment that the witness made or any implication in what 25 he said that the final Neisler-Mendez report was or was j
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not inadequate or adequate, as the case may be.
2 I don't believe that the witness offered any 3
opinion on that or that there is anything in what he 4
testified to that would give any inference as to that.
5 MR. G ALLO :
I don't believe I stated that the 6
witness offered an opinion on Direct to the adequacy or 7
inadequacy of the Mendez-Neisler report that is the 8
final version.
9 I think the whole line of testimony which was 10 adduced is directed just at that objective; and it seems 11 to me that this is not a lawyers' game, that there are
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j 12 administrative procedures; but we ought to find out N. s 13 whether or not this report is adequate or inadequate.
14 JUDGE GROSSMAN:
Well, Mr. Gallo, what it 15 comes down to is the fact that some of the things the 16 witness has said appear to be critical of the 17 methodology.
18 Now, you would like him, in view of what was said, 19 to then go fur ther and take the final report and of fer l
20 an expert opinion, which might aid your case in that he 21 might say, "W el l, everything that we thought about has 22 been cured," in his expert opinion.
l 23 Well, he's unwilling to give that expert opinion.
24 MR. GALLO:
I am not sure that that's the 7s
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25 case.
He has not been asked to do it.
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1 Where we left the record yesterday we were debating 2
trying to get disclosure of the substance of the
'3 Neisler-McGregor conversation.
4 MR. GUILD:
No, that's not the case, j
5 My recollection, Mr. Gallo, is-we didn't prohibit 6
you from asking those questions, but they were asked and 7
answered.
8 The answers, I believe, are reflected in the 9
record, that he had a brief conversation and didn't d
10 really get into the substance of the report.
11 MR. G ALLO :
Your Honor.
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12 JUDGE GROSSMAN:
Now, if you wish to ask --
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13 MR. G ALLO:
Now, wait a minute.
14 I see -- first of all, I see a vast difference 15 between trying and eliciting an opinion based on this 16 conversation as opposed to trying to elicit an opinion 17 based on the report itself.
18 That's, in my mind, two distinct, very separate 19 matters.
l 20 JUDGE GROSSMAN:
What are you trying to get
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21 now?
22 MR. GALLO:
In my argument, since the Chair 23 indicated that it was improper to ask this witness to 24 form an opinion with respect to the Neisler-Mendez i
25 report, the very question th4t I was going to make out Sonntag Reporting Rervico,. T.Ed.
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.(v) 1 of this witness during Cross Examination, I am joining 2
that issue at this time.
3 It seems to me that this witness should be required 4
to do it.
Indeed, I do not know that he won't 5
voluntarily do it, because he has not been asked to do 6
it yet.
7 I specifically did not make that request yesterday.
8 MR. GUILD:
Mr. Chairman, if I may be heard, 9
sir.
4 10 JUDG E GROSSMAN:
Excuse me for a second.
11 MR. G ALLO :
Just a minute.
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12 MR. GUILD:
I would like to be heard at some
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13 point before everyone has their fif th chance at the 14 issues and I am not allowed to speak.
4 15 JUDGE GROSSMAN:
W ell, I don't want to -- I'm 16 sorry.
17 Was anything said on the record outside of my
- l 18 hearing?
19 MR. GUILD:
I said I would like an 20 opportunity to be heard at some point before everyone 21 has four turns and I am not allowed to state my position I
22 for the record, as the other parties pass these points 23 by.
24 There are a number of matters that are factual 7-~
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positions of the parties that I would liKe to respond 2
to, your Honor.
3 MR. GALLO:
I assume he will be given ample 4
time..
5 JUDGE GROSSMAN:
Certainly.
6 MR. GUILD:
Well, Mr. Chairman, we have now i
7 gone 15 minutes.
8 Staff raised points, Mr. Gallo raised points.
We 9
have gone several rounds here, and I would like to 4
10 protect my clients' interests on this record.
11 JUDGE GROSSMAN:
Why --
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12 MR. GUILD:
I don't warch to make argument, 13 but they have taken positions on the record that are 14 factually incorrect.
15 They' have taken positions on' the record that I am 16 entitled to respond to and I would like the courtesy of 17 being heard on this matter.
18 JUDGE GROSSMAN:
You will be given that 19 courtesy.
20 I allowed Mr. Gallo to finish, perhaps, of course, l
21 as you say, for the third or fourth time, and I will 22 allow him to finish and then you will have your chance.
23 MR. G ALLO:
I will try to be brief.
24 As I said, a request of this witness to form an 25 opinion with respect to the Neisler-Mendez report, based J
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on his review of the report, has not been made up until 2
this point in time.
3 The Chair _ suggested-that I may -- suggested that 4
notion during my Cross Examination yesterday, and I 5
didn't pursue it.
6 On reflecting overnight, I thought it would be a 7
proper course and I was going to request the witness to 8
do so over the recess.
9 The Chair, in its initial remarks, made it clear 10 that they didn't think that was appropriate; and that's 11 why I was joining the issue at this time.
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12 Now -- and on that, let me say I have already 13 argued that.
I think it's an appropriate request; and 14 if the witness -- we don't know whether or not the 15 witness will object, but if the witness does object, I 16 believe that he should be compelled to do so for the 17 reasons I have already stated.
That is Point 1.
18 The Chair has indicated with respect to the 19 Neisle r-Mendez conversation, that the witness had 20 indicated that it was a brief conversation and that 21 nothing of substance was discussed and he couldn't 22 remember much about it along those lines.
23 But it was during my subsequent questioning that it 24 was brought out by the witness, in answer to a question s,,)
25 in an entirely different area, that he had discussed, at snnntag nnpnreing noruton, r.e a -
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least, the Snyder allegation with Mr. Neisler at that 2
conversation, during that conversation; and I was trying 3
to pursue that.
4 Then the witness made it very clear that he didn't 5
think it was appropriate to comment on another 6
inspector's work; and I asked the Chair to direct him, 7
because, although he testified he didn't know what was 8
said at that conversation, it wasn't clear to me whether 9
or not he was taking that position because he truly 10 didn't know or because he didn't want to comment on the 11 work of another inspector.
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12 Now, I believe that these matters are of interest gj 13 to the Board and, certainly, to all parties, on the 14 grounds that it's proper impeachment.
15 I think there is one other aspect of importance.
I 16 believe even if he passed by this, the question of 17 whether or not it's appropriate for one inspector to 18 comment on the inspection report of another inspector is 19 going to arise again.
I think we ought to have argument 20 on that issue in any event.
21 So I would request that we have argument on that 22 issue that, indeed, if Mr. McGregor takes the 23 opportunity to review the Neisler-Mendes report over the 1
24 recess and can be questioned about his views af terward, 7-
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had with Neisler, because I would think it would be 2
cumulative and unnecessary, since my objective would be 3
served.
4 J UDG E - G ROSSMAN:
Mr. Guild.
5 MR. GUILD:
Mr. Chairman, the Applicant has, 6
indeed, pursued that conversation.
He asked questions,.
7 he got answers.
The answers are a matter of record.
8 He may be dissatisfied with the answers.
He thinks 9
the answers are less than forthcoming, which I didn't 10 hear them to be, but he can make what he got of those 11 answers in the record.
4 (s) 12 That's the end of the matter.
He asked the 13 question, he got the answer.
14 The fact of the matter is the witness never 15 acknowledged he discussed the Snyder incident with 16 Mr. --
17 JUDGE GROSSMAN:
Neisler.
18 MR. GUILD:
-- Neisler.
Excuse me.
19 He only acknowledged that he was aware that there 20 had been an item of noncompliance and that the subject 21 matter generally of that item was the certification or l
22 qualification of supervision, which, of course, he is 23 aware was a matter that was raised by Mr. Snyder.
24 That was the end of it.
That's all he said.
He l
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25 was asked what he knew.
He said he answered accurately l
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1 that there was an item of noncompliance to that' ef fect.
2 The record is clear on that point; and if Mr. Gallo 3
may think he has some more questions to try to probe the i-4 witness's recollection, having reflected overnight,_
5 those1 questions should be posed and they~ will be dealt 6
with one by one.
7 But the fact of the matter is, on~the other i
'8 question, and that is the opinion he 'had, that asking-L 9
this witness to express an opinion about the 10 Neisler-Mendez report on the first score is beyond the 11 scope of my Direct Examination.
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12 I am entitled to present a witness, -who appears s-13 here under compulsion -- I had to seek an orderffrom i
14 this Board to compel his attendance; and I am entitled 15 to limit the scope of my examination to matters that I 16-believe are f avorable to my case.
17 Now, as it will be seen, if Applicant wants to seek 18 to. compel Mr. McGregor's testimony as a rebuttal i
19 witness, that's their decision to make.
20 This is my. case, and I make strategic decisions 21 about the scope of my case, and I did not ask the 22 witness to express an opinion on the Neisler-Mendez
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23 matter.
24' Now, having had my obj ections on that score turned
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he doesn't like, and that's that the witness has no 2
opinion.
3 On probing he found that he has no opinion, because 4
he has no opinion to give and because he hasn't read the 5
report and he's not familiar with its content.
6 Now, that should put a clear end to the matter; but 7
he wants to go one step further; and that is, as the 8
Chair observed, he wants to educate the witness and then 9
force the witness to express an opinion.
I think that 10 clea rly is improper.
11 Now, as to the matter of whether'the Staff thinks
[G) 12 it's appropriate, with their policy not to pit one 13 inspector against another, I have no opinion.
14 The witness testified that, in his judgment, he 15 thinks it's improper; and I support that.
I take him at 16 f ace value for tha t.
17 But I do think that, as a general matter, it is 18 improper for this Board to permit counsel to compel 19 expert testimony from a witness who is presented by an 20 adversary as a fact witness; and that's the end of it.
21 I think that if Mr. Gallo wants an expert witness 22 on the adequacy of the Neisler-Mendez report, he should 23 go retain himself one; but he can't make one out of Mr.
24 McGregor against my will, because I am the party that e
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25 called him.
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l JUDGE GROSSMAN:
Okay.
2 MR.. GUILD:
That is all, Mr. Gallo.
Mr. Chairman.
l 4
JUDGE GROSSMAN:
I'm sorry.
5 MR. TREBY:
The Staff would like to indicate 6
today we agree that the witness should not be compelled l
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to form an opinion on a matter that he's not currently I
f 8
informed on.
k-9 He has indicated he has not < t td the report, and i
10 there is no reason why. he. should have read that report.
I 11 J UDG E G ROSSMAN :
Ohay.
We are not taking any O
12 position as to whether it's appropriate or inappropriate V
13 fot one Staff member to comment on a report of another
)
l 14 Staf f member.
15' If he wishes to do so, that's one situation; but we 16 are not going to compel opinion testimony, expert 17 testimony, in this situation or other situations.
18 Of course, if the witness has explored the issue on 19 Direct, has volunteered expert testimony on the area, of 20 course, there is Cross Examination permitted; but if the 21 witness declines to answer those questions, the usual 22 recourse is to strike his direct testimony, not to 23 brainwash a witness.
24 But I don't want to get far afield from the
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25 question we have right now, and that is whether we are snnn eng popnr eing sa rvi no.
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(s) 1 going to compel this witness to form' an opinion and then 2
express it.
3 Now, one other point' that you raise, Mr. Gallo --
4
_and I want to be sure about this point; it has come up 5
before. -- and that is the idea that any party is 6
permitted to go beyond the acope of what would 7
ordinarily be permitted in the examination in order to 8
discredit or impeach a witness.
9 We have made our position very clear that if the 10 questions are beyond the scope of what's permitted 11 ordinarily in examir.ation, either because of relevancy IV).
grounds or because it's beyond the scope of what is 12 13 permitted on Cross, taking into account the direct 14 testimony, we are not going to allow excursions, merely 15 for the purpose of either discrediting the witness or 4
16 trying to get the witness to give erroneous answers.
17 Now, the real question isn't whether this is in the 18 nature of impeachment but whether it's within the scope 19 of what examination is permitted.
20 If the questions are within that scope, certainly, c
21 if you can, ask questions that will impeach the witness; 22 but we are not going to allow excursions outside of the 23 scope in order that you can find means of discrediting a
- witness, b' )
24
(,
25 I don' t know if I am making myself clear on that, nann +ng nepnr+3ng norvien: r.va.
j Geneva, Illinois 60134
[
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but it has come up before with regard to matters 2
relating to Zimmer and matters relating to background 3
that' a witness might have, and we just don't permit 4
that.
5 So, in any event, the position we have right now is 6
that if you have factual quastions or questions that you 7
want to pose to the witness as to the facts of what 8
happened -- we have already allowed you to get into the 9
area of the conversation between Mr. McGregor and Mr.
10 Neisler; and if you want to as!: some further questions 11 with regard to that conversation, we will allow that, j
)
12 even though it does-go a little beyond the scope of what v
13 Mr. Guild raised.
14 So you can proceed on that.
15 MR. GUILD:
Mr. Chairman, before Mr. Gallo 16 goes forward, I have a preliminary matter, and I 17 neglected to raise it because the Chair had this point 18 to raise first.
19 May I raise it at this time?
20 JUDGE GROSSMAN:
Certainly.
21 MR. GUILD:
Applicants have pending a motion 22 for authorization under 10 CFR 50.57 C to load fuel and 23 conduct certain precritical testing; and as I informed 24 the Board on the record on at least one occasion,.
25 Intervenors do oppose that motion.
nnnnena no7nreing norufen
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1 Also, I may have mentioned that we are in the 2
process of formulating our response but require 3
additional time in order to address, obviously, very 4
important issues and issues that have some complexity, 5
particularly in light of the fact that counsel has been 6
on a daily basis engaged in this hearing.
7 We would request an extension of time to respond to 8
that motion, an extension of 10 days from today.
9 I requested of counsel -- I asked if they would 10 consent to that, and they declined to consent.
They may 11 entertain a shorter time, I am not certain; but we would
,o
(
)
12 move for leave to file, at a time 10 days from today, v
13 response to that motion.
14 MR. MILLER:
Your Honor.
15 JUDGE GROSSMAN:
Excuse me.
16 Both counsel have indicated opposition to 10 days?
17 MR. GUILD:
I only approached Ap'plicant; and 18 failing to achieve agreement, I did not approach the 19 Staff with that.
l 20 JUDG E GROSSMAN:
What is Staff's position on 21 the question of extenaion?
Staff would have no obj ection to l
23 a reasonable extension.
l 24 I guess ten days would tend to put this very close l
/,i
(,)
25 to the September 30th date that the Applicant is talking l
^^~
t sonntag nonnreing nnruinn, r+a.
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)
A./-
1 about as far as loading fuel.
2 It would seem to me that an extension of, say, five 3
days might be acceptable, because that would give enough 4'
time for the parties to file their papers with the Board 5
and the Board to, at least, have the matter before it.
6 JUDGE GROSSMAN:
Applicant has indicated that 7
if the response from the Board is negative, it wishes to 8
appeal the case.
9 If we were to grant a ten-day extension, we will be 10 in a sense pressured to prejudge in favor of Applicant, 11 because there was insufficient time to appeal.
(JA) 12 I don't think we want to be put in that posture;
'u 13 and it seems as though you could get a response out 14 sooner than the additional 10 days, Mr. Guild.
15 You will have off until next Thursday.
16 MR. GUILD:
Well, sir, I will have off, 17 accept I am going to be engaged actively in this 18 litigation.
At least Wednesday, I am going to be in 19 deposition.
Tuesday I intend to be working in the 20 office on this matter.
21 But if I could ask, Mr. Chairman, when the Staff 22 anticipates a response, perhaps that would, at least, 23 give us an -- you would, at least, know when the other 24 parties' papers will be before you.
That might help me.
/(,
25 MR. MILLER:
Your Honor, the Staff's response 1
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's
.(- v) 1 is due, I believe, September 4 th, which is next -
2 Thursday.
3 JUDGE COLE:
Thursday.
4 MR. MILLER:
Thursday.
5 The Applicant has acceded to Mr. Guild's request 6
that we defer the hearings next Tuesday and Wednesday. so 7
that discovery can take ' place, even though Applicant 8
would be able to attend both the hearings and 9
depositions.
10 We have no obj ectioa to extending Mr. Guild's time 11 until the 4th, which is approximately a five-day (v)'12' extension beyond what he is otherwise required to meet.
13 It seems to me that that's reasonable.
14 We certainly don't want to put the Board under any-15 pressure to decide this on anything other than the 16 merits of our petition; but the motion was served, it l
17 was in the hands of the parties on the Tuesday that we 18 were in recess and I don't think that an additional ten 19 days, under those circumstances, is warranted.
20 (There followed a discussion outside the 21 record.)
22 JUDG E GROSSMAN:
All right.
In view of the 23 fact, Mr. Guild, that you are going to be involved in 24 this litigation, we will grant the extension until
,-s 1(
25 Monday, the 8th, hand delivered to the parties at the nnnneng popnreing noruica, r+ a _
Geneva, Illinois 60134 (312) 232-0262
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i (m f 1
beginning of the hearing session, or if, for some 2
reason, the hearing is not to be convened on that 3
Monday, then Monday before noon, hand delivered to the 4
parties.
5 The Board can wait until the hearing itself or you 6
will find some way of getting it to us without hand 7
delivery on or before the next morning.
8 MR. GUILD:
Thank you, sir.
I will.
9 MR. TREBY:
Mr. Chairman, can the Staff 10 deliver its document, too, at the same time?
11 JUDG E GROSSMAN:
Do you wish to have until g
12 th e --
%J 1
13 MR. TREB Y:
Well, we don't think that we 14 should file before the Intervenor.
We are not asking to 15 file after him, bat we don't believe that we should file 16 before him.
17 JUDGE GROSSMAN:
At the same time then.
18 MR. TREBY:
Thank you.
19 MR. MILLER:
Your Honor, I have two other 20 preliminary matters that I would like to bring before 21 the Board.
22 I guess I would like to clarify the Applicant's 23 position with respect to Intervenors' Exhibit 107, which 24 was the three documents that related to the walkdown 25 inspection.
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1 I didn't mean to be interpreted in my comments as 2
suggesting that the admission of this document somehow 3
opened up the issue of the validity of walkdown 4
inspections as a matter of litigation; and if I lef t 5
that impression, I wanted to correct that.
6 I had understood that this was part of a series of 7
documents that Mr. Guild introduced to further the line 8
of examination that he had of Mr. McGregor with respect 9
to the methodology, as well as by way of background, I 10 guess, although it comes after the date of the report.
11 JUDGE GROSSMAN:
That was one purpose, but 7
(
)
12 the other purpose was a walkdown.
'O 13 We did not interpret your remarks as opening the 14 door to that kind of testimony,.but only the fact that 15 you were not going to oppose that document on that 16 ground so as to preclude you in the future from raising 17 the walkdowns in support of your position.
18 MR. MILLER:
Fine.
Thank you.
19 The other matter that I would like to discuss just 20 briefly with the Board and c..e parties has to do with 21 Mr. Godecke's deposition.
22 The Chairman indicated, I think, that you had some 23 concerns about the scope of the Godecke deposition as 24 far as it was based on opinion or it elicited opinion
~s
/ N
(,)
25 testimony.
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1 Your Honor, I have gone back-and looked at the 2
Godecke deposition and would agree to not designate 3
those portions of the deposition in which Mr. Godecke 4
expresses his professional opinion with respect to some 5
of the technical welding issues that have been the 6
subject of testimony by other witnesses before the 7
Board.
8 However, there are other portions of the deposition 9
that we wish to submit, having to do with Mr. Godecke's 10 experience with Mr. Puckett at the -Zimmer facility; and 11
.those matters we would wish to continue to have A)
(
12 introduced into the record as if he were a live witness.
v 13 JUDGE GROSSMAN:
Well, let me ask you:
Is 14 Mr. Godecke retained as an expert witness?
15 MR. MILLER:
No, sir, he was not.
16 JUDGE GROSSMAN:
Was he paid at all for r
17 preparation or testimony?
18 MR. MILLER:
No, sir.
He was a -- well, he l
19 was given an airplane ticket from Germany to Chicago for 20 the purpose of coming for his deposition and his 21 expenses while he was in Chicago, which, I believe, were 22 approximately three days that we paid for; but other i
l 23 than that, there was no compensation in the form of a i
24 witness fee paid by Isham, Lincoln & Beale or
^
k j
25 Commonwealth Edison Company.
1 Sonntag Reporting Anrvice, T,t d.
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1 MR. GUILD:
Mr. Chairman, he is on retainer 2
to Commonwealth Edison Company.
3 JUDGE GROSSMAN:
Mutt was another question.
4 Is that the way --
5 MR. MILLER:
That is the case; but there was 6
no billing made for his time spent as a witness through 7
MPS to Commonwealth Edison Company.
I assured myself of 8
that.
9 JUDGE GROSSMAN:
What was the nature of the 10 relationship between Mr. Godecke and the -- Mr.
11 Godecke's firm and Commonwealth Edison?
[v) 12 MR. MILLER:
Well, let me first deal with the 13 first part of the question.
14 Mr. Godecke was on leave from MPS at the time that 15 he testified.
He was in the midst of an extended leave.
16 He had lef t -- I believe his deposition was taken in 17
- March, t
18 If I am not mistaken, he had left on his leave 19 sometime in January and was not due back until June.
l 20 He has since resigned MPS and has taken up 21 residence, I guess, pe rmanen tly, in Germany.
22 Let me consult with Mr. Del George and see if he i
23 knows the nature of the activities at Braidwood.
24 (There followed a discussion outside the 25 record.)
i SOf1MhMg Dg orbIMN SprUIPD_ T.d Geneva, Illinois 60134 (312) 232-0262
11798 rX tlj) 1 MR. MILLER:
I am informed that they have 4
2 provided miscellaneous consulting services for 3
Commonwealth Edison at the Braidwood Station.
4 I could get additional information as to the nature 5
of those services when we resume next week; but I am 6
unable to be any more definitive at this time.
I-7 JUDGE GROSSMAN:
Fine.
If you can just give 8
us the' nature of the relationship, that will, 9
apparently, resolve all the problems; and then we will 10 have a further rcpresentation -- well, you have already 11 made it -- that Mr. Godecke is not in the country and,
[)
12 therefore, is unavailable s a witness.
'J 13 Then we will consider his being a fact witness 14 outside the jurisdiction and consider each of the 15 portions that you of fer.
16 MR. MILLER:
Thank you.
17 MR. GUILD:
Mr. Chairman, I take it that 18 Applicant has got a revised designation at some point 19 they are going to serve?
20 MR. MILLER:
At some point I will, but I 21 don't now.
22 MR. TREBY:
I have one preliminary matter, i
23 also.
24 The Staff was asked to look into its files to see t
25 If it had a copy of Intervenors' Exhibit 104, whicn was J
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'l the memorandum from Messrs. Schulz and McGregor to Mr.
2.
Greenman.
3 The Staff has looked into its files.
It looked 4
into Mr. Greenman's files, the Region III files of that 5
period, and the files at the Braidwood site, and it did 6
not find a copy of that document in any of those places.
7 JUDG E GROSSMAN:
Didn't we ask you to do one 8
more thing, which is contact Mr. Schulz and find out 9
whether he sent it on, so as to satisfy even the Staff 10 attorneys that he hadn't?
11 If you have the opportunity, I would apprecicte (Av) 12 your --
13 MR. TREB Y:
I don't recall being asked to do 14 that; but we will certainly be happy to do that.
.15 JUDGE GROSSMAN:
.I'm sorry.
I thought I had 16 asked you that; but if I hadn't, the record will so 17 indica te.
18 MR. BERRY:
Mr. Chairman, can the witness 19 take a brief recess?
20 JUDG E GROSSMAN:
Yes.
21 Five-minute recess?
22 THE WITNESS:
Yes, sir.
23 JUDGE GROSSMAN:
Fine.
24 (WHEREUPON, a recess was had, after which 25 the hearing was resumed as follows:)
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1 JUDGE GROSSMAN:
We are back in session.
2 Mr. Gallo, please resume.
3 MR. G ALLO :
Your Honor, yesterday I had 4
marked for identification and admitted into evidence 5
Applicant's Exhibit 117, and I didn't have copies at the 6
time and I have them now.
7 JUDGE GROSSMAN :
Mr. McGregor, of course, you 8
remain sworn.
9 THE WITNESS :
Yes, sir.
10 BY MR. GALLO:
11 Q
Mr. McGregor, during the closing questioning of c~
[U) 12 yesterday, I asked you, at Page 11,764, whether or not 13 you discussed the Snyder allegation with.Mr.
Neisler 14 l
during your conversation with him at the region; and you 15 answ ered, "Mr.
Netsler brought it up to my attention";
16 and then I said, "What was the substance of the 17 discussion."
That was my question.
You said, "I
18 hones tly don't know, other than what -- I have already 19 said Mr. Neisler said they had completed it.
There were 20 a couple of items of noncompliance that they had issued 21 or whatever."
22 Tha t's your complete answe r.
23 A
(Indicating.)
24 Q
Just prior to that exchange, at Page 11,763, I asked you O
(,)
25 about the Snyder allegation, and you say, "It is Sonntag ReporH ng Rorvien. Tid.
Geneva, Illinois 60134 (312) 232-0262
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[N 1
improper for one NRC Inspector to make comment on
-2 another NRC Inspector's report on his final report.
The 3
Inspector that signed that report is responsible for it.
4 That's his work, and he's responsible for it."
5 Now, my question is:
6 When you told me that you didn't know what the 7
substance of the conversation with Mr. Neisler was, 8
except to the extent that you indicated, was that 9
because you didn't know or because you thought it was 10 improper to tell me because of the guideline that you 11 described at the bottom of Page 11,763?
(
12 A
No.
The guideline that you are referring to had nothing 13 to do with it.
14 Q
You just --
j 15 A
My responae --
i j
16 Q
You just didn' t recall?
17 A
No, I don't recall.
l 18 0
You have testified that you were a friend of'Mr. Neisler 19 and had known him for some time, i
20 Are you familiar with his work as an Inspector?
I object.
22 I guess I don't see the relevance of that question.
23 JUDGE GROSSMAN:
Is this within the scope of 24 what was asked on Direct?
25-MR. G ALLO :
Yes.
I believe that the question j.
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1 of Mr. Neisler's capabilities has been put into issue on 2
Direct; certainly by implication, if not directly.
3 MR. GUILD:
It has not, Mr. Chairman, at 4
least through this witness.
5 I certainly -- there is no objection to asking him 6
whether he's f amiliar with his work, but you assume 7
that's a predicative question of his opinion about his 8
work.
9 If it's seeking opinion evidence about Mr.
10 Neisler's competence, capabilities or et cetera, no such 11 opinion was sought f rom the witness, and it is clearly y.
(
)
12 beyond the scope of Direct.
v 13 JUDG E GROSSMAN:
It is beyond the scope, and 14 also let me ask the witness:
Do you wish to offer 15 expert opinion on Mr. Neisler's capabilities?
16 THE WITNESS:
No, sir, I would not, because I 17 think it's totally improper.
18 JUDGE GROSSMAN:
We are not going to compel 19 that.
It is beyond the scope of Direct.
The Staff would also indicate 21 that, you know -- we have indicated that the Staff is 22 noc on trial here, and we don't believe that it's 23 appropriate to go into the background of how one 24 Inspector views another Inspector and their
(
)
interrelationships and those kinds of matters.
25 Ronntag Ropor ti ng Ro rvlce, T, t d.
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wy 1
Mr. Neisler was here.
He testified.
Th e 2
opportunity was afforded to all parties to cross examine 3
him, and we don't believe that this witness should be 4
required to offer opinion evidence as to his abilities, 5
sir.
6 JUDGE GROSSMAN:
Well, we are not making a 7
ruling beyond not requiring a witness to offer that 8
opinion.
We are not covering the issue of whether -- if 9
a witness wishes to voluntarily critique his colleague's 10 work, we would hear that testimony; but that's not the 11 case right now, and it is also beyond the scope of
/ N (n-)
12 Direct Examination.
13 So sustained on the objection.
14 BY MR. GALLO:
15 Q
Mr. McG regor, are you aware of any experience or 16 expertise on the part of Mr. Neisler in the conduct of 17 investigative-type activities?
18 MR. GUILD:
Obj ection.
19 JUDGE GROSSMAN:
Same obj ection, I assume, 20 and the same ruling.
21 MR. GALLO:
That very question was asked with 22 respect to Mr. Mendez on Direct at Page 11,606, and I 23 submit the fact that it was asked with regard to Mr.
24 Mendez is not a significant dif ference.
b(,h) 25 MR. GUILD:
What was the answer of the gnnneng popnreing Anrvien, rtd.
Geneva, Illinois G0134 (312) 232-0262
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witness and what was _ the position of the parties, Mr.
2 Gallo, on that occasion 7 3
M'R. G ALLO:
There was no objection, and the -
4 answer was:
"No, sir."
5 MR. GUILD:
And tha t's all you get.
It 6
didn't seem to me that it was just as a springboard for 7
asking about another party -- opinion of another 8
Inspector, and I urge an objection.
9 MR. G ALLO :
I believe I should be entitled to 10 ask the same question.
f l
11 JUDGE GROSSMAN:
I really don't think we 12 ought to permit cross conversations here.
13 Remarks ought to be directed to the Board.
14 MR. GUILD:
I apologize.
15 JUDGE GROSSMAN:
But that is correct, too.
16 The fact that a question and answer are given 17 without objection doesn't open the grounds for further 18 objectionable questions and answers along the same line.
19 But in any event, it's beyond the scope of the 20 Direct, which was relating to the assignment of Mr.
21 Mendez at the time the witness had requested or had been 22 in a position to perform the inspection.
23 MR. G ALLO:
Gut I believe it's appropriate to 24 ask the same question with respect to the 25 coinves tiga to r, Mr. Neisler, and I believe it's -- and s_,
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1 if I understand the Board's ruling, at this time it's 2
outside the scope of Direct to ask the question; 3
ther ef or e, the fact that it wasn't objected to when it 4
was initially asked with respect to Mendez on Direct is 5
really not pertinent.
6 JUDGE GROSSMAN:
No, you raise the point as 7
to whether we allowed this type of question and answer.
8 MR. GALLO:
In anticipation of an 9
outside-the-s cope objection --
10 MR. GUILD:
Mr. Chairman, I don't know why 11 this counsel is allowed to reargue the point.
(a) 12 I am certainly brought up pretty short when I try q _,/
13 to press a point after the Chair has ruled, and I think 14 there is a ruling on this matter, and I don't think he 15 should be allowed to be arguing.
16 If the Chair would be happy to entertain further 17 argument from this side, I will reargue the point as 18 well; but it seems to me that it's improper for counsel 19 to reargue the point.
20 JUDG E G ROSSMAN:
We have already mad" the 21 ruling.
22 I only refer to lack of objection in the face of 23 the crgument you raised, that some other question had 24 been permitted; but that other question was not within b'i
( )
25 the same scope as this question.
The other one dealt nnnneng nopnreing noruten, r.ea; Geneva, Illinois 60134 L
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with Mr. Mendez.
2 You are now going beyond the Direct Examination and 3
asking questions with regard to Mr. Neisler; and if you 4
wish to recall the witness and he's willing to offer 5
that opinion testimony on Mr. Neisler, then we will 6
reconsider your doing that at that time.
7 MR. G ALLO:
I would like to seek 8
reconsideration of the ruling on two grounds.
9 First, it's my understanding that -- I understand 10 the ground rules that have been established for this 11 proceeding, that in order to avoid recalling witnesset,
(
12 that it was permissible for questioning to rain within 13 the can of the witness, in erder to avoid the very 14 proLlem of recalling witnrosca a second or third time.
15 JUDGE GROSSMAN:
Not correct.
16 Mr. Gallo, we specifically discussed this, and 17 perhaps you were not present at that time; but with 18 regard to Applicant's case at this point, we offered the 19 choice of either doing it that way -.
20 MR. GALLO:
I stand corrected on that point.
21 The other ground for reconsideration is, if I 22 understand the Board's ruling, that it's establishing 23 what appears to me to be a new ruling.
24 Certainly in my experience in NRC jurisprudence,
(,)
25 that the witness can't decide what he will answer and Sonntag Reporhing Service, Ltd.
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i Q) 1 what he won' t.
You won't compel the witness to answer 2
this question, and I don't understand the basis for that 3
ruling.
4 If it's a proper question, then it should be -- an 5
answer should be compelled, as I understand it.
6 JUDG E GROSSMAN:
If it were a proper 7
question, we would compel an answer; but it is not a 8
proper question to require a witness to form an opinion 9
and of fer opinion testimony.
10 How, that's one aspect; but the second aspect is 11 that this is beyond the scope of what was asked on rx
(
)
12 Direct.
It goes to a different Inspector for the NRC, N_j 13 and the fact that the questions were asked about one 14 doesn't perrit you to go beyond the scope.
15 Now, there is, also, a big factual dif ference.
16 The witness had performed an act with regard to the 17 draft inspection report of Mr. Mendez.
He had reviewed 18 it and he had commented on it, and the questions --
39 JUDGE COLE:
Draft report.
20 JUDG E GROSSMAN:
-- the questions really 21 revolved around that act or those acts of reviewing and 22 commenting on it.
23 There is no such factual matter that you are asking 24 about here.
You are asking purely hi's opinion, and he's 7_s
/
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(
)
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1 to do it at the time and what position he had actually 2
taken.
You are asking him to take a position, to form 3
an opinion, and then to tell you the opinion, and that 4
is a different matter, but --
5 MR. G ALLO:
Your Honor --
6 JUDG E GROSSMAN:
We have already discussed 7
it.
We have already ruled.
You have made your point 8
for the record, and let's move on.
9 BY MR. G ALLO :
10 Q
Mr. McGregor, did you discuss the preparation of your 11 testimony with Mr. Guild?
A
(
)
12 JUDG E GROSSMAN:
I'm sorry, excuse me.
13 Could you repeat that question?
14 (The question was thereupon read by the 15 Repor t.e r. )
16 THE WITNESS:
Which testimony are you 17 referring to, sir' 18 MR. GALLO:
Testimony that you elicited over 19 the last two or three days.
20 BY MR. GALLO:
21 Q
For example, did you discuss your testimony with him 22 before you testifiec the first day?
23 A
No, sir.
l l
24 0
How about the day after and that evening?
,_s
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)
25 A
No, sir.
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Q You never discussed the substance of your testimony with 2
Mr. Guild?
3 A
Tha t's correct, sir.
4 Q
He didn't indicate to you the lines of questioning that 5
he may want to elicit?
6 A
No, sir.
7 Q
He did not?
8 A
That's correct, sir.
9 Q
I show you what has been marked as various exhibits in 10 the proceeding.
11 This one is Exhibit 101, It's a memorandum from rx
(
)
12 Forney to yourself and Mr. Schulz, talking about t,/
13 assignment of responsibilities.
14 (Indica ting. )
15 A
Let me correct my last statement.
16 Q
Sure.
17 A
The first day that I was called down here, which would 18 be Tuesday --
l 19 Q
Afternoon.
t 20 A
At that particular time --
21 MR. GUILD:
It was Monday afternoon, Mr.
22 Chairman.
23 I'm sorry.
No.
24 A
(Continuing.)
Tuesday afternoon, Tuesday afternoon.
7,
/
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(_,)
25 JUDGE COLE:
Right.
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- (Con tin uing. )
-- I was seated in the bench directly 2
back there, and Mr. Guild did present to me a number of
.3 papers, I will say four or five or six.
He did not 4
explain' anything to me except " Review these_ this-i 5
~ evening, and I might ask you some-questions about them."
6 That is the only contact that we had with regard to f
7-the previous question that you asked.
8 BY MR. GALLO:
9' Q
Can you tell whether or not these are among the papers 10 he asked you to review?
11 (Indicating.)
( )
12 A
I believe 103 and 118.
13 JUDGE COLE:
That's Intervenors' Exhibit 103?
14 A
(Con tinuing. )
I think that's -- that's what it means 15 there; is that correct?
i 16 (Indica ting. )
17 MR. GALLO:
Yes.
18 A
(Con tin uing. )
And there is no number on this one; but 19 it would be the September 6, 1983, memorandum from D.
20 Harris to R. C. Knopp; subject, comments of a meeting U
21 with CECO on QA communications and problems.
22 MR. GUILD:
I'm sorry, Mr. Chairman.
23-Is there a number on that one?
24 THE WITNESS:
There is not a number on this 25 one.
J l
Ronntaa RecorFino Marvice. led _
l Ge5 eva', Illi5ois 60134 i
(312) 232-0262
11811
_ ;/N
~(
1
- %.}
l-MR. G ALLO:
I don't know what it is, offhand, i
2 but that's one of the exhibits.
f 3
THE WITNESS:
Yes.
4 BY MR. GALLO:
5 Q
Was that the extent -- I'm sorry, are you finished 6
looking?
7 JUDG E COLE:
That's Intervenors' Exhibit 100.
8 MR. GUILD:
100, yes.
9 THE WITNESS:
May I?
10 MR. G ALLO :
Sure.
Go, ahead.
11 A
(Continuing.)
So that's two documents.
[V) 12 I don' t recall the rest of them.
'I really don't.
13 MR. GALLO:
All right.
14 BY MR. G ALLO:
15 0
The extent of your conversation with Mr. Guild was that 16 he handed you some documents and asked you to review 17 them overnight and he might ask you some questions with 18 respect to them?
19 A
Yes, sir.
20 Q
Now, Mr. Forney -- I'm sorry, Mr. McGregor.
I keep 21 wanting to call you somebody else.
22 A
That's all right.
23 Q
These are some of the documents that were furnished to 24 us recently by Mr. Guild, and I believe the indication
.,()
25 wsa that it received them from an anonymous source.
nnnn eng nnnne ti ng sn rvi en. r. td.
Geneva, Illinois 60134 (312) 232-0262
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(
1 (Indica ting. )
i-
.2 MR. GUILD:
Mr. Chairman, counsel-is showing 4
3 the. witness --
4 JUDG E GROSSMAN:
I would come in on that 5
anyway.
4 6
If the idea is now to determine who the whistle 7
blower might be, we are.not going to allow that..
)
8 Is that the purpose, Mr. Gallo?
i l-9 MR. G ALLO:
That's the purpose.
10 JUDGE GROSSMAN:
We are'not allowing that 11
-line of questioning.
12 MR. GALLO:
I am prohibited from -
-I believe j
13 it's relevant to the question of this witness' l
14 credibility.
15 JUDGE GROSSMAN:
I don't see how that could
{
16 possibly help your case.
l 17 I can see how it might be intimidating to a 18 witness, but I really don't see how it could even help f
19 your case, whichever the answer is, 20 MR. G ALLO:
I would submit that it would q
21 indicate a potential or a real bias.
22 JUDGE GROSSMAN:
A bias?
23 MR. GALLO:
Yes.
24 5
- s,)
25 Rnnntna DonnrFInn Rorvien.
T.F r1.
Ge5 eva', Illi5ois 60134 (312) 232-0262
11012 1
JUDG E G ROSSMAN :
I don' t believe that would 2
indicate anything like that.
3 All it could do, if the answer were yes, for any 4
witne ss, it would indicate a stronger reason f or 5
accepting -- well, I don' t want to get into that; but 6
it's j ust not relevant as to who the whistle blower was, 7
Mr. Gall o, and I don' t think we want to get involved in 8
intimidating witnesses and discrediting then with 9
matters beyond the scope of the hearing.
10 We j ust don' t accept that type of questioning here.
11 MR. GALLO:
I will take exception to the 12 ruling, of cour se, but, in pa rticular, to your 13 suggestion that I was trying to intimidate the witness; 14 dus cr edit, yes, but intimidate, no.
i 15 BY MR. GALLO:
16 Q
Mr. McG regor, you have indicated that you had that brief 17 conyersation with Mr. Guild.
18 Did you talk to anybody else f rom BPI with respect 19 to your testimony, the testimony you have given the last l
20 coupl e of day s?
l 21 A
Sir, I don' t believe I know anybody else f rom BPI.
l 22 Q
Does that mean the answer to my question is:
You did 23 not know ?
24 A
N o, si r.
I didn' t talk to anybody else f rom this i
25 or ganiz ation that you ref erred to.
I Sonntag Repor ting Service, Ltd.
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Q During the questioning yesterday, I had asked you a 2
series of questions about the last paragraph on 3
Int erv enor s' Exhibit 42, and you may recall that the 4
question centered on your agreement or concurrence with 5
a sentence in that paragraph concerning the asserted 6
lack of action by CECO Q A and certain slowness or 7
inability to take corrective action by CECO management.
8 Do y ou r ecall ge nerally those questions?
9 A
G ener ally.
10 0
In particular, I asked you some questions about how the 11 Snyder allegation, which was conveyed to you in March of 12 1985, played a role in your j udgaent in concurring with s
\\s 13 this sentence, and I believe you testified that, yes.
14 the matter had been -- that is, the allegation voiced by 15 Mr. Snyder -- had been identified in a previous audit 16 report by Commonwealth Edison; and you challenged me as 17 to find out the date of the audit report, and you 18 suggested that it might be as much as a year old and, 19 ther ef or e, that indicated to you a lack of positive 20 corrective action consisting with the criticism in the 21 se nt ence.
22 Do you recall that testimony?
23 A
G ene r ally, yes.
24 Q
All right.
/
3 25 I have here the discussion of that allegation by 4
Sonntag Repor ting Service, Ltd.
Gengy_a, Illinoic 60134 (312) 232-0262
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Mr. Mendez and Neisler in their report; and in the 2
co ncl usion, they state that the CECO audit report was i
3 dated December 19, 1984.
It's rignt here.
4 (Indica ting. )
5 Would you f eel free to take a -- take your time to 6
look at it.
7 Am I correct that indicates that the audit report 8
is dated December 19, 19847 9
A De cember 19, 1984, yes, si r.
10 Q
So th at w oul d i ndi ca te th at be tw e en --
11 MR. GUILD:
Do you have a page ref erence, 12 Counsel ?
U 13 Excuse me.
?
15 MR. GUILD:
A page ref erence ?
16 TH E WITN ESS :
Page 4.
17 MR. GALLO:
Pa ge 4.
I 18 MR. GUILD:
Thank you.
19 BY MR. G ALLO:
20 0
That w ould i ndica te, then, wouldn' t it, Mr. McG regor, 21 that there was approximately a three to three-and-a-half 22 month interval between the time of the Ceco audit and 23 the time that the Inspectors came to visit you on March 24 29th and the time you wrote this memorandum and agreed 25 in this criticism of CECO management slowness or Sonntag Repor ting Service, Ltd.
Gene 1A,.__Illinoi e 60134 (312) 232-0262
1181E
/
)
1 inability to take corrective action; is that correct?
2 A
You would be correct in the time f rame, yes, si r.
3 Q
All right.
4 Now, does that ref resh your memory as to whether it 5
was as long as a year between the time of the audit and 6
the time of the March 29th memorandum that we are 1
7 addressing here?
8 A
Yes, si r, it does.
d 9
Q So would you agree it's approximately as indicated in 10 Mr. Neisler's report and Mr. Mendez' report?
11 A
Cer tainly.
12 0
Does that in any way cause you to reconsider your k
13 judgment that Ceco management slowncos and inability to 14 take corrective action was based on the f ollow-up on the 1
15 allegation as noted in the -- by Mr. Snyder and reported 16 in the December 19th CECO audit?
17 A
W ell, sir, you seem to want to -- for me to put some l
18 type of a point value on each one of the areas of 19 concern that we brought up with L.K Comstock's Quality 20 Assurance Department; and I assured you we do not sit 21 down there and assign points to the Seeders incident as 22 a 5, and Mr. Puckett's as a 7 and the 29th as 15 or 23 whatever and make some sort of a j udgment on that, we 1
24 merely looked at the past history; and when you look at
~
N 25 the past history, we don' t see very many positive Sonntag Reporting Service. Ltd.
Geney_n, Illinois 60134 (312) 232-0262
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1181*)
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)
V 1
actions taken; and so when he doesn' t see positive 2
actions, then you must assume that the negative actions 3
that you do have are -- are occasions that commowealth 4
Edison Quality Assurance Department is alw to respond 5
to these negative concerns that have been brought up to 6
thei r attention.
7 JUDG E G ROSSMAN :
Mr. McG regor, Mr. Gallo is 8
entitled to probe, you have indicated that you had that 9
brief conversation with Mr. Guild.
]
10 Did you talk to anybody else f rcm BPI with respect 11 to your testimony, the testimony you have given the last 12 couple of days?
13 A
Sir, I don' t believe I knw anybody cice f rcxn u, on s
14 ref reshing your recollection, wish to 15 indicate that you didn' t rely on that; so you ought to 16 answer his questions with regard to each item.
17 Fi ne.
You may continue, Mr. Gallo.
18 BY MR. G ALLO:
19 0
I understand that that's your general position; and as 20 the j udge has indicated, I am trying to see whether or 21 not it was appropriate to rely on the Snyder incident as 22 one basis f or your criticicm of CECO Q A and CECO 23 mana gement.
24 In particular, you testified yesterday that CECO i
25 management was slw to take corrective action because of
'd l
Sonntag Reporting Service, Ltd.
GentV_Ae_Ill_inois 60134 (312) 232-0262
1181E
[A 1
this one-year interval with respect to the audit report 2
versus the March 29th visit by the Inspectors and 3
draf ting of your memorandum.
4 We now have agreed that it was, in f act, three to 5
three-and-a-half months; and I am asking you whether or 6
not you still believe that that interval justifies your 7
judgment that, at least with respect to that matter, 8
CECO management was slow to take corrective action.
9 A
Certainly it hasn' t changed my opinion at all.
I should 10 think that Commonwealth Edison Quality Assurance 11 Department should be able to act within three months' 2,
time or a year's time or six month's time.
12 13 Q
Well, let's f ocus on the three or threc-and-a-half 14 months.
j 15 Is it your j udgment that three or three-and-a-half 16 months -- let's take the outside limit -- was too long a 17 period of timi to have let this matter rest?
18 A
Yes, si r.
19 Q
Do you know what action, if any, was taken by CECO Q A in j
20 that three-and-a-half-month interval on this matter?
4 21 A
I was not assigned to investigate the allegation; and, l
22 no, si r, I didn' t -- I didn' t f ollow-up on this.
I I
l 23 didn' t inv estigate it.
24 Q
So the answer to my question is no. you don' t know ?
25 A
N o.
i
\\
Sonntag Reporting Service, Ltd.
GencV_aa_lllino11L_60134 (312) 232-0262
11815 r
[xV) 1 Q
So if -- you are assuming in your statenent that CECO Q A 2
was slow to take corrective action, that they took none 3
during this interval; is that correct?
4 A
We were not aware of this, that is correct.
5 Q
You wure not aware of any?
6 A
Yes, ai r.
7 Q
Did y.iu i rq ui re?
8 A
(No Response.)
9 Q
Did you irquire bef ore you relied on the Seeders 10 incident as one basis to go along with the criticism of 11 CECO management and CECO Q A in this memorandum?
12 A
No, si r.
C 13 Q
Thank you.
14 Mr. McG regor, as I recall during that same line of 15 questioning yesterday, you had indicated, in response to 16 one of Judge G rossman's questions, that one of the other 17 factors that played a role in your agreenent with the 18 criticism of CECO Q A and CECO management was Quality 19 First; and in particular, you had talked to a -- I 20 believe a QC Inspector, and he had voiced some negative 21 comments with respect to his opinion of Quality First, 22 indicating something about that it was j ust another 23 place to get a pink slip.
24 Do you recall that testimony?
25 A
Yes, si r, I do.
Sonntag Repor ting Service, Ltd.
QSnen,_Ill.inoi.a 60134 (312) 232-0262 L
1182(
l Q
Now, can you indicate for me when it was that you 2
encountered this Inspector and had this conversation?
3 A
I don' t actually recall the time, date.
It was af ter 4
the 29 th.
It was af ter the March 29th incident.
5 Q
It was af ter March 29th?
I 6
A Yes, si r.
7 Q
Then it could not have served as a basis f or your 8
agreement with this sentence criticizing CECO Q A and 4
9 CECO management; is that correct?
1 10 A
That's corract.
I 11 I would have to say that my -- as I stated bef or e, t
i 12 I thought the Quality First Program that had been 13 ectabliched by commonwealth Edison -- I talked to the 14 director of that on a number of occasions, and I 15 thought, as I stated bef or e, that they were doing an
{
16 exemplary job over there, and I did not interf ere with 17 their type of work.
18 I j ust merely brought out the point, one 4
19 Inspector's opinion, what he told me about Quality i
20 Fi rst.
21 That is not my opinion, if that's what you are j
22 af ter.
23 Q
What is your opinion?
}
24 A
I j ust gave you my opinion of the Quality First Program.
25 0
Now, this Inspector that you encountered, was the person Sonntag Reporting Service, Ltd.
I Geneva _I111nois__60lle I
(312) 232-0262
1182]
's.))
1 at Comstock a QC Inspector?
2 A
Yes, si r.
3 0
Do y ou r emember w ho it w as ?
4 A
N o, si r, I do not know his name.
I don' t remester his 5
nam e.
6 Q
What did you understand to mean by the phrase, "j ust 7
another place to get a pink slip".
8 First of all, is that a f air characterization of 9
what he said?
10 A
Ye s, si r, I think it is.
11 Q
What did you understand him to mean by that?
12 A
I would assume that that man meant that if he complained
\\s-)
13 or made complaints known to Quality First, those 14 complaints would be directly related back to I
15 Commonwealth Edison, back to Commonwealth Edison 16 management onsite, back to L.K Comstock management, and i
17 the gentleman would te released f rom his position.
18 0
And that was your understanding at the time, when you --
19 A
That's what I assume he's talking about when -- I assume 20 when you get a pink slip, that means that you have been 21 termina ted.
22 0
I am just now asking whether that -- what you j ust 23 testified was your understanding at the time?
24 A
At the time.
25 0
At the time you talked to the Inspector?
Sonntag Reporting Service, Ltd.
GJnts,__Illinoim 60134 (312) 232-0262 3
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i 11822 r8 Q
1 A
Yes.
2 Q
Now, what action, if any, did you take with respect to
,3 this inf ornation?
4 A
None.
5 Q
Did you consider it an allegation?
j 6
A N o.
i 7
Q Can you explain why not?
8 A
Because the gentleman, as he perf ormed it -- as he gave 9
that inf ormation to me, as he said it, it was said in a 10 position that would be other than an allegation.
11 In other words, to make it an allegation, he would 12 demand that I w rite it down -- not demand -- but ask me t
13 to look into it or ask me to take substance on this, and i
14 find out his -- if his concerns were correct or, you 15 know, he j ust telling me this in passing when I asked l
16 him questions on how inspection is going.
f 17 I -- if he wanted to make an allegation of it, he I
i l
18 would have told me that.
(
19 Q
Did you think he was serious in the statement or did you 1
20 think he was joking?
I i
l 21 A
I -- I suppose he's serious in it.
I don' t know.
22 Q
And --
i 23 A
I don' t know why he would say it j okingly.
24 Q
And he didn' t -- so it is your practice, when you i
25 encounter inf ormation like that -- strike that.
t 3
Sonntag Reporting Service Ltd.
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1 Did you conduct any kind of inspection yourself to 2
determine the validity or no: validity of the assertion 3
made by this Inspector?
4 A
I -- as I have stated bef ore, I have had a number of 5
encounters with the director of Quality First. and I 6
know the procedure that they use over there, and the 7
procedures that they use are quite contrary to what this 8
man is telling me; and I am not going to stand there and 9
get into an argument in the plant with this gentleman.
i 10 He has not made it an allegation, and as f ar as I 11 am concerned, there is no basis to -- to investigate 12 that.
O' 13 Had he made it an allegation, I w ould h av e -- I 14 would have taken it down.
I would have asked f or more 15 pertinent inf ormation, and I would have submitted it to 16 the commission, and I would have not taken it upon 17 nyself to go out and investigate an allegation.
18 Q
As I understand your testimony, that you discounted his 19 sta tement, that was based on your own knowledge of how 20 the Quality First Program operated?
21 A
That's cor rect, that's cor rect.
22 0
Let me get an understanding as to how matters are 23 investigated by yourself or inspected to by yourself.
24 I understand that a matter is not an allegation, 25 unless it's specifically identified as much by the Sonntag Reporting Service, Ltd.
03ncia,_I11_inois__6Q134 -
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1182(
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alleger.
2 Is that the groundrule you work under?
3 A
I don' t really believe it's proper that we should 4
discuss the United States Nuclear Regulatory 5
Commission's position on inspections.
6 Q
No.
I am asking f or your practice, not the USNRC.
7 A
I don' t make it a policy -- or do I make practice at the 8
-- at any site that I am at.
9 Q
I am asking whether or not you would wait until an 10 af firmctive statement is made by an alleger and 11 identified it as an allegation bef ore you would ref er it 12 to the region f or consideration or whether you would, 13 based j ust on inf ormation that you overheard f rom a 14 particular individual, generate an inquiry on your own.
15 MR. BERRY:
Obj ecti on.
15 Asked and answered, Mr. Chairman.
17 The witness has described his practice, what he 18 does when -- or what he deems an allegation and the 19 action he takes in connection with that allegation.
20 This is simply just cumulative at this point.
21 MR. GALLO:
N ow, all the witness did was give 22 me a lecture on how it wasn' t appropriate to ask that 23 question.
24 MR. BERRY:
Bef ore that, bef ore that, the 25 witness stated in connection with the individual that Sonntag Reporting Service, Ltd.
Genev_a,_I11.inois__6013A (312) 232-0262
1182!
1 discussed the Quality First matter what his practice was 2
in connection with the allegation.
3 JUDG E G ROSSMAN :
Mr. Gallo, again. how is 4
this within the scope of the Direct Examination?
5 MR. GALLO:
There has been a lot of testimony 6
on Direct about the proper practices and methodology 7
used by the region, and it seems to me it's of a 8
particular relevance to see what the practice of this t
9 particular Inspector is with respect to this, in 10 particular, to allegations, especially allegations in i
11 the harassment and intimidation area, and, indeed as 12 this one was -- or it wasn' t an allegation, but it was 13 an assertion by this Inspector.
14 JUDG E G ROSSMAN :
Okay.
You may answer the 15 question.
i 16 The question, if I understand it, is:
Does the 17 alleger have to characterize the allegation as an 18 allegation in order for you to treat it as such.
19 Is that basically the question?
20 MR. GALLO:
Yes.
21 JUDG E G ROSSMAN :
You may answer that.
22 A
Certainly he does.
23 BY MR. GALLO:
(
24 Q
What action, if any, would you take with respect to
^
25 inf ormation received that wann' t in that f orm?
!U l
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Genau, 111incia_ fiQlli (312) 232-0262
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1 Would you conduct any inspection yourself on the 2
matter or would you wait f or it to be f ramed in the --
3 in the sense of an allegation that you have just 4
described?
5 MR. TREBY:
Obj ection.
6 This is j ust a restatssent of the question that's 7
been asked and answered.
8 MR. GALLO:
I am now asking what this 9
Inspector takes, if any, with respect to inf ormation 10 received that's not in the form of an allegation in 11 terms of being written and declared by the alleger as 12 labeled as an allegation, but it is nonetheless an O
13 assertion like the one that the oc Inspector levied with 14 respect to Quality First.
15 MR. TRMBY:
I obj ect.
16 The witness has stated what he does.
17 Resident Inspectors are at the site.
They are a 18 presence of NRC.
They wander around the site.
They 19 have conversations with people all the time, and it's up 20 to the j udgment of these Inspectors.
21 JUDG E G ROSSMAN :
I don' t have to have the 22 merits of how the allegation are treated; but, again, 23 getting back to the scope question here, there was a 24 matter raised as to whether Quality First went into the 25 witness' consideration in reaching that conclusion in Sonntag Repor ting Service, Ltd.
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[)N c
1 that memorandum.
2 He indicated that it did not, to my recollectien; 3
so you got a f avorable answer on Direct.
You have 4
gotten a f avorable answer here; but you are going 5
further than that, and you wish to attempt to discredit 6
the witness again by something beyond the scope of what 7
your examination ought to be going into; and, again. we 8
are not going to allow that kind of thing.
9 MR. GALLO:
Based on the prior ruling of the 10 recor d, I will recede f rom the question.
11 JUDG E G ROSSMAN :
Yes; and, agal n, that is a 12 standing rule of the Board.
0' 13 If it's beyond the scope of what your examination 14 is permitted to go into, we are not going to allow 15 excursions solely for the purpose of seeing if you can 16 dredge up something that will discredit a witness.
17 BY MR. GALLO:
18 Q
Mr. McG regor, you have indicated that al so as one basis 19 for your criticism of Ceco O A and CECO management that 20 the change in QC managers at Comstock f ormed one basis 21 for your position on that matter, and I think you have 22 already testifled that there were two or three changes 23 in managers at Comstock.
24 Did you, prior to the 29th of March,1985, conduct 25 any inspections to determine the reasons f or the changes Sonntag Reporting Service, Ltd.
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1 in Comstock QC managers?
l 2
A No, si r.
I did not.
3 Q
Did you undertake in any way to determine the reasons 4
for the changes in the QC managers at Comstock prior to t
5 March 29,1985?
l 6
A only to the extent that -- that af ter some period, I was 7
maare that Mr. Corcoran was fired, and, according to 8
him, because of his knowledge of the problems in the 9
plants or problems within L.K Comstock, and, natur ally, 10 that was an allegation and that was being investigated, 11 it would have been totally improper in -- it would have 12 been totally wrong, completely wrong, for me to start my l
g 13 own investigation of Mr. Cochran's inabilities or the 14 inability of L.K Comstock or the inabilities of anybody i
15 aise in relation to wry this gentleman was terminated.
16 JUDG E COLE:
You mean Mr. Corcoran?
l 17 A
(Continuing. )
Corcoran, Thomas corcoran.
I' m sor ry.
18 JUDG E COLE:
I think you used Cochran.
19 A
(Continuing. )
Corcoran, Thomas Corcoran.
1 i
20 BY MR. G ALLO:
i 21 Q
Were you aware of this matter prior to March 29, 1985, 22 or after?
i 23 A
I think my testimony will bear that within a month or 24 some short time af ter he was fired he had contacted my 25 office with a question as to the status of his
,\\
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11825 i A
(v) 1 allega tion.
2 0
Does that mean you were --
3 A
W ell, sir, that was -- he was fired, I think, in August 4
of 1984.
5 In that correct?
6 JUDG E G ROSSMAN :
1983, I believ e.
7 A
(Conti nuing. )
'83, ' 83 ; I' m sor ry.
8 Eo, naturally, that was well bef ore March 29th of 9
1985.
10 BY MR. GALLO:
11 Q
Aside f rom this one allegation made by Mr. Corcoran, 12 which, as I understand your testimony, you are simply p
13 aware of the allegation, but at least prior to March 29, 14 1983, you had no inf ormation with respect to the merits 15 of the allegation; is that correct?
16 A
(No Response.)
17 0
I mean,1985.
I' m sor ry.
18 Let me restate the question.
19 A
Yes, pl ease.
20 0
Prior to March 29, 1985, as f ar as I understand your 21 testimony, you were aware of the allegation but had not 22 yet become acquainted with any of the inventiqation 23 renults or any conclusions with respect to the merits of 24 the allegation; is that correct?
25 A
That's correct; and I would not try to probe into that sonntag Reperting service, Ltd.
{
G eney.a,_. Illinois _60131 (312) 232-0262
1163(I
/V 1
to find out because, as I told you, it's totally 2
improper f or me to do that.
3 Q
I understand.
4 Now, aside f rom this one incident isolving a Mr.
5 Corcoran, did you become aware of any other inf ormation 6
with respect to the change in QC managers prior to March 7
29, 1985, or is this it?
8 A
Well -- oh, I think I testified that in 1982, shortly 9
af ter Mr. Wallace came onsite, he came into my office 10 and asked me if my general -- of my general opinions of 11 work at the site, and I expressed to him some concerns 12 with L.K Comstock's Quality Assurance -- I' m sorry --
l 13 Quality Control; and shortly thereaf ter Mr. Brown was 14 terminated.
15 0
What inf erence did you draw from your comments to Mr.
16 Wallace at that meeting with respect to the change in QC 17 Manager, in particular, Mr. Brown?
18 A
I didn' t.
19 Q
So how is this piece of inf ormation pertinent with 20 respect to your j udgment, if at all, on the criticism of 21 Ceco Q A and Ceco management?
22 A
This specific -- this isolate 3 incident that we are l
l 23 talking about, it merely shows that, evidently, there l
24 was something awry or amiss in the L.K comstock Quality 25 Assurance Department regardless of wir/ the managers were l
j Sonntag Reporting Service, Ltd.
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rel eased.
Evidently there was some problem in it.
2 Whether it's a personal problem, whether it's a 3
problem with making records, keeping records, I don' t 4
know.
We won' t get into that.
5 Q
You don' t know what the problem was?
6 A
I did not dwell on that problem, no.
7 Q
Now, would it be f ait to say that your awareness of the 8
Corcoran allegation and this inf ormation you had f rom 9
Mr. Wallace about the change in Mr. Brown's status l'0 formed the basis or one of your bases f or your criticism 11 of CECO QA and CECO management in this memorandum of 12 March 29th?
13 A
Yes, si r.
14 Q
Now, I believe you have testified that you did have a 15 meeting with Mr. Wallace in the f all of 1984.
I beli ev e j
16 this was the meeting with you and Mr. Schulz, and you 17 met with Mr. Wallace to discuss Comstock QC matters.
}
18 Do you recall that testimony?
l 19 A
Yes, si r.
i 20 Q
I believe this is the meeting where Mr. Saklak was l
21 present as well?
l 22 A
That's cor rect.
I 23 0
Now, was the purpose of this iceeting to discuss with 24 Saklak and Wallace the question of whether or not Saklak 1
(
25 was intimidating and harassing Inspectors?
I
)
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A That was brought to our attention, yes, sir.
2 Q
But w as it --
3 A
Yes, si r, it was.
4 0
That was the purpose of the meeting?
5 A
Yes, si r.
j 6
THE WITNESS:
Excuse me. Your Honor, I think 7
in that last statement I made, the answ er "y es, "
8 emphatically, it doesn' t mean it was the only reason f or 9
that meeting.
10 I think we discussed other reasons f or that 4
11 meeting.
4 l
12 JUDG E GROSSMAN :
Thank you.
4 i
l 13 JUDG E COLE:
Okay.
14 BY MR. G ALLO:
15 Q
Do you recall your deposition of November 25, 19857 i
16 You were asked a series of questions about that i
17 meeting.
18 MR. GUILD:
Could I hav e a page r ef er ence, 19 pl ease ?
l 20 MR. GALLO:
Yes.
It's 194.
21 MR. GUILD:
Thank you.
22 BY MR. G ALLO:
23 0
I believe the question was put to you by Mr. Guild, and 24 the question is -- and I will let you read it.
He's
\\)
25 quoting f rom the March 29th memorandum, say s, "It s/
1 Sonntag Reporting Service, Ltd.
GentV_A,_Illinoia 60134 (312) 232-0262
11832 G
1 appears at first glance, if with the inf ormation we 2
receiv ed, that a shutdown or some other aggressive 3
action," and the rest of that sentence appears, and in 4
the f ollowing sentence about a lack of action by CECO Q A 5
and CECO management slowness is also quoted.
6 And even then the question, starting with the last 7
and working backwards, "Mr. McG regor, what were the 8
circumstances of apprising Edison management of Comstock 9
problems in the f all," and you answer, "If I recall 10 correctly, Mr. Schulz and I had a meeting with Mr.
11 Wallace along with one of the QC Inspectors f rom 12 Comstock who is identified in the report with regard to s
\\m/
13 the morale problem and the amount of work or the 14 workload that the QC Inspectors of Comstock were 15 submitted to."
16 Now, do you recall that testimony, sir?
17 A
Yes, si r.
18 0
I don' t see anything in this answer that says that the 19 thrust of the meeting was to discuss the intimidation or 20 alleged intimidation by Saklak of Comstock QC 21 Ins pe ctor s.
I 22 JUDG E GROSSMAN :
Excuse me.
23 Is there a question?
24 MR. G ALLO:
Yes.
25 BY MR. G ALLO:
Sonntag Reporting Service, Ltd.
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1 Q
Is that correct?
2 A
W ell, I wouldn' t characteriz e it as that.
3 The word " harassment" is not in there, but I think 4
if you read the last statement there, again, what does 5
that say; something about work support?
6 Q
It says who was identified in the -- you say, "That, if 7
I recall correctly, Schulz and I had a meeting with Wallace along with one of the QC Inspectors f rom 8
I 9
Comstock"?
10 A
With regard to the morale problem?
11 Q
Yes.
12 A
Which comes under harassment and the amount of work and O
13 the workload that the Quality Inspectors of L.K Comstock l
14 were submitted to.
"They were being pressured under i
15 these workloads," in the first part, was quoted.
16 Q
You brought this to the attention of Mr. Wallace at the 17 time?
18 A
I think we did.
19 I know we discussed the amount of work that Mr. Irv 20 DeWald had, and his -- the inf ormation that we have i
21 received that he was near a nervous breakdown.
22 In the meeting I think that saklak made it clear 23 that -- I don' t want to directly quote him.
I can' t 24 recall his direct conversation, but he ref erenced that 25 he could take anybody and put a Cubs hat on them and
?
Sonntag Reporting Service, Ltd.
GentyA, 1111noin 60134 (312) 232-0262 I
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make them a QC Inspector; but --
2 Q
Isn' t it true that you interpreted that remark as in a 3
derogatory fashion and thought that Saklak had a low 4
opinion of QC Inspectors?
5 A
No, that's -- those are your words, not mine.
6 0
Well, I am asking you whether or not it's true.
7 Is it not true?
8 A
I don' t think it's a true statement.
9 Q
Didn' t you inf er f rom the statement made by Mr. Saklak 10 at that meeting that you believed that perhaps he was 11 intimidating Inspectors that were under his supervision?
t 12 Wasn' t that your testimony on deposition?
k 13 A
I don' t recall.
It probably was.
14 0
You don' t recall now?
15 A
I don' t recall it in the deposition, no.
16 0
And, in f act, that the purpose of the meeting --
17 JUDG E GROSSMAN :
Excuse me.
18 There were two questions asked, and I am not sure 19 whether he thinks that's probably what he said on the 20 deposition or that's probably what Saklak indicated, so 21 let's clarify the area.
22 BY MR. G ALLO:
23 Q
Do ycu recall indicating that at your deposition?
24 A
No, si r, I don' t recall indicating that at my 25 depo sition.
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1 Q
All right.
2 And isn' t it accurate that at your -- that at the 3
meeting you described with Saklak and Wallace, that you 4
drew the inf erence f rom what Saklak had to say about the 5
QC Inspectors, that, perhaps, there was harassment going 6
on with respect to Saklak and his Inspectors under his 7
supervision?
8 A
Are you asking me if that's in my deposition?
9 Q
No.
10 I am asking you:
11 Isn' t that a f act?
12 A
That that's a conclusion that I came out with?
tO 13 0
I am asking you now:
14 Isn' t it a f act that at the meeting you inf erred 15 from what Saklak had to say about the QC Inspectors, 16 that he was possibly harassing those Inspectors under 17 his supervision?
3 18 A
Mr. Gallo, I think you are trying to put words in my 19 mouth.
20 I think we are going to go back to the testimony, 21 and I think my testimony clearly states that, af ter the 22 meeting, we had a conf erence with Mr. Wallace, and we I
23 told him what we had --
24 0
No, no.
/ \\
25 A
-- that we had some concerns.
- U Sonntag Reporting Service, Ltd.
Geneza, Illinois 60134 (312) 232-0262
11831
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Q No, no.
Just answ er my ' question.
2 A
That's -- that's what we lef t it as.
3 We didn' t tell Mr. Wallace that Saklak was out 4
there intimidating the witnesses.
5 0
You didn' t tell them at the meeting?
6 A
That's right.
7 Q
And, in f act --
8 A
I didn' t tell yon that, did I?
9 Q
That wasn' t one purpose of the meeting, to discuss 10 Saklak's conduct with respect to the QC Inspectors, was 11 it?
12 A
I think if we had some allegation that there was p-~
13 harassment and intimidation at that particular time for 14 that meeting, it would have been -
probably be an 15 allegation sent up to the region then, not March 29th.
16 Q
Well, this meeting you say occurred in the f all of 1984.
17 A
I think it was, i
18 O
And you were aware of the ' Seeders matter and certainly l
19 Mr. Schulz was aware of the Seeders matter, which 20 occurred sometime in August of 1984; isn' t that correct?
21 A
Correct.
22 O
Was that discussed in the Wallace meeting?
l 23 A
I don' t r ecall, to be honest with you.
24 It could have been, but I don' t think it was.
25 0
All right.
Sonntag Reporting Service, Ltd.
Geneva, Illinoi s 60134 (312) 232-0262
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)
1 Now, at the meeting with Wallace, Saklak and 2
Schulz, one concern was, as you indicated, the workload 3
and stress that was imposed on Mr. DeWald?
4 A
- That's correct.
5 0
Was also one of the matters discussed th~e amount of work 6
or the workload on OC Inspectors themselves?
7 A
That's cor rect.
~
8 Q
Was a suggestion mado' Ehat the -- that there was too 9
much of a workload?.
~
10 A
We did not suggest to Mr.' Wallace how to conduct his 11 buci nes s.
We told him'that the inf ormation that we had, i
th' t it -- it appearod that commonwealth Edison should 12 a
s 13
'Johk into these potential, problens,that we f eel exist at 3
s 14 L.K Comstock.
S
~
15 O
Had you drawn a j udgment that, perhaps, additional QC 16 Inspectors should be hired?
i 17 A
It's a possibility, it's one. of the. possibilities.
18 There are other possibilities, al so.
s s 19 Q
And did you discuss the amount of overtime that the QC Inspectors were working during the Wallace meeting?
20 r
x 21 A
N o, si r.
i i
22 That's not my business to discuss time or pay or l
-Q
~
l 23 ov er time.
l 24 Q
That didn' t -- well --
j 7
25 A
That's not our concern.
%l n.
l l
sSonntag Reporting Service, Ltd.
I G enev a, Illinois 60134 l
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1 The amount of overtime insof ar -- work by a QC 2
Inspector insof ar as it might af fect the perf ormance of 3
that Inspector, isn' t that a matter within your concern?
4 MR. TREB Y:
I obj ect.
5 The witness has indicated he didn' t discuss 6
ov ertime.
I don' t see w her e the r el evance of the 7
question is.
8 BY MR. GALLO:
9 Q
Now, the morale problem you ref er to -- I am going to 10 withdraw the question.
11 The morale problem that you ref er to being 12 discussed in the meeting, did that f ocus upon the O
13 wor kload, both on DeWald and the Inspector and the 14 working relationships between the Inspectors and QC 15 management ?
16 A
Yes, si r.
I think Mr. Saklak brought out some of'.those 17 conditions in his -- in that meeting directly.
18 Q
Did Saklak do most of the talking at the meeting?
19 A
That's correct, si r.
20 0
And he j ust explained what the situation was over at 21 Comstock f or your benefit and f or Mr. Wallace's benefit 22 and also f or Mr. Schulz ?
23 A
Cer tainly.
24 0
What was -- what j udgment, if any, did you draw with 25 respect to that explanation and discussion paid by Mr.
Sonntag Reporting Service, Ltd.
Geneva, Ill inois 60134 (312) 232-0262
1184C O
1 Saklak?
2 A
I have pr eviously testified, si r, what w e dr ew from that 3
meeting; and I lef t the meeting with a discpssion with 4
Mr. Wallace that there -- and I hate to repeat it again 5
because you will probably see that I lef t out the word 6
"and"; so. if you wish --
7 0
Just answ er the question, pl ease.
8 A
- Okay, 9
0 I interrupted you.
10 Go ahead.
11 MR. GUILD:
The witness is basically saying 12
-- excuse me.
f-g 13 TH E W ITN ESS:
I answered the question a 1
14 number of times.
15 BY MR. G ALLO:
16 Q
And you said you came out of the meeting and discussed l
17 with Mr. Wallace, and please tell me what your 18 discussion at that point was with Mr. Wallace.
l l
I obj ect.
I 20 The question is asked and answered.
It's in the i
21 recor d.
l 22 JUDG E G ROSSMAN :
W ell, the witness can 23 answ er.
24 I don' t recall the answer to what he discussed with
- /'N 25 Mr. Wallace af ter the meeting.
i Sonntag Reporting Service, Ltd.
Genev a, Ill inoi s 60134 (312) 232-0262
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11843 r~
Oy 1
A All right.
I think I can answer it f or the third time.
4 2
I don' t know if we will have a diff erent version 3
af ter that in the record, but --
4 MR. GALLO:
Excuse me, Your Honor.
5 Could we j ust instruct the witness to not give 6
these contemporaneous or extemporaneous lectures of this 7
ty pe ?
8 MR. GUILD:
Mr. Chai rman, it seems 9
appropriate to me when the question has, indeed, been 10 asked and answered, that counsel makes more of it, and I 11 think the witness should be concerned about whether or 12 not, when he's repeated an answer the second or third A/
13 time, that the repeat, indeed, has all of the details s
14 the f ormer answer did.
15 That's why asked and answered is an appropriate 16 obj ection, and I do recall the question being asked and 17 the question being answered.
18 MR. G ALLO:
The Board ruled and directed him j
19 to answer the question.
l 20 I don' t believe it's appropriate f or the witness to l
21 comment as he did, and I am asking that the Judge 22 instruct him to that effect.
23 J UDG E G ROSSMAN :
Mr. Gal lo, the witness was 24 about to answer the question, even if his preliminary j
25 remark might have been inapproprirte.
Sonntag Reporting Service, Ltd.
j Geneva, Illinois 60134 (312) 232-0262
11845 y\\(d
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1 Mr. McG regor, why don' t you j ust answer the 2
question.
3 A
(Continuing. )
Yes, si r.
1 4
Af ter the meeting Mr. Saklak lef t and Mr. Schulz 5
and I sat down with Mr. Wallace in his of fice, and we 6
discussed what Saklak had to say, and I wouldn' t 7
characteriz e Mr. Saklak in f ront of Mr. Wallace or 8
anybody else in that meeting, nor did I, and I simply 9
told Mr. Wallace I thought that on the surf ace there 10 appears to be some problems in L.K Comstock's QC 11 management workload, et cetera, et cetera.
12 I don' t recall what I had answered bef ore, but,
)
13 nevertheless, we thought that maybe it was appropriate 14 for Commonwealth Edison to look into these matters and 15 come up with a solution, if there was a solution for the 16 probl em, or if there is a problem.
17 BY MR. G ALLO:
18 0
Did you suggest that there might be morale problems as 19 well?
20 A
The morale problems and the problem that was evidenced 21 with Saklak -- I believe he said that Irv DeWald had a 22 nervous breakdown, or whatever, was near.
23 We f elt that -- that this was a problem and that 24 somebody should go look into it.
[\\
25 Q
Did you characterize to Wallace these problems as either Sonntag Reporting Service, Ltd.
Geneva. Illinoi s 60134 (312) 232-0262
11842 (v
1 harassment or possible harassment and intimidation 2
problens?
I obj ect.
4 Again, the witness indicated j ust what it was that 5
he said.
6 JUDG E GROSSMAN :
Did that f ully indicate --
7 THE WITNESS:
Yes, si r.
8 JUDG E GROSSMAN :
-- indicate your 9
recollection in --
10 TH E WITN ESS :
Yes, sir.
That's the complete 11 recollection of what happened at the meeting.
12 MR. G ALLO:
I will withdraw the question, c
'\\,
13 based on the Chair's question and the witness' answ er.
. [
14 JUDG E G ROSSMAN :
Now, Mr. Gallo, again, was 4
15 the purpose of this line of questioning to find out l
16 whether the witness thought it might ha te been 17 harassment and intimidation and then f ailed to write out l
18 an allegation report?
19 MR. GALLO:
N o, not at all.
20 JUDG E GROSSMAN :
Okay.
1
(
21 Continue. Mr. Gallo.
l 22 BY MR. G ALLO:
I l
23 0
I believe in answer to one of Mr. Guild's questions, you 24 indicated that this served as -- this meeting and your 25 discussion with Wallace served as one basis f or your Sonntag Reporting Service, Ltd.
G enev a, Illinoi s 60134 (312) 232-0262
. _. _ _ _ _ _ ~
11844 0b 1
agreement with the criticism of CECO Q A and CECO 2
management that's in the March 29th memorandmn.
3 Did you ever hear of what, if any, action Mr.
4 Wallace took to your suggestions that there might be 5
problems at Comstock and they ought to be looked into?
6 A
I never heard specifically what Mr. Wallace did with 4
7 regard to my comment, no.
8 Q
Did you inquire of Mr. Wallace?
9 A
No, si r, I did not inquire of him.
4 10 Q
And I am talking about particularly prior to March 29, 11 1985.
12 A
Did I inquire to Mr. Wallace of his actions?
)
s/
13 0
Yes.
14 A
No, si r.
15 Why should I?
16 0
I am sor ry.
I 17 What did you say ?
l l
18 A
I say, 9Why should I?"
l 19 0
Well, as a Resident Inspector at B raidwood, I assume l
20 that you would have an interest.
l l
I obj ect.
22 We are j ust getting into a --
23 JUDG E GROSSMAN :
B ef or e y ou obj ect -- Mr.
24 McG regor. don' t add anything to your answer --
25 THE WITNESS:
All right, si r.
Sonntag Reporting Service, Ltd.
Genev a, Illinois 60134 (312) 232-0262
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1184!
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l t
l l
1 JUDG E G ROSSMAN :
-- which would provoke a 2
conv ersation.
Just answer the questions.
3 MR. GALLO:
Can I have a moment, Your Honor?
4 I am looking f or something.
5 JUDG E GROSSMAN :
Cer tainly.
6 MR. GALLO:
Your Honor --
7 JUDG E GROSSMAN :
Hold on f or a second.
i 8
MR. G ALLO:
Sure.
9 JUDG E GROSSMAN :
Mr. Gallo?
10 MR. GALLO:
I would like to have identified, 11 as Applicant's Exhibit 118, a memorandum dated October l
12 4,1984, f rom Mr. Shamblin to Mr. Wallace.
s 13 (Indicating. )
14 (The oocument was thereupon marked 15 Applicant's Exhibit No.118 for 16 identification as of the 29th day of 17 August, 1986.)
18 BY MR. G ALLO:
19 Q
I ask, Mr. McG regor, have you seen that memorandum 20 bef or e?
21 (Indicating. )
22 A
No, sir, I haven' t.
23 Q
Had you seen it at all bef ore March 29, 1985?
24 A
I think today is the first time I have seen it.
25 MR. G ALLO:
Take your time and review the Sonntag Reporting Service, Ltd.
Genev a.
1111noi n 60134 l
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11846 4
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7 l
memorandum.
2 Perhaps five minutes would be appropriate, your 3
Honor.
l 4
JUDG E G ROSSMAN :
If you wish to take a 5
fiv e-minute br eak, fine.
6 (Whereupon a recess was had, af ter which 7
the hearing r esumed as f ollows:)
8 JUDG E GROSSMAN :
Let's proceed.
9 I assume, Mr. Gallo, that you are not going to be 10 offering Applicant's Exhibit 118 but you want to use it 11 for a hypothetical; is that correct?
12 Are you not going to use it at all now that the
\\
13 witness hasn' t seen it?
14 MR. G ALLO:
No.
I am going to use it as a 15 hy pothetical, but I intend to use it -- to introduce it 16 into evidence when Mr. Shamblin is called.
17 JUDG E GROSSMAN :
Yes.
Well, I meant not now.
l 18 MR. G ALLO:
Not now.
19 JUDG E GROSSMAN :
Okay; and you want us to i
20 mark the subsequent memorandum as Applicant's Exhibit 21 1197 22 MR. G ALLO:
No.
The subsequent memorandum is l
23 in the order of the Board notification that I ref erred 24 to earlier, and contains the recollections of Mr.
25 Gieseker and Mr. Dougherty with respect to the meetings s
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11841 rx 1
they had with the alleger in this case, the new alleger r
2 in this case.
3 JUDG E G ROSSMAN :
Okay.
4 MR. G ALLO:
So it's not an exhibit.
It ' s 5
simply a fulfillment of my obligation to provide a 6
memor andum.
7 A copy has been provided to Mr. Guild as well as 8
Staff.
9 MR. GUILD:
Mr. Gallo, did you mark the 10 October 29, 1984, memor andum ?
11 MR. GALLO:
Yes.
It ' s -- I believ e it' s 118.
12 THE COURT REPORTER:
Yes, si r.
13 MR. G ALLO:
Yes, that's correct.
14 JUDG E GROSSMAN :
Again, this is a public 15 document, and there are no restrictions; isn' t that 16 correct, Mr. Gallo?
17 MR. ) GALLO:
Yes, si r.
18 You are ref erring to the memorandum that I have 19 just circulated?
20 JUDG E G ROSSMAN :
Yes.
21 MR. G ALLO:
Yes.
22 MR. MILL ER :
Your Honor, in light of that 23 fact, I was wondering whether the Staf f might reconsider 24 as to whether or not -
persists in requiring a 25 protective order with respect to the documents that Sonntag Reporting Service, Ltd.
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11840
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1 relate to the very same individual and the very same 2
series of incidents.
3 JUDG E GROSSMAN :
I assume Staf f will check 4
that out and have an answer at the next session, if 5
possible?
6 MR. MILL ER :
Well, your Honor, that will be 7
af ter the deposition of this individual and perhaps we 8
can have an on-the-spot determination.
9 MR. TRBBY:
W ell --
10 MR. B ERRY :
We are willing to state our 11 position, and our position hasn' t changed f rom that, as 12 stated earlier in the week, that the documents that we
-s
\\~ '
13 produced are produced pursuant to the protective order.
14 We produced them to the parties, limited to their 15 counsel.
16 The alleger, who is the subj ect of this discussion 17 here, has indicated to the Staf f, you know, despite 4
18 whatever he may have communicated to the other parties, 19 that he's indicated to Staf f that he wishes to remain 20 co nf ide nti al, and the Staf f is not willing to engage in 21 any conduct that would breach its commitment to the 22 alleger, and this is irrespective of what actions and 23 conduct and things that the alleger may have done on his 24 own, which the Staf f has no knowledge of other than the
/ }
25 representations of the Applicant.
Sonntag Reporting Service, Ltd.
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! O lU 1
So I would note.that some of the -- it may well be 1
2 that the Applicants have in their possession and will 3
make available to the Intervenors scue documents that i
4 the Staf f has in its possession, and we have no control j
5 over that; but the Staff will not voluntarily retreat l
6 from the position we have taken earlier in the week.
7 JUDG E G ROSS' MAN :
Well, Mc. Miller, I don' t 8
know that it's necessary that you violate the protective 9
order -- I don' t mean violate it, but if you have the i
l 10 substance of -everything you need already, other than the i
11 fact of having made the allegations in some form and 1
12 having them there really isn' t any necessity to concern 13 your cel f.
14 MR. MILL ER :
You may be right.
i 15 JUDG E GROSSMAN :
But the protective order, j
16 you can go right ahead on what is public inf ormation.
17 MR. MILLER:
Sure.
i 18 The document in the alleger's handwriting that was 19 a part of the materials turned over by the Staff, 20 subj ect to a protective order, in f act, is attached to I
21 this memorandum because the alleger has circulated it l
22 widely at the site, so I think you are probably right.
l 23 MR. GUILD:
I think that is a practical 4
l 24 matter.
It's sort of even less distinct.
I think there i
25 is a more important point here, and that is that the Sonntag Reporting Service, Ltd.
Genev a, Illinois 60134 (312) 232-0262
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1 Staff asserts confidential materials that are apparently (
2 relying on the Applicant's representation, and I have no 3
reason to doubt them, are matters that have been f ully 4
discussed with all potential people who could be a 5
sour ce of --
6 JUDG E G ROSSMAN :
Let's not take any further 7
time.
8 The Applicant apparently requested confidentiality 9
to the extent that Staf f promised it; its upholding its 10 promise; and if that becomes irrelevant f or your 11 pur po ses, you can act on what substantive inf ormation 12 you have that's already public.
I k
13 MR. GUILD:
My point --
14 JUDG E GROSSMAN :
It would not be violating 15 the protective order.
16 MR. GUILD:
Let me j ust be clear, Mr.
17 Chai rman.
18 I will ask that the Board recede f rom any l
19 protective orders f or the Staf f's documents.
I make 20 that very clear, specific request so that neither the I
21 Applicant nor the Intervenor -- and Intervenor is the 22 issue here, because ve are the only ones in the dark; so 23 that we are not hampered any further in getting to the 24 bottom of this when we conduct a discovery deposition of 25 this individual. and I think the Staf f has an obligation
(
l
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Geneva, Illinoi s 60134 (312) 232-0262 3
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11851 f
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LU 1
to support our r equest f or an af firmative showing beyond 2
what is made, particularly in light of the f act that the 3
individual relying on Applicant's representations has l
4 given the handwritten statement of concerns to 5
Applicant, to Comstock management, and it's f ully 6
discussed them with, apparently, Mr. Gieseker and i
7 others.
8 Intervenor is burdened by it.
We think it's 9
improper to have a protective order under these 10 ci rcumstances, and we would ask that it be withdrawn.
11 (There followed a discussion outside the 12 record. )
O 13
~
MR. B ERRY:
Intervenor is f ree to -.
14 JUDG E G ROSSMAN :
W ell, I don' t think the 15 terms of the protective order preclude you f rom 16 following up on leads that might come to you f rom the 17 documents presented; so I don' t see how you' re inhibited 18 at all, Mr. Guild.
19 MR. GUILD:
May I question the witness on 20 deposition f rom the NRC documents, Mr. Chairman?
21 JUDG E GROSSMAN :
No, because there is no need i
22 to question them f rom the documents.
23 If you have the inf ormation and wish to question 24 them directly on the inf ormation, there is no reason to 25 make a point of that.
Sonntag Reporting Service, Ltd.
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(G 1
I do n' t know -- now. let me ask Staff, if the 2
witness indicates on deposition that he no longer wishes 3
confidentiality, would it be within your authority to 4
dispense with the protective order?
5 Can you check on that bef ore the deposition is 6
taken on Tuesday and maybe you can resolve whatever 7
problems may remain, if any, at the beginning of the 8
depo sition?
9 MR. GUILD:
Mr. Chairman, may I ask one 10 question?
11 I am aware of a statement of policy by the Staf f s
12 with respect to confidentiality, and I paraphrasing it, 13 as I don' t have the document in f ront of me, but as I 14 recall, it states very exclusively that a person who is 15 granted confidentiality, act in a manner which is 16 consistent with that grant of confidentiality, and that 17 confidentiality is waived by that f act.
18 Now, that is a protection I would take it that the 19 Staff has in case an individual who has confidentiality 20 goes public, if you will, with a concern.
21 Without arguing the appropriateness of that 1
22 provision of that policy, it would seem to me that this 23 individual has clearly acted inconsistently with a j
24 confidentiality to the detriment of a party in this
[
l 25 proceeding who is the only party that is not f ree to l
l Sonntag Reporting Service, Ltd.
Genev a, Illinoi s 60134 l
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1 utiliz e that inf ormation, and it is a burden on us, 2
Judge.
3 I will, of course, respect the Chair's ruling; but 4
it seems to me that the record should reflect that we 5
have been limited
-- in my opinion -- limited to the 6
extent that we can' t use these documents in any 7
nonprotected f ashion.
8 JUDG E G ROSSMAN :
Excuse me.
9 Is it your understanding, too, of the public 10 policy, Mr. Ber ry, or don' t you have an opinion at this 11 point ?
The problem, si r, is that there O.
12 13 is a statenent of policy with regard to confidentiality, 14 and there is also a manual chapter, an NRC manual 15 chapter, which explains various procedures.
16 My recollection is that the manual chapter has 17 certain steph or procedures that one J-that the agency i
18 has to go through, even though the person has taken i
19 actions that would appear to be contraq to it.
20 JUDG E GROSSMAN :
Okay.
That's w hy I asked i
21 you that.
I have to check that matter 23 bef or e w e can say, you know, definitiv ely to you now, 1
l 24 th at --
l 25 JUDG E G ROSSMAN :
That's why I wanted to find l
Sonntag Reporting Service, Ltd.
G enev a, Illinoi s 60134 l
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1 out if you could clear it in advance.
We certainly should be able to 3
clear it bef ore the deposition.
4 We will have an opportunity to have looked at the 5
manual chapter and --
!~
6 JUDG E G ROSSMAN :
Okay.
7 Now, again, Mr. Guild, it's my opinion, from what I i
8 have heard and my recollection, that you are not being 4
9 hanpered any more than any of the other parties because
.10 th ey, too, cannot ref er directly to the NRC documents 11 that they did not receive publicly, some other way, and 12 they, just as you, are entitled to f ollow up on the Oi 13 substance of what is public, and so it doesn' t appear l
14 th at, practically, you are in any position differently 15 than the other parties; but we are unwilling right now 16 to take the step to remove the protective order and 17 direct the Staf f not to abide by it.
1 18 So you will j ust have to play it that way until i
19 some real problem comes up that is not resolved at the 20 deposition; and let's not hear any more about it right 21 now, and let's go back to the witness.
22 Mr. Gallo.
r
(
23 MR. GUILD:
Mr. Chai rman, excuse me, si r.
24 Bef or e w e leav e the point, I would ask leave to be 25 heard on simply the f actual question and as to whether I i
Sonntag Reporting Service, Ltd.
Genev a, Illinoi s 60134 (312) 232-0262
11855 4
1 am disadvantaged.
2 If you won' t hear me. that's fine.
I j ust want to 3
let you know I disagree with that conclusion.
4 I am prepared to make a showing that I am 5
disadvantaged, if the Chair will entertain such a i
6 showing.
I won' t press the point if I didn' t think it 7
was important, Mr. Chai rman; but, of course, I respect 8
the Chair's ruling.
9 JUDG E GROSSMAN :
How long will that showing 10 take ?
11 MR. GUILD:
About 3 0 se co nds.
12 JUDG E G ROSSMAN :
About 30 se conds ?
13 Proceed.
14 MR. GUILD:
The f act of the matter, Mr.
15 Chai rman, is I am the only party that hasn' t thoroughly 16 investigated this matter, because I am the only person 17 who hasn' t had access to the site documents, to the 18 witnes ses.
19 The meaorandum that you have j oht been handed 20 reflects that the individual has already been examined 21 by nonerous Commonwealth Edison and Comstock management 22 pe opl e.
Apparently the-have had access to all the site 23 documents and certainly no more of the f actual 24 ci rcumsta nce s.
25 I am the party -- Intervenor is the party that has Sonntag Reporting Service, Ltd.
G enev a, Illinois 60134 (312) 232-0262
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I 1
to go into this deposition blind.
2 Mr. Miller, as he appropriately says, is probably i
3 the --
4 JUDG E GROSSMAN :
How does -- excuse me.
5 How does the release of the protective order have 6
any bearing on whether you have access to these 7
documents?
I don' t understand that.
i
)
8 If you know the substance of everything, why can' t
~
9 you request the documents?
j 10 Whether you are under or not, under the protective 1
J 11 order, I don' t understand that.
12 MR. GUILD:
W ell, to make it real clear, I Os 13 can' t even show the deposition witnesses the NRC 14 documents that reflect what they told the NRC and what i
15 the NRC said they are doing about it and make inquiry of 16 those witnesses based on that document.
17 JUDG E GROSSMAN :
You mean show the document 18 to the witnesses, of the witnesses' aan procedure?
I 19 don' t understand that.
20 His own allegation document?
21 MR. GUILD:
No, si r, that docmnent -- now, by i
22 happenstance, I am free to use because that docunent 4
l 23 just happens to have come by way of Mr. Gallo and the 24 Applicant.
25 JUDG E GROSSMAN :
Well, let's not talk about Sonntag Reporting Service, Ltd.
Genev a, Illinoi n 60134 (312) 232-0262
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i 11851
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h(potheticals.
Let's talk about the real case.
l 2
MR. GUILD:
And the real case is that there 3
is a whole series of documents reflecting the NRC's 4
processing of its concerns, memorializing what the 5
individuals have told the NRC about those concerns.
6 JUDG E G ROSSMAN :
And you can' t show those 7
documents to the individual himself ?
8 MR. GUILD:
You j ust told me I couldn' t, and 9
I asked if I could use the deposition -- in deposition, 10 and you said I could not.
That's what I asked.
11 JUDG E G ROSSMAN :
Oh, I see.
12 Because the deposition -- I' m sor ry.
Then I don' t O
13 see that you can' t use those documents.
14 The deposition then would be in camera, if you were 15 going to use the document, unless there is release of 16 the protective order at that time.
17 You certainly can use the documents with regard to 18 the alleger himself.
That's not a release, but I guess 19 we -- unless there is a rat ease of the protective order.
20 If you use that, the deposition will have to be in 21 camera.
22 MR. GUILD:
W ell, I don' t desire to be in 23 camera, Mr. Chairman; but if that's the instructions of 24 the Chairman. the only way I can use those documents, I 25 will do so.
Sonntag Reporting Service, Ltd.
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Illinoi s 60134 l
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1185E O\\U 1
It does hamper me because then I can' t use any 2
inf ormation, I can' t use the deposition publicly, I 3
cannot use NRC documents publicly, and I would desire to 4
use both those documents publicly and be able to f urther 5
ny investigation of this issue.
6 I didn' t have any other time outside these hearings 7
to conduct discovery on this matter because the Board 8
has ruled that discovery must proceed.
9 JUDG E G ROSSMAN :
Okay.
Mr. Guild, it seems 10 to me the more I hear, the more it seems like an 11 academic problem and not a real one, and we have already 12 heard the argument here, and let's continue with the O-13 witness bef ore our time runs out.
14 Mr. Gallo.
15 BY MR. GALLO:
16 O
Mr. McGregor, did you have opportunity to look at the 17 October 4,1984, memorandum f rom Mr. Shamblin to Mr.
18 Wallace during the recess?
19 A
Yes, si r.
I did.
20 Q
Does Mr. Shamblin describe 17 actions taken with respect 21 to dealing with what he considers to be or calls the 22 overall morale problem at Comstock with respect to the 23 QC inspections?
24 MR. GUILD:
Obj ection.
25 The document speaks f or itself, and the witness is 1
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V 1
certainly not being a substitute for the lack of support 2
for the document.
He doesn' t know, has no competence 3
to say whether or not the -- there are 17 items that Mr.
4 Shamblin did or did not know.
5 JUDG E GROSSMAN :
No; he is only being asked 6
whether it appears f rom the document that there are 17 7
items like that.
8 He can answer the question.
9 Do you want the question repeated?
10 THE WITNESS:
Yes, si r.
11 JUDG E G ROSSMAN :
Please read the question 12 back.
13 (The question was thereupon read by the 14 Reporter.)
15 MR. G ALLO:
I should have said " Inspectors. "
16 JUDG E GROSSMAN :
And I understand the 4
17 question to mean:
Does it appear f rom looking at the 18 document ?
19 MR. G ALLO:
Yes, yes.
20 A
Certainly there are 17 sentences or paragraphs there 21 that Mr. Shmnblin has stated with regard to morale 22 problems at L.
K.
Comstock Company.
23 BY MR. G ALLO:
24 0
Could you tell me if any of the items addressed concerns 25 that you conveyed to Mr. Wallace during your meeting 7
Sonntag Reporting Service. Ltd.
Genera. Illinois 60134 l
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1186( '
1 with him in 1984, the one that you have testified to?
2 A
W ell, one of them -- I f orget which one it specifically 3
is -- recognizes a need f or "Another Quality control 4
Departmental Supervisor to be added to assist the l
5 manager and spread the management burden better. "
6 That' s N o. 17,
7 Q
Are there any others that come to mind?
8 A
No, si r.
We didn' t discuss the kitchens or pizza parlor 9
or picnics or anything like that.
6 10 Q
None of the others come to mind; is that correct?
4 11 A
No, si r.
12 Q
Now, if we assume that these actions were taken by 13 Shamblin at Wallace's request in response to your 14 meeting with Wallace. would that in any way cause you to i
15 change your agreement with the criticism of CECO l
16 management with respect to slowness in taking corrective f
17 actions that reflected in the March 29th memorandum that l
18 you coauthored?
19 A
No, si r.
20 Q
Not at all?
21 A
No, si r.
l 22 Q
Isn' t it a f act, Mr. McG regor, that Mr. Schulz wrote the 23 last paragraph of your March 29, 1985, memorandwn?
{
24 A
I don' t know which paragraph you are talking about.
I 25 0
I' m sor ry.
l Sonntag Reporting Service, Ltd.
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1 A
Which memorandum or which document are you talking 2
about ?
3 JUDG E G ROSSMAN :
What is the document number, 4
Mr. Gallo?
5 MR. GALLO:
42, Intervenors' No. 42.
6 This is the paragraph.
7 (Indicating. )
8 This is the last paragraph of the March 29th 9
menorandum that begins or has in a sentence of the first 10 page, Inspector X.
It's on the first page.
11 THE WITNESS:
That's the paragraph you are
-~
12 ref erring to?
13 MR. G ALLO:
Yes; but also there is the right 14 portion that I want you to ref er to.
15 BY MR. G ALLO:
16 Q
Now, my question:
17 Isn' t it a f act that Mr. Schulz wrote that 18 paragraph?
19 A
No, sir, that's not correct.
(
20 0
That's not correct?
21 A
Mr. Schulz did not w rite that paragraph.
1 i
22 0
Did you write it?
l 23 A
Both -- yes, I w rote a portion of it and Mr. Schulz --
24 and Mr. Schulz wrote some of it.
25 0
With respect to the -- excuse me.
i i
Sonntag Reporting Service, Ltd.
l Genev a, Ill inois 60134 i
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11861 O
1 With respect to the sentence that says, "It appears 2
at first glance, with the inf ormation we have received, 3
that a shutdown or some other addressive action of the 4
electrical work may be necessary to establish the 5
quality of past work and the quality of the ongoing 4
6 work."
7 Isn' t it a f act that Mr. Schulz wrote that 8
sentence ?
9 A
I think he draf ted that sentence.
10 0
Isn' t it a f act that he w rote this sentence, al so, "The 31 lack of action by CECO Q A and also the CECO management i
12 slowness or inability to address corrective action"?
13 A
H e could h av e.
I don' t know.
14 0
You don' t recall at this point?
+
)
15 A
N o, si r, I do n' t.
16 0
You don' t recall at your deposition indicating that Mr.
l 17 Schulz wrote both sentences that I have just quoted?
j 1
i 18 A
I could have said that.
That's possible.
19 Q
Is this a f air statement to say that when you agreed 20 with those two characterizations -- excuse me.
21 When you agreed with those two sentences in i
22 reviewing it with Mr. Schulz, that you were relying on 23 his j udgment as to the accuracy of the statements?
24 A
He was aware of the -- certainly the meeting we had with 25 Mr. Wallace with regard to the morale problems.
He was j
Sonntag Reporting Service, Ltd.
G er.ev a, Illinoi s 60134 (312) 232-0262
11862 1
certainly aware of the problems that were brought to him 2
in the Seeders incident.
3 Q
Yes, I know; but were you relying on his judgment when 4
you concurred with him in those two sentences?
5 A
Cer tainly.
6 Q
And it was his j udgment, not any independent knowledge 7
of your own, that you were relying on.
Is that a f air 8
statenent ?
9 A
I was relying on my knowledge of the work that was --
10 for the Quality Assurance Departnent of L.
K.
- Comstock, 11 and his knowledge of the Quality Assurance Deparbment at 12 L.
K.
Comstock.
\\,
13 That's what we were relying on in those statements.
14 Q
So you had independent knowledge.
Is that your 15 testimony ?
16 A
Yes, si r.
17 Q
And was that independent knowledge the matter that you 18 have already testified to here today, in connection with 19 the basis --
20 A
Yes, si r.
21 Q
Let me finish.
22 in connection with the basis for these two 23 sentences?
24 A
You are cor rect, si r.
25 JUDG E G ROSSMAN :
Excuse me.
Sonntag Reporting Service, Ltd.
Geneva, Illinoi s 60134 (312) 232-0262 l
11864 0O) 1 Just today or also yesterday, if there were any 2
items that you mentioned yesterday?
3 THE WITNESS:
Yesterday.
You are correct, 4
sir; yesterday and today.
5 We went through a number of them yesterday.
I 6
don' t recall all the specific ones.
7 JUDG E G ROSSMAN :
But they were more yesterday 8
than I recall your going through today.
9 THE WITNESS:
Yes, si r.
10 MR. GALLO:
One last item on this matter.
11 BY MR. G ALLO:
12 0
Your deposition of November 25th, at Page 195, you were O
13 asked a question -- well. prior to Page 195, you were 14 asked a series of questions about a meeting we have 15 been -- the Wallace-Saklak-Schulz-McG regor meeting, and 16 you were asked a question at Line 4 of Page 195, and I 17 show it to you.
18 (Indica ting. )
19 "Do you see any evidence that Mr. Wallace or other 9
20 Edison people did look into the problem?
"A I think 21 we did.
There were more personnel hired.
I think some 22 of the upper management received assistance, if I recall 23 correctly.
There was some remedial action taken. "
l 24 Now, does that ref resh your recollection as to 25 whether or not you were aware of any corrective action l
Sonntag Reporting Service, Ltd.
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1 taken with respect to the matters you raised -- you and 2
Mr. Schulz raised with Mr. Wallace at that meeting?
Y a.
I think -- it didn' t ref resh my memory, but had I 3
A e
4 rad an opportunity to expand my answer previously, with 5
ref erence to Mr. Wallace's meeting, we were not 6
appraised -- the Nuclear Regulatory Commission was not 7
appraised of Mr. Shamblin's memorandum to us.
8 I think it -- it would have been appropriate, since 9
we did have some concern, that we be involved in that;
~10 however, we were aware t. hat extra personnel were 11 assi gned.
We were aware thct other managers were 12 assigned to L.
K.
Comstock and that it seemed to relieve 13 some of the burden in the work efforts.
~.
14 0
Were you aware of that prior to March 29, 1985?
4 15 A
Cer tainly.
16 0
And that still didn' t -- still caused you, nev ertheless, l
17 to concur and to the two sentences written by Mr.
18 Schulz, criticiz ing, among other things, CECO's 19 management f or slowness to taking corrective action?
20 A
Cer tainly.
21 I don' t think it was Commonwealth Edison's action 22 directly that got these people hired.
I think it was 23 the meeting that NRC conducted with Mr. Wallace that got 24 this momentum started, and not Commonwealth Edison 25 Quality Assurance Department.
l l
l l
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l Geneva, Ill inois 60134 (312) 232-0262
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} --
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s
,1 Q-Iam talking about CECO's management now, slowness to E
h2
>i takeJ corrective action attributed to CECO's management 3.'
in your memo: andum.
\\
4
'A That's correct.
5; Well, CECO (Quality Assurance is a portion of that s
'6 CECO management.
7-0 Let's not quibb1e.
Let's assume both.
_ 'A Cer tainly. ^,f '
8' s-9
. Q Did you yoursel'f or Mr. Schulz take action directly with 10 Comstock to convey.the concerns you indicated to Mr.
11 Wallace ?-
i r
12 A
Repeat that, pl ease._
s
" 13 0
Yes.
y 14 Did you or Mt. Schulz go directly to Comstock or to V
s e
convel your. cohcerns that you had conveyed to Mr.
4
'15 is 4
s, 3
Wallace concerning the OC problem at Comstock?
'16 -
\\
17 A
No, si r.
I would not divulge the meeting that. I had 18 with Mr. Wallace to Comstock, and I can' t speak f or Mr.
19 Schulz.:
~
20 0
So the improvements we have talked about, the additional i
21 personnel, must have come through Mr. Wallace; isn' t 22 i
that correct?
l 23' A
Ho.
In our daily ef forts on the site, it's very 24 apparent to you to see that there are 50 or 75 more 25 Inspectors hired.
It's quite evident to you that J
\\
i 1
l q
g 4
l*
Sonntag Leporting Service, Ltd.
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11861 O
1 another manager is put on.
You don' t have to ask 2
persons f or that.
You can see it.
3 0
I understand you can see that.
4 But I am suggesting that, based on your meeting 5
with Wallace, that Wallace took corrective action that 6
this. additional -- he caused the additional Comstock 7
Inspectors to be hired?
8 A
That' s --
9 Q
Do you take issue with that?
10 A
No, no, I -- I definitely not.
11 0
All r3ght.
12 Then let me ask you my question again.
\\s /
13 With that understanding, and as I understand it, 14 you knew that as of prior to March 29, 1985; is that 15 cor rect ?
i 16 A
That's cor rect.
l 17 0
With that understanding do you still hold to the view 18 that Commonwealth Edison's management was slow to take i
19 corrective action?
20 MR. GUILD:
Asked and answered.
21 He j ust finished going through that same line.
Mr.
22 McGregor's answer was very clear that he credited the 23 NRC visit to Mr. Wallace with Mr. Wallace, in turn, l
24 addressing these problems; and still in light of all of I
25 that, knowing that bef ore March 29th, he stands by the l
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opinion of March 29th.
He said that.
2 MR. GALLO:
He said, "Yes."
3 JUDG E GROSSMAN :
He said it was asked and 4
answ er ed.
5 I am puzzled.
I thought you had indicated that at 6
the meeting with Mr. Wallace there were LKC people 7
pr ese nt.
8 THE WITNESS:
Cer tainly.
9 JUDG E G ROSSMAN :
Oh, okay.
10 THE WITNESS:
There was Mr. --
11 JUDG E GROSSMAN :
Saklak.
12 THE WITNESS:
Saklak was there.
1 13 MR. GALLO:
I' m sor ry.
I didn' t want to 14 inter rupt.
15 BY MR. G ALLO:
16 0
I think, as was stated f or the record, that the concerns 17 that we are talking about were convered privately to Mr.
18 Wallace af ter Mr. Saklak lef t.
Isn' t that your l
19 testimony ?
20 A
That's true.
21 JUDG E GROSSMAN :
Okay.
I' m sor ry.
Then I 22 stand corrected.
i 23 MR. G ALLO:
I believe that the witness had I
24 answered yes to my last question.
25 Did the Reporter get that?
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/
1 THE COURT REPORTER:
I didn' t hear an answer.
2 JUDG E G ROSSMAN :
I didn' t hear an answer.
3 Did you?
4 JUDGE COLE:
No.
i '
5 MR. GUILD:
Which was the last question, the 6
repeat of the question that had been previously asked, i
f 7
answered and obj ected to.
I 8
MR. GALLO:
It's one that had been obj ected 9
to.
10 MR. GUILD:
The obj ection is pending, Mr.
11 Chai rman.
It was asked and answered.
12 JUDG E G ROSSMAN :
I believe it had previously 13 been answered, and that was what my ruling was.
14 MR. GALLO:
You changed the premise in l
15 conj unction with the question, and, ther ef or e, I finally 16 got him back to the question of whether or not Mr.
I 17 Wallace was entitled to or did he agree or understand 18 that Mr. Wallace had taken and caused these additional i
19 Inspectors to be hired; and he agreed "Yes"; and I said, l
20-
"Given that f act do you still hold to the view as
(
21 indicated in the last two sentences written by Mr.
i 22 Schulz," and that's when the obj ection came.
j 23 MR. GUILD:
But he didn' t change the premise, i
j 24 Mr. Chairman, and that's it.
Mr. Gallo j ust 25 misunderstood.
i l
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11870
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JUDG E GROSSMAN :
That's okay.
We will allow 2
the answer to the question.
3 Do you still maintain that view?
4 THE WITNESS:
Yes, si r.
I would not change 5
ny opinion of that.
6 BY MR. G ALLO:
7 Q
Mr. McGregor, you were asked some questions by Mr. Guild 8
with respect to Mr. Weil's memorandum dated April 5th.
L 9
Do you have that docwment in f ront of you, si r?
10 It's Intervenors' 42 (a)?
11 JUDG E COLE:
(Indicating. )
-~3 12 A
Yes, sir; yes, sir. I have that in f ront of me.
13 BY MR. GALLO:
14 0
I understand f rom your testimony previously that you 15 testified that there were some differences or 16 omissions -- and I want you to correct me if I am 17 wrong -- between what was reported by Mr. Weil in his 18 memorandum concerning the allegations of the 24 19 Inspectors and what you yourself heard during that same 20 telephone conf erence.
21 Am I recalling your testimony correctly?
22 A
I believe in my testimony I stated that I didn' t believe 23 that the memorandum of Mr. Weil on April the 5th l
24 contained all the inf ormation that was spoken during the l
25 approximately 45 minutes that the 26 Inspectors were in l
Sonntag Reporting Service, Ltd.
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~
1 the room.
a 2
Q Well, do you know whether or not the conversation was 3
tape recorded in any way?
4 A
No, sir, I do not.
5 Q
Did you take notes of the meeting?
}
6 A
No, sir, I -- I have said pr eviously I did not take 7
notes in the meeting.
8 Q
Is it my understanding that you believe that the Weil 9
memorandum does not completely document all the concerns 10 voiced during that telephone conf erence?
11 MR. TRHBY:
I obj ect.
j 12 The witness has stated that that was not his f-13 testimony.
He has stated what his testimony was, which 14 was that this is -- this was a 45-minute discussion and, 15 obviously, it took 45 minutes and is not recorded here 16 on five pages.
i 17 MR. GALLO:
Well, let me --
18 JUDG E G ROSSMAN :
My recollection -- and I 19 believe these questions were asked and answered.
20 Now, let me state what my recollection is and find l
21 out if I am mistaken as to the record.
l 22-The witness indicated that he did not take notes 23 because he believed that that was up to Region III; and l
24 that when he saw the memo, it did not reflect all of the J
25 matters that were heard during the 45 minutes because it Sonntag Reporting Service, Ltd.
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1 was a very brief kind of document; but. as I understand, 2
he didn' t take notes.
He kept telling you specific 3
allegations that were not contained in the document.
4 He doesn' t have any present recollection of those 5
missing allegations.
6 Now, if I am incorrect about that -- Mr. Treby?
Well, I think that the f act, the 8
additional fact is, the additional allegations, if any, 9
it hasn' t been established that Mr. McGregor believes 10 that there are additional allegations.
11 He's never testified as to whether or not there are j
12 any additional allegations missing.
He's j ust testified 13 that there is not an accurate or verbatim description of 4
14 the discussion.
It doesn' t have all of the words that 15 were stated during that time.
1 16 MR. GALLO:
My recollection is that he 17 indicated that there were some omissions of concerns.
18 That's my recollection.
19 JUDG E G ROSSMAN :
But that he doesn' t recall 20 what they were.
21 Could you clarify that f or us?
22 THE WITNESS:
You are correct, sir.
]
23 I -- as of August the 26 th a year ago, I have 24 divorced myself of B raidwood, and I haven' t read 25 anything on it, nor have I went back and read any Sonntag Reporting Service, Ltd.
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depositions or anything connected with Braidwood; and I 2
am not going to put myself into a position to go back 3
and try to recall what was said on March the 29th of 4
1985, and I don' t recall all of the details of that 5
conv er sa tion.
6 JUDG E GROSSMAN :
But is it your opinion now, 7
though you don' t recall specifics, that there were 8
additional allegations?
9 THE WITNESS:
I -- I don' t know if there vere 10 additional allegations or not.
11 JUDG E GROSSMAN :
You j ust know that the 12 content of the telephone conversation was a lot greater U
13 thr.n is reflected -- I don' t mean to say telephone 14 conversation -- but the complaints voiced that were 15 heard over the telephone, that the content was much a
16 greater than the document reflects, but that y ou don' t 17 know what is omitted?
18 THE WITNESS:
That's cor rect, your Honor; 19 because on Page 2 -- on the bottom of Page 2, there are l
20 two statements by two individuals, and then a total of 21 Page 3, and then the -- basically, the two-thirds, the 22 upper two-thirds portion of Page 4, that is not the 23 entirety of the 45-minute discussion that was held with 24 the 26 Inspectors and that conversation was not a 25 question-and-answer period that goes on like what's Sonntag Reporting Service, Ltd.
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1 going on in this roam today.
2 It was a specific statement of individuals as they 3
went around the table, all of them, and we didn' t 4
specifically stop an individual and ask him other 5
questions and whatever.
We let all 26 of them -- let's 6
stay with 24 -- we had a couple more come in -- but 7
these Inspectors -- we let them f reely discuss with the 8
Commission their concerns.
j 9
I -- I don' t know if it's in here.
I haven' t read 10 it that w ell, but there was one question that I believe 11 was asked by the Commission, and that was:
"Do any or 12 all of you perceive that, within L.
K.
Comstock QC 13 Depa r tment, that quantity is the No.1 goal and you are 14 pressured to produce quantity and not quality?"
)
15 And there was a unanimous voice of opinion on that 16 with all the 26 that were there.
17 BY MR. GALLO:
18 0
Is that matter reflected in the Weil memorandum?
19 A
It might be.
20 As I j ust stated, I haven' t read the whole 21 memor andum, and I think it is in there; but that was 22 probably one or two of the questions that was asked, and i
23 so I am just saying that f or 45 minutes we had 26 24 Inspectors f reely voicing their opinion as to what the 25 problems were.
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1 JUDG E G ROSSMAN :
Mr. Gallo, I' m sorry that I 2
inter rupt ed.
I j ust wanted to sum up what I understood f
3 the state of the record to be so that we don' t have a 4
multitude of asked-and-answered obj ections; and so I 5
think it's clear now as to what the witness said; but if 6
it isn' t, you can certainly probe.
l 7
MR. GALLO:
I think that the exchange between 8
you and the witness has clarified the matters 9
suf ficiently.
10 I am about to start another line.
11 Should we continue or recess?
12 JUDG E GROSSMAN :
I guess we will adj ourn i
{
13 until Thursday at 9:00 o' clock at the same place.
14 MR. BERRY:
Mr. Chairman, bef ore we go off 15 the record, over the recess earlier the Board asked the 16 Staf f to contact Mr. Schulz to determine whether 17 Intervenor's Exhibit 104 was transnitted by him to 18 anyone else in NRC.
19 The Staf f, over the recess, has been in contact 20 with Mr. Schulz and has been inf ormed that Mr. Schulz --
4 i
21 Mr. Schulz doesn' t recall who wrote the memo, whether it 22 was he or Mr. McGregor.
23 He also indicated that he never -- he never 24 transmitted this document to anyone outside of -- to 25 anyone in NRC or outside NRC and it was his intention Sonntag Reporting Service, Ltd.
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11874 1
that this document was destined f or the -- you know, for 2-the trash can, and in the long and short, that the 3
document doesn' t exist at the region.
4 I would note in this connection, Mr. Chairman, 1
5 that the Staf f indicated earlier in connection, I t
6 believe, with Intervenors' Exhibit 90, that it appeared i
l 7
to be a document -- appeared to be a Staf f document l
8 produced -
generated by Mr. Schulz and appeared to be 9
an inter-agency -- intra-agency communication; but the 10 Staf f and counsel indicated they had never seen the 11 docenent, and that's why it hadn' t been produced.
t 12 And, also, I believe we indicated, with Exhibit 13 104, that there is nothing to the document that would I
14 indicate that it was an of ficial intra-agency 15 communica tion.
16 The Staf f has produced documents that 'are i
i 17 responsive in its files, but certain documents and some l
18 of the documents that have been produced and introduced l
19 by the Intervenor are j ust -- just do not exist in the i
l 20 Staf f's f iles.
l 21 They appear to be private communications or 22 private -- private memoranda generated by certain NRC l
23 Inspe ct ors, and, certainly, the Staf f cannot be expected L
24 to know of and p.:oduce documents that are not in its I
25 possession or has no way of knowing it even exists.
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1 MR. GUILD:
Mr. Chai rman, of course, Mr.
2 Berry's statements don' t ~ constitute evidence in this 3
pr eceding, and I suspect, if Mr. Schulz were on the 4
witness stand and examined, with the circunstances of 5
being questioned about whether or not he was the source 6
of a document that has come into Intervenors' 7
possession, might prompt him to disclaim any knowledge 8
of the document, whether he had such knowledge or not.
9 I don' t mean to impune counsel? s integrity 10 whatsoever in asking the question.
It obviously bears, 11 though, on the reliability of f acts.
Even if Mr. Ber ry 12 were sworn in and were testifying who asked the question
'N 13 and what the circumstances are, we think the record is 14 amply clear, at least to the extent of this witness' 15 knowledge, authenticating this document; and if Staf f 16 wants to establish what Mr. Berry purports is Mr.
17 Schulz' knowledge, they should call Mr. Schulz.
18 We asked f or Mr. Schulz as a witness earlier in the 19 proceeding, and they had declined to present him at that 20 time.
If they want to present him, it's their day.
21 JUDG E G ROSSMAN :
I am not sure I understand, 22 Mr. Berry, whether you are saying that we have admitted 23 documents already on the basis of assumptions they ar e i
24 Staf f documents when they were not because I don' t
[}
25 believe that's the case.
V Sonntag Reporting Service, Ltd.
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I believe we didn' t assume that they were Staff 2
documents, and that when we admitted Intervenors' 3
Exhibit 90, it was on the basis of -- I' m sorry.
4 Did we admit 907 5
MR. GALLO:
90 is admitted f or a limited 6
purpose simply to reflect the witness' understanding 7
with respect to it.
8 JUDG E GROSSMAN :
Okay.
And the witness 9
having seen the document at that time, but we did not 10 accept it as an authentic NRC document, and I believe 11 that's the case.
12 MR. GUILD:
Could I see Intervenors' 907 n
13 I j ust don' t happen to have my copy.
14 MR. BERRY:
My point in raising that --
15 MR. GUILD:
Bef ore we leave this point and 16 while there is a dispute about the state of the record i
17 on Intervenors' 90, may I examine a copy of 90 bef ore
{
18 Mr. Berry goes f urther, because I don' t have the same f
19 recollection?
7 20 JUDG E COL E:
Intervenors' 90.
21 MR. GUILD:
Thank you, Dr. Cole.
l 22 Mr. Chairman, the f act is that Mr. McG regor 1
l 23 acknowledges having seen this document, he authenticated 24 it.
25 JUDG E GROSSMAN :
Yes.
We accepted Mr.
i i
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McGregor's authentication of the document and had it 2
admitted as to that authentication.
3 We did not assume that the document was an official 4
NRC document or was communicated.
5 MR. BERRY:
I was not suggesting that.
6 MR. GALLO:
Nor did that result -- nor did 7
that represent the view of Mr. Schulz.
8 MR. BERRY:
The point that we are dealing 9
with in this connection is that the Staf f did not 10 provide this document in discovery.
The Staf f indicated i
11 it did not produce this document in discovery because it 12 had no knowledge of the existence of this document.
O 13 JUDG E GROSSMAN :
And I j ust want to make sure 14 that there wasn' t any implied motion to reconsider an 15 admission of a document because we had made some 16 erroneous assumptions, but that's not the case; and I 17 just want to clarify that we only admitted the docunent 18 to the extent we had the foundation for the document, 19 and there is no complaint, nor do I understand Mr. Berer 20 to be making a categorical statement now that, be cause 21 this document was not an NRC document, that every NRC 22 document that was required to be produced was timely 23 produced in response of discovery, but I don' t want to 24 get into that.
I don' t understand.
That's the
}
25 statement you are making, to be categorical to that Sonntag Reporting Service, Ltd.
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extent.
2 Is it so, Mr. Ber ry ?
3 MR. BERRY:
Not categorical.
I think our 4
position has been of t stated and well stated in the 5
record, and I will j ust leave it at that, Mr. Chairman.
6 JUDG E GROSSMAN :
Okay.
I accept the position 7
7 that Staff Counsel has made available to the Board and i
8 the parties whatever it had at the time that was 9
required under discovery, and that to a certain extent, j
10 at least Staff trial counsel had no knowledge of certain I
11 documents that should have been produced by NRC itself i
12 earlier; but let's not have an extended discussion on
-s
\\s /
13 that.
The record is clear for itself aa to what 14 documents we had discussed in the past.
15 MR. BERRY:
This is j ust this final point.
l 16 In that connection, and in particular in connection I
1 i
17 with Intervenors' Exhibit 104 and Intervenors' Exhibit 18 90, that I would even obj ect to any suggestion that the 19 Staf f -- the Staf f itself -- was der elict in producing I
20 these documents.
21 Our research and our ef forts have indicated that 22 there was no one within the NRC Staf f, outside of 23 apparently the authors of the reports who had knowledge l
24 of these reports, r.nd even the authors of the reports do 25 not indicate -- Mr. Schulz did not indicate that -- to Sonntag Reporting Service, Ltd.
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v 1
Staff Counsel that these documents exist or whether he 2
was in possession of them; so I would j ust note that.
3 JUDG E GROSSMAN :
Okay.
We are including both 4
90 and 104.
We make no presumption that the documents 5
were transmitted and became part of the NRC file or 6
files in this proceeding, and we have only admitted the 7
documents with the limited f oundation that we have.
i 8
Mr. Gallo.
9 MR. G ALLO:
Yes.
)
10 I j ust want to correct my statement on the record.
11 In the comment I made previously applying to 104, I 12 think I said 90.
That was a mistake, and the record 7.
s/
13 should be corrected to make correct my remarks in 14 connection with 104, not 90.
15 JUDG E GROSSMAN :
Okay.
16 And as long as we are correcting things said 17 ea rlier, I paused in the middle of a sentence discussing 18 whistle blowing, and the point I was going to make at 19 that point is that if a witness is proffered with one of 20 the purposes being to indicate that he disagreed with 21 certain steps taken by the NRC, the f act that he or she 22 might be a whistle blower does not detract f rom that 23 pr emise.
It only adds to it.
It says nothing about 24 motivation at all.
25 So that's the point I was trying to make about not Sonntag Reporting Service, Ltd.
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1 assisting Applicant's case to make that point, and that l
2 it didn' t seem like there was any purpose; but I j ust
+
3 want to clarify my statement to that ef fect.
4 MR. GALLO:
Your Honor, could I ask Mr.
5 McG regor two --
I would also like to make a l
7 statement, that Mr. McGregor has been subpoenaed here.
8 I don' t want the impression or the inf erence to be on 9
the record that Mr. Mw regor is here because he has some 10 concerns to raise about the Staff.
11 Mr. MW regor has been subpoenaed.
12 JUDG E GROSSMAN :
No; and I don' t believe Mr.
13 McG regor volunteered any opinions on or any evaluations, 14 whatever he answered.
15 My understanding, he was compelled to answer, and 16 was basically asked f actual questions, i
17 I j ust want to make that clear f rom the Board's 18 point of view.
19 MR. GALLO:
Could I ask the witness two quick l
l 20 questions?
l l
21 JUDG E G ROSSMAN :
Cer tainly.
1 22 MR. GALLO:
I neglected to bef ore I closed.
23 Let's make it as quick as we can, Mr. McG regor.
l l
24 BY MR. GALLO:
h 25 Q
The Board has already ruled -- and I respect the l C l
1 l
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V i
1 ruling -- that you are not to be compelled to review the 2
Neisler and Mendez report and offer an opinion with 3
respect to whether or not you disagree with any part of 4
it?
5 A
U h-huh.
i 6
Q Will you take that report over the recess and review and 7
tell us when you come back next week whether or not you 8
disagree with any porticas of the report?
9 MR. GUILD:
Obj ection.
Obj ection.
11 MR. GUILD:
Obj ection, Mr. Chairman.
12 JUDG E G ROSSMAN :
I thought that's what we L
13 cov er ed.
14 JUDG E COLE:
He's asking if he will do it.
i 15 JUDGE GROSSMAN:
Would you wish to do that.
i 16 Okay.
17 I' m sor ry.
18 MR. GUILD:
Well, Mr. Chairman --
19 JUDG E G ROSSMAN :
You said, "Would you do it?"
20 MR. GALLO:
Yes.
i 21 JUDG E GROSSMAN :
It's a little ambiguous, Mr.
22 Gallo, as to whether you are asking him to do it.
23 MR. GALLO:
It's a requect.
24 MR. GUILD:
Mr. Chairman, I have an 25 obj ection.
1 Sonntag Reporting Service, Ltd.
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1 Can I be heard?
2 JUDG E G ROSSMAN :
The point that Mr. Guild is 3
going to make is that if you wish to -- if Mr. McGregor 4
wishes to do that and you wish to get his opinion, that 5
you ought to subpoena him and bring him back f or your 6
case; and that point is well taken.
7 It's outside the scope; but we certainly have no 8
obj ection to your doing that, if it fits in with your 9
rebuttal case.
It's j ust a matter of measure, but 10 that's how we have determined we are going to do it.
11 BY MR. G ALLO:
12 O
As limited by the j udge, would you undertake to do that?
O 13 This is a request now.
14 MR. TREBY:
I obj ect.
15 I don' t think that the witness should be put in the 16 position of having to accede or disagree to that 17 req ue st, and Mr. --
18 JUDG E GROSSMAN :
Well --
Mr. McGregor has indicated that 20 this was not a subject that he was assigned to look 21 into, and he hasn' t made any study of the matter, and he 22 shouldn' t be put into the position of having to say, 23
" Yeah, I am going to review it" or "I am not going to i
24 review it. "
25 JUDG E G ROSSMAN :
Well, perhaps it shouldn' t Sonntag Reporting Service, Ltd.
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1 have been made a matter of record, and we don' t want to 2
have the witness' response as a matter of record, but 3
Mr. Gallo is entitled, certainly, to ask anyone if he 4
wants to review anything and come forward as his witness 5
and offer testimony, if the witness wishes to do it.
6 We are not going to prohibit him f rom doing it.
7 That's his choice.
8 MR. GUILD:
Can he ask him off the record?
9 JUDG E GROSSMAN :
Yes.
10 I said we are not going to have his response on the 11 reco rd.
12 MR. GALLO:
I understand the Board's ruling.
s 13 BY MR. G ALLO:
14 Q
One last point, Mr. McG regor.
15 In Intervenors' 90, Mr. Schulz, apparently, at the 16 end of the the page, indicated some dissatisf action with 17 the interrogatories that were filed in this case.
18 Let me tell you where I am going.
19 I want to knov whether or not you share that l_
20 dissatisf action, and if you do, would you undertake, i
21 during the recess, to review the interrogatories that 22 were filed by the Staff to identify any interrogatories i
23 that you believe were not complete nor were intended to 24 purposely restrict the flow of inf ormation, to use Mr.
25 Schulz' words ?
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1 MR. TRIBY:
I obj ect.
2 MR. GALLO:
Did you understand what I am 3
asking?
4 THE WITNESS:
Yes, sir, I understood.
5 JUDG E GROSSMAN :
Again, let me say you are 6
not required to do that.
7 We are not putting any tasks to you.
8 If you could -- if you wish to do that. you can 9
tell that to Mr. Gallo; but apparently the witness 10 doesn' t have any present knowledge.
11 MR. GALLO:
In explaining it to him, this is 12 really an answer to a preamble question that's O
13 appropriate, whether or not the witness agrees with Mr.
14 Schulz' point of view.
If he does not, there is no need 15 to look at it.
16 MR. GUILD:
Mr. Chairman -.
j 17 MR. GALLO:
And if he does, that's diff erent.
18 MR. GUILD:
Mr. Chairman, I don' t mean to l
19 off er my concensus on that point, but I do believe that 20 question was asked and the answer would be a matter of i
21 record, and I don' t want to presume what the answer was 22 one way or the other.
l 23 But I did examine the witness on that subject, and j
24 I will stand corrected, certainly, if other counsel have 25 a diff erence recollection, but it is important to me l
l l
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that we not ask the same question a second time and run 2
the risk that we have a different answer.
3 So I would submit that the record does reflect one 4
way or the other, if I am correct, that the answer is --
5 JUDG E GROSSMAN :
With regard to his present t
6 knowledge ?
1 7
MR. GUILD:
Exactly; and whether he has an 1
8 opinion, whether he agrees -- that was the threshhold 9
question -- whether he agrees, and I believe that 10 question was asked and answered.
11 JUDG E G ROSSMAN :
Right.
f-~
12 And the additional thing Mr. Gallo is asking is s/
13 whether the witness will voluntarily take it on himself 14 to read those interrogatories now and offer a further 15 opinion, and we are leaving it up to the witness to tell 4
16 Mr. Gallo off the record whether he wants to take on 17 that task.
18 MR. GALLO:
I think that one ought to be on 19 the record, your Honor.
20 JUDG E COLE:
I don' t think so.
1 21 MR. G ALLO :
I understand the first --
22 JUDG E GROSGMAN:
To tell that the witness 23 wishes to of f er his expert opinion on?
24 HR. G ALLO:
No, no, I don' t want an expert 3
i 25 opi nion.
I just want a identification of where he
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l l
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1 believes that the interrogatories that have been filed 4
2 by the Staff are either incomplete or tend to purposely 4
3 restrict the flow of inf ormation, to use the words of 4
Mr. Schulz.
5 Now, I j ust want him to identify them.
I don' t 6
want any expert opinion.
I j ust say this is really a
]
7 fact matter.
8 MR. GUILD:
Well -.
9 MR. TRIB Y:
I obj ect.
10 You are asking this witness to second guess and to j
11 review the Staf f work.
You are asking him to, first of l
l 12 all, do a tranendous task, because there were a number 13 of sets of interrogatories he would have to review.
j 14 We have no idea which answer Mr. Schulz is talking l
l 15 about.
It j ust seems to be an inappropriate burden to l
16 put on this witness.
t 17 MR. GALLO:
Okay.
It's within the witness' i
i 18 realm to say yes or no.
If he thinks it's an j
19 inappropriate burden, we will take that into account l
20 whether he answers.
i i
21 MR. GUILD:
My point --
i 22 JUDG E GROSSMAN :
I don' t think that ought to
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23 be a matter of record as to whether the witness wishes 24 to take on himself to do that; and the question is j
25 whether we can or should compel him to do that, and I I
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1 really don' t think that we have the authority to or 2
should have the authority to compel him or wish to 3
assert the authority if we have it, to compel him to do 4
that.
5 MR. GALLO:
Your Honor, I didn' t realiz e when 6
we got into this that it was going to be this lengthy.
7 What I would suggest is that we just hold the 8
matter in abeyance and take it up again when we resume.
9 JUDG E GROSSMAN :
That's okay.
That's fine.
10 We are now adj ourned until Thursday at 9 :00 11 o' cl ock.
12 (WHER FU PON, at the hour of 11:20 A.
M.,
O 13 the hearing of the above-entitled matter 14 was continued to the 4 th day of 15 September,1986, at the hour of 9:00 16 P. M. )
17 18 19 20 21 22 23 24 25 Sonntag Reporting Service, Ltd.
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